The good people at Hezbollah are offering the world another insight into extremist thought. The militant group has banned “The Diary of Anne Frank” from schools as Zionist propaganda by focusing on the plight of some Jews. I suppose when you are teaching kids to blow up innocent people, an account of an innocent victim can appear propagandistic.

What is striking is that the censorship occurred not over the book but simple excerpts from the book shown to school children in a private English-language school in western Beirut. That led to a shrill attack from Hezbollah’s Al-Manar television channel, which asked how long Lebanon would “remain an open arena for the Zionist invasion of education.”

Hezbollah MP Hussein Hajj Hassan criticized the school for exposing the children to a story about a suffering Jewish girl: “These respected, established schools are teaching the so-called tragedy this girl lived, and yet they are ashamed to teach the tragedy of the Lebanese people, the tragedy of the Palestinian people… the tragedy of the people of the south under the hands of Zionist occupation.”

Notably, the Lebanese routinely prevent citizens from reading unapproved material through its censorship bureau, which actually blanked out the chapter in this textbook. However, a student purchased a book privately that had the chapter, which was shown to other students.

There is even a committee for “the ban of Zionist products” that called for the removal of the book. Attorney Naim Kalaani of the committee says that showing the book is a crime. What a wonderful role for a lawyer — criminalizing free speech and possession of a classic book.

For the full story, click here.

Blockbuster and Facebook are the defendants in two interesting privacy lawsuits in Texas where Cathryn Harris is suing them for revealing her name and movie rental tastes. Even more shocking is that anyone is still renting “The Jewel of Nile” with Michael Douglas in 2009.

Harris 25, discovered that every time she rented a movie, Facebook added a note showing the movies that she rented in an agreement with Blockbuster. She insists that “I wasn’t renting any movies that I’m ashamed of, but what if I had been? It’s nobody’s business.” Actually, she should be ashamed. It was a terrible movie and I want everyone to know that Cathryn Harris rents insipid romantic adventure films. There I said it.

Many, however, may be a bit surprised by the agreement between Blockbuster and Facebook, which is part of Facebook’s controversial Beacon system — allowing cross tracking on different sites. It is part of the whole Facebook obsession with keeping everyone up-to-date on everything that you do in a given day.

In 2007, Facebook CEO Mark Zuckerberg apologized for the Beacon system — removing the automatic posting of the information. However, Harris alleges in the two lawsuits (one against Blockbuster and one against Facebook) that Blockbuster still shared the information with Facebook in violation of the Video Privacy Protection Act below.

Facebook is reportedly settling a similar California lawsuit, which may result in pulling plug on the program, here.

The federal law was passed when Supreme Court nominee Robert Bork’s video tastes were disclosed during his contentious nomination fight. His selection were a bit more impressive than Harris’: A Day at the Races, Ruthless People and The Man Who Knew Too Much. Ruthless People can be forgiven as preparation for his time before Congress.

The Video Privacy Protection Act states in part:

(b) Video Tape Rental and Sale Records.—
(1) A video tape service provider who knowingly discloses, to any person, personally identifiable information concerning any consumer of such provider shall be liable to the aggrieved person for the relief provided in subsection (d).
(2) A video tape service provider may disclose personally identifiable information concerning any consumer—
(A) to the consumer;
(B) to any person with the informed, written consent of the consumer given at the time the disclosure is sought;
(C) to a law enforcement agency pursuant to a warrant issued under the Federal Rules of Criminal Procedure, an equivalent State warrant, a grand jury subpoena, or a court order;
(D) to any person if the disclosure is solely of the names and addresses of consumers and if—
(i) the video tape service provider has provided the consumer with the opportunity, in a clear and conspicuous manner, to prohibit such disclosure; and
(ii) the disclosure does not identify the title, description, or subject matter of any video tapes or other audio visual material; however, the subject matter of such materials may be disclosed if the disclosure is for the exclusive use of marketing goods and services directly to the consumer;
(E) to any person if the disclosure is incident to the ordinary course of business of the video tape service provider; or
(F) pursuant to a court order, in a civil proceeding upon a showing of compelling need for the information that cannot be accommodated by any other means, if—
(i) the consumer is given reasonable notice, by the person seeking the disclosure, of the court proceeding relevant to the issuance of the court order; and
(ii) the consumer is afforded the opportunity to appear and contest the claim of the person seeking the disclosure.
If an order is granted pursuant to subparagraph (C) or (F), the court shall impose appropriate safeguards against unauthorized disclosure.
(3) Court orders authorizing disclosure under subparagraph (C) shall issue only with prior notice to the consumer and only if the law enforcement agency shows that there is probable cause to believe that the records or other information sought are relevant to a legitimate law enforcement inquiry. In the case of a State government authority, such a court order shall not issue if prohibited by the law of such State. A court issuing an order pursuant to this section, on a motion made promptly by the video tape service provider, may quash or modify such order if the information or records requested are unreasonably voluminous in nature or if compliance with such order otherwise would cause an unreasonable burden on such provider.

The act notably allows for punitive damages:

(c) Civil Action.—
(1) Any person aggrieved by any act of a person in violation of this section may bring a civil action in a United States district court.
(2) The court may award—
(A) actual damages but not less than liquidated damages in an amount of $2,500;
(B) punitive damages;
(C) reasonable attorneys’ fees and other litigation costs reasonably incurred; and
(D) such other preliminary and equitable relief as the court determines to be appropriate.

For a copy of the complaint, click here.

For the story, click here.

Kenneth Herron may have picked the wrong cage but apparently the right counsel. Herron was acquitted of “disturbing dangerous animals” on a novel defense by deputy public defender James Conger. Conger argued that the bears were actually not that disturbed when Herron came into their cage after the San Francisco Zoo closed.

Herron, 21, was facing a misdemeanor charge for entering the zoo on September 26th. He went into the cage with two 500-pound grizzlies. One bear sniffed Herron’s shoe but then fled when a zoo official fired a warning shot. Conger argued that one bear sniffing a shoe does not a disturbed grizzly make.

This is a disturbed grizzly defending against a real cougar (as opposed to a conger).

Notably, this is not the first controversy involving humans versus animals at the zoo, here.

The jury agreed with Conger and found no disturbance. Moreover,
Superior Court Judge Wallace Douglass ruled the day before that a trespassing charge against Herron could not proceed because the prosecution couldn’t prove that he intended to “occupy” the cage — particularly given his mental problems.

In the end, Conger proved that a 150 pound lawyer is more dangerous than two 500-pound grizzly bears.

For future cases, here is a zoological expert on the bear necessities of life:

For the full story, click here.

The gay-rights movement has suffered a harsh defeat at the hands of voters in Maine. The voters repealed a law that allowed for same-sex marriage — reducing the states allowing same-sex marriage or civil unions. Maine is now the 31st state to reject same-sex marriage. [The two men on the state seal are now strictly prohibited from marrying each other in the State of Maine].

With most polls reporting, 53 percent of voters had approved the repeal. At the same time, a liberal measure passed with voters expanding the state’s 10-year-old medical marijuana law — keeping Maine as the third state with New Mexico and Rhode Island allowing marijuana dispensaries. Thirteen states have legalized medical marijuana.

Notably, the other states — Massachusetts, Connecticut, Iowa, New Hampshire and Vermont — have legalized same-sex marriage through court rulings and legislative action. No state has passed a same-sex measure by popular vote.

The only hopeful news is that the vote was relatively close. One has to wonder how President Obama might have made a difference if he supported the law. Obama declined to even state support for the law or a similar campaign in Washington state and Kalamazoo. Obama appears to have forgotten his campaign promises to the gay community to fight for their rights. Even after a year in office, the Administration has yet to even end the “don’t ask, don’t tell” policy — something that Obama can do unilaterally. With such a close vote in Maine, the President’s support might have made the difference.

Personally, while I support recognizing marriage for gay couples as an alternative, I remain convinced that the best approach is for all couples to register civil unions with the states and leave the term “marriage” to individual religions to define, here.

For the full story, click here

This is one of the most incredible videos that I have seen. In the video above, Officer Adam Stoddard with the Maricopa County Sheriff’s Office is clearly shown reading confidential papers of defense attorney Joanne Cuccia while she is addressing the court on behalf of jail inmate Antonio Lozano (accused of fighting with another inmate). He then pulls a sheet from the file on the defense table and gives it to another deputy to be copied.

What is equally amazing is the relatively weak response from Judge Lisa Flores, who could presumably see Stoddard’s actions from the bench. It is possible that she was blocked in her view by counsel. In the video, Lozano appears to be the only person who clearly notices the removal.

When told, however, Flores reacts a bit defensively to objections from Cuccia and tells her repeatedly to calm down, even though Cuccia seems determined but professional in her statements to the court. Flores also immediately offers a justification that Stoddard is there to protect the court — apparently by copying confidential material. Eventually, she suspends the sentencing hearing.

A hearing was later held before Judge Gary Donahoe and the Maricopa County Sheriff’s office defended Stoddard, insisting that he must screen all defense documents that are passed to an inmate. He insisted that, when he walked near the defense attorney’s table, he recognized some documents that weren’t previously screened.

It is true that some courts allow deputies to thumb through papers to be certain that they do not contain contraband or weapons, but this is a cursory inspection. It is a somewhat controversial practice but it is so limited that most attorneys are not concerned because the officers do not read the papers. Most courts do not have this practice. While your papers can be inspected at jails in face-to-face meetings, courtrooms are generally not subject to such inspections. After all, most courts have metal detectors at the entrances. Weapon transfers, therefore, are not a serious threat in counsel-to-client interactions in court. That leaves contraband, which is not a justification (in my view) for such intrusion. We have seen lawyers arrested on such charges (here and here), but it is incredibly rare. It is more common to see deputies arrested for contraband rackets than attorneys.

I have never heard of an officer copying a document at a prison or a court in such an inspection. This document was found by Donahoe to be subject to attorney-client privilege. Stoddard is clearly reading the document and proceeds to take it without notifying Cuccia and making a copy. It is a simply amazing violation of constitutional and confidentiality rules. I am surprised not to have seen a strong statement and intervention from the Arizona state bar in the case, but I hope that will be coming this week.

For the full story, click here.

Former Vice President Dick Cheney found himself in the same position of not only his aide Scooter Libby but countless criminal defendants. He simply could not remember a thing about his involvement in the leaks involving Valerie Plame. Indeed, he had little recollection of his own actions on 72 occasions — even after shown material with his own writing.

The recently released documents only reinforce the view of some of us that federal prosecutor Patrick Fitzgerald was far from the “junk yard dog” that he was portrayed to be in the media. I have been quite critical of the Fitzgerald investigation which seemed to me conspicuously restrained vis-a-vis high-ranking officials like Karl Rove and Cheney. I never understood why Fitzgerald treated Cheney as such a protected figure and gave people like Rove endless opportunities to get his sworn statements right before the grand jury. Fitzgerald said at the time that “there is a cloud over the vice president,” but he still declined to further investigate Cheney or seek an indictment — while going after Libby for what would appear a weaker case of claimed faulty memory.

Libby indicated that it was Cheney who told him Plame’s identity. Fitzgerald seemed to go out of his way to give Cheney every opportunity of escape, including allowing the sharing of investigative material.
Fitzgerald never focused on Cheney even after his lawyer Terrence O’Donnell refused to promise that Cheney would not speak to other witnesses.

While Libby remembered going to Cheney with his notes showing Cheney to be the source of the Plame information, Cheney told the investigatior that he could not “recall Scooter Libby telling him how he first heard of Valerie Wilson. It is possible Libby may have learned about Valerie Wilson’s employment from the vice president … but the vice president has no specific recollection of such a conversation.”

Cheney refused to even answer some questions outright.

On other questions, clarity seemed to break through the confusion. While claiming little recollection on major points, Cheney appears to have had an excellent memory on such issues as such politically sensitive questions as whether Plame’s employment was discussed in connection to her husband Joe Wilson’s criticism of the Administration.

The Justice Department has prosecuted witnesses for such telling gaps in memory. With Cheney, Fitzgerald seemed intent on leaving him as a conveniently absent-minded witness while moving against his top aide.

For the FBI summary, click here.

For the full story, click here.

There is an interesting fight between Planned Parenthood and its former director in Bryan, Texas. (Yes, it appears the same town where the Virgin Mary was recently discovered in bird droppings, here). Abby Johnson worked for Planned Parenthood for eight years, but decided to leave after watching an ultrasound of an abortion procedure. This has led to the filing of a restraining order against her by her former employer after she joined forces with the Coalition For Life.

Abortion opponents have often litigated and legislated to try to force prospective mothers to watch ultrasound images before having an abortion. This case is likely to reinforce such efforts.

Johnson stated that, after seeing the images, she decided to quit: “I just thought I can’t do this anymore, and it was just like a flash that hit me and I thought that’s it.” She resigned on Oct. 6th.

She has claimed that the organization has changed its policies in the bad economy to push for abortions.

Last Friday, she and the Coalition for Life were hit with temporary restraining orders filed by Planned Parenthood, which seeks to prevent her from disclosing information about the organization.

Rochelle Tafolla, a Planned Parenthood spokesperson stated “We regret being forced to turn to the courts to protect the safety and confidentiality of our clients and staff, however, in this instance it is absolutely necessary.”

The parties are expected to square off in court on November 10th.

For the full story, click here

In a potentially important ruling for detainees held by the United States, Illinois U.S. District Judge Michael Mihm rejected prosecution demands and sentenced Qatar native Ali al-Marri to just eight years in jail — with a possible release in less than six years. The reduction from 15 years was expressly tied to the abusive conditions and treatment of al-Marri by the United States while held as an enemy combatant in South Carolina.

Al-Marri admitted he trained in al-Qaida camps and stayed in al-Qaida safe houses in Pakistan between 1998 and 2001. He also had regular contact with Khalid Sheikh Mohammed, the mastermind behind the Sept. 11 attack, and with Mustafa Ahmad al-Hawsawi, who allegedly helped the Sept. 11 hijackers with money and Western-style clothing. He was arrested while a student at Bradley University. He was described as a “sleeper agent” without a current mission. President Bush declared him to be an enemy combatant and sent him to a Navy brig where he was abused in custody by U.S. officials.

Despite al-Marri’s claim of contrition in joining Al Qaeda, Mihm did not buy it: “I believe based on everything that I have heard that you truly do not regret what you did and that you would do it again after you go home.” That statement actually makes the decision more useful for defense lawyers. The reduction was clearly not based on contrition but on the judge’s obvious revulsion at the conduct of his own government: “My personal belief as a judge is that that was totally unacceptable. That’s not who we are.”

Al-Marri, 44, pleaded guilty to conspiring to provide material support or resources to a foreign terrorist organization. Material support is a favorite charge of the Justice Department because it was written by Congress so broadly that virtually any act can be defined as material support.

The Justice Department has suggested that it may appeal, though these decisions are laden with discretion for the trial court. Mihm is a Reagan appointee and a conservative jurist who grew up on a farm in rural Illinois. He recently announced his retirement from the bench.

With hundreds of detainees still held (and reports of similar abuse and torture by the United States), Mihm’s approach could well be duplicated by other civilian judges. It was not the approach taken with Jose Padilla, who was also held in South Carolina. He was given 17 years for conspiracy and the Justice Department moved aggressively to bar the consideration of his abuse in U.S. custody.

For the story, click here.

Associate Judge Robert Livas may be put on a vegan diet. The former prosecutor and former police officer is in hot water over a curious order that he placed for Jamaican-style chicken as part of a plea agreement with Darrius Logan. Logan, 24, pleaded guilty to misdemeanor battery and criminal trespass charges and was sentenced to 100 hours community service. Then things got funky . . . Jamaican-chicken funky . . .

In August, Logan told Livas that he performed his 100 unpaid hours at Uncle Joe’s Jerk Chicken (a curious approach to community service, but there you have it). Livas told Logan to return to court in two month with either proof that he completed his service hours elsewhere or enough spiced chicken to feed the courtroom. Livas took him literally and showed up on October 6th with a tray of Uncle Joe’s jerk chicken, bread and two sides of hot sauce. (The bread and sides were probably to be counted against his next crime).

Here is the exchange from August 4th:

Livas: “If you walk in with enough chicken to feed everybody, I’ll accept these community service hours. If you don’t, I’m not taking any of them. . . . Does that come with slaw?”

Logan: “No, It’s just — it’s barbecue chicken, actually.”

Livas: “That’s great stuff. If you walk around there and feed everybody, it’s going to be OK.”

Livas insisted that he was joking in August, but decided that Logan had moved from his earlier paltry to his poultry submission in good faith: “It forced me to keep my word and accept his original (community service) letter. I give him credit — he made me eat my words.”

He may be eating some serious crow. Chief Judge Gerald Kinney of the 12th Judicial Circuit is not amused and referred the matter for judicial investigation. It is improper to accept foodstuffs and personal benefits in exchange for plea bargain conditions.

Notably, there were objections from the prosecution that something was rotten in the state of Denmark. Assistant State’s Attorney Sondra Demark did not like the idea of accepting chicken from any jerk, let alone jerk chicken. She told her bosses who called the chief judge.

Notably, when Logan appeared with the chicken another jurist, Associate Judge Marzell Richardson, asked “You brought a tray of chicken? . . And that was going to satisfy your community service work?” He sent him to sent him to Livas’ courtroom where the chicken was devoured by the course of justice.

Notably, Livas stated in the transcript “I was so nervous about bringing it in here, though, because I knew everybody was going to laugh at me.” He was right but a few people are notably not laughing.

For the full story, click here.

Kudos: Jordan Silver

In yet another blow to confidentiality on the Internet, Tennessee Judge Thomas Brothers has ruled a married couple that runs a real estate business and a halfway house for recovering drug abusers may confirm the identity an anonymous blogger critic. The critic used a blog called Stop Swartz to accuse Donald and Terry Keller Swartz of Old Hickory, of committing arson, evading taxes and being drug addicts themselves.

The Swartzes claimed that the attacks resulted direct damages: alleging that they “experienced actual damages from the allegedly defamatory statements, including loss of business, harm to their reputations, emotional distress, and the costs of having to hire a security expert to inspect their home.”

