Category Archives: Courts

You Dumb ….

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That’s what New York State Supreme Court Judge Milton Tilling said to New York City’s lame duck mayor, Michael Bloomberg, on the latter’s…ill-advised…”sugary drink” ban.

Tilling opened his opinion by noting, correctly, the irrelevance of Bloomberg’s “obesity epidemic” motive for the ban—the question before him was simply the legitimacy, the legality, of the ban itself.  Motives, say I in expansion of Tilling’s point, are appropriate considerations only in determining sanctions, given a finding of illegality; they never can be justification for the illegality.

[The city does not have authority to] limit or ban a legal item under the guise of ‘controlling chronic disease,’ as the [city’s health department] attempts to do.  One of the fundamental tenets of democratic governance here in New York, as well as throughout the nation, is the separation of powers.  No one person, agency, department or branch is above or beyond this.

[The City Charter does not grant the health department] sweeping and unbridled authority to define, create, authorize, mandate and enforce [health codes governing food establishments and food preparation.  The soda ban] would not only violate the separation of powers doctrine, it would eviscerate it.

The judge’s beef here is that the health department just up and did the ban.  The ban was never approved by the city council.  The city’s elected representatives are the only ones who can create city law.  In fact these representatives had already explicitly rejected similar ban efforts.

Further, the Bloomberg Ban was unconstitutionally vague, capricious, and stupid.  (OK, I added that last part.  There is no Felony Stupid bar in New York’s or our Federal Constitution.)

The plaintiffs in this case pointed out that

…the Rule exempts soy based milk substitutes, but other milk substitutes such as almond, hemp and rice milk are not exempt.  The Rule also does not preclude unlimited free refills or multiple purchases of 16-oz. beverages or providing unlimited sugars after purchase at the regulated businesses….

And so on.  Tilling agreed.

The court finds that the regulation herein is laden with exceptions based on economic and political concerns. … The statement of financial costs related to the chronic epidemic [by the defendants] further evidences a balancing being struck between safeguarding the public’s health and economic considerations.  This is impermissible….

Further (the motive rejection above notwithstanding),

…the stated premise of…the Rule is to address the rising obesity rate in New York City. … The Rule is nevertheless fraught with arbitrary and capricious consequences.  The simple reading of the Rule leads to…uneven enforcement even within a particular City block, much less the City as a whole.  Furthermore…the loopholes in this Rule effectively defeat the stated purpose of the Rule.  It is arbitrary and capricious because it applies to some but not all food establishments in the City, it excludes other beverages that have significantly higher concentrations of sugar sweeteners and/or calories on suspect grounds, and the loopholes inherent in the Rule, including but not limited to no limitations on re-fills, defeat and/or serve to gut the purpose of the Rule.

 

Tilling’s ruling can be read here or here.

Good Idea, Bad Law

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It’s useful for a jurisdiction to control property use through zoning laws—whether to keep unsavory but legal businesses away from children, to preserve an historical building/neighborhood, and so on—provided those restrictions don’t get too onerous or too intrusive on the property rights of the owner(s).

Sometimes, though, a well-intended law has unintended consequences.

In a precedential decision, Motley v. Borough of Seaside Park, No. A-3214-11, the Appellate Division [of New Jersey] found a house that had been gutted to a shell to accomplish repairs was totally destroyed and so lost its status as a grandfathered nonconforming use under local zoning laws.  The panel strictly construed a statute that says a nonconforming use or structure may be restored or repaired if partially destroyed but total destruction terminates it.

Contaminating this seeming miscarriage of justice, though [emphasis added],

In August 2009, [property owner Daniel] Motley requested and obtained a permit to repair and renovate the house and replace the air-conditioning unit.  The permit carried a notation that siding, shingles and windows could be added, but no bumpouts were allowed and the structure could not be expanded.

Once work began, however, the building, not lived in for some time, was found to be in worse shape than expected and uninhabitable.  Among other problems, the roof and water system leaked, part of the first floor ceiling had collapsed, floor beams were rotted and the main center beam was sagging.

This has implications for homeowners attempting to repair/rebuild their homes and businesses in the aftermath of Hurricane Sandy: the storm’s destruction of buildings will cancel any variances granted, even though these buildings will have been continuously occupied and the spirit of the variances honored throughout.

New Jersey’s Appellate Division ruling on essentially destroyed property thus seems counterproductive; however, the court made the correct ruling: being unable to strike the law as unconstitutional, it applied the law as written.  The failure is in the law itself, not in the ruling.

Now it’s on the New Jersey legislature to correct this evident injustice.

The Racism of the Supreme Court

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During oral arguments concerning Shelby County v. Holder, a case that asks whether the several states and lesser jurisdictions must, in accordance with Section 5 of the Voting Rights Act of 1965, continue to submit their voting plans to Federal supervision and prior permission, came these shocking remarks:

Justice [Elena] Kagan: “Under any formula that Congress could devise, it would capture Alabama.”

Never mind that under any other formula that Congress could devise, it would not notice Alabama at all.  Formulae of this sort find what their developer want found—it’s the purpose of the formulae.  Kagan knows this.

Justice [Sonya] Sotomayor: “It’s a real record as to what Alabama has done to earn its place on the list.”

True enough.  It’s also a real record as to what Alabama has done to earn it way off the list.  Sotomayor knows this.

Justice [Stephen] Breyer: “Imagine a state has a plant disease, and in 1965 you can recognize the presence of that disease. … Now it’s evolved. … But we know one thing: The disease is still there in the state.”

Once a racist, always a racist.  Because we know.

These liberal…Justices…need to look in a mirror.

