Archive for the ‘Courts’ Category

220px-Felthat300px-Muddy_Water_Red_desertBelow is my column today on the Perry indictment. I have previously raised my serious reservations about the factual and legal basis for a criminal charge. We obviously do not know what evidence will be presented, particularly evidence of back channel communications that might have occurred over the threatened veto. Such conversations can have a highly damaging effect on jurors as shown by the trial of Illinois Democratic Gov. Rod Blagojevich. They can also damage someone politically by exposing uninhibited moments or comments. I have heard from reporters in Texas that there might have been communications between Perry and Lehmberg about her resigning but I have yet to see clear accounts of such communications. However, at the moment, I cannot see the basis for these charges. Perry publicly stated his intent to use his lawful power to veto the line item for the office budget if Lehmberg did not resign. I do not see how the use of such a lawful power in this case would rise to the level of a criminal act.

At the moment, I see a compelling case for dismissal as a threshold legal question for the court. However, the degree to which the court views this matter as turning on the factual allegations as opposed to the legal questions, it could be held over for trial. That is the problem with such ambiguously written provisions is that the court may feel more constrained in dismissing the counts. The result for Perry can be damaging even if he is acquitted as was former U.S. Senator Kay Bailey Hutchison two decades ago. Hutchinson was charged with using state employees to plan her Christmas vacation in Colorado and write thank-you notes. The case was so weak that it took only 30 minutes for the jury to find her not guilty on all charges. The political danger is the exposure of private communications. Few of us are as crude as Blagojevich or his wife even in private but none of us is likely to look good if our unguarded comments were played out for a national audience. Once again, only time will tell what type of evidence was heard by the grand jury. Yet, my view is that this indictment is very problematic from a constitutional standpoint and offers little to support such a major prosecution.

Here is the column:

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By Charlton S. Stanley, Weekend writer

We should have seen this coming. I believe it is going to get worse before it gets better, if ever. At some point there is going to be a “pitchforks and torches” backlash.

Ferguson MO logoIt may be starting in Ferguson, MO. Take a look at one of the latest stories to come out of there. It’s sad that we have to look overseas to get reliable and up to date news about what is happening in the good ol’ US of A. Because of the great sucking sound that is the US corporate mainstream media, people who want to get a more balanced read on the news check sites such as Al Jazerra, The Guardian, RT, The Epoch Times, and Der Spiegel.

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Submitted by Darren Smith, Weekend Contributor

rembrandt-ten-commandmentsU.S. District Court Judge James Parker of the New Mexico District ruled a monument displaying the Ten Commandments must be removed from the Bloomfield, New Mexico City Hall.

A lawsuit was filed in the district on behalf of two members of the Wicca Religion by the American Civil Liberties Union against the city. Judge Parker’s ruling stated the city had violated the Establishment Clause of the First Amendment to United States Constitution.

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Submitted by Darren Smith, Weekend Contributor

the-thin-line-of-medical-marijuanaKing5 news reports that the operator of a medical marijuana dispensary in Bellingham, Martin Nickerson, sued because he was being simultaneously prosecuted for marijuana distribution and targeted by the state Revenue Department for not collecting taxes on marijuana sales. He argued he couldn’t pay the tax without incriminating himself.

In what should likely be a continuation of process rather than an abrupt end U.S. District Judge Marsha Pechman dismissed the case last week for lack of jurisdiction.

The attorneys representing Washington State argued that the case should be tried in state court, that it was not within the jurisdiction of the federal government.

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Respectfully submitted by Lawrence E. Rafferty (rafflaw)-Weekend Contributor

It seems that a week doesn’t go by without news of the latest Big Bank agreeing to pay billions in a settlement with the government over their past and continuing abuses concerning mortgages.  This past week was no exception.

“Preliminary reports say that a $16 to $17 billion settlement will soon be announced between the Justice Department and Bank of America. That would break the record for the largest bank settlement in history, set less than a year ago by a $13 billion agreement between Justice and JPMorgan Chase.” Crooks and Liars

Sixteen billion dollars is not chickenfeed!  However, as we have learned in the many past settlements, the dollar amounts can be a little deceiving.  (more…)

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628x471Ohio Common Pleas Court Judge Lance Mason, 46, has been arrested after he allegedly punched, choked and bit his wife. Mason is now charged with felonious assault. His wife of eight years was hospitalized with facial injuries including a fractured orbital bone after the incident.

