Category Archives: Courts

Dangerous Settlement

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Bob Updegrove, a Virginia-based photographer, has settled his case against the State of Virginia and its Virginia Values Act, which barred “discrimination on the basis of sexual orientation and gender identity in housing, public and private employment, public accommodations, and access to credit. The Act includes denying folks their right to demur on the basis of their religious beliefs.

Citing the recent 303 Creative LLC v Elenis Supreme Court case, Updegrove’s case was ultimately dismissed by both parties in appeals court on the agreement that he would not be forced to take part in same-sex weddings.

Agreement. Settlements start out being dangerous, since they’re binding only on the parties to the litigation, and they depend on the agreeing parties adhering to their agreements. In the Updegrove case, the settlement does not prevent the State from enforcing its Act against other photographers, other graphic designers, or anyone else who objects to something based on their own religious beliefs.

Worse, it depends on Virginia’s AG, Jason Miyares’, word. Which he immediately exposed as questionable:

“As Attorney General, my highest duty is to the federal Constitution. I am pleased that with the settlement, the law is upheld at no cost to the taxpayers and Mr Updegrove’s First Amendment rights are preserved,” he added.
The attorney general, however, still maintains the authority to enforce the Virginia Values Act, including against Updegrove, based on conduct outside the complaint.

Updegrove’s First Amendment rights are not circumscribed by the bounds of this specific case. His rights extend throughout his life, yet Miyares has just committed to attempting to cut short those rights whenever he can find something outside this settlement on which to do so.

Better would have been to force the matter through the courts and get Virginia’s Act itself cut short on the basis of the Supreme’s 303 Creative LLC v Elenis ruling.

How About Unauthorized Entry?

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Maybe California’s Progressive-Democratic Party politicians are beginning to recognize the failure of their soft-on-crime policies. Or at least they’re beginning to pay lip service to the problem, if not its correction. In particular, they’re starting to talk about maybe tightening their law regarding auto burglary.

Under current law, prosecutors must prove a vehicle was locked to convict a suspect of auto burglary, and a window being broken is not sufficient evidence. This new proposed legislation from [State] Senator Scott Wiener (D, San Francisco) would end that requirement and allow forcible entry to be sufficient evidence for a conviction.

Some of the loophole exploitations are truly foolish.

  • someone broke a car window, completed a theft, and left the door open or unlocked
  • victim returns to the car and opens the door before police can take a report to establish the car was locked
  • victim forgets whether they locked their doors
  • victim is not available to testify in court that their doors were locked

Here’s a thought. Work with me on this; it’s a complex matter. Neither is it limited to a single party. How about adjusting the law to recognize that burglary is burglary, regardless of the means by which it’s carried out, even if it’s done with no damage at all. Any damage that is done, whatever that damage might be, should serve as sentencing enhancement.

Maybe broaden the concept and stop overcomplexifying criminal laws in general. The fillips that currently distinguish burglary from theft from breaking and entering from… and that discriminate the various forms of homicide, and that overparse other forms of crime, all should become sentencing enhancements for the underlying crime: theft, killing, etc. Such decomplexification, especially done nationwide, would well serve us all.

The 9th Circuit Got This One Right

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A recent Wall Street Journal opinion concerned the question of when, or whether, a political figure who creates a personal social media account(s) can bar members of the public from interacting with those accounts. In

Michelle O’Connor-Ratcliff and TJ Zane, elected school board members in California, used personal Facebook and Twitter accounts they created while running for office to campaign and inform constituents about education news. The officials blocked two parents for making “repetitious and non-responsive comments” on their pages.

In O‘Connor-Ratcliff v Garnier, the 9th Circuit said the two board members could not do that.

The panel held that, under the circumstances presented here, the Trustees acted under color of state law by using their social media pages as public fora in carrying out their official duties. The panel further held that, applying First Amendment public forum criteria, the restrictions imposed on the plaintiffs’ expression were not appropriately tailored to serve a significant governmental interest and so were invalid.