The blogger also asked readers to report any movements of the couple that they witnesses.

When you see a Swartz, no matter how trivial it may seem, leave a comment. Extra points if you observe them outside the village. This serves two purposes: First, it helps us all to keep tabs on Don and Terry and to know what they are up to. Second, it sends a clear message to Don and Terry that their actions are not being ignored . . . . We will tolerate their crap no longer.

The Swartzes sued for defamation and invasion of privacy. They subpoenaed Google to reveal the blogger, and the blogger filed a motion to quash.

Brothers ruled “Internet anonymous speech is not entitled to absolute protection” and that “[t]he free speech of the defendant must therefore be balanced with the reputation and privacy interests of the plaintiffs.” In the opinion below, he rejected the test used in Virginia (this is a case of first impression in Tennessee) in favor of the five-step standard established in the 2001 New Jersey case of Dendrite International v. Doe- requiring (1) a reasonable attempt to notify the blogger, (2) a reasonable time to respond, (3) identification of allegedly defamatory statements, (4) a substantial showing of proof, and (5) a balancing of First Amendment interests.

The Court concludes that the Dendrite test is the best method of determining whether a plaintiff is entitled to pierce a defendant’s shield of anonymity. The Court further finds that this factual showing must be made by affidavit, deposition, or sworn statement, and that mere allegations of fact are insufficient. As the Solers and Krinsky courts have noted, the labels of “summary judgment” or even “prima facie” are potentially confusing. By adopting the Dendrite analysis, the Court does not focus on the terminology, but rather the requirement that a plaintiff make a substantial legal and factual showing that the claims have merit before permitting discovery of an anonymous defendant’s identity.

While some free speech advocates will not like the result, the opinion is well-written and well-researched. It is a blow against the concept of anonymity in favor of a balancing test, but this is the clear trend of courts across the country.

The litigation appears to have succeeded in shutting down the attacks. In his or her last posting, the blogger wrote:

Th..th..th..that’s all, folks!
We’re done. We are posting no more. We’ll keep this site open so you may communicate with us via our email . Thanks for all your support.

For the complaint in the case: 2008-02-11-Swartz Complaint

For the opinion: 2009-10-08-Swartz v. Does Memorandum and Order on Motion to Quash and Motion to Dismiss

In a surprise verdict, a jury acquitted former judge Herman Thomas of sexual abuse, attempted sodomy, and assault related to allegations that he brought inmates to his chambers for sex and spankings. The judge insisted that he brought the men to his office to “mentor” them, but prosecutors put forward evidence of semen on the carpet and testimony of numerous former inmates that they had sex with him or allowed him to spank them for lenient treatment.

After being acquitted by the jury on major counts (but hanging on other counts), the trial judge directed a verdict on all counts in favor of Thomas.

This is a major victory for defense attorney Robert Clark who insisted that the judge was “trying to get them to do right, to be productive citizens.” Prosecutors put forward evidence that placed a different meaning on what Thomas thought was “getting them to do right” or be “productive.” However, some of their witnesses had to be dropped and one said that he was pressured to implicate the judge by his defense lawyer, here.

Thomas is now going to seek the reinstatement of his law license.

For the full story, click here

There is an incredible story out of Chicago and my alma mater Northwestern University. The Cook County District Attorney has issued a sweeping subpoena to the Innocence Project at the acclaimed Medill School of Journalism — demanding such things as the grades and emails of students who worked on an investigation of the case of Anthony McKinney. The students found compelling evidence of innocence and the prosecutors are now pounding them with demands for personal information and communications. I just completed doing NPR’s Talk of the Nation on the case with Professor Barry Scheck.

The students took three years to compile evidence of McKinney’s possible innocence. He has been in jail for 31 years for a murder that he may not have committed. McKinney was convicted of the murder of Donald Lundahl, a security guard on Sept. 15, 1978.

Professor David Protess of the university’s Medill School of Journalism was hit by the subpoena demanding grades and grading criteria, evaluations of student performance, expenses incurred during the inquiry, the syllabus, e-mails, unpublished student memos, and interviews .

It is a transparently hostile effort directed at the students who have previously helped uncover at least 11 false convictions in Illinois. The Chicago prosecutors have been repeatedly embarrassed by these cases of innocence and seem to be much more interested in finding ways to disparage the students than confirming the innocence of this man.

Usually these fights over journalistic privilege begin with an effort to obtain evidence of guilt of a suspect. Here prosecutors are seeking evidence of the motivation of the students — a marginally relevant inquiry at best. The project had already made available its taped interviews with witnesses who have recanted prior or contradicted prior testimony.

Prosecutors are arguing that these are not actual journalists covered under the Reporters Privilege under Illinois law. University student journalists are routinely given the same protection as other journalists. However, the state may argue that they do not fit the definition below:

§ 8-902. Definitions. As used in this Act:
(a) “reporter” means any person regularly engaged in the business of collecting, writing or editing news for publication through a news medium on a full-time or part-time basis; and includes any person who was a reporter at the time the information sought was procured or obtained.
(b) “news medium” means any newspaper or other periodical issued at regular intervals whether in print or electronic format and having a general circulation; a news service whether in print or electronic format; a radio station; a television station; a television network; a community antenna television service; and any person or corporation engaged in the making of news reels or other motion picture news for public showing.
(c) “source” means the person or means from or through which the news or information was obtained.

It would have been wiser to place this project under the law school where the students would have been protected by attorney-client privilege.

The Supreme Court has long given little protection to journalists, particularly student journalists. In Zurcher v. Stanford Daily , 436 U.S. 547 (1978), the Supreme Court rejected first amendment and fourth amendment challenges to a police search of a press office — an effort to obtain photographs of a demonstration that took place at the campus’ medical center in April 1971. The Court rejected claims of any special protection for journalists — prompting the push for “shield laws” like the one in Illinois.

The subpoena here is abusive and excessive. It is shows not only hostility toward the Innocence Project but a contempt for journalistic work by Anita Alvarez, the State’s Attorney for Cook County.

For the full story, click here.

Former Mobile County Circuit Judge Herman is offering a defense in his criminal case that may strike some as more appropriate for the Marquis de Sade than an Alabama jurist. Accused of having inmates brought to his chamber for sex and spanking, Herman insists that he was trying to rehabilitate and educate the men.

There are 11 alleged victims — down from 15 with 50 counts (also a reduction from the original indictment).

His defense attorney Robert Clark insists that Thomas, 48, was just “mentoring them. He was trying to get them to do right, to be productive citizens.”

One of the former inmates has testified that he is not sure why his semen was found on the judge’s carpet, but admitted that he was spanked with a belt by the judge on several occasions.

The prosecutors insist that these inmates were given preferential treatment by the court. Conversely, when some refused, the judge allegedly gave them excessive sentences.

If the judge ultimately admits to the paddling, it will be awfully hard to convince that the forensic and testimonial evidence does not show a less than educational approach to justice.

For the full story, click here.

Former Bush Attorney General Michael Mukasey now appears to be blaming our legal system for the 9-11 attacks as opposed to documented failures by the FBI and the failure of the Bush Administration to heed direct warnings of an imminent attack. In an op-ed piece this week, Mukasey puts the blame squarely on the shoulders of our rights-infested legal system.

Mukasey stated in the Wall Street Journal that “we put our vaunted civilian justice system on display in these [previous terrorism] cases…

In return, we got the 9/11 attacks and the murder of nearly 3,000 innocents….”

To bring the point home, the editors added a subheading that reads: “We tried the first World Trade Center bombers in civilian courts. In return we got 9/11 and the murder of nearly 3,000 innocents.”

Mukasey is, of course, the same person who stated under oath that he did not know what waterboarding was. When it was defined for him, he then refused to answer questions about it being torture (here). He is also the man who blocked torture and war crimes investigations (here and here). For a prior column, click here. He is also the man who sought to block investigations into the CIA’s knowing destruction of evidence of torture. He is also the man who blocked efforts to punish Bush officials who politicized the Justice Department, here and here.

Mukasey’s op-ed is a disgraceful effort to use these attacks to further an extremist legal campaign. If there were a right of constitutional defamation, this would meet the test. Our constitution has survived every challenge and we have found that our laws are our strength not our weakness in fighting extremism. Mukasey long ago joined the forces of those at war with our fundamental principles of law and legal process. Not only is his historical revisionism patently absurd, but his legal relativism is patently obvious in this column.

For the full story, click

We often discuss the meaning of judicial restraint, but this dog shows the meaning of restraint that judges and agencies could learn from.

The kitten needs a few points for guts as well.

Prosecutors in Minneapolis have a fascinating case involving assisted suicide and free speech. Nurse William Melchert-Dinkel, 47, is accused of using Internet chat rooms to convince people to commit suicide, giving them step-by-step instructions on how to kill themselves — preferably so he could watch. At least two people are believed to have fed Melchert-Dinkel’s fetish with their deaths: Nadia Kajouji, 18, and Mark Drybrough, 32 (shown here).

Melchert-Dinkel is quoted in such Internet exchanges as “Most important is the placement of the noose on the neck … Knot behind the left ear and rope across the carotid is very important for instant unconciousness and death.” Drybrough hanged himself at his home in Coventry, England in 2005 while Nadia Kajouji, a student at Carleton University, drowned herself in Brampton, Ontario.

Melchert-Dinkel has been stripped of his nursing license but insists that, as for any criminal charges, “nothing is going to come of it. I’ve moved on with my life, and that’s it.”

Well, it’s certainly good to have a life to move on with.

He may be right, however, about the difficulty of a prosecution — though I expect criminal charges will be brought. This is not your standard assisted suicide case since it involves only speech. Police often deal with people who scream Jump! at people standing on the edge of windows or bridges. What is the difference between that act (which is generally not prosecuted) and giving the same advice on the Internet? There is no question that this is a horrible and destructive fetish. However, many people in such chat sites are simply engaging in fantasy.

In the case of Melchert-Dinkel, it seems like he was actually trolling for vulnerable people, but is that a crime? If so, where do we draw the line? There are many caring people who believe in assisted suicide to relieve the pain of the terminally ill (though neither of these victims appear to have been terminally ill). How do you draw the line between giving such advice to someone terminally ill as opposed to depressed or demented on the Internet?

What if Melchert-Dinkel merely used the words to MASH’s Suicide is Painless below in his communications?

Through early morning fog I see
Visions of the things to be
The pains that are withheld for me
I realize and I can see…

That suicide is painless
It brings on many changes
and I can take or leave it if I please.

The game of life is hard to play
I’m gonna to lose it anyway
The losing card I’ll someday lay
So this is all I have to say

That suicide is painless
It brings on many changes
and I can take or leave it if I please

The sword of time will pierce our skins
It doesn’t hurt when it begins
But as it works its way on in
The pain grows stronger…watch it grin

And Suicide is painless
It brings on many changes
and I can take or leave it if I please.

A brave man once requested me
To answer questions that are the key
Is it to be or not to be
and I replied ‘oh why ask me?

And suicide is painless
It brings on many changes
and I can take or leave it if I please.

and you can do the same thing if you please.

It is interesting that the state not the federal authorities are moving on the case. This may be a reflection of the fact that the feds do not have an assisted suicide law as opposed to the Minnesota prosecutors. It could also reflect a concern by the Justice Department that this could be challenged on constitutional grounds.

The state investigators report that Melchert-Dinkel “admitted he has asked persons to watch their suicide via webcam but has not done so.” They state that he used anonymous names such as “Li Dao,” “Cami” and “Falcon Girl.” He was later found to have what a hospital terms as a “suicide fetish.”

For the story, click here.

Today’s column on blasphemy laws may be too narrow. In San Francisco and London, activists are demanding that denigrating someone as fat should be treated as a hate crime like race, age, or faith. “Fatism” is already banned in San Franscisco in housing and workplaces.

The San Francisco law even restricts doctors pressuring patients to lose weight. Now, activists are demanding the same type of protection in London. The effort is part of the Size Acceptance Movement, which probably began with the reign of Henry VIII but was more recently formed to end discrimination against the over-sized. Discriminatory businesses and people (who I presume will be called “fatists”) would be treated the same as people who engage in racist hate speech.

As a fairly Rubenesque male, I am sympathetic but fail to see how such a law can be enforced without putting courts on a slippery slope of drawing a line over weight discrimination. I believe that there is extreme prejudice against fat people in our society. However, hate speech is already a controversial issue over limitations on free speech. To now expand it to include weight issues would threaten to destroy the First Amendment in a series of exceptions. “Fatism” cases will leave free speech itself in a anorexic condition.

For the full story, click here.

Here is today’s column in USA Today on the Obama Administration’s decision to join the U.N. Human Rights Council and support Egypt in recognizing limits on free speech for those who insult or denigrate religion. While the exception was included in a resolution heralding free speech, it was viewed as a major victory for Muslim countries seeking to establish an international blasphemy law.

Around the world, free speech is being sacrificed on the altar of religion. Whether defined as hate speech, discrimination or simple blasphemy, governments are declaring unlimited free speech as the enemy of freedom of religion. This growing movement has reached the United Nations, where religiously conservative countries received a boost in their campaign to pass an international blasphemy law. It came from the most unlikely of places: the United States.

While attracting surprisingly little attention, the Obama administration supported the effort of largely Muslim nations in the U.N. Human Rights Council to recognize exceptions to free speech for any “negative racial and religious stereotyping.” The exception was made as part of a resolution supporting free speech that passed this month, but it is the exception, not the rule that worries civil libertarians. Though the resolution was passed unanimously, European and developing countries made it clear that they remain at odds on the issue of protecting religions from criticism. It is viewed as a transparent bid to appeal to the “Muslim street” and our Arab allies, with the administration seeking greater coexistence through the curtailment of objectionable speech. Though it has no direct enforcement (and is weaker than earlier versions), it is still viewed as a victory for those who sought to juxtapose and balance the rights of speech and religion.

A ‘misused’ freedom?
In the resolution, the administration aligned itself with Egypt, which has long been criticized for prosecuting artists, activists and journalists for insulting Islam. For example, Egypt recently banned a journal that published respected poet Helmi Salem merely because one of his poems compared God to a villager who feeds ducks and milks cows. The Egyptian ambassador to the U.N., Hisham Badr, wasted no time in heralding the new consensus with the U.S. that “freedom of expression has been sometimes misused” and showing that the “true nature of this right” must yield government limitations.

His U.S. counterpart, Douglas Griffiths, heralded “this joint project with Egypt” and supported the resolution to achieve “tolerance and the dignity of all human beings.” While not expressly endorsing blasphemy prosecutions, the administration departed from other Western allies in supporting efforts to balance free speech against the protecting of religious groups.

Thinly disguised blasphemy laws are often defended as necessary to protect the ideals of tolerance and pluralism. They ignore the fact that the laws achieve tolerance through the ultimate act of intolerance: criminalizing the ability of some individuals to denounce sacred or sensitive values. We do not need free speech to protect popular thoughts or popular people. It is designed to protect those who challenge the majority and its institutions. Criticism of religion is the very measure of the guarantee of free speech — the literal sacred institution of society.

Blasphemy prosecutions in the West appear to have increased after the riots by Muslims following the publication of cartoons disrespecting prophet Mohammed in Denmark in 2005. Rioters killed Christians, burned churches and called for the execution of the cartoonists. While Western countries publicly defended free speech, some quietly moved to deter those who’d cause further controversies through unpopular speech.

In Britain, it is a crime to “abuse” or “threaten” a religion under the Racial and Religious Hatred Act 2006. A 15-year-old boy was charged last year for holding up a sign outside a Scientology building declaring, “Scientology is not a religion, it is a dangerous cult. “In France, famed actress Brigitte Bardot was convicted for saying in 2006 that Muslims were ruining France in a letter to then-Interior Minister (and now President) Nicolas Sarkozy. This year, Ireland joined this self-destructive trend with a blasphemy law that calls for the prosecution of anyone who writes or utters views deemed “grossly abusive or insulting in relation to matters held sacred by any religion, thereby causing outrage among a substantial number of the adherents of that religion; and he or she intends, by the publication of the matter concerned, to cause such outrage.”

‘Blasphemy’ incidents
Consider just a few such Western “blasphemy” cases in the past two years:

• In Holland, Dutch prosecutors arrested cartoonist Gregorius Nekschot for insulting Christians and Muslims with cartoons, including one that caricatured a Christian fundamentalist and a Muslim fundamentalist as zombies who want to marry and attend gay rallies.

• In Canada, the Alberta human rights commission punished the Rev. Stephen Boission and the Concerned Christian Coalition for anti-gay speech, not only awarding damages but also censuring future speech that the commission deems inappropriate.

• In Italy, comedian Sabina Guzzanti was put under criminal investigation for joking at a rally that “in 20 years, the pope will be where he ought to be — in hell, tormented by great big poofter (gay) devils, and very active ones.”

• In London, an aide to British Foreign Secretary David Miliband was arrested for “inciting religious hatred” at his gym by shouting obscenities about Jews while watching news reports of Israel’s bombardment of Gaza.Also, Dutch politician Geert Wilders was barred from entering Britain as a “threat to public policy, public security or public health” because he made a movie describing the Quran as a “fascist” book and Islam as a violent religion.

• In Poland, Catholic magazine Gosc Niedzielny was fined $11,000 for inciting “contempt, hostility and malice”by comparing the abortion of a woman to the medical experiments at Auschwitz.

The “blasphemy” cases include the prosecution of writers for calling Mohammed a “pedophile” because of his marriage to 6-year-old Aisha (which was consummated when she was 9). A far-right legislator in Austria, a publisher in India and a city councilman in Finland have been prosecuted for repeating this view of the historical record.

In the flipside of the cartoon controversy, Dutch prosecutors this year have brought charges against the Arab European League for a cartoon questioning the Holocaust.

What’s next?
Private companies and institutions are following suit in what could be seen as responding to the Egyptian-U.S. call for greater “responsibility” in controlling speech. For example, in an act of unprecedented cowardice and self-censorship, Yale University Press published The Cartoons That Shook the World, a book by Jytte Klausen on the original Mohammed cartoons. Yale, however, (over Klausen’s objections) cut the actual pictures of the cartoons. It was akin to publishing a book on the Sistine Chapel while barring any images of the paintings.

