Category: judiciary

No Longer Compelled?

In October, Pastor Artur Pawlowski, who had been jailed during the pandemic for holding church services in Calgary, Alberta, was ordered as one condition of his probation to always append a statement of official government doctrine to his own public uttering of opinions about pandemic policy.

According to the October 15 ruling by Alberta Justice Adam Germain, when “exercising [their] right of free speech” to speak against lockdowns and vaccines, Artur Pawlowski, his brother Dawid, and Whistle Stop Café owner Chris Scott must also recite a disclaimer.

It reads, in part: “I am obliged to inform you that the majority of medical experts favour social distancing, mask wearing, and avoiding large crowds to reduce the spread of COVID-19. Most medical experts also support participation in a vaccination program.”

Pastor Pawlowski told Fox News that he would “not obey this court order” to self-denounce, and he likened the issuing court’s proceedings to the judicial proceedings of the Soviet Union.

“This crooked judge wants to turn me into a CBC reporter or CNN reporter, that every time that I am in public, every time I’m opening my mouth, I am to pray their mantra to the government.”

On November 25, Justice Jo’Anne Strekaf of Alberta’s Court of Appeal lifted this order compelling specific speech, which Justice Germain pretends is compatible with freedom of speech. Whether this latest ruling is permanent depends on what happens at a June 14, 2022 hearing.

Until then, at least, the creepy order has been suspended.

This is Common Sense. I’m Paul Jacob.

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Tags Adam Germain, Canada, free speech

judiciary national politics & policies too much government

Emergency Effrontery

The ruling was hardly shocking. Most constitutional scholars expected it, I think. That being said, the whole business is . . . shocking.

I refer to the 5th Circuit Court of Appeals coming down hard against the Biden Administration’s vaccine mandate.

Say those words, “vaccine mandate,” reflecting on how it was “enacted” — not by act of Congress — and the Occupational Safety and Health Administration’s tortured justification for forcing private companies seems doomed.

At least if the Constitution retains any of its meaning.

“The stay,” explains Reason editor Jacob Sullum, “which the court issued on Friday evening, says OSHA shall ‘take no steps to implement or enforce the Mandate until further court order.’ It is officially a preliminary pause ‘pending adequate judicial review of the petitioners’ underlying motions for a permanent injunction.’ But the court left little doubt that it would grant those motions, saying ‘petitioners’ challenges to the Mandate show a great likelihood of success on the merits.’”

The administration’s desperate shoehorning of OSHA’s statutory ability to concoct an “emergency temporary standard” (ETS) is an act of effrontery.

Sullum, in his detailed coverage, shows just how extraordinary and inapt the reliance upon the ETS is. The COVID-19 crisis cannot justify the mandate through the legal mechanism chosen. It is fairly obvious that, as the court put it, Biden’s decree “grossly exceeds OSHA’s statutory authority.”

Sullum quotes another judge’s concurring opinion to the effect that even a congressionally legislated mandate would be controversial, constitutionally.

But breathe easy: Nancy Pelosi’s and Chuck Schumer’s Congress has no interest in creating a rational and constitutional response to the crisis.

And our Congress? Well, it doesn’t exist.

This is Common Sense. I’m Paul Jacob.

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Tags constitution, Joe Biden, mandates, vaccine

crime and punishment judiciary

Constitution-Free Zones?

Depending on the constitutional provision we’re talking about, probably every state is (or is at risk of becoming) a “Constitution-free zone.”

The present case: a court ruling that a dissident judge says is turning Texas, Louisiana, and Mississippi into Constitution-free zones with respect to the crimes of federal officers.

On February 2, 2019, Texas mechanic Kevin Byrd was almost shot at by Ray Lamb, a Homeland Security agent. Lamb was not acting in self-defense. Byrd had been asking questions about a car accident in which the mother of his child was injured. A drunk driver was involved: Lamb’s son.

Called in by Byrd, the police initially detained Byrd, not Lamb. Fortunately, the assault had been videotaped, and Lamb was soon arrested instead. Unfortunately, the police let the matter drop.

Byrd sued in federal court. But he was stymied by the 5th U.S. Circuit Court of Appeals, which ruled that federal officials like Lamb have absolute immunity, not merely qualified immunity, from prosecution for things like shooting at innocent people.

The Institute for Justice is now representing Kevin Byrd in the litigation. The hope is to get the U.S. Supreme Court to accept the case for review and then determine that, no, federal officers are not entitled to terrorize at will and without legal consequences just because they’re feds.

Fingers crossed.

