Category: judiciary

Categories
judiciary national politics & policies tax policy

IRS Re-Unleashed

Outrageous. That’s the best word for the recent court decision letting the Internal Revenue Service off the hook for ideologically targeting organizations that apply for tax-exempt status.

True the Vote, which combats voter fraud, sued the Internal Revenue Service because of the tax agency’s deliberate obstruction of applications from Tea Party and conservative organizations like True the Vote. The long delay in approval was costly in part because many prospective contributors to TTV had been awaiting the granting of 501(c)(3) status before going ahead with their donations. True the Vote’s president, Catherine Engelbrecht, was also harassed by other government agencies after submitting the application to IRS.

Nevertheless, Judge Reggie Walton has cavalierly dismissed the suit, asserting that the eventual granting of the tax-exempt status means that the IRS had taken adequate “remedial steps to address the alleged behavior.”

Following the same exalted principle of jurisprudence, Walton would presumably dismiss charges against a mugger so long as at some point the arrested criminal had tossed the wallet back to his victim.

The dismissal, no matter how outrageous, is not in the tiniest bit surprising.

IRS personnel often behave as if they may assault our rights (e.g., to our bank accounts) with impunity, so long as they occasionally defer to our protests by announcing temporary or cosmetic reforms. Others in government cooperate in letting the agency run riot. Perhaps because they agree that the IRS (maybe themselves, too) should enjoy virtually unlimited power over us.

Or perhaps simply because they, like the rest of us, are scared of the IRS.

This is Common Sense. I’m Paul Jacob.

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.

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.