Tag Archives: courts

Delays, Delays

Posted on by
Reply

Stalls, stalls. That’s what State is doing over the Clinton email national security disaster with its latest request to be “late” delivering the court-ordered documents.

“The Clinton email team must perform its work on site. … This storm will disrupt the Clinton email team’s current plans to work a significant number of hours throughout the upcoming weekend and could affect the number of documents that can be produced on January 29, 2016,” agency lawyers wrote in their request.

No. State has been stalling and outright obstructing this release for years—that’s why the matter is before a Federal court and under that court’s order and nominal supervision to deliver on a set schedule in the first place. All through that ordered schedule, too, State has continued to delay, stall, obstruct, release at less than the court-ordered rate. The latest such stall was when State whined that the Christmas holiday schedule for their precious email sorters was more important than complying with the Court’s order and the people’s right to know what Democratic Party Presidential candidate was doing with her private, unprotected email server while she was Secretary of State. This storm would be irrelevant if State had complied with the original requests in the first place, or had complied with the court’s order in the second place.

No. State plainly is now in contempt of court. The Federal judge needs to hold, promptly, a hearing wherein State supervisory personnel should show cause why they shouldn’t be jailed for their contempt until the emails have been delivered and the contempt condition resolved.

A State Appellate Court Error

Posted on by
Reply

The Maryland Court of Special Appeals has postponed the trial of a police officer charged with second-degree murder in the death of Freddie Gray last April.

That officer was Caesar Goodson, the second officer to go on trial. The putative reason for the delay is the hung jury on the first trial, of William Porter. The Baltimore prosecutor has said that Porter’s testimony at Goodson’s trial (and at the trials of a number of the other officers charged in Freddie Gray’s death) is central to their case. With Porter still under trial, and with a Federal case against Porter still possible, his testimony could be incriminating, and the appellate court wants to fully adjudicate the legitimacy of the prosecution’s forcing Porter to testify.

So, for the sake of government convenience, another defendant’s trial is delayed, that defendant’s 6th Amendment right to a “speedy…trial” is annulled.

Of course, the prosecutor is prepared to proceed with the trial, pretty much by definition, else she would not have charged the defendant. That she finds it difficult to proceed without Porter is irrelevant. There’s nothing in that 6th Amendment that says “speedy…trial, except when the government demurs.”

This delay is wrong.

Unions and Non-Member “Fees”

Posted on by
2

This session, the Supreme Court will hear, among other cases, Friedrichs v California Teachers Association.

On Jan 11 the court will hear arguments on whether public employees can be required to join a union or pay it a fee for collective-bargaining services.

The lawsuit contends such agreements violate First Amendment protections.

The argument is that, with public service unions, such fees also are political speech, since the unions also push for this or that domestic policy with their bargaining counterpart, the government, and there’s no way to separate out the union monies spent for bargaining outcome from those spent for political lobbying.

Such “agreements” (because paying the “fees” isn’t at all a voluntarily entered into arrangement, but a condition of having the job at all) go beyond that, though. They’re also a taking under principle of the 5th Amendment. Even though that Amendment binds the government and not private entities regarding takings, it’s not too far a stretch to apply it to the quasi-government entities of public service unions. Withal, the principle is valid, even if the Amendment itself is not strictly applicable.

Arguments in favor of the “fee” proceed from a false premise, too. “Fee” proponents argue that the payments are fair compensation for the union’s work in achieving an agreement for the nonmembers as well as the members. Of course, this is false on its face. The nonmembers are not represented by the union—that’s pretty obvious. As such, then, any arrangements between nonmembers and employers are strictly that: between the employer and the nonmember. If those arrangements look like what the union bargained for its members, oh well. They’re not required to be, and sometimes they are not.

Unions in Friedrichs also make the following argument:

If the suit prevails, public-employee unions say they could be crippled in about half the states that allow such agency shop clauses.

Couple things about that argument. One is that it may well be inconvenient to the unions (even extremely so), but that isn’t relevant. Either the “fees” are owed for the claimed services rendered, or they are not. The case should be decided on its merits, not on the basis of any supposed knock-on effects.

The other thing is this: so what?

Another Foolish Argument

Posted on by
Reply

Nebraska and Oklahoma have asked the Supreme Court to strike Colorado’s 2012 marijuana initiative on the grounds that the Colorado constitutional amendment has sparked crime increases in their own states. To the extent that can be shown, it’s an argument worth having.

Enter President Barack Obama through his Solicitor General, Donald Verrilli, in Verrilli’s brief to the Supreme Court, in which Obama urged the Court to reject the case:

Entertaining the type of dispute at issue here—essentially that one State’s laws make it more likely that third parties will violate federal and state law in another State—would represent a substantial and unwarranted expansion of this Court’s original jurisdiction.

Here’s what our Constitution says about the Supreme Court’s role in disputes between States, which Verilli’s brief also cites:

In all Cases…in which a State shall be Party, the supreme Court shall have original Jurisdiction.

Verrilli’s brief also cited the First Judiciary Act, a hoary old law passed by the First Congress’ first session in 1789 averring, among other things, that the Supreme Court in particular has

original and exclusive jurisdiction of all controversies between two or more States.

Notice those two cites: there is nowhere contained within either any caveat or limit. There is nothing that says, “Except when it’s inconvenient to Government,” or “Except when there’s something else,” or….

Despite that, the Solicitor General, in his brief (undoubtedly written for him by that better lawyer than his lawyers—it certainly contains Obama’s depth and style of legal thinking [/snark]), made the claim that taking the case would represent a substantial and unwarranted expansion of the Court’s role in settling a dispute between States.

Nonsense. This is a textbook example of a dispute between States, and it’s directly within the Court’s constitutionally mandated function, especially as fleshed out by Congress and a President who signed the fleshing-out into law. The Court may decide it’s a bogus beef, and that would be a useful precedent to set.

But it’s entirely a Supreme Court decision. Verrilli and his boss know this full well.

SEC Dishonesty

Posted on by
Reply

I’ve written before about the SEC’s internal administrative judge stacked deck system.

Judge Brenda Murray explained to [eight] brokers that the commissioners who run the SEC and approve all the civil charges filed by the agency don’t want its judges second-guessing them.

“So for me to say I am wiping it out,” Ms Murray said at the [motion to dismiss] hearing last year, “it looks like I am saying to these presidential appointee commissioners, I am reversing you. And they don’t like that.”

It doesn’t get any more blatant than that.

And yet, there’s this:

In another glimpse inside the SEC’s court, [Judge Cameron] Elliot told the defendants during settlement discussions on a case they should be aware he had never ruled against the agency’s enforcement division, said a person who was there. The judge said the defendants might therefore want to do a deal with the agency rather than fight their case at a hearing before him[.]

No extortion here. Mm, mm.

Whether this is dishonesty or rank cowardice isn’t material here. What is material is that these performances by SEC administrative judges are, by themselves, reason to do away with the SEC’s administrative judge system altogether and refer cases the SEC brings to Federal—or State—courts, where the defendants can get an actual fair trial.

These sham performances also should prompt a Congressional review of all administrative judge systems, Federal government wide, with a requirement that each entity having such a system prove it needs it and that the Federal and State court systems cannot handle the cases.