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225px-ruth_bader_ginsburg_scotus_photo_portraitSupreme Court Justice Ruth Bader Ginsburg is again making news in public comments made about the Court and its cases. In two different public events, Ginsburg suggested that the Supreme Court majority has a bias due to the gender of the majority of the Court and engaged people in the political debate over whether she should retire and who should replace her. Putting aside the merits of these debates, I remain deeply disturbed by the active public speaking tours of justices who appear to relish the attention and feed public controversies, including many with political aspects.

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220px-Richard_NixonPresident_Barack_ObamaThis month, Washington seems caught in some strange time loop. The President allegedly fighting off an attempt to remove him while Members of Congress are denouncing his “Imperial Presidency” and contempt for constitutional law. It must be enough to give Bob Woodword and Carl Bernstein vertigo.
As one of the legal experts who testified during the Clinton Impeachment and lead defense counsel in the last judicial impeachment trial in the Senate, I have been struck by the replication of a number of misconceptions surrounding impeachment. That led to Sunday’s column on certain myths regarding impeachment. According to a CNN/ORC poll last week, some 33 percent of Americans think the president should be impeached. Over a majority now disapprove of his conduct in office according to other polls. However, that is not enough for impeachment. As many of you know, I am highly troubled about the actions taken by President Obama in violation of the Separation of Powers. I testified (here and here and here) and wrote a column on President Obama’s increasing circumvention of Congress in negating or suspending U.S. laws. I ran another column recently listing such incidents of executive over-reach. Some like the violations of the power of the purse in the shifting of hundreds of millions of dollars raise extremely serious challenges to our system. However, I do not believe that these violations have yet reached the point of impeachable offenses. Ideally, a federal court will review some of these violations and show that the system can work in the maintenance of the lines of separation though the Administration is clearly going to fight hard to block any review of the merits by any federal court. That is where such matters should, in my view, be heard and resolved. In the meantime, the President’s threat to continue to act unilaterally is playing a dangerous game of chicken in our system and, if he goes too far in an act defying clear congressional or judicial authority, he could cross over from interpretive disagreements into impeachable offenses. Yet, the current array of conflicts have divided lower judges on the merits. Such interpretive disagreements are not the thing that impeachments are made off. Having said that, one should not take the lack of impeachable offenses to take away from what some of us view as very serious violations by this President — a usurpation of authority that all citizens should denounce in the interests of our constitutional system. (more…)

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Submitted By Darren Smith, Weekend Contributor

Coat_of_arms_of_ugandaThe nation’s top constitutional court invalidated the Uganda’s highly controversial anti-homosexuality law, citing improper parliamentary procedures. The opinion cites that the Speaker of the House acted illegally when she allowed the original bill to be voted for passage by MPs despite the lack of a quorum in the chamber. Afterward, President Museveni signed the legislation into law.

Activists held the decision as a significant victory in for civil rights in Uganda, but will this be only a temporary legal reprieve?

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President_Barack_Obamatorture -abu ghraibFollowing the admission that the CIA hacked Senate computers and lied to Congress, President Obama today affirmed that it did indeed torture people. This admission (while belated) is an important recognition by the United States of what is obvious from a legal standpoint. However, that also means that CIA officials violated both federal and international law. The question is why Obama began his first term by promising CIA employees that they would not be tried for what he now describes as “tortur[ing] some folks.”

