Good News
Today, as noted in the Federal Register, the EPA reclassified the Raleigh-Durham-Chapel Hill area as being in attainment for the 8 hour ozone requirement for the National Ambient Air Quality Standards (concentrations as measured by monitoring stations rather than direct emissions). The rule is available online in PDF and plain text (my sister tipped me off to this; I certainly don't browse the Federal Register on a daily basis).
The 8 hour standard for ozone means that the "three-year average of the fourth-highest daily maximum eight-hour average ozone concentrations" cannot exceed .08ppm (it's a messy way to calculate this kind of thing, but that's the law). It does mean that certain regulations for permitting are relaxed (this is a complex issue to say the least!).
To be true, I'm not particularly satisfied with the distribution of monitoring stations in the area, although I suppose it can be controlled for to a certain extent. But this is certainly good news. Hopefully the area can stay in compliance.
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Note to Vermont: It's probably a bad idea to try to secede
An AP article (Yahoo|Time) notes that a growing (well 8-13%) of people support secession in Vermont. Now, it is possible to get 8% of almost any group of people to say almost anything, but some of the supporters are very serious in their desire to secede for corruption, war, militarism, unresponsiveness, etc. In a sense, it's similar to the movement of "some" people to emigrate to Canada after the 2000 election, although the last time I checked, the population flux in that movement wasn't that large.
The supporters also feel that there are ways to make secession economically feasible. Realize of course that the federal government spends billions of dollars on the States that would have to be replaced, and the government would have to pay for things it hadn't had to pay for before that any state (differentiate from a State of the United States) would have to provide. But let's set those issues to the side.
Now I will admit that the text of the Constitution makes it an open question as to whether a State may secede and whether the federal government can compel them to rejoin. But my reaction upon reading the first paragraph or so was almost identical to the reaction of Russell Walker of the Brookings Institute: "I always thought the Civil War settled that." The key is that the Union, being the winners of the Civil War, settled the answer to this question per the military conflict. Walker goes on to say that maybe Vermont would have a case if they defeated the United States but "that's not going to happen." Sections 3 and 4 of the Fourteenth Amendment skirt this issue very lightly, and they could be construed (you'd have to do this very broadly!) to mean that the Union can settle insurrections.
So here's the gist: It doesn't matter how pissed off you are about national policy--you can't secede from the Union. Trust me--a bunch of other States have thought about this and tried (for reasons on both ends of the political spectrum). With a few exceptions (and the exceptions themselves are immaterial), the States bought into this Union thing willingly, and once they've bought in, they can't get out. No, you can't declare independence or repeal the ordinance of ratification (Vermont in this case actually directly ratified the Constitution, and was admitted as the fourteenth State, so they would most likely repeal their ordinance of ratification). If you want out, you have to choose one of the following options:
- The United States consents to secession (it's a little unusual, but I don't see any reason why it wouldn't be possible).
- Repeal or replacement of the Constitution pursuant to Article V or some other means (this is more or less the mechanism by which the Articles of Confederation were replaced).
- Require recognition by military conflict. Just a little hint: this typically doesn't work well without some serious forethought, and Presidents, irregardless of political affiliation, get a little pissed off when States threaten to secede. They generally respond by threatening to march the federal troops in and putting you in the gallows.
Now while I'm sure that some people are serious about this, this kind of movement is the overall effect of frustration with progress. And in the short term, it doesn't look very good. But in the long term, these things have tended to take care of themselves, and taking steps such as "nullification" to emphasize (or distort, depending on your perspective) federalism, are counterproductive.
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Another one
Here's another amusing opinion from United States v. Ramirez-Lopez, 315 F.3d 1143 (9th Cir. 2003), withdrawn, 327 F.3d 829 (9th Cir. 2003) (per curiam). Judge Kozinski, dissenting, 315 F.3d, at 1159-1162:
One can only imagine the conversation between Ramirez-Lopez and his lawyer after this opinion is filed:
Lawyer: Juan, I have good news and bad news.
Ramirez-Lopez: OK, I'm ready. Give me the bad news first.
Lawyer: The bad news is that the Ninth Circuit affirmed your conviction and you're going to spend many years in federal prison.
Ramirez-Lopez: Oh, man, that's terrible. I'm so disappointed. But you said there's good news too, right?
Lawyer: Yes, excellent news! I'm very excited.
Ramirez-Lopez: OK, I'm ready for some good news, let me have it.
Lawyer: Well, here it goes: You'll be happy to know that you had a perfect trial. They got you fair and square!
Ramirez-Lopez: How can that be? Didn't they keep me in jail for two days without letting me see a judge or a lawyer? Weren't they supposed to take me before a judge right away?