Yes, Virginia

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…the law applies to the Federal government, too.  At least to the SEC, as the Supreme Court has ruled.  In a case involving alleged special treatment for a mutual fund advisor—the fund supposedly allowed one investor to engage in frequent trading of the fund in violation of a rule that applied to all of the fund’s other investors—the SEC claimed it could alter, on its own recognizance, the statute of limitations for bringing an action against the trader.

As The Wall Street Journal described the matter,

The SEC faced a five-year statute of limitations on bringing a case.  The agency alleged the market timing took place between 1999 and 2002, but it didn’t bring a complaint until 2008.  The defendants, Marc J Gabelli and Bruce Alpert, argued the agency’s five-year clock ran from the time of the alleged offense, but the SEC said the clock should have started later, in late 2003, when it says it discovered the conduct.

The Supremes waved the BS flag at that claim.  Chief Justice John Roberts, writing for a unanimous Court, said

This Court, how­ever, has never applied the discovery rule in this context, where the plaintiff is not a defrauded victim seeking recompense, but is instead the Government bringing an enforcement action for civil penalties.

Roberts expanded on his statement:

There are good reasons why the fraud discovery rule has not been extended to Government civil penalty enforcement actions.  The dis­covery rule exists in part to preserve the claims of parties who have no reason to suspect fraud.  The Government is a different kind of plaintiff.  The SEC’s very purpose, for example, is to root out fraud, and it has many legal tools at hand to aid in that pursuit. The Gov­ernment in these types of cases also seeks a different type of relief.  The discovery rule helps to ensure that the injured receive recom­pense, but civil penalties go beyond compensation, are intended to punish, and label defendants wrongdoers.  Emphasizing the im­portance of time limits on penalty actions, Chief Justice Marshall admonished that it “would be utterly repugnant to the genius of our laws” if actions for penalties could “be brought at any distance of time.”

The opinion can be read here.

Score One for the Other Part of the 1st Amendment

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The Wall Street Journal’s Law Blog describes a victory for religious freedom.  In a case about which I first wrote just after its inception, a gang known as Freedom From Religion Foundation sued the village of Warren, MI, for having the temerity to put up a Christmas display without permitting FFRF to put up a sign next to it announcing that religion is “myth and superstition that hardens hearts and enslaves minds.”

First, Mayor James Fouts told them to take a hike, followed by their suit:

If you requested permission to put up a sandwich board saying that there is no Santa Claus, you would be met with the same response.  Santa Claus lives in the minds and hearts of many millions of children.  The belief of God and religion lives in the hearts and minds of hundreds of millions of people and is as much a part of the fabric of America, as the belief in democracy and freedom….

Your non-religion is not a recognized religion.  Please don’t hide behind the cloak of non-religion as an excuse to abuse other recognized religions.

Then a Michigan district court told these folks to take a hike.

Then the 6th Circuit told this…crowd…to take a hike.  On the matter of Warren’s alleged favoring of the religious over the secular, they had this:

That is not true even on its own terms.  All but one of the objects in the holiday display are nonreligious.  Ribbons, ornaments, reindeer, a lighted tree, wreaths, snowmen, a mailbox for Santa, elves, wrapped gift boxes, nutcrackers, poinsettias, candy canes, a “Winter Welcome” sign—all of them, all that is but the nativity scene—are secular…

A city does not run afoul of the Establishment Clause by including a creche in a holiday display that contains secular and religious symbols.

On the matter of the “Winter Welcome” greeting in particular, the 6th expanded with this [emphasis added]:

When one neighbor greets another in mid-December with “Happy Holidays,” it is the rare person who hears “Happy Holy Days.”  What was once the most religious of invocations has become one of the most faith-neutral, even secular.  One indeed can fairly wonder who has co-opted whom over time with these displays and words.  But that is a matter for another day.

On the gang’s bellyache that Fouts’ letter was itself some sort of cynical violation, the 6th had this:

These are not the words of someone trying to establish any one religion or religion in general; they are the words of someone trying to explain the common sense risks of disparaging faith-based and secular symbols, whether a creche or a Santa, alike….

It may be true that the Mayor misapprehended the Religion Clauses when he implied that atheists receive no protection from them by saying that the Foundation’s “non-religion” was “not a recognized religion.”  In this respect, the Mayor, apparently untrained as a lawyer, may not have missed his calling….  But this defense of his actions, premised on a misreading of precedent, does not transform his actions or the City’s display into an establishment.

On the gang’s crying about their free speech rights, here’s the 6th, again:

[Warren] could choose to add a Santa.  And it could choose to deny a sign saying, “There is no Santa.”  It could choose to incorporate a message about Ramadan.  And it could choose to deny a message disparaging any one religion or religion in general.  Just as Congress’s creation of a National Day of Prayer on the first Thursday of May does not compel the legislature to recognize a National Day of Non-Prayer each year, so too the City of Warren could opt to have a holiday display without a Winter Solstice sign.  Such holiday displays are quintessentially government speech….

And the Foundation, like everyone else, is free to urge the City to add or remove symbols from the display each year or to try to elect new officials to run the City—the customary answer to permissible government speech and the customary answer to policies with which citizens disagree.

FFRF Co-President Annie Laurie Gaylor responded to her loss without any sense of irony:

Apparently we are a Christian nation, and cities may prefer religion over non-religion[.]

On the first, well, duh.  On the second, she needs to ask her lawyer to read the 6th‘s opinion to her.  It’s not what they said.  Her lawyer can find that opinion can be found here.

Thus we see the benefit of not taking the easy way out—the coward’s way out—and acceding to the demands of such anti-freedom fighters as these as soon as the latter threaten.

These lose—as all bullies lose—when faced with forthright and just opposition.

Facing down bullies is expensive, certainly.  However that expense pales beside the expense of meekly surrendering freedoms for the demanding.  Once you pay the Danegelt, you never get rid of the Dane.