Category: judiciary

Categories
judiciary

Innocent

What kind of world do we live in?

That was my thought when I heard how Sharon Snyder got fired for doing right.

The 70-​year-​old worked in a Kansas, Missouri, court for over three decades. She was fired for providing a public — public — document showing how an inmate could successfully request DNA testing.

Twenty-​seven years ago, Robert Nelson was convicted of rape. Nelson was no angel back then. He was also sentenced for robbery; the sentence for rape would begin after he had served the time for robbery.

When his sister appealed to Snyder in 2011, Nelson had filed two previous requests for DNA testing, both denied. Snyder gave her a copy of a motion that had worked in a different case. It worked again. A crime lab determined that Nelson’s DNA was not that found at the crime scene.

He was released with decades left to serve on the rape charge.

Then the judge who had denied Nelson’s first two motions, David Byrne, fired Sharon Synder for violating court rules. Whatever validity those rules may sometimes have, they were wrongly applied here.

We live in a world where persons like Byrne feel justified in firing a woman for helping a wrongly convicted man escape many years of unjust imprisonment. That makes me angry. But — it is also a world in which Sharon Snyder acted to save that man from suffering any more of that unjust prison time. Thank you, Sharon Snyder.

This is Common Sense. I’m Paul Jacob.

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

No Right to Defend Your Rights

You have no right as a voter to defend your interests as a voter. Not in federal court.

So decides the Supreme Court in Hollingsworth v. Perry, a case about a controversial California ballot question. The court ruled 5 – 4 that petitioners “lack standing.” Their interest wasn’t “particularized” enough. 

Passed in 2008, Proposition 8 amends the California constitution to stipulate that “only marriage between a man and a woman is valid or recognized in California.”

Two questions must be distinguished. One, whether Proposition 8 is consistent with the U.S. Constitution. The high court could have agreed with the lower one that it isn’t. Two, whether voters – in this particular case, the official state recognized proponents of the measure – may judicially defend a law brought to ballot by themselves and duly enacted, when state officials decline to defend that law.

I’m no fan of Prop 8. But for the land’s highest court to rule that voters and petitioners have no “standing” here is a horrid precedent. It tells government officials to take heart if they dislike a law that voters have passed. Maybe not enforce or defend it at all, say — and regardless of any constitutional finding. After all, what can We the People do? It’s not as if we have standing!

Justice Kennedy, in dissent, pinpoints the default: “the Court fails to grasp or accept … the basic premise of the initiative process …  The essence of democracy is that the right to make law rests in the people and flows to the government, not the other way around.”

Oh, yes, the people do have standing.

This is Common Sense. I’m Paul Jacob.

Categories
judiciary Ninth Amendment rights Tenth Amendment federalism

Too Respectful of Congress?

In disagreements between individuals and the IRS, I tend to side with individuals against the IRS. So Wednesday’s Supreme Court ruling against the Defense of Marriage Act seems about right, on the face of it.

Yes, the judicial review and nixing of DOMA regarded a tax case.

The state of New York recognized the marriage of two women, Edith Windsor and Thea Spyer. Ms. Spyer died in 2009. Ms. Windsor inherited, paying $363, 053 in estate taxes. She sued against DOMA because she wanted to claim the federal estate tax exemption for surviving spouses.

The Supreme Court majority sided with Windsor. Chief Justice Roberts dissented, arguing that the court lacked the authority in this case to overturn this law; and Justice Scalia dissented separately, joined by Justice Thomas; Alito wrote another separate dissent.

Fascinating reading, all of it, but I was disappointed that Justices Scalia and Thomas are so deferential to Congress regarding DOMA, without any consideration of the Tenth Amendment, which recognizes that states have powers not delegated to the federal government — and surely regulating marriage was not one of the enumerated powers delegated to Congress — or the Ninth Amendment, which recognizes “rights retained by the people,” and that has a lot of bearing on the practice of marriage.

It seems to me that in matters of marriage, at the very least, the federal government should be following the people and the states, not the other way around.

This is Common Sense. I’m Paul Jacob.