The public and private curtailment on religious criticism threatens religious and secular speakers alike. However, the fear is that, when speech becomes sacrilegious, only the religious will have true free speech. It is a danger that has become all the more real after the decision of the Obama administration to join in the effort to craft a new faith-based speech standard. It is now up to Congress and the public to be heard before the world leaves free speech with little more than a hope and a prayer.

Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University and a member of USA TODAY’s board of contributors.

USA Today: October 19, 2009

Below is today’s brief column in the Los Angeles Times where I joined other writers on how each of us believes President Obama can earn the Nobel Prize, here. For civil libertarians, Obama’s selection is the ultimate triumph of hope over experience. My suggestion is probably predictable for people on this blog.

Appoint a prosecutor for war crimes
Jonathan Turley

To truly earn the Nobel Peace Prize, President Obama needs to transform himself from a barrier to a beacon when it comes to human rights and international law.

The most obvious start would be to fulfill our obligations under treaties and international law to appoint a special prosecutor, without limitations, to investigate and prosecute any war crimes committed by U.S. officials. Obama already has acknowledged that waterboarding is torture and that torture is a war crime, yet his administration is blocking investigations that are the prerequisite to justice. Obama has promised CIA employees as a group that they would not be prosecuted for torture for following orders, despite the long-standing finding from the Nuremburg trials that “just following orders” is no defense for a war crime. Appointing a special prosecutor would show that Obama will not continue to circumvent principle for politics. He could further demonstrate his commitment to international law by dropping his opposition to the release of photographs and other records showing our abuse of detainees.

Doing the right thing often demands decisions that are neither popular nor easy. If Obama wants to show that the peace prize is more than the superficial triumph of a cult of personality, he can start by showing that his own country is willing to pay the price demanded by the law of nations.

Jonathan Turley is a law professor at George Washington University and has served as lead counsel in various major national security and constitutional cases.

Keith Bardwell, justice of the peace in Tangipahoa Parish, Louisiana has become an infamous figure overnight after he refused to marry an interracial couple out of concern for their possible children. However, he helpfully explained “I’m not a racist. I just don’t believe in mixing the races that way.”

Could have fooled me.

I take it that he is not a big fan of Othello.

Bardwell seems to be laboring under the misconception that he can administer his office along racial lines and that insisting on people marrying within their race is not racist.

He insists that “I have piles and piles of black friends. They come to my home, I marry them, they use my bathroom. I treat them just like everyone else.”

“Piles” of minority friends who are even allowed to use his bathroom.

He insists that he is just thinking of the kinder: “There is a problem with both groups accepting a child from such a marriage,. I think those children suffer and I won’t help put them through it.”

In the past 2 1/2 years, Bardwell says that he has refused to marry at least four couples. This includes the most recent “unacceptable” couple Beth Humphrey, 30, and Terence McKay, 32.

They are in the same position as Mildred Loving (Mildred Delores Jeter) and Richard Perry Loving. The interracial couple that led to Supreme Court to strike down the Racial Integrity Act, a state law banning marriages between any white person and any non-white person. While the Lovings were prosecuted under the law, the unanimous ruling in Loving v. Virginia, 388 U.S. 1 (1967) established that it was unconstitutional to deny such licenses to interracial couples.

Obviously, Bardwell has to be stripped of his position. There is also the question as to the status of his bar license since some bars deny licenses to lawyers with known racist views. Finally, there is the potential for civil liability since he is violating the constitutional rights of these couples.

The couple has come forward to express their anger and disgust over the incident, here.

For the full story, click here and here.

President BarackN Obama, the world’s newest Nobel peace laureate, is again expanding on the policies of former President George Bush and fighting to conceal evidence of U.S. torture and abuse. As did the Bush Administration, the Obama Administration is seeking to change the law after courts rejected its absurd argument that the President can withhold photos of detainee abuse simply because they are embarrassing to the United States. Democrats in Congress are assisting in the effort to try to stop the Supreme Court from considering the issue by preempting the litigation.

This is the problem of nominating someone for the Nobel prize less than two weeks after entering office, here. Obama has thus far worked as a barrier rather than a catalyst for international law and values in the areas of torture and abuse. His position in the case of ACLU v. Department of Defense is reprehensible and exceeds the arguments made by Bush. He is claiming that he can deny the media and the public such pictures simply because he views them as controversial and likely to cause anger from Muslims. It is an exception that would swallow the rule.

As some of stated at the time, this argument is legally meritless and that is precisely what the courts have concluded. Now, however, Obama has taken another lesson from Bush. Unable to win on the merits, he has called on Congress to simply change the rules before the Supreme Court can vote. Democrats have joined the effort and are now close to passing legislation to remove the courts from the controversy. This is what Obama supportedW on the telecom litigation, where courts had rejected arguments of executive authority and Congress stepped in to extinguish dozens of public interest lawsuits.

The position of President Obama in the case is disgraceful. Solicitor General Elena Kagan has admitted that the pictures show such things as “soldiers pointing pistols or rifles at the heads of hooded and handcuffed detainees.” In another, “a soldier holds a broom as if ’sticking its end into the rectum of a restrained detainee.’” Kagan has taken the extraordinary step of asking the Court to delay considering the case to allow Congress to kill the litigation through legislation. As a result, no court would be allowed to rule on the release of the 87 photographs and authority would be transferred to the Defense Department.

Had Bush done such a thing (giving the Pentagon control) Democrats would have been in the streets. However, Democratic leaders are supporting the effort, the media is largely silent, and the Democratic base is passive. The move contradicts Obama’s pledge of transparency in government. It contradicts his pledge to make a full account of abuses. It makes of mockery of his award of the Nobel for encouraging international “dialogue”. It appears that that dialogue must still occur on the terms set by the United States and specifically avoids evidence that would embarrass the United States or show clearly how it has violated international law.

For the story, click here.

In light of today’s column on cases testing Sotomayor’s views (and possible alliance with conservatives in key areas), this story may be of some interest. Sotomayor joined Chief Justice john G. Roberts, Jr. and Justice Anthony Kennedy in raising concerns over whether courts are violating the constitutional rights of corporations in class action cases.

As noted in the column, corporate law is one area where Sotomayor may shift the court toward the right. In the denial in DTD Enterprises Inc. v. Wells, Kennedy noted “[t]o the extent that New Jersey law allows a trial court to impose the onerous costs of class notification on a defendant simply because of the relative wealth of the defendant and without any consideration of the underlying merits of the suit, a serious due process question is raised.” It is an early indications of Sotomayor’s views in the area. This docket is heavily laden with corporate cases.

Here is the statement of Kennedy attached to the denial:

DTD ENTERPRISES, INC., AKA TOGETHER, AKA TO-

GETHER-CLARK, AKA TOGETHER DATING SER-

VICE, ET AL. v. JANICE H. WELLS, ON BEHALF OF

HERSELF AND ALL OTHERS SIMILARLY SITUATED

ON PETITION FOR WRIT OF CERTIORARI TO THE SUPERIOR

COURT OF NEW JERSEY, MIDDLESEX COUNTY

No. 08–1407. Decided October 13, 2009
The petition for a writ of certiorari is denied.
Statement of JUSTICE KENNEDY, with whom THE CHIEF JUSTICE and JUSTICE SOTOMAYOR join, respecting the denial of the petition for writ of certiorari.

This case began with a contract action brought by DTD Enterprises, Inc. (hereinafter petitioner), a commercial dating-referral service, against respondent, one of petitioner’s customers. The suit alleged that respondent refused to make payments due under a contract. Respondent answered by bringing a class action against petitioner. The trial court certified the class and ordered petitioner to bear all the costs of class notification, on the sole ground (or so it appears) that petitioner could afford to pay and respondent could not.

To the extent that New Jersey law allows a trial court to impose the onerous costs of class notification on a defendant simply because of the relative wealth of the defendant and without any consideration of the underlying merits of the suit, a serious due process question is raised. Where a court has concluded that a plaintiff lacks the means to pay for class certification, the defendant has little hope of recovering its expenditures later if the suit proves meritless; therefore, the court’s order requiring the defendant to pay for the notification “finally destroy[s] a property interest.” Logan v. Zimmerman Brush Co., 455 U. S. 422, 433-34 (1982). The Due Process Clause requires a “‘hearing appropriate to the nature of the case.’” Boddie v. Connecticut, 401 U. S. 371, 378 (1971). And there is considerable force to the argument that a hearing in which the trial court does not consider the underlying merits of the class-action suit is not consistent with due process because it is not sufficient, or appropriate, to protect the property interest at stake.

I nonetheless agree with the Court’s denial of certiorari, for two reasons. First, the petition is interlocutory; the state appellate courts denied petitioner leave to appeal the trial court’s action. Second, petitioner has filed for bankruptcy, and an automatic bankruptcy stay has issued pursuant to 11 U. S. C. §362. Respondents contend that the present action comes within the scope of the automatic stay. If we were to grant the petition we would be required to construe New Jersey law without the aid of a reasoned state appellate court decision and to confront a procedural obstacle unrelated to the question presented. Under these circumstances, it is best to deny the petition. It seems advisable, however, to note that the petition for certiorari does implicate issues of constitutional significance.

U.S. Supreme Court Justice Sonia Sotomayor has joined with two conservative justices to raise constitutional concerns about forcing a dating service to pay the costs of notifying class members in a lawsuit over failed matchmaking.

The Supreme Court denied certiorari in the case, but Justice Anthony M. Kennedy wrote that the suit “does implicate issues of constitutional significance.” Chief Justice John G. Roberts Jr. and Sotomayor both joined Kennedy’s statement (PDF posted by SCOTUSblog).

The dating service, DTD Enterprises Inc. (also known as the Dating Together Service), had sued Janice Wells for failing to make all her payments under the terms of a contract, according to Dow Jones Newswires. Wells responded with a class-action lawsuit contending that DTD failed to make appropriate matches. A judge ordered DTD to pick up the costs of notifying class members because it could afford to do so, while Wells could not pay.

The bill is in for Orly Taitz, the California lawyer leading the “Birther” litigation: $20,000 for sanctionable conduct. U.S. District Court Judge Clay Land previously issued a stern warning to attorney Orly Taitz and others in the so-called “birther” campaign: do not file another such “frivolous” lawsuit or you will face sanctions. Land threw out the lawsuit filed on behalf of Capt. Connie Rhodes who is an Army surgeon challenging her deployment orders due to President Barack Obama’s alleged ineligibility to serve as President. Land (a Bush appointee) noted that “[u]nlike in ‘Alice in Wonderland,’ simply saying something is so does not make it so.” In the most recent order, Land said that Taitz’s conduct “borders on delusional.”

Rhodes previously accused Taitz of filing new papers in Rhodes v. MacDonald without her approval and after she agreed to be deployed by the military. Taitz declared in one filing: “This case is now a quasi-criminal prosecution of the undersigned attorney.” She is already facing a California bar complaint and Rhodes is promising to file a new complaint against her for “reprehensible” representation.

When Rhodes learned that Taitz had filed a motion to stay deployment after she had decided to forego further litigation, she proceeded to fire Taitz by sending a remarkable letter from Office Max on the advice of “Tim who works in the District Clerk’s office.” She stated in the fax:

September 18th, 2009

To the Honorable Judge Land:

Currently, I am shipping out to Iraq for my deployment. I became aware on last night’s local news that a Motion to Stay my deployment had been entered on my behalf. I did not authorize this motion to be filed. I thank you for hearing my case and respect the ruling given on September 16th, 2009. It is evident that the original filing for the TRO and such was full of political conjecture which was not my interest. I had no intention of refusing orders nor will I. I simply wanted to verify the lawfulness of my orders. I am honored to serve my country and thank you for doing the same.

With that I said, please withdraw the Motion to Stay that Ms. Taitz filed this past Thursday. I did not authorize it and do not wish to proceed. Ms. Taitz never requested my permission nor did I give it. I would not have been aware of this if I did not see it on the late news on Thursday night before going to board my plane to Iraq on Friday, September 18, 2009.

Furthermore, I do not wish for Ms. Taitz to file any future motion or represent me in any way in this court. It is my plan to file a complaint with the California State Bar to her reprehensible and unprofessional actions.

I am faxing this as was advised by Tim, who works in the District Clerk’s office. I will mail the original copy of this letter once I have arrived in Iraq.

Respectfully,

CPT Connie M. Rhodes, MD

In her Motion for Leave to Withdrawal as Counsel, Taitz suggested that her client is lying to the Court.
She states that she not only has a (rather obvious) conflict with her former client but may present evidence that is embarrassing to her:

The undersigned attorney comes before this Court to respectfully ask for leave to withdraw as counsel for the Plaintiff Captain Connie Rhodes. The immediate need for this withdrawal is the filing of two documents of September 18, 2009, one by the Court, Document 17, and one apparently by Plaintiff Connie Rhodes, which together have the effect of creating a serious conflict of interest between Plaintiff and her counsel. In order to defend herself, the undersigned counsel will have to contest and potentially appeal any sanctions order in her own name alone, separately from the Plaintiff, by offering and divulging what would normally constitute inadmissible and privileged attorney-client communications, and take a position contrary to her client’s most recently stated position in this litigation. The undersigned attorney will also offer evidence and call witnesses whose testimony will be adverse to her (former) client’s most recently stated position in this case. A copy of this Motion was served five days ago on the undersigned’s former client, Captain Connie Rhodes, prior to filing this with the Court and the undersigned acknowledges her client’s ability to object to this motion, despite her previously stated disaffection for the attorney-client
relationship existing between them. This Motion to Withdraw as Counsel will in no way delay the proceedings, in that the Plaintiff has separately indicated that she no longer wishes to continue to contest any issue in this case. In essence, this case is now a quasi-criminal prosecution of the undersigned attorney, for the purpose of punishment, and the Court should recognize and acknowledge the essential ethical importance of releasing this counsel from her obligations of confidentiality and loyalty under these extraordinary circumstances.

Respectfully submitted,

By:_________________________
Orly Taitz, DDS, Esq.
California Bar ID No. 223433
FOR THE PLAINTIFF
Captain Connie Rhodes, M.D. F.S.
SATURDAY, September 26, 2009

“Quasi-criminal prosecution”? The judge had ordered Taitz to “show cause” why a sanction should not be imposed in the case. He had previously told Taitz that he would consider sanctions if she filed similar claims in the future. After the denial of the Motion to Stay deployment, Land said that the latest filing was “deja vu all over again” including “her political diatribe.” He noted:

Instead of seriously addressing the substance of the Court’s order, counsel repeats her political diatribe against the President, complains that she did not have time to address dismissal of the action (although she sought expedited consideration), accuses the undersigned of treason, and maintains that “the United States District Courts in the 11th Circuit are subject to political pressure, external control, and . . . subservience to the same illegitimate chain of command which Plaintiff has previously protested.”

Then the kicker:

The Court finds Plaintiff’s Motion for Stay of Deployment (Doc. 15) to be frivolous. Therefore, it is denied. The Court notifies Plaintiff’s counsel, Orly Taitz, that it is contemplating a monetary penalty of $10,000.00 to be imposed upon her, as a sanction for her misconduct. Ms. Taitz shall file her response within fourteen days of today’s order showing why this sanction should not be imposed.

I am frankly not convinced that sanctions would be appropriate for filing for a motion to stay deployment per se. At the time of his order, Land did not presumably know that the filing was made against the wishes of the client. If Rhodes was interested in appealing Land’s decision, which is her right, a stay is a standard request. However, the fact that the filing may have been made after Taitz was terminated as counsel and after she was told that Rhodes was abandoning the case is more cause for possible sanctions. Moreover, the low quality and over-heated rhetoric of the filing can support such sanctions. Her filings appear more visceral than legal. In demanding reconsideration of the Court’s earlier order, she used language that does cross the line:

This Court has threatened the undersigned counsel with sanctions for advocating that a legally conscious, procedurally sophisticated, and constitutionally aware army officers corps is the best protection against the encroachment of anti-democratic, authoritarian, neo-Fascistic or Palaeo-Communistic dictatorship in this country, without pointing to any specific language, facts, or allegations of fact in the Complaint or TRO as frivolous. Rule 11 demands more of the Court than use of its provisions as a means of suppressing the First Amendment Right to Petition regarding questions of truly historical, in fact epic and epochal, importance in the history of this nation.

She also (as noted by Land in his later order) essentially accused Land of treason, as she has in public statements:

Plaintiff submits that to advocate a breach of constitutional oaths to uphold the Constitution against all enemies, foreign and domestic, is in fact a very practical form of “adhering” to those enemies, foreign and domestic, and thus is tantamount to treason, as Defined in Article III, Section 3, even when pronounced in Court. The People of the United States deserve better service and loyalty from the most powerful, and only life-tenured, officers of their government.

Taitz is also facing a California Bar complaint, here. Ohio lawyer (and inactive California bar member) Subodh Chandra wrote the bar, stating “I respectfully request that you investigate Ms. Taitz’s conduct and impose an appropriate sanction. She is an embarrassment to the profession.” For that complaint, click here.

A complaint by a former client would likely attract more attention by the Bar. These are now serious allegations including misrepresentation, false statements to the Court, and other claims that will have to be addressed by a Bar investigation. This could take years to resolve — perhaps just in time for Obama’s second inauguration.

The court ruled that Taitz violated Rule 11 of the Federal Rules of Civil Procedure in filing frivolous papers. Declaring the filings as made in “bad faith,” the court concluded that Taitz’s legal conduct was “willful and not merely negligent.” Sanctions were warranted, he held, because “Counsel’s frivolous and sanctionable conduct wasted the Defendants’ time and valuable judicial resources that could have been devoted to legitimate cases pending with the Court.”

“When a lawyer files complaints and motions without a reasonable basis for believing that they are supported by existing law or a modification or extension of existing law, that lawyer abuses her privilege to practice law,” Land writes. “When a lawyer uses the courts as a platform for a political agenda disconnected from any legitimate legal cause of action, that lawyer abuses her privilege to practice law. When a lawyer personally attacks opposing parties and disrespects the integrity of the judiciary, that lawyer abuses her privilege to practice law. When a lawyer recklessly accuses a judge of violating the judicial code of conduct with no supporting evidence beyond her dissatisfaction with the judge’s rulings, that lawyer abuses her privilege to practice law. When a lawyer abuses her privilege to practice law, that lawyer ceases to advance her cause or the ends of justice. . .