And

The protections of the First Amendment apply no less to the “vast democratic forums of the Internet” than they do to the bulletin boards or town halls of the corporeal world. … When state actors enter that virtual world and invoke their government status to create a forum for such expression, the First Amendment enters with them.

The editors generally disagreed with this ruling, and they closed their piece with this bit.

Americans have many platforms to criticize public officials without invading their personal social-media pages.

That’s plainly true. So, too, is the related: elected politicians (the editors seem to have subsumed—erroneously—unelected bureaucrats into the term “public officials,” whereas the court’s ruling plainly concerned only elected officials) have many platforms with which to describe, and to interact with their constituents regarding, their political and official doings without using their so-called personal accounts to do so and then limiting their constituents’, and the public-at-large’s, ability to respond and to petition [them], whether courteously or rudely.

I’ll go one farther than did the 9th. It’s not possible for an elected government official to have a personal social media account. An elected official represents his constituents at all times of the day and night, every day and night of every year he holds office, for all that as a practical matter, he takes time away from his duties to rest and recreate. From that, it’s impossible for him to have a non-public social media account so long as he holds elected office.

The 9th got this one right.

The Circuit Court’s ruling can be read here.

A Plea Deal and Testimony

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Sydney Powell, former Donald Trump legal adviser, and one of a plethora of indictees in Fulton County District Attorney Fani Willis’ sweepingly excessive run at the former President, has agreed to a plea deal. Powell had been looking at as many as seven serious felony charges, including racketeering and conspiracy to commit election fraud, had she gone to trial.

Instead, she pled to misdemeanors and sentencing limited to six years of probation, a $6,000 fine, an apology letter to the state of Georgia, and $2,700 in restitution payable to the State.

Oh, and she agreed to testify for the prosecution in the remaining indictees’ trials.

Therein lies a very serious rub. Powell sold her testimony in return for the light charge and wrist-slap penalties (yes, yes, the apology letter will be personally embarrassing. She’ll get over that). Alternatively, she was brow-beaten by the Willis team’s threat to go all the way on her if she didn’t agree to testify, with the lightness of the deal just cover for the threat.

Either way, Powell can have no credibility on the witness stand: she won’t be the one testifying, for all that it’ll be her mouth reciting the words. It’ll be Willis and her team speaking through Powell.

Bad Mistake

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Federal DC District Judge Tanya Chutkan, who is presiding over former President and current Presidential candidate Donald Trump’s (R) trial on “election charges,” has issued a gag order limiting what Trump is allowed to say on matters associated with that trial. Her gag order should be found, on appeal, to be strongly unconstitutional—based on Chutkan’s own characterization of her order.

His presidential candidacy does not give him carte blanche to vilify public servants who are simply doing their jobs[.]

Trump’s status as a Presidential candidate is wholly irrelevant to this. Trump’s status as an American citizen is.

Here is what the Right to Petition Clause of the First Amendment of our Constitution says:

Congress shall make no law…abridging…the right of the people…to petition the Government for a redress of grievances.

Chutkan’s public servants are, most assuredly, Government officials, and Citizen (and Presidential candidate) Trump, most assuredly, is allowed to petition them, including through criticism, without regard to how prettily or rudely he couches his phrases.

That same Amendment also has this Free Speech Clause:

Congress shall make no law…abridging the freedom of speech

Citizen (and Presidential candidate) Trump, most assuredly, is allowed to speak about, as well as to, those same public servants, (and any other person, Government official or not) whether he does so with pretty words that suit Chutkan’s personal preference or with plainer words.

Chutkan’s characterization is her motive for issuing her gag order, and that motive disqualifies her order on its face: it was issued in bad faith, solely to satisfy her personal definition of propriety. It has nothing to do with any material or potentially prejudicial impact on the ongoing case, which is the sole reason for issuing any gag order.