Category: judiciary

Categories
crime and punishment judiciary

A Right to Hide Wrongs?

Are public officials entitled to a right to privacy that must be “balanced against” our right to protect ourselves from their misconduct?

Too often, how to adjudicate rights is regarded as a matter of juggling competing interests, whatever those interests may be, rather than of specifying

  • the nature of the relevant right,
  • whether it is fundamental or derivative, and
  • when it does and does not properly apply.

The right to life, for example, entails the right to peaceably earn a living and to acquire and exchange property — but not to steal somebody else’s property.

Thus there’s no call for judges to furrow their brows over how to “balance” your right to your wallet with a mugger’s “right” to it. Whatever rights a thief has, he has never had a right to your wallet. Nor to immunity to the consequences of stealing.

Similar considerations apply to the “right to privacy” of government officials guilty of misconduct in their official capacity.

Whatever information about themselves which, even so, officials may be entitled to withhold from us, this right-​to-​keep-​stuff-​about-​me-​confidential can’t encompass evidence of abuse of power. We are entitled to that information for the sake of combating such abuse and protecting our own rights.

So Eugene Volokh is right to conclude, with respect to the June 11 Chasnoff v. Mokwa decision — a case originating in what certain cops did with tickets taken from scalpers — that it “should be obvious” that “Police officers have no constitutional ‘right of privacy’ in records” of misconduct.

This is really little more than basic law.

Indeed, this is Common Sense. I’m Paul Jacob.

Categories
initiative, referendum, and recall judiciary U.S. Constitution

Spring’s Decisions

Spring is in the air, and old men’s hearts turn to thoughts of … law.

Yes, Supreme Court Decision Season has begun. Yesterday, two decisions were handed down.

In Schuette v. BAMN, Justice Kennedy “announced” the decision to reverse a previous court’s determination overruling a citizen-​initiated constitutional amendment in Michigan. Kennedy (joined by Alito and Chief Justice Roberts) found that the people could prohibit race-​based affirmative action policies in their state. After all, the Supreme Court had merely allowed such practices in previous cases. It did not require them.

This shouldn’t be controversial — indeed, it was decided 6 – 2 with liberal Justice Stephen Breyer joining conservatives. Still, Justice Sotomayor read her dissent from the bench, saying “without checks, democratically approved legislation can oppress minority groups.”

The democratically approved legislation in this case prohibited discrimination on the grounds of race — hardly a source of oppression for anyone. Ilya Somin’s prediction of this decision last October is worth contrasting to Sotomayor’s worry: “In no conceivable world can the Equal Protection Clause — the constitutional provision that bans racial discrimination — prohibit a state law that bans racial discrimination.”

Justice Scalia (joined by Clarence Thomas) used his concurring opinion to make some sense of the constitutional status of race in American higher education with “It has come to this.” It’s quite a read.

But there was no joining of Thomas and Scalia in Navarette v. California. Thomas wrote the opinion, deciding that a traffic stop drug bust was okee-​dokee, even if initiated by a 911 caller complaining of a truck-driver’s alleged bad driving. Scalia called the decision “a freedom-​destroying cocktail.”

So much for the lock-​step left-​right divide on the High Court.

This is Common Sense. I’m Paul Jacob.

Categories
First Amendment rights judiciary national politics & policies

Limiting the Little Guy

Last week’s U.S. Supreme Court decision in McCutcheon v. Federal Election Commission correctly struck down limits on the total amount of money a person can contribute to all federal candidates and to political parties and PACs in a two-​year election cycle.

After all, what part of “Congress shall make no law” provides the specific authority for Congress to limit what a person may give to a political party?  Or the number of candidates one may support?

But in his dissent, Justice Stephen Breyer argued that, “Where enough money calls the tune, the general public will not be heard.”

“No matter what five Supreme Court justices say,” announced Public Citizen, “the First Amendment was never intended to provide a giant megaphone for the wealthiest to use to shout down the rest of us.”

I want the public to be heard, not shouted down.

Which is why it is not Breyer, but Justice Clarence Thomas who is right: this ruling didn’t go far enough. While justly removing the limits on the aggregate amount a wealthy person can contribute, the Court upheld the limit of $2,600 on what you or I can give to a single candidate.

The super-​wealthy can spend millions in an independent expenditure for their preferred candidate. Fine. It’s their money. Yet, a person of more modest means doesn’t have the dough to launch an effective independent effort.

Instead, if you felt strongly enough, you could dip into savings or work a second job to afford to give, say, $3,000 or $4,000. Except that our campaign finance laws prevent it. This is the limit that affects the most people. Non-​rich people.