Regrettably, the conduct of counsel Orly Taitz has crossed these lines, and Ms. Taitz must be sanctioned for her misconduct. After a full review of the sanctionable conduct, counsel’s conduct leading up to that conduct, and counsel’s response to the Court’s show cause order, the Court finds that a monetary penalty of $20,000.00 shall be imposed upon counsel Orly Taitz as punishment for her misconduct, as a deterrent to prevent future misconduct, and to protect the integrity of the Court. Payment shall be made to the United States, through the Middle District of Georgia Clerk’s Office, within thirty days of today’s Order. If counsel fails to pay the sanction due, the U.S. Attorney will be authorized to commence collection proceedings.

I expect that Taitz will appeal the decision, given her past statements. The opinion goes into considerable detail on her conduct and interaction with the court, as shown below.

For the decision, click here.

For the story, click here

Here is this week’s column from Roll Call. It explores the interesting selection of cases this term for the Supreme Court. Justice Sonia Sotomayor’s colleagues could not have selected cases more carefully to address areas of uncertainty from her confirmation hearing. Whether by accident or design, this docket is front-loaded with cases that will force Sotomayor to show her true colors in the first few months of her tenure as an associate justice.

Justices in the past have often described the first week of a new session as a lot like the start of a new school year with old friends talking about the summer and new friends getting acquainted. Of course, this new term starts with a “new kid” of the block Justice Sonia Sotomayor. Many people are speculating whether she will be a BFF for the liberals or, like Justice Anthony Kennedy, an uncertain friend to both sides? For those looking for the new line-up on the Court, they will not have to wait long. The docket is front-loaded with cases raising fundamental questions where Sotomayor will have to speak clearly on her view of constitutional protections.

This term will show whether we have not one but two consistent swing justices. Since the departure of Sandra Day O’Connor, Anthony Kennedy is often the only thing standing between a constitutional right and its reduction or expansion.

For Sotomayor to assume O’Connor’s role would be a bitter thing for liberals who expected a more consistent liberal nominee from Obama – particularly given Bush’s appointment of two consistent conservative justices. With control of Congress and Obama in the White House, it would be like having the capital for a beach mansion and ending up with a condo time share.

The Court has selected cases that may rekindle old ideological allegiances among the justices, forcing both Sotomayor and Kennedy to return to “first principles” in their views of free speech, federalism, free exercise of religion and gun rights. During her confirmation hearing, Sotomayor was hounded by questions in two areas: free speech and gun rights. To a remarkable degree, her colleagues have chosen cases almost tailor-made to force Sotomayor to choose sides on those very questions. As if to personalize the term further for Sotomayor, the justices also loaded the docket with corporate cases – an area where Sotomayor (who practiced corporate law)is likely to depart from her liberal colleagues.

Last month, the Court accepted a major handgun case, McDonald v. Chicago, that will define the scope of the recently recognized individual right under the Second amendment. The Seventh Circuit ruled that gun ownership is not a “fundamental right” that applies to the states. That is precisely the position reached by Sotomayor while on the Second Circuit in two controversial cases. She argued that this was a question that had to be left to the Supreme Court and that, absent such a ruling, it is assumed that the right only applies to the federal government. Now, she will help answer the question posed for the Court. For her and her colleagues, the decision will pit state rights against gun rights.

Sotomayor was also criticized by liberals for her voting in an important case to curtail free speech rights of high school students. She will now rule on two cases that raise fundamental questions of free speech. These cases will also test the solidity of conservative block on the Court, particularly Justice Kennedy.

The first of the two cases was heard in a rare September re-argument, involving “Hillary: The Movie” – a 90 minute film released during the presidential election that is a virtual diatribe against Clinton. At issue is the constitutionality of one of the major parts of the campaign finance law and whether corporations should enjoy free speech rights like individual citizens.

Another potentially sweeping case will be heard on the second day of the new term: United States v. Stevens. The case will test the Court’s willingness to stand on the principle of free speech to protect material that contains cruel and disturbing content. Robert J. Stevens of Pittsville, Va., was convicted under a federal law for selling videotapes of fighting pit bulls and sentenced to 37 months in prison. The case law has largely drawn a bright line between criminalizing the conduct (here dog fighting) as opposed to speech containing such images or photographs. If there is an exception for material showing cruelty to animals, how about cruelty to women, police officers, or just cruelty?

In addition to these two free speech cases, the Court also accepted cases that will test press rights and religious rights under the First Amendment. In Department of Defense v. ACLU, the Court will decide whether President Obama can withhold detainee abuse photographs simply because they would embarrass the United States and anger Muslims. In Salazar v. Buono, the Court will consider an 8-foot-tall cross in the Mojave National Preserve in Southern California — erected by the Veterans of Foreign Wars in 1934. The veterans are claiming a secular purpose for the cross in what would be a major exception under the separation of church and state. As with the Stevens case, they are the type of cases where First Amendment advocates fear Sotomayor or Kennedy might abandon bright-line rules for compromise decisions.

Likewise, the Court will have to reexamine the Eighth Amendment in two companion cases from Florida — Graham v. Florida and Sullivan v. Florida. These cases raise the question of whether the Eighth Amendment’s protection against cruel and unusual punishment apply to juveniles in non-homicide cases. The Court previously adopted a different standard for juveniles in death cases but these cases will address whether a similar standard should be applicable to sentences of juveniles for life without parole.

If her years on the Second Circuit are any measure, Sotomayor is likely to continue her role as a swing voter in some areas. Of course, she could be a surprise (like Souter) in tilting sharply to the left of the Court. Either way, the members appear to have picked a docket that will “assort out” the class of 2009 — and there may be two justices left in the middle at the end of it.

Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University where he teaches a course on the Supreme Court.

Israeli Prime Minister Benjamin Netanyahu has vowed not to allow any Israelis to stand trial for war crimes even if demanded by the United Nations or world court. It is a position that defies the entire basis of international legal process created by the Nuremberg Tribunals since no country has a right to determine its own innocence. As previously noted, the Goldstone Commission found credible evidence of war crimes in the Gaza campaign.

With Netanyahu’s announcement, both Israel and the United States are now blocking war crimes investigations of their own officials.

Netanyahu simply dismissed the position of the United Nations commission and insisted that “[t]he truth is exactly the opposite. Israel’s leaders and its army are those who defended the citizens of Israel from war criminals.”

Many of us agree that Israel had a right to defend itself against attacks by Hamas. However, Israel and the United States are undermining the legacy of Nuremberg as little more than “victor’s justice” when they refuse to submit to such investigations or prosecutions. Every nation accused of such crimes from Nazi Germany to Japan to Serbia have denied the allegations, but have been forced to cooperate in the adjudication of the claims. The most fundamental premise of international law is that countries must yield to such independent adjudication. The fact is that much of the findings concerned not Israel’s right to defend itself but how it carried out the invasion, including the use of prohibited weapons and tactics. I do not have an inkling of the truth of these allegations but that is the point of an international tribunals when there are such allegations of the violation of international law.

Simply calling the Goldstone report “a kangaroo court against Israel,” as does Netanyahu, only unilaterally claims the right to refuse to comply with international agreement and international law when you claim innocence. With Israel threatening an attack on Iran and demanding an international investigation of that country, it can hardly afford to put itself at odds with the very foundation of international law.

For the full story, click here.

We have another case of a child dying from a relatively minor condition while surrounded by praying adults. Kent Schaible, 2, died of bacterial pneumonia because the parents Herbert and Catherine Schaible believed in faith-healing and declined to get medical attention for the child in Philadelphia. This is strikingly similar to the case of Leilani and Dale Neumann in Wisconsin who were recently given light sentences in such a faith-based case. As shown below, difficult questions are raised by the disparate treatment given parents who neglect children for religious as opposed to non-religious reasons.

For almost two weeks, Kent’s conditions grew worse and included a variety of obvious symptoms of growing medical danger, including sore throat, congestion, liquid bowel movements, sleeplessness and trouble swallowing. A simple prescription of antibiotics or even Tylenol may have kept him alive. Instead, the parents and other adults prayed around him until he was dead and then called a funeral home.

The parents are charged with involuntary manslaughter, conspiracy to commit involuntary manslaughter and endangering the welfare of a child.

Herbert Schaible, 41, and Catherine Schaible, 40, are members of the First Century Gospel Church. They told police “[w]e prayed to God for victory . . . We were praying that he would be raised up.”

For the Philadelphia story, click here.

What is fascinating about this case is that treatment in the legal system. In cases where parents simply neglect their children, the courts and prosecutors often seek murder charges or long sentences. However, if you fail to take the same measures as a religious matter, you often face lesser charges and more lenient treatment. In this case, the court simply called the parents “misguided” while holding them over for arraignment.

In another case in Wisconsin, Dale and Leilani Neumann declined to get medical attention for their 11-year-old daughter, Madeline Kara Neumann, who died of an undiagnosed but treatable form of diabetes. While they could have received 25 years in prison, the court gave them six months in jail and 10 years probation.

Marathon County Circuit Court Judge Vincent Howard said the Neumanns were “very good people, raising their family who made a bad decision, a reckless decision.” He then gently encouraged them to remember that “God probably works through other people, some of them doctors.”

Kara also died surrounded by adults praying rather than calling for medical help. Medical staff was not called until she stopped breathing. Leilani Neumann, 41, was unrepentant at sentencing (something that usually results in higher sentences): “I do not regret trusting truly in the Lord for my daughter’s health. Did we know she had a fatal illness? No. Did we act to the best of our knowledge? Yes.”

Dale Neumann, 47, also reaffirmed the correctness of their actions: “I am guilty of trusting my Lord’s wisdom completely. … Guilty of asking for heavenly intervention. Guilty of following Jesus Christ when the whole world does not understand. Guilty of obeying my God.”

Notably, the parents will not even have to serve six months consecutively, but will serve one month in jail each year for six years and must allow a public health nurse to examine their two underage children at least once every three months.

Dale Neumann, a former Pentecostal minister, however, promised to continue undeterred in their faith-based policies: “We live by faith. We are completely content with what the Lord has allowed to come down, but he is not done yet.”

The faith-based cases are only the latest such cases in a series of such deaths of children, here.

The policy question is why parents who neglected their children and cause injury (as opposed to death) are given far harsher punishments as parents who actually kill their children as a matter of faith. Clearly, intent and scienter should play a role in sentencing but the difference in punishment is remarkable. The Neumann’s actions resulted in the death of their child and they received a sentence close to what Russell J. Wozniak Jr., 26, and Jennifer Ann Wozniak, 23, received for allowing their two-year-old to wander around covered in vomit with a full diaper, here.

Consider the comparison with the case of Alex Washburn, 22-months, who died a couple days after falling and hitting his head. Elizabeth Dawn Thornton, 22, and Christopher Steven Washburn, 32, insisted that the boy fell a lot and hit his head on the corner of the table and his chin on a toilet. No evidence was submitted to contest that account. Moreover, the parents apologized for not seeking medical help and agreed to terminate their parental rights to the other children. Christopher Washburn told the court “I wish I did seek medical treatment for my son faster. That will definitely be with me for the rest of my life.”

The Court imposed sentenced both parents to three to 15 years in prison. So, the Neumanns get one month in jail for six years (and keep their children despite refusals to apologize) and the Washburns get up to 15 years in prison (and agree to give up their parental rights).

These cases suggest a considerable discount given people who claim a religious motivation rather than simple neglect. While the former cases occur with intent to deny medical care, they are treated as bad choices rather than serious crimes in many cases.

For the full story, click here.

In Raleigh, James Nichols says he wants to find God but he can’t find him in North Carolina. The convicted sex-offender was arrested when he tried to attend church because he is not allowed to be present on any property where children are present, such as in the church’s daycare center. It is only the latest in a series of cases that pit the freedom of religion against sex offender laws.

We have previously seen cases of sex offenders raising free exercise claims, here. As politicians impose wider and wider prohibitions on where sex offenders may live or work, ex-felons are having to live in forests and under bridges to avoid prohibited areas, here. In some cases these laws amount to virtual banishment by barring virtually every block in a given city, here.

To add to the problems, states have been defining sex offender to include a wide array of offenses, including consensual acts between teenagers, here.

Nichols, 31, was convicted twice of indecent liberties with a teen girl and again in 2003 for attempted second-degree rape. He is barred under a law that bars his being within 300 feet of any place intended primarily for the use, care or supervision of minors among other geographic limitations. Thirty-six states establish such prohibited zones. He was arrested after attending Sunday services at the Moncure Baptist Church.

State legislators are unapologetic. Democratic state Sen. David Hoyle, who sponsored the law insists, “I’m not denying him the right to go to church. He denied himself that . . . If they are a convicted pedophile, they have given up a lot of their rights.” I would have thought that politicians would want offenders to find God and seek a moral lifestyle.

These cases will present a fascinating challenge under the free exercise clause and could impose some limitations on the current rush to expand prohibited zones for ex-offenders.

For the full story, click here.

We have been following the bizarre case of former Mobile County Circuit Judge Herman Thomas who is accused of ordering the male inmates be brought to his chambers where he would spank them and have sex with them. With the judge facing trial on various criminal charges, the case took another strange turn when a former inmate charged in a lawsuit that his former attorney coerced him into testifying against the judge. The case of Willie Pearson was dropped after he accused attorney Joe Kulakowski of threatening him. However, the prosecutor insists that the other cases will proceed as planned for trial.

Thomas now has 14 cases against him and the trial is in the jury selection stage. The trial could begin as soon as today.

While Thomas insists that he is entirely innocent, a forensic examination matched a semen stain on his carpet to one of the nine alleged victims.

Thomas, 48, has insisted that this is all due to race: “Did you ever think of the fact that this is the only black circuit judge we’ve ever had in Mobile County, and that the right-wing Republicans have gotten rid of him?” His attorney echoed the sentiment, telling CNN “[t]he South hasn’t changed all that much.”

Thomas is married with a wife and daughters. He is facing serious jail time, including a potential for effective life imprisonment for such charges as kidnapping. It is an interesting charge since he presumably kidnapped the inmates by arranging them to be brought to him by deputies.

The civil claims against the attorney presents some novel issues. First, the defense will likely want to get in such evidence, but, with that individual case dropped, the prosecutors are likely to oppose on the ground that it is not relevant. Second, the attorney could face a criminal and bar investigation. The prosecutor would be in a strange position since he believes there is a basis for the allegations as a whole. Moreover, the attorney could claim that he was merely trying to assist the prosecution while also strengthening any potential civil action against the judge.

For the full story, click here.

As if by divine intervention, the debate over the separation of church and state was answered today — even as the Supreme Court took up the case of Salazar v. Buono ( 08-472). This picture clearly shows Jesus giving the Constitution to the drafters — resolving any suggestion that the original framers envisioned a separation. It came directly from Jesus and should moot the case heard by the Court today.

Before this evidence was produced, the Court was poised to decide whether religious symbols in military cemeteries fail into an exception under the first amendment. The war memorial in California’s Mojave National Preserve features an 8-foot-high cross that was erected with a plaque commemorating the “Dead of All Wars.” A former National Parks Service member, Frank Buono, sued in 2001 and challenged the cross as violating the Constitution’s ban on the establishment of religion. However, as this picture shows, there was no other deity present. The picture shows the conspicuous absence of Buddha, Muhammad, Yahweh, or any number of Hindu Gods. It is not clear whether the Court can take judicial notice of such evidence and save itself a lot of trouble.

In the meantime, the Obama Administration and Solicitor General Elena Kagan are again at odds with civil libertarians — opposing Buono and seeking to bar the action for lack of standing. This comes at the same time that the Administration is supporting efforts to limit free speech in the United Nations to protect religion from some critics, here. Obama ran on a faith-based political message, here.
The case could create a broad “secular purpose” exception that would swallow the rule. With the replacement of Justice Sandra Day O’Connor with Justice Samuel A. Alito Jr. the center of gravity of the Court may have shifted since the 2005 cases. It is also unclear where Justice Sonia Sotomayor would stand on such an exception.

Of course, now that the evidence is in, the Court can start to construct a mandatory entanglement doctrine between church and state.

This site has already begun analysis of the picture as shown by dragging your cursor across the various figures.

For the story on the Mojave cross, click here.

Below is today’s column on the first day of the October Term for the Supreme Court. It specifically explores the first amendment cases on the docket. There are four major such cases thus far on the docket and, most importantly, two free speech cases that will be strong indicators of the views of Justice Sonia Sotomayor.

The start of the U.S. Supreme Court’s fall term is always a much-anticipated event. This year, it is likely to receive more attention than usual, with a new justice being seated and conjecture that another plans to resign.

David H. Souter is no longer on the court, and this will be the first term for his replacement, Justice Sonia Sotomayor. It may be the last term for Justice John Paul Stevens, liberal icon of the court. The growing speculation that Stevens plans to retire next year was fueled by his recent decision not to select a full complement of clerks for 2010 — a strong signal that he doesn’t intend to remain on the bench.

For the most part, however, all eyes will be on Sotomayor. Most of the court handicappers will be watching for early signs of how she might depart from the liberal voting record of her predecessor. Originally a Republican nominee to the trial court (though later put on the appellate court by President Clinton), Sotomayor was suggested as a nominee for President George W. Bush and has a more conservative voting record than Souter. If she votes the way she voted on the appellate court, liberals will lose ground with her selection.

Sotomayor will be tested in one of the areas of greatest concern to liberals — free speech — at the very start of her tenure on the court. Sotomayor was opposed by some free-speech advocates, in part because of her vote in Doninger vs. Niehoff, in which the appeals court upheld the right of school officials to punish students for out-of-school speech — in what some considered a major blow to both the 1st Amendment and student rights. Notably, the panel acknowledged that it was not bound by existing precedent from the Supreme Court in denying free-speech protections to students.

Sotomayor’s first free-speech case at the Supreme Court came even before the official beginning of the term. In a rare re-argument of a case, the justices convened court in advance of this month’s opening to hear arguments in a case involving “Hillary: The Movie.”