Lawyer: Yes, they sure were. But it's OK because you didn't show that it harmed you. We have a saying here in America: No harm, no foul.
Ramirez-Lopez: What do you mean no harm? There were twelve guys in my party who said I wasn't the guide, and they sent nine of them back to Mexico.
Lawyer: Yeah, but so what? Seeing the judge sooner wouldn't have helped you.
Ramirez-Lopez: The judge could have given me a lawyer and my lawyer could have talked to those guys before the Migra sent them back.
Lawyer: What difference would that have made?
Ramirez-Lopez: My lawyer could have taken notes, figured out which guys to keep here and which ones to send back.
Lawyer: Hey, not to worry, dude. The government did it all for you. They talked to everyone, they took notes and they kept the witnesses that would best help your case. Making sure you had a fair trial was their number one priority.
Ramirez-Lopez: No kidding, man. They did all that for me?
Lawyer: They sure did. Is this a great country or what?
Ramirez-Lopez: OK, I see it now, but there's one thing that still confuses me.
Lawyer: What's that, Juan?
Ramirez-Lopez: You see, the government took all those great notes to help me, just so we'd know what all those guys said.
Lawyer: Right, I saw them, and they were very good notes. Clear, specific, detailed. Good grammar and syntax. All told, I'd say those were some great notes.
Ramirez-Lopez: And twelve of those guys all said I wasn't the guide.
Lawyer: Absolutely! Our government never hides the ball. The government of Iraq or Afghanistan or one of those places might do this, but not ours. If twelve guys said you weren't the guide, everybody knows about it.
Ramirez-Lopez: Except the jury. I was there at the trial, and I remember the jury never saw the notes. And the officers who testified never told the jury that twelve of the fourteen guys that were with me said I wasn't the guide.
Lawyer: Right.
Ramirez-Lopez: Isn't the jury supposed to have all the facts?
Lawyer: Not all the facts. Some facts are cumulative, others are hearsay. Some facts are both cumulative and hearsay.
Ramirez-Lopez: Can you say that in plain English?
Lawyer: No.
Ramirez-Lopez: The jury was supposed to decide whether I was the guide or not, right? Don't you think they might have had a reasonable doubt if they'd heard that twelve of the fourteen guys in my party said it wasn't me?
Lawyer: He-he-he! You'd think that only if you didn't go to law school. Lawyers and judges know better. It makes no difference at all to the jury whether one witness says it or a dozen witnesses say it. In fact, if you put on too many witnesses, they might get mad at you and send you to prison just for wasting their time. So the government did you a big favor by removing those nine witnesses before they could screw up your case.
Ramirez-Lopez: I see what you mean. But how about the notes? Surely the jury would have gotten a different picture if they had just seen the notes of nine guys saying I wasn't the guide. That wouldn't have taken too long.
Lawyer: Wrong again, Juan! Those notes were hearsay and in this country we don't admit hearsay.
Ramirez-Lopez: How come?
Lawyer: The guys writing down what the witnesses said could have made a mistake.
Ramirez-Lopez: You mean, like maybe one of those twelve guys said, "Juan was the guide," and the guy from Immigration made a mistake and wrote down, "Juan was not the guide"?
Lawyer: Exactly.
Ramirez-Lopez: You're right again, it probably happened just that way. I bet those guys from Immigration wrote down, "Juan wasn't the guide," even when the witnesses said loud and clear I was the guide -- just to be extra fair to me.
Lawyer: Absolutely, that's the kind of guys they are.
Ramirez-Lopez: You're very lucky to be working with guys like that.
Lawyer: Amen to that. I thank my lucky stars every Sunday in church.
Ramirez-Lopez: I feel a lot better now that you've explained it to me. This is really a pretty good system you have here. What do you call it?
Lawyer: Due process. We're very proud of it.
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Humorous opinion
I urge everyone to go read Mattel v. MCA, 296 F.3d 894 (9th Cir. 2002). The innuendo is so humorous. Where else can you get the following:
- "If this were a sci-fi melodrama, it might be called Speech-Zilla meets Trademark Kong." (Id, at 898)
- "For example, Tylenol snowboards, Netscape sex shops and Harry Potter dry cleaners would all weaken the 'commercial magnetism' of these marks and diminish their ability to evoke their original associations." (Id, at 903)
After Mattel filed suit, Mattel and MCA employees traded barbs in the press. When an MCA spokeswoman noted that each album included a disclaimer saying that Barbie Girl was a "social commentary [that was] not created or approved by the makers of the doll," a Mattel representative responded by saying, "That's unacceptable. ...It's akin to a bank robber handing a note of apology to a teller during a heist. [It ] neither diminishes the severity of the crime, nor does it make it legal." He later characterized the song as a "theft" of "another company's property."