Stop limiting the little guy.

This is Common Sense. I’m Paul Jacob.

Categories
judiciary

Beardless in Arkansas

The United States Supreme Court has accepted a legal petition presented in an unusual manner: in handwritten form, without the benefit of any lawyer.

The case comes from a convict in the Arkansas State prison system, one Gregory Holt, “aka Abdul Malik Muhammad,” who wants to wear a beard while incarcerated, in accordance with his religion. The prison rules prohibit beards on hygiene and security grounds. Muhammad’s case is interesting. Questions include (and I quote)

  • Whether the Arkansas Department of Corrections’ no beard grooming policy violates the Religious Land Use and Institutionalized Persons Act 
  • Whether a 1/​2 inch beard would satisfy the security goals sought by the policy.
  • Whether the no beard grooming policy violates Petitioner’s First Amendment right to practice Islam as he believes it 

How will the Supreme Court rule? On the face of it (no beard pun intended), prisoners’ appeals for court intervention in how they are incarcerated, on the basis of their rights, may seem odd to some. After all, the whole point of imprisonment is to deny the most basic right to liberty, because, presumably, a criminal has denied someone else’s rights.

But in our society, even those guilty of serious crimes and having lost much of their freedom retain certain rights. This stems mostly from our fear of what becomes of us — not the criminals — should we stop respecting every person’s humanity.

It’s also heartening to see a petition rise to the highest court in the land from the very lowest perch without aid of a lawyer … or even a computer or typewriter.

This is Common Sense. I’m Paul Jacob.

Categories
initiative, referendum, and recall judiciary local leaders too much government

Moving Boulders

“Supreme Court says Boulder City cannot sue citizens over ballot initiatives,” read the Las Vegas Sun headline.

An important legal victory … a long time coming.

Three years ago, I caught an online story about a citizens group that had petitioned three measures onto their local ballot: (1) require voter approval before the city council could incur $1 million or more in debt, (2) term limits for members on city commissions and committees, and (3) restrict the city to just one publicly-​owned golf course.

Their public spirit was promptly rewarded by being sued, personally, and dragged into court by the city attorney of Boulder City.

I called the citizens’ attorney quoted in the news story, Linda Strickland, and we talked for over an hour. This case, as the Nevada Supreme Court has now agreed, is a classic violation of the state’s Anti-​SLAPP statute (Strategic Lawsuits Against Public Participation).

Citizens in Charge Foundation gave Linda and Terry, her husband and law partner, the John Lilburne Award, affording this small town legal scuffle some national recognition and sparking news coverage across Nevada.

On a later trip, I sat in Linda’s living room with a dozen local citizens who recounted the good feeling of participating in the petition campaign and then their unease of being sued by their own city government. I couldn’t be more pleased to now relate that Linda’s efforts have paid off in a state Supreme Court win, protecting the rights of all Nevadans to petition their government.

Freedom is regularly attacked and must be defended. Thanks to Linda and others, it shall be.

This is Common Sense. I’m Paul Jacob.

Categories
general freedom judiciary

Refusal of Service?

“We reserve the right to refuse service to anyone.”

Not a sign of the times.

Businesses, in these United States, may not discriminate against people on the basis of race, religion … and now, in nearly half of the states, because of sexual orientation.

This came up in New Mexico, recently. Elane Photography had refused to visually record the civil union ceremonies of a gay couple. The couple sued, and a court ruled in their favor: “[A] commercial photography business that offers its services to the public, thereby increasing its visibility to potential clients, is subject to the anti-​discrimination provisions” of New Mexico’s Human Rights Act, and “must serve same-​sex couples on the same basis that it serves opposite-​sex couples.”

The old idea was that governments were not to discriminate against this person or that, because all are owed justice. But businesses do not sell justice, and, since no one is owed a particular service, private persons and groups, including businesses, were allowed to discriminate in ways forbidden to governments.

This changed with 1964’s Civil Rights Act. Not only did it repeal the evil Jim Crow era public mandates for discrimination (further enforced by organized private violence), but the Act forbade private business discrimination, enforcing open access … leaving us with what B.K. Marcus calls “the right to say ‘I do’” but without any “right to say ‘I don’t.’”

The case will be appealed. “We believe that the First Amendment protects the right of people not to communicate messages that they disagree with,” say the photographers’ lawyers.

The ACLU declares this notion “frighteningly far-reaching.”

Well, yes. Justice is supposed to be that. Far-reaching.

This is Common Sense. I’m Paul Jacob.