At issue in the case — a ruling is still pending — may be the viability of one of the major parts of campaign-finance law. The case is actually more compelling than the movie, a 90-minute diatribe against Hillary Rodham Clinton released by the conservative group Citizens United during her 2008 presidential bid. The Federal Election Commission ruled that the film was “prohibited electioneering communication.”

The court in June asked to hear additional arguments regarding an earlier court ruling that upheld the constitutionality of a provision of the McCain-Feingold campaign-finance law.

For many free-speech advocates, it is hard to declare this film to be electioneering but not other films, such as liberal Michael Moore’s anti-Bush documentary, “Fahrenheit 9/11.” Sotomayor’s vote, although unlikely to determine the outcome of the case, may offer insight into her thinking on the 1st Amendment and whether corporations enjoy free-speech rights analogous to individuals.

At the start of the fall term, Sotomayor will be tested in yet another case raising fundamental speech rights. On Oct. 6, the court will hear United States vs. Stevens, involving a federal law making it illegal to sell photographs and films of the maiming and killing of animals. Among other things, the law criminalizes so-called crush films, in which models are shown crushing small animals with stiletto heels and other objects.

Robert J. Stevens of Pittsville, Va., was convicted under the law for selling videotapes of fighting pit bulls and sentenced to 37 months in prison. However, the appellate court struck down the law as unconstitutional, holding that there is no exception to the 1st Amendment for animal cruelty as there is for obscenity. The government is seeking to get the court to create another exception to the 1st Amendment, in what free-speech advocates fear will be part of a continued erosion of this fundamental right.

The case will test Sotomayor’s commitment to principle over the prejudicial elements of the crime. The justices will clearly find Stevens and his films of dogfights repugnant. However, there has been a line drawn under the 1st Amendment in which criminal conduct can be prosecuted even as speech is protected. The government can clearly arrest people for holding dogfights or organizing or transporting dogs for such fights. The question is whether selling material with such images is protected by the 1st Amendment if an individual did not participate in the criminal activity. The concern is that Congress will continue to add exceptions for areas viewed as offensive or cruel — abandoning a bright-line rule that has protected speech while allowing the prosecution of illegal conduct.

Given her conservative approach in some cases on the appellate court, Sotomayor could change the outcome in the case, because Souter was viewed as more likely to favor the position of the appellate court and free-speech advocates.

Whatever the outcome of these cases, one thing is clear: Court-watchers will not have to wait long to hear the voice of Sotomayor in the area of free speech. It could be a voice that resonates for decades for citizens and the 1st Amendment..

Jonathan Turley is a law professor at George Washington University, where he teaches a course on the Supreme Court.

For coverage of the Stevens argument, click here.
Published October 5, 2009: Los Angeles Times

Judge Charles J. Markey is asking for a public rehearing. The New York Law Journal and the ABA Journal ran a story detailing how Markey allegedly denied a motion or dismissed a case due to improper stapling. The story was picked up on various legal blogs, including this blog. However, Markey has written a letter to the editor insisting that the facts have been distorted and that this was no “case of first impression” of dismissal for negligent stapling. He seems to have a case.

Markey notes that he only denied a motion and did not dismiss the case. Moreover, it was a denial without prejudice and, most importantly, the stapling section was meant merely as an instruction for the future and not a basis for the holding.

Here is his letter:

October 02, 2009
I am writing you to set the record straight regarding an inaccurate and misleading item that appeared in the “News in Brief” column on page 1 of the Sept. 24 Law Journal.
Although a correction was printed on page 2 in your Sept. 25 edition, I have since been hit with rather negative comments and queries regarding the distorted description of my decision on a motion in the matter of Jones v. Fuentes. (The decision is published below.) It is hoped that this letter and the brief decision will more effectively correct the error and subsequent misunderstanding.
Contrary to the article, I did not dismiss the underlying action. I cited deficiencies in the unopposed papers submitted for a default judgment in a motor vehicle accident case allegedly resulting in injury to plaintiff. A lengthy written decision was unnecessary, and it was, therefore, brief and to the point. And, please note, the motion was denied, without prejudice with leave to renew upon submission of proper papers.
What excited everyone’s attention was the reference to the drawing of blood as the result of sloppy assembly of the papers. The commentary in the decision was meant to be instructive and cautionary. That’s all.
Charles J. Markey
The author is a Queens Supreme Court Justice.

Here is the correction published by the journal”

Correction
September 25, 2009
A News in Brief item yesterday, “Lawyer’s ‘Poor’ Stapling Provokes Motion’s Dismissal,” incorrectly implied that Queens Supreme Court Justice Charles J. Markey dismissed a complaint on the basis of poor stapling. Rather, Justice Markey denied a motion for default judgment. In addition, he cited two other grounds for rejecting the motion: the notice of motion was not signed by counsel and the papers lacked any affidavit by the plaintiff as to her injuries.

While the court did elevate stapling to the inclusion in an opinion (which why it was legitimately notable for the journal), he was listing the failings of counsel in the case and not basing the decision on stapling. Indeed, the motion appears properly dismissed based on the first two findings. However, this will mean that Markey will not be offered the “Jurist of the Year” Award by the National Fasteners Association.

The Supreme Court has accepted a major handgun case, McDonald v. Chicago, that will define the scope of the recently recognized individual right under the Second Amendment. It will also allow new Justice Sonia Sotomayor to vote on the very issue that led to much of the opposition against her in her confirmation.

We previously discussed the related appeal from the Seventh Circuit and, at the time, I noted that it had as good a chance for cert as any case that I have seen. In that case, the United States Court of Appeals for the Seventh Circuit handed down a decision that addressed the same issue ruled upon by then-Judge Sotomayor on the scope of the individual right vis-a-vis the states. In National Rifle Association v. Chicago, the Seventh Circuit upheld a Chicago ordinance banning handguns and automatic weapons within city limits. In so doing, it held that the individual right to bear arms is not a fundamental right applicable to the states. It is precisely the hypothetical that some of us discussed in the wake of the Supreme Court’s decision in District of Columbia v. Heller, which recognized an individual right to bear arms in the Second Amendment. It supported the view of Sotomayor, who has been criticized for two opinions (including one after the Heller decision) that rejected the right to bear arms as a fundamental right. The decision in that appeal was particularly strong and was written by Judge Frank Easterbrook, one of the most conservative judges on the court and a longtime candidate for a Republican nomination for the Supreme Court. He was joined by another Supreme Court candidate and leading intellectual: Richard Posner. Easterbrook and his colleagues (like Sotomayor’s panel) considered themselves bound by precedent: “The Supreme Court has rebuffed requests to apply the second amendment to the states.”

The panel cited concerns of federalism and the need for the Supreme Court to bring its decisions in line with Heller if incorporation is warranted:

That the Constitution establishes a federal republic where local differences are to be cherished as elements of liberty rather than extirpated in order to produce a single, nationally applicable rule…. Federalism is an older and more deeply rooted tradition than is a right to carry any particular kind of weapon. How arguments of this kind will affect proposals to “incorporate” the second amendment are for the Justices rather than a court of appeals.

Sotomayor’s two second amendment-related rulings follow a familiar pattern of relatively brief treatments of such questions. She voted on the panel in favor of the majority ruling that dismisses the right to bear arms as a fundamental right. In the first case, United States v. Sanchez-Villar (2004), the court states “the right to possess a gun is clearly not a fundamental right.” This case is less notable than the later ruling in Maloney v. Cuomo, a 2009 per curiam opinion, where she again joins a panel in rejecting the notion that the right to bear arms is a fundamental right. The panel relies on Presser v. Illinois (1886) that preceded the incorporation of rights through the due process clause — making its application more problematic for gun rights advocates.

However, the Seventh Circuit relies on some of the same cases in reaching the same result:

Anyone who doubts that Cruikshank, Presser, and Miller have “direct application in [this] case” need only read footnote 23 in Heller. It says that Presser and Miller “reaffirmed [Cruikshank's holding] that the Second Amendment applies only to the Federal Government.” The Court did not say that [these cases] rejected a particular argument for applying the second amendment to the states. It said that they hold “that the Second Amendment applies only to the Federal Government.” The Court added that “Cruikshank’s continuing vitality on incorporation” is “a question not presented by this case.”

If there is a case with the highest possible odds for a Supreme Court review, this is it. Not only is there a split in the circuits (among the largest Second, Seventh, and Ninth Circuits), but this is a well-reasoned decision by two of the most famous intellectuals in the federal court system.

In McDonald, Easterbrook framed the issue in uncomfortable terms for conservatives: asking if they care more about federalism or gun ownership. He noted that “the Constitution establishes a federal republic where local differences are to be cherished as elements of liberty rather than extirpated in order to produce a single, nationally applicable rule. . . . Federalism is an older and more deeply rooted tradition than is a right to carry any particular kind of weapon.” Easterbrook said that that question would have to be answered by the Supreme Court and they appear to have received the invitation. The result will have a pronounced impact on gun ownership since states control the majority of restrictions and laws related to gun possession.

The high court took his suggestion Wednesday.

The case was notably brought by Alan Gura, the Alexandria, VA., lawyer who won the 2008 decision recognizing the individual right, District of Columbia v. Heller. The NRA v. Chicago is also pending with the Court and presumably will be held as related to the McDonald case and be cited in any decision after argument next year.

Florida State bar authorities have fined trial lawyer Sean Conway $1,200 for criticizing Ft. Lauderdale Judge Cheryl Aleman on a blog, including calling Conway an “evil, unfair witch.” We previously discussed this case, here. The ruling is a major blow to free speech and another case of courts or the bar overreaching in punishing lawyers and parties for their criticism of judges. What is particularly interesting is that Aleman has been charged with misconduct by the Judicial Qualifications Commission.

Conway was apparently fed up Aleman’s mistreatment of lawyers and unreasonable orders. This includes her alleged habit of refusing defendants reasonable time to prepare for trial and then insisting, if they wanted to prepare, that they waive their constitutional right to a speedy trial: “She was giving people one week to prepare for trial and as soon as the blog exposed it through powerful words she stopped it. And that’s why I stand by what I did.” What he did was in Oct. 2006, on Jaablog, he called her an “evil, unfair witch” and described her “ugly, condescending attitude.” The contents of the posting are linked below, but the posting includes five specific remarks raised by the Bar:

(1) l along with several other attorneys, had to endure her ugly, condescending attitude as one-by-one we all went up to the podium and noted that our respective clients had just been arraigned on Oct. 18th as she forced us to decide between saying ready for trial – or need a continuance”; (2) “Every atty tried their best to bring reason to that ctroom, but, as anyone who has been in there knows, she is clearly unfit for her position and knows not what it means to be a neutral arbitec’; (3) “Evil, unfair witch (“hereinafter “witch”)”; (4) “As my case was on recall for 2 hours, I watched this seemingly mentally ill judge condescend each previous attorney”; and (5) “Judge (not your honor b/c there’s nothing honorable about that malcontent) there seems to be a mistake in this case.”

The Bar sent this letter (2007-04-03-Letter Notifying Conway of Bar Investigation) to Conway placing him under investigation (which includes the original article and correspondence).

Yet, the Florida Bar seems to have lost its collective mind and found five bar violations, including impugning a judge’s qualifications or integrity (a standard so vague and overbroad that it defies reasonable limitations).

What is equally bizarre is the the Florida Supreme Court has upheld this abusive fine and in the process tossed aside first amendment concerns. Conway was required to pay $1,200.

The proper response to Conway would have been a letter of caution that asked him to be a tad more respectful while acknowledging his right to voice his objections about the record or demeanor of a judge.

The Court has long protected opinion and “rhetorical hyperbole”, particularly from government sanctions. See National Ass’n of Letter Carriers v. Austin, 4l8 U.S. 264, 284 (1974). Lawyers are required to conduct themselves with decorum and respect in the courtroom but they do not waive their rights of free speech in criticizing judges — particularly elected judges who are necessarily subject to criticism in the public forum. Notably, when the New York courts dealt with this issue, they came down solidly on the side of free speech. In Justices of Appellate Division, First Department v. Erdmann, 33 N.Y.2d 559, 560 347 N.Y.S.2d 44I, 301 N.E.2d 426 (1973), a lawyer was protected in saying that few trial judges in certain local courts left guilt or innocence to jury and that the appellate judges in same department were “whores who became madams.” The lawyer even went as far as saying that the only way to become a judge was “to be in politics or buy it.”

As the Court has stated, “speech is often provocative and challenging . . . [But it] is nevertheless protected against censorship or punishment, unless shown likely to produce a clear and present danger of a serious substantive evil that rises far above public inconvenience, annoyance, or unrest.” Terminello v. City of Chicago, 377 U.S. 4 (1949). I fail to see how this speech presents a “clear and present danger for a serious substantive evil.” Yes, it contained some juvenile rhetoric, but lawyers are in the best position to raise such objections about allegedly incompetent or abusive judges. Judges deserve respectful treatment in court and lawyers should be punished for uncivil or unprofessional conduct. However, this case creates a chilling effect on speech that is perfectly glacial.

We have seen courts overreaching in recent cases to punish lawyers and parties alike for their public statements. A minister was hit with a probation violation (later reversed) for calling down “demons” upon a Michigan judge, here. One California blogger was arrested in Singapore for saying that a judge was “prostituting herself.”

The Illinois case of Kristine A. Peshek raises a more difficult and closer question. Perhek lost her job as an assistant public defender (with 19 years of service) over blog postings which are described in the bar report:

…Respondent was an assistant public defender in Winnebago County, Illinois. In the course of her duties, she had access to information about clients that would otherwise be confidential or secret.

Between June 2007, and April 2008, Respondent wrote and published an Internet web log (“blog”) entitled “The Bardd (sic) Before the Bar – Irreverant (sic) Adventures in Life, Law, and Indigent Defense.” Approximately one-third of the blog was devoted to discussing Respondent’s work at the public defender’s office and her clients, and the remaining content of the blog concerned Respondent’s health issues and her photography and bird-watching hobbies. In the work-related blogs, Respondent referred to her clients by either their first name, a derivative of their first name, or by their jail identification number.

Respondent’s blog was open to the public and was not password-protected. Respondent knew or should have known that the contents of her blog were continuously available to anyone with access to the Internet, and she maintained a site meter on the blog that counted the number of visits to the blog. At some point, Respondent posted the following language on her blog:

Commentary is Both Invited and Appreciated. Let’s Get Some Dialogue Going!

On or about March 14, 2008, Respondent represented a college student in relation to allegations that he possessed a controlled substance. On March 14, 2008, Respondent published the following entry on her blog:

#127409 (the client’s jail identification number) This stupid kid is taking the rap for his drug-dealing dirtbag of an older brother because “he’s no snitch.” I managed to talk the prosecutor into treatment and deferred prosecution, since we both know the older brother from prior dealings involving drugs and guns. My client is in college. Just goes to show you that higher education does not imply that you have any sense.

Respondent knew or should have known that information contained in her March 14, 2008 blog . . . was confidential, or that it had been gained in the professional relationship and the revelation of it would be embarrassing or detrimental to her client.

Thefiling goes on to detail additional such examples. This case shows a legitimate concern over public statements by lawyers that could harm former clients or undermine the confidentiality guarantees in our profession. Notably, however, she is also charged with referring to one judge as “Judge Clueless” which does raise the same first amendment concerns.

Another distinguishable case involved San Diego lawyer Frank R. Wilson, who discussed details from his service as a juror on his blog and caused a criminal case to be overturned, here. Wilson insists that orders not to discuss the case did not expressly include references to a blog. He received a 45-day suspension, paid $14,000 in legal fees and lost his job.

As we have previously discussed, even judges have faced allegations over their blogs or postings, here, as in the case of Judge Alex Kozinski.

The Conway case is materially different from lawyers violating court rules as jurors or revealing confidential information. Here he was criticizing a judge and is being punished for what the court called “arrogant, discourteous and impatient” speech. The decision by the Florida Supreme Court and the lower courts is itself a case of judicial arrogance in policing the criticism directed at its own judges. I do not agree with the tenor or content of Conway’s remarks. However, I am far more alarmed by overreaching by these judges than I am overheated rhetoric by this attorney.

For the full story, click here.

The United Nations Fact Finding Mission on the Gaza Conflict will issue a report today accusing Israel of “actions amounting to war crimes, possibly crimes against humanity” during its military incursion into Gaza from December 27 to January 18. The mission headed by respected South African judge Richard Goldstone is a major development in the controversy and could put the United States in a very difficult position.

The 400-page report was written without the cooperation of Israel, which insisted that the body should have considered “the thousands of Hamas missiles attacks on civilians in southern Israel that made the Gaza Operation necessary.” There is no question that those acts are crimes themselves and are relevant to any reviewing of the cause or justification for the invasion. However, this investigation focused on how the invasion was carried out — a separate issue.

Goldstone, who is Jewish, has previously indicated that the group found clear evidence of violations of international law in the invasion.

The UN found that Israel failed to minimize casualties, used white phosphorous in civilian areas, intentionally fired upon hospitals using high-explosive artillery shells, and did not effectively warn civilians of attacks. It also accused some Israeli soldiers of using civilians as human shields and attacking food supplies for civilians.

The mission does call on the Palestinians to investigate war crimes by their side and to release soldier Gilad Shalit.

In the most worrisome part for Israel, the mission calls for an investigation by the International Criminal Court for possible war crimes prosecutions. Goldstone previously denounced Hamas for war crimes.

If Israel defies such an investigation, it would be in the same position as Serbia and other rogue nations. This could further isolate the country at a time when it has allowed the controversial “natural growth” of settlements in occupied areas.

With the hardline government of Binyamin Netanyahu, there will be a considerable effort to oppose any war crimes prosecution and he will likely look to the United States to help block that effort. The government has already denounced the findings as “propaganda,” here. After dismissing the Obama Administration’s demands for a halt to the settlement construction, it will be an awkward moment for Netanyahu to demand the U.S. use its power to stop an investigation. However, there will be many in Congress who will likely assist in that effort.

Of course, Obama and Attorney General Eric Holder are already limiting any domestic investigation into war crimes committed by our government in its torture program.

For the story, click here.

