Category Archives: Courts

A State Supreme Court Justice Didn’t Mince Words

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In TWISM Enterprises v State Board of Registration, TWISM, an engineering company, sued Ohio’s Board of Registration over being denied a contract to provide engineering services to the State of Ohio. The Regulators had denied the contract on the grounds that Ohio’s engineers must be employees of the State. Never mind that the applicable Ohio law requires no such thing. Per The Wall Street Journal‘s editors,

The court ruled 7-0 that the regulatory board had essentially rewritten Ohio law by insisting that anyone providing engineering services must be an employee, and not an independent contractor. The statute says no such thing, and the court ruled for the company.

Justice Patrick DeWine expanded on that in the ruling, as he wrote and was joined by three more of the seven:

[He] swept away competing lines of previous Ohio deference cases to make clear that “the judicial branch is never required to defer to an agency’s interpretation of the law.” The agency’s view “is simply one consideration a court may sometimes take into account in rendering the court’s own independent judgment as to what the law is,” he writes.

Never required. Court’s own independent judgment. What he, and they, said.

A State Judge Gets It Wrong

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Concerned with what her child might be taught were that child to take a particular course in Michigan’s Rochester Community School District, a mother asked the District for information related to that course—lesson plans, course curriculum, readings to be assigned, and the like. Things led to things, and the mother formalized her request as a FOIA request under Michigan’s FOIA law. More things led to more things, and the matter wound up in Michigan Circuit Judge James Cunningham’s court, with the mother asking the course instructor, in addition to the District, be required to deliver the requested information, and the District denying having the requested information and further denying requiring its instructors to develop anything like that information.

Cunningham proceeded to rule against the mother.

He quoted Michigan’s FOIA law [emphasis in the opinion]:

“Public body” is defined in MCL 15.232(h)
…
(iii) A city, county, township, township, village, intercounty, intercity, or regional governing body, council, school district, special district, or municipal corporation, ….

Cunningham then proceeded to write that since Michigan’s law listed school districts as bound by State FOIA requirements, but it didn’t list school district employees, those employees—teachers in the present case—are not bound by State FOIA requirements.

This is a cynical interpretation. A “school district” does not exist without the personnel that populate it: its employees, from superintendent on down through school principals and teachers, to janitors and bus drivers.

Of course the Rochester school district’s teachers are subject to a FOIA request under Michigan law.

This is a…silly…ruling that ought to be overturned on appeal, which the mother intends to bring.

Not Just DoJ

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It has come to light that DoJ prosecutors convened a grand jury and got subpoenas with which to investigate then-House Intelligence Committee Chairman Devin Nunes (R) and a number of Republican Committee staffers during Nunes’ Committee investigations into what are now known to be Progressive-Democratic Party collusion with DoJ to create a false narrative of Republican collusion with Russia.

“The FBI and DOJ spied on a presidential campaign, and when Congress began exposing what they were doing, they spied on us to find out what we knew and how we knew it,” Nunes said. “It’s an egregious abuse of power that the next Congress must investigate so these agencies can be held accountable and reformed.”
The subpoenas demanded a broad swath of records from Google, including “all customer and subscriber account information” for [then-Committee Senior Counsel Kash] Patel and the other staffer, “addresses (including mailing addresses, residential addresses, business addresses, and e-mail addresses,” user names, “screen names,” “local and long distance telephone connection records,” and even the “means and source of payment for such service (including any credit card or bank account number) and billing records.”

That’s bad enough, but I’m especially concerned about another, closely related matter. Retired FBI Assistant Director for Intelligence, Kevin Brock:

A federal grand jury subpoena for records can only be issued after some type of criminal investigation has been opened.  So whoever sought the subpoena will have to be prepared to articulate why they thought these staffers broke the law. And it better be a substantial violation, something more than just a media leak investigation for example, otherwise it will risk being perceived as a gross misuse of the grand jury process to intimidate or chill a congressional committee demanding pointed answers from DOJ.

The larger question in my view—especially if the subpoenas were issued on an allegation of a chump change crime—is who were the judges, if any, who played along and approved the grand jury subpoenas, what were their rationales for their approvals? Also, who were the prosecutors convening the grand jury? It’s possible they came from the DC US Attorney’s Office, but who in particular?

Courts and State-Controlled Federal Elections

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In Moore v Harper, the Supreme Court is being called on to decide whether State courts can rearrange State elections laws—in particular, write their own Congressional district maps—as these pertain to how a State runs Federal-level elections.

It shouldn’t even be a question. Our Constitution is quite clear on the matter of who is responsible for setting the rules for Federal elections. Here’s Article I, Section 4:

The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof….

And only the Federal Congress can adjust those Times, Places and Manner. Not State courts, not even Federal courts.

Our Constitution and every State constitution also is clear on the place and role of the court system in our Federal and State governments. The Judiciary branches are coequal with the Legislature and Executive Branches—neither subordinate nor superior to either. Especially, the Judiciary branches are separate from the other two branches; they are not additional legislative facilities.

State courts, including State Supreme Courts, the facility at proximate case in Moore, have no role in setting or adjusting State Legislature-written Federal-level election rules for their States.

One argument that is being pushed on the Supreme Court for allowing State courts to overrule State Legislatures is “the Founders couldn’t possibly have meant no court oversight of State election laws.” This is obviously inaccurate. In the first place, what the Founders meant in our Constitution is what they actually wrote down and passed out of Convention to submit to the people to ratify.

In the second place, what We the People meant when we ratified that Constitution is that written-down, passed out of Convention, Constitution, with a single modification by us. The Federalist and Anti-Federalist debate, which involved a number of folks in We the People, resulted in a commitment to pass Amendments comprising what came to be called the Bill of Rights—the first 10 Amendments—and We the People ratified those Amendments promptly out of the First Congress. None of those Amendments address in any way how an individual State conducts its Federal-level elections.

No court oversight State election laws is precisely what the Founders intended, and it’s exactly the intention of We the People.

Full stop.

An Excellent Response

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Last Monday, the Supreme Court heard oral arguments for 303 Creative LLC v Elenis, a case centered on Web Page designer Lorie Smith and her First Amendment right to not put messages on her designs that conflict with her religious beliefs.

In the course of those arguments, there occurred this exchange (audio is at the first link above) between newly confirmed Justice Ketanji Brown Jackson and Kristen Kellie Waggoner, CEO, President, and General Counsel for Alliance Defending Freedom, which is representing Smith in this case:

[Jackson] asked about a situation where a Christmas photo company was recreating old-time pictures and as a result they only allowed white children to participate because it accurately reflects the time period. As part of the hypothetical, the company served Black people for other types of photos and would refer them to other vendors if they desired. Jackson asked if this would be acceptable under Smith’s logic, because by forcing the photographer to take Black customers it would be changing their vision and forcing them to create something they do not want to create.
“…there are difficult lines to draw and that may be an edge case, but this is not. We have a creative—a creator of speech and a very clear message—”

It’s about time lawyers stopped being afraid to call out activist judges and Justices’ dumbass cynical quibbling over corner cases and kept them focused on the matter actually before them.