MCA filed a counterclaim for defamation based on the Mattel representative's use of the words "bank robber," "heist," "crime" and "theft." But all of these are variants of the invective most often hurled at accused infringers, namely "piracy." No one hearing this accusation understands intellectual property owners to be saying that infringers are nautical cutthroats with eyepatches and peg legs who board galleons to plunder cargo. In context, all these terms are nonactionable "rhetorical hyperbole," Gilbrook v. City of Westminster, 177 F.3d 839, 863 (9th Cir. 1999). The parties are advised to chill.
Id., at 908 (emphasis supplied)
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S764 - Good thing or bad thing?
I received an email that was requesting opposition for S 764. The bill would reverse an opinion of the NC Bar that allows a nonlawyer to collect money at closing and to instruct them where to sign (i.e., likely a notary public), and would mandate that "only attorneys should be permitted to provide loan closing or settlement services."
My first impression is that I actually agree with this legislation. It keeps notaries out of danger of violating two elements of G.S. Chapter 10B. The first element is G.S. 10B-20(k):
A notary public who is not an attorney licensed to practice law in this State is prohibited from rendering any service that constitutes the unauthorized practice of law. A nonattorney notary shall not assist another person in drafting, completing, selecting, or understanding a record or transaction requiring a notarial act.
A nonattorney notary is in an extreme bind at a real estate closing. If the buyer wants clarification on the closing documents, the notary may feel that (s)he should answer some of the questions of the buyer. But to offer such advise at a real estate closing would be definitively a practice of law, and that's what gets you hard time folks. It's not a fun situation to be in (see 6 Not. Pub. Guidebook __).
The other problem is the issue of money. For notarial acts, G.S. 10B-31 sets the maximum fee at $5. And in addition, G.S. 10B-20(c)(6) notes that:
[The notary act shall not proceed if] ... [t]he notary will receive directly from a transaction connected with the notarial act any commission, fee, advantage, right, title, interest, cash, property, or other consideration exceeding in value the fees specified in G.S. 10B‑31, other than fees or other consideration paid for services rendered by a licensed attorney, a licensed real estate broker or salesperson, a motor vehicle dealer, or a banker.
Most notaries in this situation I am considering are not attorneys, real estate brokers, auto dealers, or bankers. But often notaries take a decent sum of money for helping to execute the closing. And yet a strict interpretation of these two provisions would indicate that the notary could not do this (see 6 Not. Pub. Guidebook _).
On the other hand, it can be argued that a notary in this position will know what they are getting into, and it should be the customer's choice (it sure ain't free to have a closing with a lawyer present, that's for sure!). But there is a reason why there should be an attorney present--to look after the fiduciary interests of the buyer at the closing in an extremely complex legal situation. The notary, in his official capacity (unless (s)he also happens to be an attorney), cannot do this. And in my opinion, it isn't worth losing your commission and going to jail to satisfy someone.
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Hobbs v. Smith, et al. order/opinion
Finally after doing some searching this morning, someone at North Carolina Family Policy Council was kind enough to post the order (and likely as close as anyone is get to an opinion) in the Hobbs v. Smith, et al. case (also known as Hobbs v. Pender County), 2006 WL 3103008 (Pender Co. 2006). The NCFPC also notes that the Attorney General did not appeal the decision (at this point, any appeal would be denied as untimely). I suppose I shouldn't be totally surprised, given Cooper's political inclinations, but it would have been interesting to see how this case would have played out in the appellate level. If you have forgotten, the relevance of this case was that the North Carolina cohabitation statute, N.C. G.S. § 14-184, unconstitutional.
As the News & Observer noted, this order only applies to the parties in the matter, and since the order is unpublished, it has no precedential value (not that Superior Court orders and opinions have much thereof either). I also get the feeling that this order may have been drafted by one of the lawyers in the case (not an unusual practice in trial courts).
Since I don't know how long the NCPFC's link will last, I will post the PDF myself and OCR when I get a chance. Order in Hobbs v. Smith et al.. See also my earlier posts on this matter.
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Followup on cohabitation law
The News & Observer ran an article today noting the realities of jurisdiction--Thursday's ruling in Hobbs v. Smith striking down G.S. § 14-184 only enjoins the parties involved from enforcing G.S. § 14-184. This would prevent the Pender County Sheriff's Department from enforcing G.S. § 14-184, but not any other law enforcement agency with jurisdiction inside of the court's jurisdiction (in this case, Pender and New Hanover counties). The order will presumably also enjoin the district attorney as well, which would create a situation where some law enforcement agencies would be allowed to arrest for violation of G.S. § 14-184 (like they would!) and the district attorney would be enjoined from prosecuting such cases (like he would do it anyway!).
