Category: judiciary

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First Amendment rights judiciary partisanship

Disbar the Disbarrers?

Texas State Bar, politics, censorship, corruption

After Texas Attorney General Ken Paxton legally challenged how several states conducted the 2020 election, dozens of lawyers submitted complaints. 

To the state bar. 

Their idea: disbar the Republican officeholder for daring to oppose the current Democratic narrative about “election denialism.” 

The Office of Chief Disciplinary Counsel dismissed those initial complaints as “not demonstrat[ing] Professional Misconduct,” but several attorneys appealed the decision, including a friend of Paxton’s Democratic opponent in the 2022 election for attorney general. The Texas State Board reversed the dismissal. Now a judge has allowed the case against Paxton to go forward.

The threat of disbarment is increasingly being wielded as an ideological weapon and without regard to whether targeted individuals have committed any wrongdoing worthy of disbarment. It’s the lawyers’ version of cancel culture.

This is demonstrated in a lengthy report by Margot Cleveland in The Federalist, who details many other instances as well as Paxton’s. 

These include the DC Bar’s pursuit of former Assistant Attorney General Jeff Clark and the California Bar’s pursuit of John Eastman, among a “barrage of politicized bar complaints pursued against Republican lawyers who provided legal advice or litigated various issues in the aftermath of the November 2020 general election.”

The purpose, then, is not to combat corruption but to corruptly intimidate any lawyers inclined to represent Republicans in challenges of dubious election results. One malefactor is a group called 65 Project, targeting more than a hundred Republican-​aligned attorneys but no Democrat-​aligned attorneys. Seems partisan.

Should lawyers who seek to disbar lawyers solely because of political disagreements be disbarred themselves?

This is Common Sense. I’m Paul Jacob.

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First Amendment rights free trade & free markets judiciary

The Wrong Kind of Speech

California, AB5, exemptions, freelance, contract work

In 2019, California imposed a law to force many independent contractors to become standard employees if they wanted to keep working for erstwhile clients.

AB5 threw many gig workers out of work. Many lost all of their clients, who typically could not afford to simply convert contractors from whom they had been buying stuff once in a while into regular employees.

Even in the original legislation, exemptions from AB5 were granted for certain contractors. In response to angry controversy, many more categories of contractors were added to the exemption list. Then passage of Proposition 22 allowed Uber and Lyft drivers to continue as contractors.

But guess who still may not hire independent contractors in California? People running political campaigns and petition drives, who often can’t afford to hire many or any employees. The Wall Street Journal notes that today in California, “people who sell ‘consumer products’ count as ‘direct salespersons,’ while those who work on political campaigns or ballot petitions must be counted as employees.”

Thus, under the state’s current anti-​contractor law, political speech is impaired in a way that sundry commercial speech is not.

A group called Moving Oxnard Forward has taken their First Amendment-​based complaint about this injustice to court, with the help of the Institute for Free Speech. A three-​judge panel of the Ninth Circuit Court of Appeals ruled 2 – 1 against the group. But the case can proceed now to the full Ninth Circuit or on to the U.S. Supreme Court.

At the High Court, I think we petitioners and speakers of political speech would probably win.

This is Common Sense. I’m Paul Jacob.

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ideological culture judiciary too much government

Right Color Only

unapproved races

The latest battle over race-​conscious affirmative action policies is taking place over a loan forgiveness program in the Providence, Rhode Island, public school district.

The Legal Insurrection Foundation is suing to overturn an “overtly racist and discriminatory” program being implemented by a district that receives millions in federal funding. Which means that all taxpayers are indirectly subsidizing this sort of thing.

According to the district’s new policy, an applicant for a teaching post can get up to $25,000 in college loans paid off if he teaches for three years in a row in the district. The incentive seems innocuous enough until you learn that beneficiaries of the grant, being funded by a Rhode Island charity, must “identify as Asian, Black, Indigenous, Latino, biracial, or multi-racial.”

The specification that one must “identify as” a member of one of these races may sound as if persons of unambiguously blanco tint need merely “identify as” Black or Indigenous or the like to get around the whites-​need-​not-​apply exclusion. But such a mode of circumvention — even if, as seems unlikely, it could succeed to the extent that officials pretended to believe the claim — would require applicants to lie or become delusional. 

To match this delusional policy, no doubt.

But the policy would still remain racist and discriminatory.

The Foundation’s filing quotes a dictum that if universally accepted would put an end to all this nonsense: “The way to stop discrimination on the basis of race is to stop discriminating on the basis of race.”

This is Common Sense. I’m Paul Jacob.

