Yes, I have returned to scan the internet for more legal news and offer my badly spelled opinions on it.
On a personal note, I have received a great victory through no particular fault of my own. It is an interesting part of my profession that one can win without really trying, and one can try without any hope of winning. At least this time, however, my client is happy and I am happy.
Thursday, September 30, 2004
Wednesday, September 29, 2004
Hiatus
The purveyor of this fine literature is unavailable due to professional reasons. All signs point to a very trying time.
Friday, September 24, 2004
"Terri's Law" is Illegal
Once again, I find myself straying into the territory of foreign jurisdictions. The Florida Supreme Court issued a ruling yesterday invalidating Jeb Bush’s law which prevented the legal guardian of Theresa Schiavo from removing the feeding and hydration tubes from Ms. Schiavo, thereby causing her death. (Opponents call this “starving her to death,” which is also true; difficult decisions such as this can always be cast in a drastically different light using synonyms with different connotations.)
The court held that the law in question:
…as applied in this case, resulted in an executive order that effectively reversed a properly rendered final judgment and thereby constituted an unconstitutional encroachment on the power that has been reserved for the independent judiciary. P15-16
They also found that “the Act is unconstitutional on its face because it delegates legislative power to the Governor.” P18
This was a particularly compelling opinion for me, especially at the end when the court waxed philosophical about the role of law in society. It is particularly relevant in this current time of contempt for the judiciary, where every day someone is attacking judges for exercising their role as arbiters of the Constitution. Difficult, unpopular decisions must be made by someone, and it is inappropriate to respond with a knee-jerk “activist” label every time a judge makes a decision one disagrees with.
My compliments to the Florida Supreme Court, and good luck in the coming fallout.
Justitia fiat coelum ruat.
Bush v. Schiavo
News:
BBC NEWS Americas Coma woman intervention 'illegal'
Newsday.com - National News
NPR : Florida High Court Rules Against 'Terri's Law'
New York Times
A Statement by Ms. Schiavo's Non-custodial family
The court held that the law in question:
…as applied in this case, resulted in an executive order that effectively reversed a properly rendered final judgment and thereby constituted an unconstitutional encroachment on the power that has been reserved for the independent judiciary. P15-16
They also found that “the Act is unconstitutional on its face because it delegates legislative power to the Governor.” P18
This was a particularly compelling opinion for me, especially at the end when the court waxed philosophical about the role of law in society. It is particularly relevant in this current time of contempt for the judiciary, where every day someone is attacking judges for exercising their role as arbiters of the Constitution. Difficult, unpopular decisions must be made by someone, and it is inappropriate to respond with a knee-jerk “activist” label every time a judge makes a decision one disagrees with.
My compliments to the Florida Supreme Court, and good luck in the coming fallout.
Justitia fiat coelum ruat.
Bush v. Schiavo
News:
BBC NEWS Americas Coma woman intervention 'illegal'
Newsday.com - National News
NPR : Florida High Court Rules Against 'Terri's Law'
New York Times
A Statement by Ms. Schiavo's Non-custodial family
Thursday, September 23, 2004
Harris County Bible Update
Below is an editorial by an anti-judge activist mentioning our local fight. She seems to think, however, that the answer lies in jurisdiction stripping...or removing the jurisdiction of federal courts to hear these cases.
HUMAN EVENTS ONLINE :: God and the Activist Judges by Phyllis Schlafly
That is a bunch of bullshit. That would mean only state courts can now rule on the first amendment issues? Or better yet, it would mean that the government can now establish an official state religion by simply preventing an article III judge from hearing the issue. There is a potent force in the current government that wants to do just that with many social issues. They seem to think that it will be permissible to violate the constitution by preventing the judiciary from reviewing their actions, and apparently they haven't read Marbury or any other damn court case. It is clear that what they want is a religious government, not to exercise any sort of equality. Funny thing, the founders of our country expressly rejected a religious government. Therefore, there will be no Sharia in the US, and no council of vicars, and no Pope.
The reality of the situation is that judges wrestle with complex problems and almost every single one of them (and certainly the ones at the top) do the very best they can in any given situation. This spate of jurisdiction stripping bills is probably nothing more than a publicity stunt, but it is also a symptom of a society that is pushing the limits it made for itself. Every time someone says the courts should not be able to decide this matter need to review the way the system works.
If you don't like the constitution, change the constitution. Quit trying to figure out end-around methods of bypassing the method already established to do that. If it fails, then you will be forced to worship the Ten Commandments on your own time.