The Supreme Court hasn’t exactly covered itself in glory lately when it comes to holding police and other officials accountable for wrongdoing.

This is Common Sense. I’m Paul Jacob.

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initiative, referendum, and recall judiciary

The 6 Percent Solution

The Idaho Supreme Court has stated the obvious.

The question was whether legislation passed by the Republican-dominated Idaho state legislature making it prohibitively difficult to run a successful initiative campaign is consistent with the state constitution.

In August, the court ruled that requiring petitioners to obtain signatures from at least 6 percent of voters in every single legislative district of the state — 35 districts — would usher in “tyranny of the minority.”

It said that the new law “conflicts with the democratic ideals that form the bedrock of the constitutional republic created by the Idaho Constitution, and seriously undermines the people’s initiative and referendum powers enshrined therein.”

As the Idaho Statesman observes, the law would have enabled voters of a single district to prevent a question from reaching the ballot.

The Statesman also smashed the silly argument that the current initiative process somehow burdens specifically rural voters in any quest to post a question.

Under current law, petitioners must obtain signatures from 6 percent of all registered voters in the state and also reach that threshold in at least 18 districts, not all 35 districts. The all-35 mandate would have made the job of running a petition drive massively harder no matter what regions petitioners happen to reside in.

Foes of citizen initiative rights also tend to ignore the fact that getting a question on the ballot hardly constitutes its enactment. Every voter, from whatever part of the state, can then decide Yes or No.

This is Common Sense. I’m Paul Jacob.

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initiative, referendum, and recall judiciary

The Ultimate Legislature

California, AB5, gig work, freelance driver

Proposition 22 was supported by 59 percent of California voters last November.

The statutory initiative partly reverses the destructive effects of AB5, a law that forced many California gig workers or freelancers to be treated as regular employees who must receive benefits — whether these gig workers like it or not.

One notices at Ballotpedia that all the listed opponents of this measure were politicians, including our current Vice President (then Senator) Kamala Harris as well as socialist Bernie Sanders, while the diverse list of Prop 22’s supporters included: the California Chambers of Commerce along with the Black, CalAsian, and Hispanic Chamber of Commerce, Crime Victims United of California, California Farm Bureau Federation, California NAACP State Conference, California Small Business Association, and Mothers Against Drunk Driving.

The benefits of the so-called gig economy are politically opposed and diversely appreciated.

Unions funded the opposition, though far outspent by the prosperous app companies: Uber, Lyft, Doordash, etc. Those same unions, having failed to win over voters, then filed suit to block implementation of Prop 22.

‘The Court finds,” reads Judge Frank Roesch’s opinion, “that Section 7431 is unconstitutional because it limits the power of a future legislature to define app-based drivers as workers subject to workers’ compensation law.”

Simply. Not. So.

A statutory California initiative can only be changed via a vote of the people, whether that vote happens because the legislature places the change on the ballot or citizens do so through the initiative petition process.

The voters are the ultimate legislature.

Therefore, nothing prevents the elected California Legislature from providing a change to ultimately be decided by the people of California, i.e. the whole legislature, at the ballot box.

For good reason, the judge’s decision is being appealed.

This is Common Sense. I’m Paul Jacob.

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Tags AB5, California, freelancing, gig economy, Proposition 22

judiciary property rights

Landlords Defended, Sorta

In late June, the Supreme Court declined to end an unlawful CDC-enacted national moratorium on evictions.

Things have apparently changed. The court just ruled — in a 6-3 decision — that the “balance of equities” has tilted in favor of qualified deference to property rights and letting landlords try to financially survive.

Now it will be easier, or possible, for many beleaguered property owners to maintain properties — on which they depend for their livelihoods and tenants depend for things like heat as well as their residencies.

The three dissenters on the high court say that the “balance of equities” still tilts the other way, in favor of violating the property rights of landlords to help tenants unable or unwilling to pay the rent.

The court’s decision does not mention property rights. It does cite a 1972 precedent that cites other precedents “[requiring] Congress to enact exceedingly clear language if it wishes to significantly alter the balance between federal and state power and the power of the Government over private property.”

Of course, the U.S. Constitution gives Congress no authority to violate individual rights at will — even if it uses exceedingly clear language to do so. The Constitution does not say it’s OK to violate the Constitution.

What now?

Many landlords are still subject to state or municipal restrictions on evictions that this decision does not overturn. But the ruling may help them press for relief.

And we must hope that the U.S. Congress doesn’t get around to intelligibly re-revoking the rights of property owners.

This is Common Sense. I’m Paul Jacob.

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