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education and schooling judiciary subsidy

One Way or Another or Another

student debt relief

The courts have not been kind to President Joe Biden’s unilateral attempt to erase some $200 billion to $500 billion in student-​loan debt. (By “erase” I mean force all taxpayers to pay debt incurred by the millions of borrowers eligible for the forgiveness program.)

Last month, a federal judge issued a temporary stay on the program while the litigation plays out.

On November 10, another federal judge, Mark Pittman, ruled that the program is a “complete usurpation” of congressional authority. Per Pittman, the U.S. is “not ruled by an all-​powerful executive [but] by a Constitution that provides for three distinct and independent branches of government.”

In consequence, the Biden administration stopped accepting applications for student-​loan debt relief. By then more some 26 million borrowers had applied.

On November 14, another federal court also blocked the program. So Biden’s debt-​transfer plan is apparently at least thrice bogged down.

Except that another student-​loan-​debt-​erasing thing has been going on since early in the pandemic, a pause on debt payments rationalized by the economic hardship imposed by lockdowns.

This pause was set to lapse at the end of this year, with payments to resume in January. But according to a White House insider “familiar with the matter,” the administration has been making “increasingly firm plans to extend the repayment pause.”

The pause also costs taxpayers money. The original rationale for it no longer exists. Like the mega-​debt-​relief program, extending the pause would also be unconstitutional.

This subsidy is also unlikely to inspire kindness from the courts.

This is Common Sense. I’m Paul Jacob.

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initiative, referendum, and recall judiciary term limits

The Fix Wasn’t In

Al Jaeger has been the Secretary of State in North Dakota

Something totally unexpected — by me, at least — happened earlier this month in North Dakota. It concerned a citizen initiative to term-​limit the Peace Garden State’s governor and state legislators.

Not unexpected, however, how often term limits measures meet resistance from long-​serving politicians, judges, and officials.

Al Jaeger has been the Secretary of State in North Dakota for the last 30 years. This is Mr. Jaeger’s final term; at age 79, he’s not seeking re-election.

Back in February, Jared Hendrix and the North Dakota Term Limits committee submitted over 46,000 voter signatures on petitions to Jaeger’s office, enough to far surpass the 31,164 requirement to earn a spot on this November’s ballot. 

Yet, in March, Secretary Jaeger ruled that the petition fell far short of the requirement, throwing out over 15,000 otherwise valid signatures because the petitions were notarized by someone he “suspected” of fraud. Before making this public announcement, however, Jaeger had brought proponent Hendrix into his office and, along with the state’s attorney general, threatened criminal prosecutions unless he withdrew the petition.

Hendrix refused to cave. And with help from U.S. Term Limits, the North Dakota group challenged the secretary’s denial. Still, when a lower court judge agreed that Jaeger, with all his experience, could make such sweeping judgments to disqualify petitions, I feared the fix was in. 

But earlier this month, the surprise: the North Dakota Supreme Court ruled, unanimously, that Jaeger had misapplied the law and ordered the amendment placed on the ballot as Measure 1.

Yes. Misapplied. Deliberately?

Thankfully, the term limits amendment includes a provision to prevent itself, if passed, from being overturned except by another citizen initiative. 

We know how eager establishment politicians are to kill term limits by hook or by crook, mostly crook.

This is Common Sense. I’m Paul Jacob.

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ballot access judiciary

Zombie Vote Protected

zombies, voting

A few weeks before the election, a federal judge has blocked Arizona legislation to combat voter fraud.

Opponents routinely characterize efforts such as this Arizona measure to ensure election integrity as “voter suppression.” Charges of racial discrimination often get tossed in to allow for the customary level of hysterical partisan denunciation.

According to Jon Sherman of the Fair Elections Center, even if  HB2243 is “not discriminatory on its face . . . it is an open invitation. It declares open season for discrimination on the basis of race, ethnicity, dress, English proficiency, anything else.”

Of course,HB2243 extends no such invitation.

The legislation states that registration forms shall contain such things as a statement “that if the registrant permanently moves to another state after registering to vote in this state, the registrant’s voter registration shall be canceled.”

It also authorizes the county reorder to cancel a registration when he “is informed and confirms that the person registered is dead.”

Sounds like it could certainly suppress the zombie vote.

Legislation should be as carefully worded as possible. But no degree of precision in a law designed to prevent persons from voting who are not entitled to vote will prevent opponents from charging that it’s really, deep down inside, about “declaring open season for discrimination.”

Had the Arizona legislature passed the new law in plenty of time to grapple with legal challenges, the reformmighthave been in place for the mid-​terms. Let’s hope HB2243 is in place and free of judicial encumbrance by 2024. 

Enacting this kind of legislation is of many things that need to be done to safeguard elections.

This is Common Sense. I’m Paul Jacob.

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