That rant aside, I would like to point out that the actual appeal on the Harris County Bible case is only about whether the monument on the courthouse grounds was put there to show a preference for Christianity, or was it placed there by a third party to memorialize a Christian’s contribution. All this other stuff is nothing but sound bites.
Of course it got me worked up, so maybe they are accomplishing what they wanted.
HUMAN EVENTS ONLINE :: God and the Activist Judges by Phyllis Schlafly
That is a bunch of bullshit. That would mean only state courts can now rule on the first amendment issues? Or better yet, it would mean that the government can now establish an official state religion by simply preventing an article III judge from hearing the issue. There is a potent force in the current government that wants to do just that with many social issues. They seem to think that it will be permissible to violate the constitution by preventing the judiciary from reviewing their actions, and apparently they haven't read Marbury or any other damn court case. It is clear that what they want is a religious government, not to exercise any sort of equality. Funny thing, the founders of our country expressly rejected a religious government. Therefore, there will be no Sharia in the US, and no council of vicars, and no Pope.
The reality of the situation is that judges wrestle with complex problems and almost every single one of them (and certainly the ones at the top) do the very best they can in any given situation. This spate of jurisdiction stripping bills is probably nothing more than a publicity stunt, but it is also a symptom of a society that is pushing the limits it made for itself. Every time someone says the courts should not be able to decide this matter need to review the way the system works.
If you don't like the constitution, change the constitution. Quit trying to figure out end-around methods of bypassing the method already established to do that. If it fails, then you will be forced to worship the Ten Commandments on your own time.
That rant aside, I would like to point out that the actual appeal on the Harris County Bible case is only about whether the monument on the courthouse grounds was put there to show a preference for Christianity, or was it placed there by a third party to memorialize a Christian’s contribution. All this other stuff is nothing but sound bites.
Of course it got me worked up, so maybe they are accomplishing what they wanted.
Appellate Antics
Brought to you by The Legal Reader;
While I usually restrict my posts to Texas and national issues, here is a fascinating opinion on the delicate art of getting one's appeal heard on the merits. This hits very close to home for me as I am currently facing a loss on the appellate level due to an action by the trial court that was unforseeable and may well be jurisdictional.
While I usually restrict my posts to Texas and national issues, here is a fascinating opinion on the delicate art of getting one's appeal heard on the merits. This hits very close to home for me as I am currently facing a loss on the appellate level due to an action by the trial court that was unforseeable and may well be jurisdictional.
Tuesday, September 21, 2004
DeLay aides indicted
A grand jury in Austin Texas has returned 32 indictments including 3 top aids to Tom DeLay and several major corporations including Sears for fundraising activities. The District Attorney in Travis county (where Austin is) is not known to fear Tom DeLay (or anyone else), so we can be sure there will be something to come from this, although probably not before the next election.
HoustonChronicle.com - Republican fund-raising leads to indictments of 3 DeLay aides
Austin American Statesman
Also Check out Roman Candles and Daily Kos and Off the Kuff for some indie views
HoustonChronicle.com - Republican fund-raising leads to indictments of 3 DeLay aides
Austin American Statesman
Also Check out Roman Candles and Daily Kos and Off the Kuff for some indie views
Monday, September 20, 2004
"Unusual" probation
Dallas Morning News is reporting what it calls "unusual probation." It seems a man got probation in his trial and the judge was a little upset, enough to include a year of jail and some rather strenuous requirements including a limit on the horsepower his vehicle may have.
While I understand the strange and creative terms some judges have for probation, I wonder mostly about these limitations in the context of Blakely. Has the judge in this case offered such constricting probation requirements, including a year in jail (six months real time), so as to constitute an enhancement? Keep a look out for cases like this. While I feel certain the Texas CCA will come down in the most conservative position, even they are bound by Federal law. Watch for an appeal on this.
While I understand the strange and creative terms some judges have for probation, I wonder mostly about these limitations in the context of Blakely. Has the judge in this case offered such constricting probation requirements, including a year in jail (six months real time), so as to constitute an enhancement? Keep a look out for cases like this. While I feel certain the Texas CCA will come down in the most conservative position, even they are bound by Federal law. Watch for an appeal on this.
Friday, September 17, 2004
Wednesday, September 15, 2004
Roe v. Wade II fails at the 5th Circuit
The Fifth Circuit has denied Norma McCorvey's (formerly known as Jane Roe) petition to re-litigate Roe v. Wade. This is the second death of the case, which I would liken to digging up grandpa and begging him to go home with you. The method her lawyers chose to contest Roe v. Wade was a rule 60(b) motion, which allows the party of a suit to petition for relief after judgment has been entered, primarily due to changed circumstances, new evidence, or something like that.
