Category Archives: Courts

A Letter Writer Points Out a Fact

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Wayne Detring makes what should be a statement of the obvious in his Letter in The Wall Street Journal‘s Letters page.

Rule 3.1 of the American Bar Association’s Model Rules of Professional Conduct prohibits lawyers from bringing or defending a proceeding unless there is a basis in law or fact for doing so.

Granted, that’s not strictly binding on lawyers, but it is a strong statement of what’s not acceptable for lawyers to do.

Detring cited further:

Rule 11 of the Federal Rules of Civil Procedure states that by signing or submitting a pleading, an attorney certifies that it is not presented for any improper purpose, such as to “cause unnecessary delay.” Rule 11 also provides a process for sanctioning violators.

That Rule is binding on lawyers.  With that background, he continued:

President Biden (Mr Garland’s client) publicly stated he and his staff were “unable to find the legal authority” for the executive order despite checking multiple times. He also admitted he couldn’t in good faith defend the order. But, the president said, “by the time it gets litigated, it will probably give additional time” for him to enforce his illegal order.

And the case:

Ordinary practicing attorneys would be in grave danger of sanctions for filing a pleading knowingly unsupported by law or fact, and by admittedly filing the pleading for the purpose of delay. The US attorney general should be no exception. In fact, those in power should be held to a stricter standard.

However, the only facility for bringing AG Garland to justice under Rule 11 (or the ABA’s Rule 3.1) is the Progressive-Democrat-controlled Congress. Those worthies are unlikely to worry about the misbehaviors of one of their own (and neither have been Republicans in their turn).

Sadly, rather than stricter standards, our Government personages are held to lesser standards than the rest of us. Which puts it on the rest of us to rectify the matter ourselves in 2022 and 2024.

A California Judge Has Spoken

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Recall California Proposition 22, which exempted Uber Technologies Inc, Lyft Inc, and DoorDash Inc from a California state gig law that, in essence, requires businesses to reclassify their gig associates from independent contractors to employees. That proposition was passed overwhelmingly by the citizens of California.

A California state judge ruled last Friday that the proposition was unconstitutional and so unenforceable. His rationale:

Superior Court Judge Frank Roesch said in Friday’s ruling that Proposition 22 limits the state legislature’s authority and its ability to pass future legislation, which is unconstitutional.

The judge has ruled that the people are not allowed to limit the authority of their employee, of their government. Keep in mind that, although Roesch couched his ruling in terms of the State’s legislative branch, his own judiciary branch is a part of that government whose authority he’s protecting.

The California government (including Roesch, et al., mind you) is not subordinate to the citizens of California?

Here’s the preamble to the California State constitution, which according to Roesch has no meaning.

We, the People of the State of California, grateful to Almighty God for our freedom, in order to secure and perpetuate its blessings, do establish this Constitution.

It used to be the People of California’s constitution, not the State judiciary’s.

Here’s Art II, Sect 1:

All political power is inherent in the people. Government is instituted for their protection, security, and benefit, and they have the right to alter or reform it when the public good may require.

Here’s Art II, Sect 10(a):

An initiative statute or referendum approved by a majority of votes thereon takes effect the day after the election unless the measure provides otherwise. If a referendum petition is filed against a part of a statute the remainder shall not be delayed from going into effect.

Unless a member of the State’s government, here a judge, demurs. Then the people’s decision is set aside. Because the People are no longer sovereign in California.

Hmm….

Reading Between the Lines

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In an article centered on the relationship between law school student debt and law school graduates’ working income (short answer: law students, in the vast main, borrow far more than their subsequent incomes support), there appeared this statement by a University of Miami law school graduate on why she chose UM and huge debt over a “lesser” law school that offered her a significant scholarship:

You go to any courthouse in Miami and the judge went to UM, the judge is a teacher at UM, there’s some sort of connection to UM[.]

There is this expectation that judges will be swayed by personal relationships, by school tie relationships, far more than they will be by the merits of the case before them and text of the law(s) governing that case.

Sadly, that expectation is both widespread and at least partially valid.

A Thought on Judges Retiring

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Article III Judges are appointed to their office for life. This is by entirely correct design and mandated in our Constitution: it’s to maximize the political independence of the judges in our court system.

Engraved above the west entrance to the Supreme Court Building is the promise Equal Justice Under Law. Not equal justice on the law, not equal justice under any particular law. Equal justice under law: equal justice under our system of laws. That’s not a binding promise, it’s an aspiration. Binding, though, is our Constitution, which aside from Order[ing] to form a more perfect Union, provides for that equal justice throughout the first 10 Amendments and makes that requirement for equality under law explicit in the 14th Amendment:

…nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

All of that requires judges to be independent of politics.  We the People go further: all Article III judges must take an oath of office:

I, AB, do solemnly swear (or affirm) that I will support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; that I take this obligation freely, without any mental reservation or purpose of evasion; and that I will well and faithfully discharge the duties of the office on which I am about to enter. So help me God.

Support and defend our Constitution. Judges must bear true faith and allegiance to our Constitution, not to any political consideration or entity.

Supreme Court Justices take this additional oath:

I, AB, do solemnly swear (or affirm) that I will administer justice without respect to persons, and do equal right to the poor and to the rich, and that I will faithfully and impartially discharge and perform all the duties incumbent upon me as [TITLE] under the Constitution and laws of the United States. So help me God.

There’s that equal justice under law bit, again, this time made binding. Again: it isn’t possible for a Justice to faithfully and impartially discharge or perform his duties if politics enter into his considerations.

Against that backdrop was a shocking degree of Leftist pressure on the late Justice Ruth Bader Ginsburg to retire while a Progressive-Democrat President was in office along with a Progressive-Democrat-controlled Senate so that a politically suitable replacement could be appointed to the Supreme Court. Now there is equally shocking Leftist pressure on Justice Stephen Breyer to retire right damn now so a sitting Progressive-Democrat President and a Progressive-Democrat-controlled Senate can appoint a politically acceptable replacement.

Politically acceptable. Not legally adept. Not judicially talented and skilled. Not qualified by extensive experience in law. Politically acceptable.

If our court systems are to maintain even a pretense of independence, if our legal system is to maintain even a pretense of determining justice in an even-handed way, rather than making politically acceptable decisions, judges at all levels must serve as long as they’re of sound mind and sound enough body, and they must retire only when they see fit rather than when it’s politically convenient to one party or another.

Sadly, Progressive-Democrats and their Leftist supporters insist on elevating their politics above justice.

I Dissent

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…from the dissenter.

The Supreme Court ruled that Arizona’s voter law is entirely legitimate. That law, you’ll remember, among other things limited who is allowed to return early voting ballots for another person—banned ballot harvesting—and barred counting ballots cast in the wrong precinct.

Among the reasons for upholding Arizona’s law is this:

The court rejected the idea that showing that a state law disproportionately affects minority voters is enough to prove a violation of the law.

Writing in dissent (it was a 6-3 majority), Justice Elena Kagan claimed in part

What is tragic is that the Court has damaged a statute [the 56-yr-old Voting Rights Act] designed to bring about “the end of discrimination in voting.” I respectfully dissent[.]

The irony in Kagan’s dissent is breathtaking in its depth. She complains of damaging the “end of discrimination in voting” even as the Arizona law treats all voters equally rather than giving special treatment to some. Reducing special treatment somehow increases discrimination.

The rejection of the concept that disproportionality is by itself, regardless of whether it’s a mere side effect, discriminatory also represents a great reduction in special treatment for particular groups—but this, too, is somehow an increase in discrimination in Kagan’s world view.