Over the last decade, legislators have rushed to impose broader and broader restrictions on sex offenders that prohibit them from living within certain distances of churches, schools, and other locations. The result is often effective banishment or homelessness for sex offenders. Georgia’s politicians have been so careless in their legislation that officials are now recommending that sex offenders live in the forests.

We have seen how the definition of “sex offender” often leads to ridiculous and abusive results. However, even for legitimately classified sex offenders, the residential limitations have left individuals with no place to live.

Georgia laws were previously challenged in a case where it effectively banished an individual, here.

You will see the result if you venture behind an office complex in Marietta in the forest where probation officials have been sending ex-offenders to live like hermits. Other states have put offenders under bridges like trolls. Whether hermit or troll, the situation does not allow for these ex-offenders to return to productive lives in society and may actually increase the likelihood of recidivism.

These laws are very popular, but they impose restrictions that make it virtually impossible to create a stable life for ex-offenders and seem designed to force these individuals to leave the state. I was just interviewed on a case where an ex-offender was prohibited from attending church because it had children present. Such limitations raises serious constitutional questions. One would think that politicians would want ex-offenders to find spiritual guidance. Recently, a child molester succeeded in challenging restrictions that barred his access to a synagogue, here.

For the Georgia story, click here.

Attorney Todd C. Bank really liked his Operation Desert Storm hat. Almost as much as Eastern District of New York Judge Nicholas G. Garaufis (left) disliked it. Bank, a sole practitioner in Queens, lost his constitutional claim that he had a right to wear jeans and a hat of his choice in court. Garaufis ruled that any desire to accessorize would occur outside of the Constitution and his court (or any other court for that matter).

Garaufis upheld the dress code as part of the “commonly shared mores of courtroom civility,” and did not encroach upon rights protected under the First or 14th amendments in Bank v. Katz, 08-CV-1033.

Bank objected to the rule when he appeared pro se in an ongoing dispute with his landlord before Queens Civil Court Judge Anne Katz. During oral arguments in March 2008, Bank requested that he be allowed to “exercise his rights under the First Amendment of the U.S. Constitution by wearing a baseball hat” that read “Operation Desert Storm.” When she said no and the clerk instructed him to remove the cap, he sued in federal court for a declaratory judgment in a challenge naming Katz and the clerk, Jude Albano under 18 U.S.C. 1983.

Garaufis ruled that “[w]hen he is not in court, Plaintiff is free to express the ideas he wishes to express, and to wear the attire he chooses to wear. When he is appearing as a litigant in civil court, however, he should expect that his choice of expressive attire will be limited in accordance with reasonable standards of courtroom decorum.”
Furthermore, the judge held that “in addition to being reasonable, restrictions on attire generally do not discriminate against any viewpoint . . . [t]here is no allegation that any restriction on Plaintiff’s attire was imposed based upon Plaintiff’s viewpoint. [T]he Complaint does not allege that the restriction on wearing [the hat] was based upon its message or viewpoint. Plaintiff does not allege, for example, that a Queens judge prohibited only Yankees hats from her courtroom, or that hats with pro-war messages were permitted while anti-war hats were not.” Well, sure, no one wants Yankee hats in a court of law. The Yankees are the antithesis of the concept of justice and equity. Now, a Chicago Cubs hat is a different matter . . .

Bank intends to appeal and insists “I’ve had cases that I’ve lost in my career and I knew that I should have lost, but this is not one of them.” Bank is a conservative who ran for the state legislature as a Republican and is a member of the Federalist society. He says that he specializes in litigating “junk faxes.” However, earlier litigation included an equally unsuccessful challenge to a $35 fee that his landlord assessed for a bounced check (as well as other alleged violations). That challenge was dismissed by Judge Jack B. Weinstein.

Lawyers have previously litigated the issue of dress codes, including a recent objection to an order of a white judge for an African-American lawyer to remove the kente cloth in court. D.C. Superior Court Judge Robert M. Scott told a defense attorney John T. Harvey III that he would have to remove himself or the cloth from the case, here. Likewise, Judge William Sosnay delayed courtroom proceedings for several hours because the prosecutor insisted on wearing an ascot rather than traditional neckwear, here.

While such displays are banned because they can be used to pander to a jury, even jurors are not allowed to wear their clothes of choice as in Whitewater juror Barbara Adams who showed up in a Starfleet Academy uniform, including commbadge, a phaser, and a tricorder. (The phaser was not banned as a weapon, but her outfit was challenged by the court).

The dress codes of courts are a bit impressionistic and clearly majoritarian. For example, a female lawyer (as shown in the ascot case) is generally given more leeway than males, who are expected to wear a tie (and not an open shirt) as well as a jacket in court. On the other hand, King County Superior Court Judge Jeanette Burrage was heavily criticized when she told Public defender Cindy Arends and Deputy Prosecutor Page Ulrey to both show up in skirts or not at all in court, here.

Bank insists that “[t]he respect a court gets should come from the court itself. As long as my conduct does not hinder the court’s ability to adjudicate disputes, I think it should be allowed.”

What do you think?

For the full story, click here.

A Polish court has awarded Alicja Tysiac $11,000 against a Catholic magazine, Gosc Niedzielny, after the magazine compared her to a child killer and a Nazi. While it is impressive to see a court levy such damages against a Catholic publication in this very Catholic nation, the ruling does raise freedom of speech issues.

Doctors told Tysiac, 38, that she risked going blind if she had the baby, but abortions are illegal in Poland. There are exceptions to protect the health of the mother. However, the gynecologist refused to perform the procedure. She had the baby and lost much of her eyesight. Two years ago, the European Court of Human Rights ordered Poland to pay Ms Tysiac $36,000 in compensation and the magazine charged that she had received money for wanting to kill her baby. The magazine further compared her to Nazi war criminals conducting medical experiments at Auschwitz. The judge awarded her for the magazine’s “contempt, hostility and malice.”

The analogy of the newspaper was obviously wrong and abusive. However, this is part of a trend in the West to criminalize free speech, here and here. For an earlier column, click here. A newspaper should be allowed to make analogies of this kind and Tysiac’s supporters should be allowed to analogize the newspaper to Nazi propaganda.

For the full story, click here

New York Supreme Court Judge Charles Markey takes stapling very seriously. He took counsel to task for not just injurious stapling but failing to sign pleading, which were apparently signed in blood by the clerks.

The judge observed that two clerks cut themselves on a staple on the filing and mentioned the failing as part of the dismissal of a motion: “The poor stapling of the papers was so negligent as to inflict, and did inflict repeatedly, physical injury to the court personnel handling them. Such negligence on the part of counsel shows a lack of consideration.” Of course, poor judging is even worse for the legal profession.

The judge’s concern about the clerks is commendable. Markey, however, has issued a public defense in a letter to the editor and denied a fastener fetish, here.

Markey lists the following as his background:

* Judge, Civil Court – Queens, 2/02-present
* Judge, Criminal Court – Queens, 1/01-2/02
* Counsel, Board of Education Retirement System, 1995-2000
* NY Telephone Co./NYNEX – 1968-1994

For the story, click here.

Below is today’s column on the aftermath of the Joe Wilson controversy. The threat of the Democrats to punish members using certain words to criticize the President raises some novel and unresolved constitutional questions.

When Does Disrespect Become Disorder?

This month, Rep. Joe Wilson (R-S.C.) achieved unique ignobility as the first Member of Congress to be formally admonished for an outburst during a presidential address. Indeed, Wilson’s most memorable words in his entire career will likely be his two-word rebuttal to President Barack Obama: “You lie!”

Wilson’s lack of personal control and proper decorum, however, may have a more lasting impact on the speech of his colleagues. House Rules Chairwoman Louise Slaughter (D-N.Y.) is warning Members that they will face punishment if they engage in improper forms of speech. Specifically outlawed are references to any president as a “liar,” “hypocrite,” “intellectually dishonest,” or to conduct by a president as “cowardly,” “giving aid and comfort to the enemy,” or involving “sexual misconduct on the president’s part.”

The House rules pit the inherent authority of Congress over its own affairs against the inherent rights of individual Members, particularly their rights of free speech and full representation.

The framers had few illusions of the type of people who often seek power and public acclaim. James Madison stated in The Federalist Papers No. 57: “The aim of every political constitution is, or ought to be, first to obtain for rulers men who possess most wisdom to discern, and most virtue to pursue, the common good of society; and in the next place, to take the most effectual precautions for keeping them virtuous whilst they continue to hold their public trust.”
The desire for a virtuous Congress has long since yielded to the more practical objective of maintaining an orderly Congress. The Constitution expressly leaves it to Congress to determine the rules governing the conduct and qualifications of Members. Section 5 of Article 1 states that each house of Congress “shall be the Judge of the Elections, Returns, and Qualifications of its own Members” and specifically allows each to “punish its Members for disorderly Behavior.” This included the power “with the Concurrence of two-thirds, [to] expel a Member.”
The use of the word “disorderly” captures the proper emphasis of rules restricting Members. The need to prevent disorder is different from preventing disrespect. Yelling during a presidential address causes disorder and is thusly a proper focus of discipline. However, like many matters of protected speech, the right to regulate depends on the time, place and manner of the restrictions. Under the First Amendment, words at one time or in one place may not be protected while the same words at a different time or place are protected. That should be the case with the words “you lie.”
Ironically, Wilson was not subject to the speech rules since the House was in joint session. However, the House reserves the right to enforce a particular rule: “a lawmaker shall conduct himself at all times in a manner which shall reflect creditably on the House of Representatives.”

In most prior cases, this rule has been used for the noncontroversial purpose of punishing Members who have been convicted or accused of criminal acts. Yet, the language is equally applicable to otherwise protected speech. The House rules go beyond bad conduct and encompass bad manners. While courts have overwhelmingly deferred to Congress in such matters, a challenge to a restriction on the content of legislative remarks could force an exception to this principle.
Wilson was properly sanctioned for screaming out during a presidential address. It was a rude and uncivil act that demeaned the entire Congress. However, he has a right to say that a president is lying. Indeed, presidents have lied throughout history on matters great and small. One of the most important functions of a Member of Congress in our system of checks and balances is to call a president to account for falsehoods.

If the president’s party can prevent a Member from referring to him as “intellectually dishonest” or “giving aid and comfort to the enemy,” the majority can effectively script Members’ speech through a process of elimination. The framers never envisioned such a level of choreographed or controlled speech. To the contrary, “sexual misconduct on the president’s part” can be — and has been — a basis for impeachment when such conduct leads to such high crimes or misdemeanors as lying under oath. If a president traded federal positions for sexual favors, it could also be the subject of impeachment. Yet, a Member revealing such misconduct could not refer to the “sexual misconduct” directly.
Some Members in the majority after the Wilson scandal have cited the rules of Parliament. The rules of the House incorporate Section 370 of Jefferson’s Manual, which states that members in Parliament are prohibited from “speak(ing) irreverently or seditiously against the King.” While there are many parliamentary traditions that would be worthy of duplication, this is not one of them. Members should be able to speak irreverently about the head of their government. Indeed, Parliament shows the utter lunacy of these rules by prohibiting certain forms of language like calling the prime minister a “liar,” but members routinely engage in rude outbursts and shout at the prime minister during question sessions. Parliament has it reversed: It should prohibit the outbursts while allowing members to speaking truthfully of their views of a prime minister. The former causes disorder while the latter is merely disrespectful. It is the shouting and catcalling that is out of place — not the frank expression of a member’s view.

None of this means that rules should not discourage the use of such words. Calling a president or another Member a liar is a juvenile habit. However, the House rules suggest that a Member can be punished for using these words, which may accurately describe the view of the Member. The fact is that a president can be a liar or a sexual deviant or both. In such cases, Representatives have not only a right but a duty to confront the executive and his party.

Securing judicial review of such rules may not be easy absent an actual enforcement against a Member. Of course, Members could trigger the rule by marching to the floor to proclaim, “The president is a lying, hypocritical, intellectually dishonest man who is giving aid and comfort to the enemy” — or some variation of that theme. None of that is true, of course, but sometimes a constitutional claim can only be found on the other side of calculated rudeness.

Wilson picked the wrong time and place to cry “You lie!” and was worthy of admonishment. However, when given in the course of legislative debate, punishment for such speech puts the lie to the free speech guarantees in our Constitution. Congress should focus on disorder and let voters focus on decency among its Members.

Jonathan Turley is the Shapiro professor of public interest law at George Washington University.

Roll Call Column — September 24, 2009

A New Jersey court has handed down a ruling that may be cited in thousands of disputes over pets by divorcing or separating couples. Doreen Houseman and Eric Dare split up after 13 years as an unmarried couple in 2006 and agreed on the easy division of possessions with one notable exception: Dexter, their pet pug. Now, Judge John Tomasello has ruled that the former couple must have joint custody of the six-year-old dog — rotating every five weeks.

Originally, the trial court ruled that Dare could keep the dog but an appellate court reversed Tomasello’s decision for not considering the “subjective” value of the dog. The panel found that a dog cannot be treated as simple chattel with a (pug) face value but is more like a family heirloom or work or art with a subjective value. Under the original ruling, Houseman was paid $1,500 for her pug share.

The appellate panel ruled that “[t]here is no reason for a court of equity to be more wary in resolving competing claims for possession of a pet based on one party’s sincere affection for and attachment to it than in resolving competing claims based on one party’s sincere sentiment for an inanimate object based upon a relationship with the donor.” For the full opinion, click here.

The case had some interesting rivaling claims from organizations. Animal groups urged the adoption of a “best-interest-of-the-pet” standard — a parallel to the standard for children. Veterinary groups opposed such a rule, here.

The appellate decision is a fascinating extension of the usual rules governing chattel. In my torts class, we discuss various philosophical perspectives including Georg Wilhelm Friedrich Hegel’s view that private property rights are the “embodiment of personality.” In torts, we often deal with “soft values” or “soft variables” where the market value of an object does not capture the equitable or subjective value. Pets are treated as chattel under the law while most people view them as family members of infinite value. This causes a tension as the law seeks to quantify and divide property despite the subjective valuation of the parties.

The appellate court focuses on the equitable and subjective value of Dexter. It ruled that specific performance of an oral contract (that Houseman would have possession of Dexter) could not be resolved with simple monetary relief:

The remedy of specific performance can be invoked to address a breach of an enforceable agreement when money damages are not adequate to protect the expectation interest of the injured party and an order requiring performance of the contract will not result in inequity to the offending party, reward the recipient for unfair dealing or conflict with public policy. . . .

Specific performance is generally recognized as the appropriate remedy when an agreement concerns possession of property such as “heirlooms, family treasures and works of art that induce a strong sentimental attachment.” Id. at § 360 comment b. That is so because money damages cannot compensate the injured party for the special subjective benefits he or she derives from possession.

On the same reasoning, when personal property has such special subjective value courts have determined that an award of possession of personalty is the only adequate remedy for tortious acquisition and wrongful detention of property. . . . And, consideration of special subjective value is equally appropriate when a court is called upon to exercise its equitable jurisdiction to resolve a dispute between joint owners of property that cannot be partitioned or
without hardship or violation of public policy. . . .

The special subjective value of personal property worthy of recognition by a court of equity is sentiment explained by facts and circumstances – such as the party’s relationship with the donor or prior associations with the property – that give rise to the special affection. . . .In a different context, this court has recognized that pets have special “subjective value” to their owners. Hyland v. Borras, 316 N.J.Super. 22, 25 (App.Div.1998) (concluding that the owner of an injured dog was entitled to recover costs of treatment that exceeded replacement cost); see also Pitney v. Bugbee, 98 N.J.L. 116, 120 (Sup.Ct.1922) (noting the importance of the “companionship” of animals to humans in concluding that a bequest to the Society for Prevention of Cruelty to Animals was exempt from tax as a transfer to a benevolent and charitable organization). Courts of other jurisdictions have considered the special subjective value of pets in resolving questions about possession. See, e.g., Morgan v. Kroupa, 702 A.2d 630, 633 (Vt.1997) (affirming a decision awarding possession of a dog to a person who found the lost pet, “diligently attempted to locate the dog’s owner and responsibly sheltered and cared for the animal for over a year”).

There is no reason for a court of equity to be more wary in resolving competing claims for possession of a pet based on one party’s sincere affection for and attachment to it than in resolving competing claims based on one party’s sincere sentiment for an inanimate object based upon a relationship with the donor. See Burr, supra, 101 N.J. Eq. at 626. In both types of cases, a court of equity must consider the interests of the parties pressing competing claims for possession and public policies that may be implicated by an award of possession. Cf. Juelfs v. Gough, 41 P.3d 593, 597 (Alaska 2002) (approving modification of a property settlement agreement providing for shared possession of a dog because the arrangement assumed cooperation between the parties that did not exist); Akers v. Sellers, 54 N.E.2d 779, 779-80 (Ind.Ct.App.1944) (speculating that the interests of the pet might be different but finding the evidence adequate to support an award of possession to the wife, rather than husband, on the ground that the husband had given her the dog).

Now, after three years of litigation and $40,000 in legal costs, the couple will share the pet.

The fact that the couple was not married adds to the novelty of this shared custody ruling. It is likely to be cited in future pet cases and may chip away at the more traditional treatment of pets as simply chattel valued at their market rates. While the court still compares Dexter to forms of “subjective” chattel, it is still a step away from simple pug market calculations.

For the story, click here and here.

Civil libertarians have been objecting that liberals are ignoring the Obama Administration’s continuation of a number of Bush programs and policies — in contradiction to President Obama’s presidential campaign promises. From torture to unlawful surveillance, Obama has continued the positions of President Bush in federal courts in seeking to dismiss lawsuits and claim sweeping executive privilege authority. Now, the Obama Administration is seeking to get a court to dismiss a lawsuit by gay married couples from Massachusetts who are challenging the denial of federal marriage benefits.

Bill Clinton pushed through the 1996 Defense of Marriage Act that bars the federal government from recognizing same-sex marriages. Gay couples have challenged the constitutionality of denying them the same benefits as other married couples. The Justice Department is now seeking to have their lawsuit dismissed. It insists that it must defend the law and claims the lawsuit is meritless. The Administration challenges the right of gay couples to demand such benefits.