Basically, the court said that Texas had repealed the statutes criminalizing abortion by implication, and therefore Ms. McCorvey has no case or controversy thereby prohibiting the court from even considering her appeal (i.e. it was moot). There was a concurring opinion which basically blasted Roe v. Wade for evidentiary reasons, but otherwise simply said what almost everyone in the legal community already knew. That case is over with.
It remains to be seen if the Supreme Court will choose to accept this case. I would put tremendous odds on them declining any cert, but they COULD if they wanted to. What is particularly interesting (or perhaps ironic) is that Roe v. Wade was decided by the Supreme Court because they created a new exception to the doctrine of mootness for that case. Will they do it again? My money is on no.
Court's Opinion
HoustonChronicle.com - Bid to reopen landmark Roe v. Wade case fails
Basically, the court said that Texas had repealed the statutes criminalizing abortion by implication, and therefore Ms. McCorvey has no case or controversy thereby prohibiting the court from even considering her appeal (i.e. it was moot). There was a concurring opinion which basically blasted Roe v. Wade for evidentiary reasons, but otherwise simply said what almost everyone in the legal community already knew. That case is over with.
It remains to be seen if the Supreme Court will choose to accept this case. I would put tremendous odds on them declining any cert, but they COULD if they wanted to. What is particularly interesting (or perhaps ironic) is that Roe v. Wade was decided by the Supreme Court because they created a new exception to the doctrine of mootness for that case. Will they do it again? My money is on no.
Court's Opinion
HoustonChronicle.com - Bid to reopen landmark Roe v. Wade case fails
Tuesday, September 14, 2004
Harris County Bible Case Documents Online
The Southern District of Texas has now put the documents from the Harris County Bible Case online for free.
Southern District of Texas Notable Cases Home
Southern District of Texas Notable Cases Home
Harris County Bible Update and Opinion
Here is a nice editorial by J. Francis Gardner (sub) in which he advocates for what he calls the "nativity compromise." This is a rather well established method these days for government to put up religious symbols as long as there are symbols from other religions that give it context and prevent the implication that the state is establishing a religion. See Van Orden v. Perry, 351 F.3d 173 (5th Cir., 2003)(Rehearing denied by, and Rehearing, en banc, denied by Van Orden v. Perry, 89 Fed. Appx. 905 (5th Cir., Jan. 5, 2004).
Gardner offers three options:
Add the Torah and the Koran to the case with the Bible (sectarian context).
Add the Code of Hammurabi and the Magna Carta to the case with the Bible (historical context).
Leave the monument as is but arrange for Jewish, Muslim and non-aligned charitable groups to donate their own memorials at the same or similar sites around town (secular context).
These options make sense, were the issue one of context or of presentation. The problem is Harris County has not shown any interest in presenting this bible as anything other than a monument to a specific person, and arguing that the County cannot censor the religious statements. These are the very arguments that were rejected by Judge Lake.
If Harris County was interested in compromise, however, they could consider the third option. Simply make courthouse grounds (perhaps the park planned in front of the new civil courthouse) available to other groups to put up their monuments. Given the religious and cultural diversity in Houston and Harris County, it would not take long for Hindu, Buddhist, Jewish, Islamic, and atheist groups to offer up monuments to their local heroes. They could take down the current monument until such time as other monuments are ready to be placed, and then put them all in at the same time. The appeal would (probably) be moot, and the cost of prosecuting the appeal would likely be commensurate with the cost of execution of the compromise. In the context of other monuments, the Bible would probably lose its special status as an establishment of religion, and may very well become simply a monument to Mosher.
I realize that this sort of compromise is not the kind sought by either side in this appeal, but I think the County should consider its role of representing ALL the people, not just the Christian establishmentarians.
Gardner offers three options:
Add the Torah and the Koran to the case with the Bible (sectarian context).
Add the Code of Hammurabi and the Magna Carta to the case with the Bible (historical context).
Leave the monument as is but arrange for Jewish, Muslim and non-aligned charitable groups to donate their own memorials at the same or similar sites around town (secular context).
These options make sense, were the issue one of context or of presentation. The problem is Harris County has not shown any interest in presenting this bible as anything other than a monument to a specific person, and arguing that the County cannot censor the religious statements. These are the very arguments that were rejected by Judge Lake.