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250px-Lewis_F_Powell,_Jr_U_S_Courthouse,_Richmond,_VA_Sep_03250px-Meade_and_Prettyman_CourthouseBelow is my column this morning in USA Today on the rivaling health care rulings in Washington, D.C. and Virginia. I have been struck on this and other blogs with how quickly people criticize the opinions by attacking the motives and backgrounds of the respective judges. It is a signature of our times that we no longer debate the issue and try instead to discredit those with whom we disagree. We have learned to hate like the Queen Mother counseled in Shakespeare’s Richard III: to “Think that thy babes were sweeter than they were; And he that slew them fouler than he is.” The fact is that the ACA was a deeply flawed piece of legislation that was passed with insufficient review and editing. It was pushed through on a muscle vote when it was in subpar condition. There have been hundreds of serious drafting errors found in the law. Courts have been struggling with those errors as has the White House. Yet, such good faith questions have no place in today’s politics where every issue must be personified and treated as some low-grade political stunt despite long opinions detailing rationales in the two courts. To dismiss these decisions as the result of judicial hacks ignores those extensive problems in the law. This piece looks at that response and how we have lost the ability to engage in civil or substantive discussion on such issues. From a legisprudence standpoint, the two opinions are classic difference in how courts approach statutory interpretation. I would not call either opinion as strictly “textualist” or “intentionalist” but they certainly reflect these different views of the role of the courts and agencies in the interpretation of legislative text. While I agree with the merits of the change ordered by the Administration, I am highly uncomfortable with treating language in a statute as a “typo” or some oversight. Indeed, as we recently discussed, even key players who are now calling the D.C. Circuit interpretation “nutty” previously appeared to subscribe to that interpretation. For that reason, I favor the D.C. Circuit opinion out of concern over limiting the role of the courts and reinforcing the separation of powers. Here is the column.

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US-CourtOfAppeals-11thCircuit-SealThe United States Court of Appeals for the Eleventh Circuit has handed down a ruling that vacated an injunction of the Florida law barring physicians from discussing guns in their homes when it is not related to medical care. The lower court found the law violative of the first amendment, but the Eleventh Circuit found that it does not violate free speech. I have always found this law highly troubling on both free speech grounds as well as policy grounds. Just as I have long objected to legislatures interfering with teachers, I have the same reservations about their micromanaging doctors. The law is commonly referred to as “Docs for Glocks.”

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Submitted by Darren Smith, Weekend Contributor

Leland Yee

Leland Yee

We previously discussed the case of California State Senator Leland Yee accused of several corruption and weapons charges, including an accusation of conspiracy to import weaponry from terrorists in the Far East. The case stems from Leland’s alleged association with a San Francisco based criminal organization. Previous articles may be read regarding the original accusations HERE, and his suspension from the California Senate HERE.

A new indictment was unsealed against Leland alleging Racketeering and Conspiracy To Obtain Property Under The Color Of Official Right.

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Screen Shot 2014-07-25 at 9.17.22 AMYesterday, we discussed a controversy involving Jonathan Gruber, a Massachusetts Institute of Technology economist who played a major role the ACA, or “Obamacare.” He told MSNBC recently that “It is unambiguous this is a typo. Literally every single person involved in the crafting of this law has said that it`s a typo, that they had no intention of excluding the federal states.” However, a libertarian group uncovered a video showing Gruber saying quite clearly after the passage of the law that this provision was a quid pro quo device: state exchanges for tax credits. Conservative sites have lit up over the video below showing Gruber essentially describing the very tradeoff identified in Halbig. He told MSNBC recently that “It is unambiguous this is a typo. Literally every single person involved in the crafting of this law has said that it`s a typo, that they had no intention of excluding the federal states.” However, a libertarian group just uncovered a video showing Gruber saying quite clearly after the passage of the law that this provision was a quid pro quo device: state exchanges for tax credits. Conservative sites have lit up over the video below showing Gruber essentially describing the very tradeoff identified in Halbig. Indeed, Gruber later signed on amicus briefs supporting the White House interpretation and even joined the counter spin from the White House and denouncing that very interpretation as “nutty.” Gruber responded to critics showing the video below by that “I was speaking off-the-cuff. It was just a mistake.” However, now another response has been raised in which Gruber gave the same interpretation during this presentation. In my view, the point is again to ask why both sides have to denounce each other as nuts or extremists when there are good-faith arguments can be made on both sides.

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250px-US-CourtOfAppeals-6thCircuit-SealBy any measure, former Wayne County Circuit Judge Wade McCree was a disgrace to the bench. The worse of his violations was his affair with the wife of a man in a child-support case before his court. However, while calling McCree’s conduct “often reprehensible,” a three-judge panel ruled that his affair with a litigant before him was still covered by judicial immunity when the former husband Robert King sued for damages in a civil rights case. The United States for the Sixth Circuit barred such recovery as a matter of judicial immunity in what will likely be a highly controversial decision.

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