It is arguable where the Justice Department must defend such laws in this way if it views this law to be unconstitutional. There are, in my view, a number of alternative options. First, it could have elected not to seek dismissal as opposed to ruling on the merits. As in prior cases dealing with electronic surveillance and torture, the Administration is fighting to block citizens from having a court review the matter by challenging standing and the cause of action. Of course, the Justice Department could argue that, even with a dismissal, the Court will have to reach the threshold question of whether these couples have any legal claim and, if they do not, there is no reason to proceed beyond that threshold question.

Second, it could offer a more nuanced defense that the law may be unconstitutional under certain circumstances or could be found unconstitutional if the court recognizes certain protections for gay couples. The Administration could recognize in its filing that these couples should have recognized rights to benefits as married couples and even question the constitutionality of DOMA (if it believes that it is unconstitutional to deny married status on the basis of sexual orientation). While the Administration cites prior precedent against such claims, it does not indicate any support for the constitutional claims of gay couples. On the merits of the lawsuit, there is little difference between the positions of Bush and Obama Administrations.

Third, though admittedly novel and rare, the Department could have an outside attorney defend the law if the Department views the law as unconstitutional or discriminatory. If the Administration views this law to be discriminatory, it can convey its view by declining to defend it directly while appointed a specially appointed attorney to do so. While the filing acknowledges support for gay and lesbian couples, it seems to support them in a potential legislative setting rather than a constitutional claim.

There is certainly an argument to be made that the Justice Department must defend federal laws. However, even if this aggressive approach is warranted, it would be far more convincing if the Obama Administration was seeking the repeal of DOMA in Congress. It could easily put such a measure on the agenda in the Democratically-controlled House and Senate. Obama previously supported such a move, but his Administration is now believed to be privately opposed to such a vote in this Congress. Gay activists are objecting that they have once again been given a bait and switch by the Democrats. Obama worked hard to secure gay and lesbian votes during the election, but his Administration has not been aggressive in seeking reforms from the terminatin of the “don’t ask, don’t tell” policy to the DOMA issue.

For the full story, click here.

Goodhue County District Judge Timothy Blakely, 46, is accused of being a rainmaker from the bench. He was found by a state investigation to have been referring parties in his court to his own divorce lawyer, “Super Lawyer” Christine Stroemer who allegedly gave him a discount on his own bill for fees.

While state bar officials recommended the removal of Blakely, the Minnesota Supreme Court saw no reason why he should not be able to continue to be a judge — instead giving him a six-month suspension without pay.

Both the judge and Christine Stroemer with Collins, Buckley, Sauntry & Haugh rejected allegations of a quid-pro-quo, though it should be a matter of concern if the judge received a discount due to his position.

The opinion below includes highly disturbing language and findings, including the fact that the judge fell behind on his payments to the law firm and an email where the attorney discusses both a waiver of some costs while thanking him for referrals:

In October 2002, Judge Blakely retained William Haugh of the St. Paul law firm of Collins, Buckley, Sauntry & Haugh, PLLP (“CBSH”) to represent him in dissolution proceedings. When he retained CBSH, Judge Blakely agreed to pay the “usual hourly rate” charged by CBSH attorneys. At the time, Judge Blakely anticipated that his divorce could be resolved quickly and that his legal fees would be minimal. Judge Blakely’s case failed to settle, however, and Christine Stroemer of CBSH took over as the lead attorney in December 2002. Judge Blakely incurred substantial legal fees during the divorce proceedings and was not able to keep current with his bill.

In addition to representing parties in divorce and other proceedings, CBSH provides mediation services. Between 2000 and 2002, before Judge Blakely retained CBSH to represent him in his divorce, CBSH Mediation Services made a presentation to the judges in the First Judicial District, offering mediation services in family court dissolution actions. Judge Blakely attended the presentation. Although Judge Blakely was impressed with CBSH, his first mediation appointment of CBSH was not until December 2003, when he appointed Stroemer to mediate a Scott County dissolution action. At the time of the appointment, Stroemer was representing Judge Blakely in his divorce, and Judge Blakely owed CBSH more than $42,000 in legal fees. Over the course of the next three and a half years, Judge Blakely appointed Stroemer as a mediator or third-party neutral in another sixteen cases.

In addition to the mediation appointments, Judge Blakely referred people he knew to Stroemer for direct representation. Judge Blakely referred his personal tax accountant to Stroemer for representation in her divorce. The case ultimately generated significant fees for CBSH. While not aware of the exact amount, Judge Blakely believed the fees were similar to his own. Judge Blakely and his second wife also referred families using the wife’s daycare business to Stroemer for representation.

By the time the final dissolution decree was entered in his divorce in September 2004, Judge Blakely had made payments totaling $8,640 to CBSH, and owed approximately $98,000 in unpaid fees. Although Stroemer had agreed to accept monthly payments toward the bill, after the case was concluded she advised Judge Blakely that he needed “to make substantial payments to this office.” Stroemer offered to work with Judge Blakely to establish a reasonable payment plan, but also stressed her inability to continue carrying such a large outstanding balance on CBSH’s books.

On February 16, 2005, Judge Blakely called Stroemer to protest the interest CBSH was assessing on the unpaid balance on his account. Stroemer responded by e-mail, defending CBSH‟s ability to charge interest. She also stated “[Q]uite frankly, when the dissolution ends, the client is to pay the outstanding balance . . . with[in] 30 days.” Nonetheless, Stroemer agreed to suspend the interest as long as Judge Blakely was making reasonable, regular payments. After acknowledging Judge Blakely’s financial situation, Stroemer thanked him for the mediation appointments, stating in her e-mail message, “I DO want to thank you for the referrals and certainly appreciate the work. I’ll do my best to get those cases resolved and off the court calendar.”

In fairness to the lawyer, she did seem to hold the line on payments and some of the earlier emails did not evidence favoritism. The reference to the referrals, however, in the same email as the fee reduction was a remarkably dim decision, assuming it was an innocent mistake.

For the judge, the matter seems a bit more serious than a mistake of judgment. He had a conflict in my view sending business to a firm that was holding a large unpaid bill for personal legal services. What do you think?

Blakely was first elected to the bench in 1998 and represented himself in the matter.

Stroemer’s bio on the firm’s web site notes that she “has been named a ‘Super Lawyer’ and one of the ‘Top 100 Super Female Lawyers’ in Minnesota.”

For the opinion, click here.

For the full story, click here.

Fawziya Abdullah Youssef, 12, is the latest victim of the tradition of child-bride under Sharia law in some Muslim countries. She died after three-days of labor trying to give birth to a child that was the result of her marriage to a 24-year-old man in Yemen. She was eleven at the time. The baby also reportedly died.

We have been following these child-bride cases, here and here.

In most nations, this would be treated as a simple and straightforward case of child rape. However, in Yemen, over a quarter of the country’s females marry before age 15.

While the Parliament passed a law to raise the age of such brides to 17, it was sent back to committee after religious lawmakers declared it “unIslamic.”

Complicating the issue for some is the fact that Mohammad himself married 6-year-old Aisha, a union that was consummated when she was 9.

For the full story, click here and here.

Suddenly, it appears that most extreme elements of our political debate have discovered the Tenth Amendment in arguing for either secession or a type of state independence that borders on separatism. This video of a Texas secessionist rally is shocking given the chants of “we hate the United States” but it is most telling in recognition that “legal secession” it no longer a serious claim. Others do not want to secede but rather to use the Tenth Amendment to bar such things as the national health bill from closing their borders. I discussed this story last night on this segment of the Rachel Maddow show.

The most striking aspect of this Texas rally is that many of the speakers have given up on claiming a legal avenue for secession — a ridiculous claim made by Gov. Perry out of a shocking level of ignorance of his own constitution and state history. Indeed, the speakers (after the unhinged man shown in the video clip above) admit that they are calling for a “bloody civil war” and not some constitutional transition:

Other states are considering less radical and bloody opposition to the health care bill or taxation. Some like Georgia are calling for challenging the national health care plan on the basis for the Tenth Amendment.

Sens. Judson Hill (R-Marietta) and Chip Rogers (R-Marietta) have been joined by members of the legislator to seek an amendment to their Constitution to allow Georgia to invoke the 10th Amendment to the U.S. Constitution to oppose the use of the health plan in Georgia.

On its face, it is a rather bizarre bill. If the 10th Amendment says what these legislators think its says, they would not need to amend their state constitution — they could stop the program on the basis of the federal constitution.

However, to do so would require the Supreme Court to reverse decades of rulings. It is extremely rare for the Court to overturn legislation on this basis. Having said this, there is a great difference between this argument and the extremists in these Texas videos. Federalism is an important part of our Constitution and many of us are great believers in the rights of the states to go their own way on policy and programs. Indeed, I have long advocated greater protection of states in their fight against the federal government in areas like medical marijuana and assisted suicide laws, here.

The Tenth Amendment, however, reads as a more robust protection than the Court has been willing recognize. The amendment itself proclaims: “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”

Yet, the Court has rarely used the Tenth Amendment to strike down laws. For example, when the Court protected federalism principles in United States v. Lopez, 514 U.S. 549 (1995) — invalidating the Gun-Free School Zones Act of 1990 (the “Act”), 18 U.S.C. § 922(q) — it did so under Article I and the commerce clause.

The Court did rely on the Tenth Amendment to strike down the law in New York v. United States, 505 U.S. 144 (1992), involving a provision of the Low-Level Radioactive Waste Policy Amendments Act of 1985. This provision required states to enforce the federal law. This was the similar result as Printz v. United States, 521 U.S. 898 (1997), where the Court held that the Brady Handgun Violence Prevention Act violated the Tenth Amendment by requiring states to enforce the law.

Yet, most cases follow the result in Wickard v. Filburn (1942), where the Court rejected challenges to federal wheat regulation.

The problem with this claim is multifold. First and most notably, the law hasn’t been fully drafted, let alone enacted. Second, if it does contain an “option” for citizens, it is hard to see the state sovereignty objection when citizens can refuse the option. Third, like social security and other social programs addressing national problems, it would be upheld as a legitimate exercise of the national legislature.

This does not mean that the White House might not blow it in the drafting. Requiring states to enforce aspects of the law can be problematic, as shown above. However, the Court has upheld the right of Congress to pressure states into voluntary cooperation by threatening to withhold federal funds.

Given the prior case history, a Tenth Amendment challenge would appear highly unpromising absent a serious mistake in drafting. The Court has left such questions to the political process and critics have certainly done well in that arena thus far. However, if the Administration passes a national health plan with a public option, it could be drafted to pass the tests previously laid out by the Court.

For the Georgia story, click here.

Judge John Doyle is facing accusations that he is a latte-hating, cigar-smoker baiting jurist or worse. Doyle recused himself after losing his patience with a bank lawyer, Farzad Milani, and telling him that he could not allow the lawyer to sit in his office “smoking his Cohiba cigars and drinking his lattes” while the court does all the work. He should be less worried about playing around with judicial ethics as ticking off those jackbooted, over-caffeinated thugs at Starbucks.

Doyle has been allowing bank lawyers to appear by telephone in the 3,000 pending foreclosure cases before him, but has found that many lawyers simply do not pick up the phone. He was legitimately concerned about homeowners who take off work only to find that the bank lawyers are too busy to participate in the hearing. Doyle complained that Milani was one of those lawyers and was “the fellow that broke the camel’s back.” Milani demanded Doyle’s recusal and said that Doyle threatened to get him disbarred.

Milani insisted that Doyle’s comments contained “inferences of a racial or ethnic bias.” I am not sure what those inferences are.

I am sympathetic to Doyle who is upset over the treatment of these families and the shoddy work of what he called “foreclosure mills,” which he says train young attorneys “that it’s not a big deal to miss a hearing.”

After the controversy with Milani, the judge stopped the telephonic hearings, which will hardly make Milani popular with other lawyers who greatly benefited from the accommodation. Milani could still be held in contempt for missing the hearings. That is a rare punishment. The most obvious response to bank lawyers missing hearings could be a default or financial sanction.

For the full story, click here

Last night I discussed the growing speculation that Justice John Paul Stevens, an icon of the Court with over three decades of service, may be preparing to retire (here). On both a personal and jurisprudential level, Stevens remains one of my favorite judicial figures. He is a man who had a transformative impact on his country. His place in history will likely be discussed for years to come. With this news and the justices returning to the city for the new term, this story may be of interest. Below is my cover article in the American History Magazine on my choices for the top nine justices — as well as my list of the Supreme failures on the Court.

Supreme Court Justice Oliver Wendell Holmes was traveling by train to Washington, D.C. one morning nearly a century ago when a conductor asked for his ticket. Holmes looked in vain until the conductor reassured him, “Don’t worry about your ticket, Mr. Holmes. We all know who you are. When you get to your destination, you can find it and just mail it to us.”
“My dear man, the problem is not my ticket,” quipped Holmes, who was renowned for his quick wit. “The problem is…where am I going?”
We face a similar guessing game as a nation every time a new Supreme Court justice is chosen. The president and other officials involved in the selection process can only speculate what route a new appointee will follow during a lifetime tenure on the Court, much less what lasting impact he or she might have on interpretation of our laws. And predicting whether any justice will achieve a measure of greatness is a crapshoot.
Sonia Sotomayor is no exception. When President Barack Obama put her up for Senate confirmation this summer, he touted her “empathy” and potential for blazing a new historical trail as the first Latina justice. She has been widely compared to Thurgood Marshall, the first African-American justice, and Sandra Day O’Connor, the first female justice, both of whom made history by breaking racial and gender barriers. But neither Marshall or O’Connor are generally viewed as intellectual leaders on the Court. Marshall brought a deep sense of social justice to the Court’s deliberations, but he was not equally known for his contribution to legal theory and doctrine—at least no more than the vast majority of his predecessors or successors. O’Connor virtually functioned as a court of one—the consistent swing vote on a Court rigidly divided in many areas by a 4-by-4 split—but she will not be remembered the depth or consistency of her opinions. Even though she often dictated the outcome of cases, she did so with insular and sometimes conflicting rationales.
History suggests that some criteria are wrongly emphasized these days in selecting nominees. The most obvious is prior judicial experience, which is not necessarily the best predictor of potential greatness. Earl Warren had been a popular governor of California, but never sat as a judge before becoming Chief Justice in 1953. Louis Brandeis came from private legal practice, with no prior judicial experience, when he joined the Court in 1916. And while Hugo Black served briefly as a police court judge in Birmingham, Alabama, his most notable experience was as a U.S. Senator before he became a justice in 1937.
The most notable trend in recent decades has been for presidents to put forward nominees who have empty files: impressive academic and judicial resumes combined with a sparse history of controversial speeches or writings that might be turned against them during the confirmation process. Sotomayor, O’Connor, Clarence Thomas, David Souter, and John Roberts all fit this pattern. Such formulaic selections reflect the vagaries of our political system, but also our discomfort with people who are creative thinkers and can’t be easily pigeonholed as either judicial activists or strict constructionists. Even though America has the deepest pool of lawyers in the world, if genius is found on the modern Court it is largely accidental.
There is no standard profile for the selection of great justices. However, close examination of the records of the 111 justices who have served on the Court reveals that a select few managed to see a legal horizon far beyond the view of their contemporaries, often espousing views that would not reflect majoritarian values for decades. The nine justices featured on the pages that follow all exhibited an ability to rise above conventional thinking and prejudices and epitomize what constitutes the right stuff on the Supreme Court.

3 GAME CHANGERS

One of the primary measures of greatness on the Supreme Court is the impact a justice’s decisions have on the society at large. John Marshall, Charles Evan Hughes and Earl Warren all sat on the bench during transformative periods in American history and the social and political consequences of their decisions reverberated for generations.

John Marshall (Chief Justice, Feb. 4, 1801 to July 6, 1835)

Marshall was the author of the most important American judicial opinion of all time: Marbury v. Madison (1803), which established the supremacy of the Court in legal judgments. He also issued a series of decisions involving the balance of power between the federal government and the states that laid the legal foundation for the young republic. “A hush falls upon us even now as we listen to his words,” Justice Benjamin Cardozo wrote more than two centuries later.
Despite such praise, Marshall has an obvious advantage. Marshall’s decisions on the judicial review, Indian tribes, and other fundamental issues reflected the fact that these were the first defining cases. One has to recognize that anyone writing these early decisions would have had the same fundamental impact. Justice Oliver Wendell Holmes, a titan of the early 20th century Court, alluded to the importance of timing when he wryly noted that much of Marshall’s “greatness consists of his being there.”
Marshall was not particularly profound or intellectual in his opinions. Indeed, his opinions often read more like commandments than interpretations on the law. He used Marbury to stake out valuable territory for the Court, a gamble that paid off despite initial protests that he was amending the Constitution through the ruling – the earliest allegation of judicial activism. Yet, the decision achieved a vital balancing of the judicial, legislative and executive branches of government that assured the peaceful resolution of countless conflicts.
Marshall was interested more in the outcomes than the analysis of opinions, but is responsible for the institutional status and authority of the Court itself – giving him a Moses like stature that is unrivaled by his successors.

Charles Evans Hughes (Chief Justice, Feb. 24, 1930 to June 30, 1941; Associate Justice, Oct. 10, 1910 to June 10, 1916)

Like Marshall, Hughes was not renowned for his eloquence or intellect. But he used his political skills to maneuver the Court through swirling waters of social change. Hughes was Republican governor of New York before beginning a six-year stint as an associate justice in 1910. Then, after resigning from the Court to mount an unsuccessful campaign for president and spending several years in private practice as a lawyer, he served as Secretary of State under Warren Harding from 1921 to 1925. He returned to the Supreme Court five years later when Herbert Hoover appointed him Chief Justice.
During the Great Depression, Hughes incurred the wrath of Franklin D. Roosevelt as the leader of a Court that declared several New Deal measures unconstitutional. Most notably, in Schechter Poultry Corp. v. United States (1935), Hughes ruled that agreements between Roosevelt’s National Recovery Administration and private industry regarding work hours, pay rates and price fixing were invalid because they delegated legislative power to the executive branch. After Roosevelt was reelected by a landslide in 1936, he initiated judicial reorganization legislation that would have granted him the power to neutralize the Court’s opposition to his plans by adding more justices. Roosevelt’s court-packing legislation ultimately failed in Congress. But in the interim Hughes helped avoid a cataclysmic showdown between the Court and the Presidency through quiet diplomacy and by working closely with Louis Brandeis, Harlan Fiske Stone and Benjamin Cardozo in decisions supporting New Deal legislation he believed did not threaten the foundations of constitutional law.