If Harris County was interested in compromise, however, they could consider the third option. Simply make courthouse grounds (perhaps the park planned in front of the new civil courthouse) available to other groups to put up their monuments. Given the religious and cultural diversity in Houston and Harris County, it would not take long for Hindu, Buddhist, Jewish, Islamic, and atheist groups to offer up monuments to their local heroes. They could take down the current monument until such time as other monuments are ready to be placed, and then put them all in at the same time. The appeal would (probably) be moot, and the cost of prosecuting the appeal would likely be commensurate with the cost of execution of the compromise. In the context of other monuments, the Bible would probably lose its special status as an establishment of religion, and may very well become simply a monument to Mosher.
I realize that this sort of compromise is not the kind sought by either side in this appeal, but I think the County should consider its role of representing ALL the people, not just the Christian establishmentarians.
Back in the Saddle Again
I have returned from my brief trip to Portland a little bit wetter but otherwise unharmed.
Wednesday, September 08, 2004
Tuesday, September 07, 2004
Harris County Bible Update
There is an interesting letter in the official publication of the Texas State Bar, the Texas Bar Journal, vol. 67 no. 8, September 2004, page 614. Alas, I cannot link to it because as far as I can tell there is no online version. (Stifle your collective shudder--that is the way things worked for a long time.)
To avoid plagiarism, let me summarize Mr. Riga's arguments.
First, he points out that Judge Lake correctly applied the Lemon test. He goes on to argue, however, that the Lemon test is defective "in that even if there is a promotion of a particular religion, if that promotion is open to all religions or no religion, such a non-coercive religious symbol should be permitted. Only when such a symbol is offensive per se or coercive or intrusive should it not be permitted."
He raises an interesting issue, one that may come up later. Should the Supreme Court revisit Lemon? I will be interested to see if Harris County raises that issue on appeal.
To avoid plagiarism, let me summarize Mr. Riga's arguments.
First, he points out that Judge Lake correctly applied the Lemon test. He goes on to argue, however, that the Lemon test is defective "in that even if there is a promotion of a particular religion, if that promotion is open to all religions or no religion, such a non-coercive religious symbol should be permitted. Only when such a symbol is offensive per se or coercive or intrusive should it not be permitted."
He raises an interesting issue, one that may come up later. Should the Supreme Court revisit Lemon? I will be interested to see if Harris County raises that issue on appeal.
Harris County Bible News Update
An editorial in the Houston Chronicle, and a story written by a guy from San Antonio and published in an Indiana Paper?? Woman battles to remove Bible from courthouse. I wonder what the connection is with Indiana?
Also a little editorial by Seth.
Also a little editorial by Seth.
Friday, September 03, 2004
Satire is Permissible in Texas
The Texas Supreme Court has ruled that it is indeed permissible to satire public figures. While this might seem like a no-brainer, I never underestimate the Texas Supreme Court.
Opinion here via How Appealing
Opinion here via How Appealing
Wednesday, September 01, 2004
Ralph Nader Denied Texas Ballot
A little info for the interested. HoustonChronicle.com - Judge rejects Nader's bid to get on Texas ballot. There is also some good info about the hearing here by the Austin Chronicle. If I get some time I might look around for the opinion & order, which is always interesting (to people like me).
Harris County Bible Case Update
Well you know I have ways of finding things out...
Anyway, no news on the Bible front. Over the last few days the parties have been fulfilling the requirements for appeal, filing notices and requests and the like. For any real geeks, the appellate information is: Court of Appeals Docket #: 04-20667; Filed: 8/23/04; Nsuit: 3440 Civil Rights: Other; Staley, et al v. Harris County TX, et al; Appeal from: Southern District of Texas, Houston; Lower court information: District: 0541-4 : 4:03-CV-3411; Ordering Judge: Sim T Lake, III, US District Judge.
If you have just found this site, I have posted most of the opinions and orders at various times, so look through the archives if you want copies.
The next thing we will see is a decision (or possibly a request for more arguments) on the 5th Circuit's decision about whether they will stay the removal of the Bible during pendency of the appeal.
Anyway, no news on the Bible front. Over the last few days the parties have been fulfilling the requirements for appeal, filing notices and requests and the like. For any real geeks, the appellate information is: Court of Appeals Docket #: 04-20667; Filed: 8/23/04; Nsuit: 3440 Civil Rights: Other; Staley, et al v. Harris County TX, et al; Appeal from: Southern District of Texas, Houston; Lower court information: District: 0541-4 : 4:03-CV-3411; Ordering Judge: Sim T Lake, III, US District Judge.
If you have just found this site, I have posted most of the opinions and orders at various times, so look through the archives if you want copies.
The next thing we will see is a decision (or possibly a request for more arguments) on the 5th Circuit's decision about whether they will stay the removal of the Bible during pendency of the appeal.
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