Categories
judiciary nannyism too much government

A Big Gulp for Bloomberg

New York City Mayor Michael Bloomberg’s much-​talked-​about prohibition of large-​size sugary drinks, like Coke and Pepsi, set to have gone into effect today, has been over-​ruled. At least temporarily. New York Supreme Court Judge Milton Tingling put the kibosh on the law, on Monday, enjoining and restraining the city “from implementing or enforcing the new regulations.”

Mayor Bloomberg promises to appeal the ruling. Apparently, he sees this as such an important policy move that spending taxpayers’ money on legal fees is another great thing he can do for the people he’s supposed to serve.

But, until his next assault, let’s appreciate the judge’s ruling:

In halting the drink rules, Judge Tingling noted that the incoming sugary drink regulations were “fraught with arbitrary and capricious consequences” that would be difficult to enforce with consistency “even within a particular city block, much less the city as a whole.”

“The loopholes in this rule effectively defeat the stated purpose of the rule,” the judge wrote.

The judge also censured Bloomberg for overstepping his bounds by cooking up the regs not via the City Council — the city’s legislative body — but from the Board of Health, which just happens to have been appointed by … Michael Bloomberg.

The prohibition of larger-​sized soft drinks never made much sense. Add onto its limited scope (applying to some vendors, not others) and its core notion (prohibiting sale by dosage, when consumers could with only marginal inconvenience get around the rules) Bloomberg’s legislative hanky panky, and it wasn’t just any Nanny State horror.

It was an autocratic move.

Nicely stopped. For now.

This is COmmon Sense. I’m Paul Jacob.

Categories
First Amendment rights judiciary

Google Vindicated

In 2009, I noted that an Italian court was trying three Google executives for violating Italian privacy laws. The three soon received six-​month suspended jail terms for being “too slow” to remove a video from YouTube that depicted the bullying of an autistic child. Google had pulled the video as soon as told about it.

The unjust conviction has now thankfully been reversed.

At the time, Google rep Bill Echikson complained that his colleagues had been convicted although they had neither uploaded the video nor reviewed it before it was posted.

A key word is “review.” Must any Internet host of user-​posted content review such content before it is published or else risk incarceration? Of course, “hosted” content covers the gamut of Internet content. Few website publishers provide their own servers.

If a publisher must obtain special approval from Facebook, Google, WordPress or any other platform provider before tossing something onto the web, that’s the death knell for freedom of speech and press on the Internet. At best, the pace of publication would slow to a crawl. At worst, censorship by Web-​service providers would become rampant — except when providers suspend their services altogether for fear of non-​suspended jail time.

Perhaps if the bad Italian precedent had been allowed to stand, the worst would not have come to pass. Perhaps only rarely would we see a horrific conviction exploiting that precedent, and perhaps only in Italy. But why take even one step down that road?

This is Common Sense. I’m Paul Jacob.

Categories
First Amendment rights judiciary

The Truth-​Telling Defense

In these United States, must you pay $60,000 for the “crime” of publicly telling the truth about someone?

What if you’re a mere blogger rather than a network news anchor?

Back in March of last year, a jury decided that Minneapolis blogger John Hoff must pay $35,000 for lost wages plus $25,000 for emotional distress to Jerry Moore because Hoff had blogged, in 2009, that Moore was involved in mortgage fraud. After Hoff’s post hit the cyberwaves, Moore was booted from the University of Minnesota.

The jury did not find that Hoff had libeled Moore. Instead, Hoff had supposedly committed “tortious interference” with Moore’s employment, presumably by giving the university information that it found convincing and relevant. (Hoff didn’t fire Moore. The university did.)

Luckily, this verdict, though horrific, didn’t provide the final word. The Minnesota Court of Appeals has just overturned it, arguing, in part: “Because truth is an absolute defense to a claim for defamation, truth should also be a defense to a claim for tortious interference with a contract arising out of an allegedly defamatory statement.”

Eugene Volokh of The Volokh Conspiracy judges the case a “big victory for free speech.” Apparently, the First Amendment can take a licking and keep on ticking.

It’s unfortunate, however, that this truth had to be affirmed at the cost of three years of time, trouble and anxiety for Mr. Hoff.

This is Common Sense. I’m Paul Jacob.