Earl Warren (Chief Justice, Oct. 5, 1953 to June 23, 1969)

Before joining the Court, Warren was a consummate politician: a longtime governor of California who proved so popular in his first term that he won the nominations of both the Republican and Democratic parties when he ran for reelection. In 1952 he stood as a favorite son candidate of California for the Republican nomination for President, but withdrew in support of Dwight Eisenhower, who appointed him Chief Justice a year later. Eisenhower proclaimed the Court needed a justice with conservative economic and social values much like his own. Instead, Warren took the Court boldly into the twentieth century with transformative liberal rulings in areas ranging from desegregation to free speech to criminal procedure.
The Warren court issued one landmark decision after another and Warren wrote the majority opinion in some of the most famous cases: Brown v. Board of Education (1954) banned segregation in public schools; Miranda v. Arizona (1966) required that criminal defendants be informed of their rights to remain silent and to be represented by a lawyer; Loving v. Virginia (1967) struck down prohibitions on inter-racial marriage. Liberals generally hailed the Warren Court’s decisions while conservatives cried foul. Nevertheless, Warren was able to find grounds for unanimity among his colleagues in controversial cases like Brown and put the entire weight and credibility of the Court behind opinions that brought great social change.

3 UNYIELDING CONTRARIANS
A handful of justices had a profound impact on the evolution of legal theory by bravely bucking against prevailing trends. Louis Brandeis, Oliver Wendell Holmes, Jr. and William Brennan were independent thinkers who stayed the course even when their opinions were scorned by the majority.
Louis Brandeis (Associate Justice, June 5, 1916 to Feb. 13, 1939)
As the first Jew named to the Court and an unabashed advocate of social justice who had earned the nickname the “People’s Lawyer,” Brandeis faced a bitter confirmation fight. “He was dangerous not just because of his brilliance, his arithmetic, his courage,” his fellow justice William O. Douglas later wrote. “He was dangerous because he was incorruptible.” Indeed, it was Brandeis’ willingness to think beyond the status quo that made him such a prescient figure on the Court. His dissenting opinions, particularly in cases involving freedom of speech and the right to privacy, would later become the majority positions of the Court. In Olmstead v. United States (1928), he bristled at the willingness of his colleagues to endorse the government’s use of wiretap technology to gather evidence and argued passionately for an individual’s “right to be let alone.” His dissent is still one of the most quoted opinions in the Court’s history. “Men born to freedom are naturally alert to repel invasion of their liberty by evil-minded rulers,” he wrote. “The greatest dangers to liberty lurk in insidious encroachment by men of zeal, well-meaning but without understanding.”
Oliver Wendell Holmes, Jr. (Associate Justice, Dec. 8, 1902 to Jan. 12, 1932)
Holmes first exhibited his fearless instincts for diving headlong into the fray during the Civil War, suffering wounds as a first lieutenant with the Massachusetts Volunteer Infantry at the Battle of Ball’s Bluff, Antietam and Fredricksburg. After the war, Holmes established himself as one of American preeminent legal theorists with his 1882 book, The Common Law, and was a Harvard Law school professor before serving for two decades as a justice of the Supreme Judicial Court of Massachusetts. When Theodore Roosevelt put his name forward as a Supreme Court justice in 1902, it was one of the rare occasions that a brilliant legal scholar has been nominated with little regard for partisan politics. Holmes proved to be an independent spirit during his 30 years on the Court, taking a contrarian position in so many decisions that he was dubbed the “Great Dissenter.” But the pithiness of both his minority and majority opinions on issues as diverse as copyright, due process and anti-trust legislation resulted in him becoming one of the most widely cited Supreme Court justices ever. He is particularly well known for his articulation of the “clear and present danger” exception to the right of free speech in a unanimous ruling by the Court in Schenck v. United States (1919), in which he famously declared that First Amendment protections do not apply to an individual “falsely shouting fire in a crowded theater and causing a panic.” However, in his dissent in Abrams v. United States (1919), Holmes objected to the use of his test to punish people solely on the content of their speech.
William Brennan (Associate Justice, Oct. 16, 1956 to July 20, 1990)
Brennan turned out to be a Supreme surprise after President Dwight Eisenhower named him to the Court in 1956. Brennan’s record as a justice on the New Jersey Supreme Court and public comments he had made about criminal law suggested he would follow a conservative course, but he turned out to be one of the most liberal justices in the history of that Court. He was revered by the left and reviled by the right because of his outspoken opposition to the death penalty and support for abortion rights. But his opinions on less socially contentious issues had an equal if not greater impact on the expansion of constitutional theory and doctrines. New York Times v. Sullivan (1964) established the constitutional standard for defamation of public officials. Baker v. Carr (1962) enabled federal courts to protect individual voting rights by intervening in the reapportionment of electoral districts. Malloy v. Hogan (1964) extended a defendant’s Fifth Amendment right against self-incrimination to state courts. Chief Justice Earl Warren often assigned rulings to Brennan that required a comprehensive and profound treatment, leading Court watchers to dub him the “Deputy Chief.”
3 TOWERING VISIONARIES
All of the great Supreme Court justices were visionaries. But John Marshall Harlan, Hugo Black and Joseph Story possessed extraordinary insights that allowed them to transcend their times and articulate a far-reaching view of our laws.
John Marshall Harlan (Associate Justice, Dec. 10, 1877 to Oct. 14, 1911)
Harlan was born into a slaveholding family in Kentucky, and as a Union Army colonel during the Civil War swore that he would resign if President Abraham Lincoln signed the Emancipation Proclamation. But he later broke with family tradition and became an outspoken critic of slavery, which he described “the most perfect despotism that ever existed on this earth.” Harlan was the first justice to have earned a modern law degree and, after joining the Court in 1877, he supplemented his income by teaching evening classes at George Washington law school. Harlan became an eloquent defender of equal rights, and was the sole dissenter in Plessy v. Ferguson (1896), the infamous case in which the Court affirmed the constitutionality of racially segregated public facilities that were “separate but equal.” In his dissent in the Hurtado v. California (1884), Harlan was the first justice to argue that the 14th Amendment, which extended rights of citizenship to blacks after the Civil War, also prohibited states from constructing laws that infringe on protections accorded individuals under the Bill of Rights. Likewise, in the Insular Cases (1901), Harlan insisted that residents of new U.S. territories in the Philippines, Puerto Rico, and Guam should be entitled to the same rights as all American citizens. While serving one of the longest tenures of any justice, Harlan was frequently in the minority, but articulated a new way of thinking about core issues of the Constitution that was decades ahead of his time
Hugo Lafayette Black (Associate Justice, Aug. 19, 1937 to Sept. 18, 1971)
Black’s early career as a local prosecutor, police court judge and Democratic Senator from Alabama was blemished by his membership in the Ku Klux Klan. “I would have joined any group if it helped get me votes,” he admitted years later. But over the course of his 34-year tenure on the Court, he articulated a deep-founded and highly principled view of the Constitution. Black believed in restricting the interpretation of the Constitution to its “plain meaning” and resisted efforts to adopt more expansive views of rights or powers. When the majority invalidated a law that prohibited the use of contraceptives in Griswold v. Connecticut (1965) on the grounds that it violated an individual’s right to privacy, Black argued vehemently in his dissent that it was not “the duty of this Court to keep the Constitution in tune with the times.” That same insistence on strict textual analysis of the Constitution made him perhaps the Court’s most passionate defender of the rights of free speech and association. In his dissent in Dennis v. United States (1966), a case in which the majority upheld the conspiracy conviction of a Communist Party leader, he wrote, “Public opinion being what it now is, few will protest the conviction of these Communist petitioners. There is hope, however, that, in calmer times, when present pressures, passions and fears subside, this or some later Court will restore the First Amendment liberties to the high preferred place where they belong in a free society.” He was also a great defender of the rights of the criminally accused and wrote the landmark decision in Gideon v. Wainwright (1963), which established that states must provide an attorney to an indigent defendant. Black defied easy categorization as either a conservative or a liberal, but brought a profound clarity to his constitutional interpretation of cases that continue to have a dramatic impact on both the law and American politics.
Joseph Story (Associate Justice, Feb. 3, 1812 to Sep. 10, 1845)
Story was only 32 years old when he joined the Supreme Court and was overshadowed by John Marshall during most of his tenure on the bench, but he ultimately had a greater impact on the law, society and legal theory than any other justice in history. Even though Marshall assigned virtually all the major early Supreme Court opinions to himself, Story was the intellectual anchor who gave lasting meaning to the decisions. Indeed, after declaring the outcome of one case Marshall turned to him and said “Now, Story, that is the law; you find the precedents for its.” When he was allowed to write, Story proved that he was the better of Marshall as a legal mind. In Martin v. Hunter’s Lessee (1816) he established the Court’s authority over state decisions touching on federal law. His decision in Bank of the United States v. Dandridge (1827) led to the creation the modern corporation as a legal entity and other seminal opinions laid the foundations for admiralty law, equity law and patent law. In United States v. Amistad (1841), which was the basis of a 1997 Steven Spielberg film starring retired Supreme Court Justice Harry Blackmun as Story, he bolstered the abolitionist movement by ruling that the transport of a group of African across the Atlantic was illegal and the slaves should be freed.
Story clearly saw the law organically as an evolving body of doctrines that connected at deep common roots, and the influence of his thinking spread when he became the first Dane Professor of Law at Harvard University while still serving on the Court and penned his three-volume Commentaries on the Constitution (1833). He also was one of the earliest voices calling for society to end slavery and to educate women. While the turgid style of the time makes Story’s opinions less powerful to read than some of his successors, he showed the same quiet passion of his father, Elisha, one of the organizers of the Boston Tea Party. Above all, Story adopted a more modern view of a jurist in avoiding political entanglements and public acclaim “Republics are created by the virtue, public spirit, and intelligence of the citizens,” he wrote. “They fall, when the wise are banished from the public councils, because they dare to be honest, and the profligate are rewarded, because they flatter the people, in order to betray them.”

BOX 1:
SUPREME FAILURES
From the beginning of the Republic, numerous justices have proven unworthy of a life tenure on the Court. In 1795, George Washington gave a recess appointment to John Rutledge of South Carolina to serve as Chief Justice. Rutledge was described by one leading South Carolinian as prone to “mad frollicks” and “frequently so much deranged, as to be in a great measure deprived of his senses.” Henry Baldwin was confirmed in 1830 and described soon thereafter by Daniel Webster as insane and later hospitalized for what was called “incurable lunacy.” He remained on the court for 11 more years. Likewise, Robert C. Grier continued serving on the Court after suffering three strokes in 1867. Days before Grier was pressured to leave the Court because of his mental frailty in 1869, Chief Justice Salmon Chase insisted on using his decisive vote to strike down a major federal law, the Legal Tender Act. In 1880, Nathan Clifford was described by one colleague as a “babbling idiot” and holding a “practically vacant” seat, but he was allowed to die on the Court. Clifford’s colleague Ward Hunt was speechless and paralyzed after an illness. Yet he too refused to resign because he lacked the 10 years of service needed to earn a pension. (Congress relented and paid him a pension to get him to resign).
The behavior of some justices was anything but upstanding. Frank Murphy, a former U.S. attorney general who joined the court in 1940, was addicted to drugs, including the painkiller Demerol. According to his biographer, Sidney Fine, Murphy went into the streets to buy illegal drugs twice a day when he was on the court. James C. McReynolds was a blatant bigot who refused to speak to his colleagues Louis Brandeis and Benjamin Cardozo because they were Jewish. There is no official portrait of the 1924 Court because McReynolds would not sit next to Cardozo. And he warned Oliver Wendell Holmes that God unleashed his friend Brandeis and other Jews on humanity “like fleas on a dog.”
The Court has also had its share of phantoms. Alfred Moore, who was barely 4 ½ feet tall and weighed 90 lbs, was not only the smallest justice in history, but also had only one opinion, barely one-page long, to his name. Moore, who served from 1800 to 1804, even showed up late to the argument of Marbury v. Madison. Moore is tied in his single-opinion record by Thomas Johnson, a more impressive jurist who had no constitutional cases to review during his tenure from 1790 to 1793. Then there is the curious case of Gabriel Duvall, who was reportedly deaf and incapable of meaningful conversation when he served from 1811 to 1835. His one constitutional opinion was three words: “Duvall, Justice, Dissented.”
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Due to its cultural insularity and secrecy, legal commentators often have to act like old Sovietologists who would predict shifts in power by who in the Politburo was standing where on top of Lenin’s tomb. For Supremologists, there are other common indicators: the most prominent is the reduction of judicial clerks. Speculation over Stevens’ retirement is now at its peak with news that he has selected only one clerk for next year. I will be discussing this story on tonight’s Rachel Maddow.

A retirement for Stevens next year would certainly make sense. He will be 90. To secure the record as the oldest justice to serve on the Court, he would have to serve under Feb. 24, 2010 to beat Oliver Wendell Holmes’ record. To set the record as the longest serving justice, he would have to serve until 2012.

More importantly, the vacancy would occur at the ideal time if he wanted to ensure a liberal to replace him. As you get close to the end of the first term (particularly with Obama’s popularity plummeting in polls), it becomes more difficult to get through a nominee and even harder to get through a liberal. Many liberals are disappointing in the appointment of Sotomayor who was on the short list for George Bush and often voted against liberal positions on the Second Circuit. If she votes the way she did as a Second Circuit judge, liberals will lose ground on the Court. Stevens is a liberal icon and liberals are likely to demand a true liberal as a replacement.

Despite his age, Stevens has remained remarkably sharp. Indeed, I am often asked why my proposed reform of the Supreme Court does not include an age limitation or mandatory retirement. I also answered in three words: John Paul Stevens. The last ten years of Stevens’ opinions in my view have been his best. He improved with time and anyone who meets him is surprised how undiminished his intellect and acumen are with age. Unlike William Douglas and Thurgood Marshall who were greatly diminished by age and raised disturbing questions of competence at the end of their service, Stevens remains an eloquent and active member of the Court.

I have never hidden my love for Stevens. I most value his understated demeanor and self-effacing character. Indeed, while other colleagues relish in celebrity status, Stevens has largely followed a traditional view of a justice in making relatively few speeches and staying out of the public eye. Indeed, I once flew to Milwaukee on the same plane with Stevens and his wife. We were both speaking to the judges of the Seventh Circuit. While I stood speaking with Stevens, a lawyer ran up saying “I am your biggest fan.” He then shook my hand. I proceeded to introduce Justice Stevens to the lawyer who turned beet red and made a fast retreat. On the plane, one passenger actually hit Stevens with her carry-on luggage — never realizing this was a justice who has had a transformative impact on our society. That is how Stevens and his wife clearly prefer it.

While other justices have selected a full panoply of clerks only to tell them later of their retirement. That would not be in Stevens’ character. He is a remarkably kind man who would likely view such a surprise as unfair to these clerks. None of this means that this is a certain thing. Even if he is thinking of resigning, he can always change his mind and pick up a couple more clerks. However, in predictive environments, this is one of the strongest.

There is a mass arrest story. As has been discussed earlier, we have an ongoing arrest case in Washington, D.C., here. In May 2007 police arrested dozens of young people who police alleged were basically rioting through the streets. The students insisted that they were on their way to a funeral for a murdered friend. Now, there has been a settlement of the case with all charges dropped and the payment of damages.

When the mass arrest occurred, a large number of officers accompanied by a helicopter arrested the students aged 13-21. It was heralded by both the police and the media as a example of police work at its finest. The New York Post called the police officers “outright heroes” and called the students whiners.

Police Commissioner Ray Kelly and the Brooklyn District Attorney’s Office claimed that the group of 32 were gang members and terrorizing the neighborhood.

That is a curious backdrop to the news that the city has now agreed to pay 16 members of the “Bushwick 32″ a settlement of $257,000 to end a civil lawsuit. Twelve other students have a pending lawsuit of their own.

For the full story, click here.

Harris County Criminal Court-at-Law judge Donald W. Jackson, 59, has been indicted on a misdemeanor charge of official oppression – allegedly offering to get a DWI defendant help in dismissing her case in exchange for a sexual relationship. Notably, he allegedly insisted that he was not interested in “a one-night stand” in seeking to secure counsel for Ariana M. Venegas. If so, it is a new variation on past judicial pick-up lines that simply offer to trade sex for rulings.

Jackson has been a judge for 17 years.

Venegas, 27, was charged with driving while intoxicated and ended up in Jackson’s court.
Jackson is likely to be tried before a specially appointed judge and is likely to also answer questions before the Texas Commission on Judicial Conduct. He could face a year in jail.

Jared Woodfill, chairman of the Harris County Republican Party, has also announced that the Republican party is likely to investigate the charges since Jackson is a Republican judge.

What is different from past judicial scandals is that Jackson is not accused of offering to dismiss the charges but rather to help Venegas secure a lawyer. Nevertheless, there is no question that such a contact and offer is highly improper on a ethical level for a litigant before the judge. His desire for a meaningful relationship would not materially improve the issue. He later recused himself.

For the full story, click here.

The controversy continues over the District’s alleged destruction of evidence and withholding of documents in the World Bank protest case. The case deals with the mass arrests conducted without probable cause during the World Bank/IMF protests of 2002. Under orders from Judge Sullivan, D.C. Attorney General Peter Nickles filed a declaration explaining his actions and that of his staff. It has now been challenged by members of the city council and the litigants.

I am lead counsel in the Chang case with Dan Schwartz of Bryan Cave Ltd. We have previously posted the sanctions motions and transcript. I am therefore limited in what I can say on the case. However, to reduce calls to the office, I am posting the latest filing.

Here is our response to the Nickles declaration, Response to Declarations

For the story, click here.

Here are the prior documents: 1st Notice; 2nd Notice; Sanctions Motion; Sanctions Reply; 072909-SULLIVAN