In addition, the ruling is only really precedential in the Superior Court's jurisdiction. Other judges may find the ruling instructive (the presumed reasoning of Lawrence v. Texas would obviously apply everywhere), but they would not be required to strike it down because of this decision. The ruling isn't precedential the same way an appellate court's ruling would be.
Given this complication, it seems more likely to me that the Attorney General will appeal the ruling for the purposes of reaching a precedential decision that would clear up the situation and apply statewide. Since the N.C. Court of Appeals is a court of mandatory jurisdiction for appeals, the assigned panel would have to do something with the case (either decide with or without oral arguments). However since the case would involve the unconstitutionality of a State law, the Court of Appeals would likely fully hear the case.
Although it is highly unlikely this case would reach the U.S. Supreme Court, it probably would result in the law being struck down. The Lawrence Court in 2003 had Stevens, Kennedy, Souter, Ginsburg, and Breyer in the majority, with O'Connor concurring with them on seperate grounds (she believed the Texas law was unconstitutional because it violated equal protection by treating gays and straights differently). That majority is still around, and as Kennedy was the one who wrote the opinion in a very forceful fashion (including Stevens's condemnation of the majority in the case Lawrence overturned, Bowers v. Hardwick), it would probably be a 5-4 result to strike down the law. I doubt that the Court would be inclined to waste their time with this case.
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Superior Court Judge strikes down NC cohabitation law
Craven County Superior Court Judge Benjamin Alford ruled today that the North Carolina cohabitation statute (N.C. G.S. § 14-184) was unconstitutional. In Hobbs v. Smith, et al. (Pender County Superior Court 2006; Case Number 05-CVS-000267), Alford ruled that the law violated the liberty interest set forth in Lawrence v. Texas, 539 U.S. 558 (2003).
The case originated from when Hobbs was working as a dispatcher at the Pender County Sheriffs Department. Smith, the sheriff, told her that she could either marry her live-in boyfriend, move out, or leave her job. She chose the latter and then sued the department among others in 2005.
While the cohabitation statute is still on the books, it has been thought to be unenforceable for some time. It is rarely enforced criminally, but more often used for other coercive purposes.
It is unclear at this point whether the State will appeal the ruling to the North Carolina Court of Appeals. The statute is so rarely enforced that the Attorney General may just let it pass into oblivion. On the other hand, he may opt to enforce it. There are potential issues of standing (she was never charged; can she sue ex post facto of her job loss?) and whether the North Carolina Court of Appeals and/or the NC Supreme Court will buy the Lawrence reasoning.
There is as of yet no released opinion in the case, and Superior Court opinions are notoriously hard to get. A memorandum opinion will probably be issued in the next couple of weeks, and due to the high profile nature of the case, someone is bound to redistribute it.
There is very little official information online about the case. The Pender County Superior Court calendar is excerpted below in case is anyone is particularly interested:
05-CVS-000267 HOBBS,DEBORA,LYNN MILLER,JEFFREY,S
KENNEY,SHELAGH,REBECCA
ISAJIW,PETER,J
-VS-
SMITH,CARSON THURMAN,CARL,W,III (TREY)
PENDER COUNTY SHERIFFS OFFICE
DAVID,BENJAMIN,R
COOPER,ROY ADINOLFI,DAVID,J,II
COOPER,ROY FID
ATTORNEY GENERAL OFFICE
NC STATE OF
ISSUES: DECLARATORY JUDGEMENT
DAYS SINCE FILING: 448
Summary Judgment / Determine Sufficiency of Answers or Objections - 1 Hour
(Adinolfi)
All pending motions - 1/2 Day (Miller)
On a related note, a similar statute N.C. G.S. § 14-186 may be unconstitutional on similar grounds ("Any man and woman found occupying the same bedroom in any hotel...for any immoral purpose...shall be deemed guilty of a Class 2 misdemeanor."). Based on the construction of G.S. § 14-184, G.S. § 14-186 is likely fatal for the same reasons.
An interesting point is that it is possible that Lawrence may not be needed at all to take down this statute. The statute mentions that "...Provided, that the admissions or confessions of one shall not be received in evidence against the other." This implies that such a violation would be need to breach the privacy of the bedroom which is protected for individuals by Eisenstadt v. Baird, 405 U.S. 438 (1972) (see also Griswold v. Connecticut, 381 U.S. 479 (1965), for the progenitor protection for married couples). Granted since Lawrence is squarely based on top of Eisenstadt, Griwold, Row v. Wade (410 U.S. 113 (1973)), Lawrence is definitely sufficient to get the job done.
Sources (some are time sensitive):
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S.J. Res. 12 fails in the Senate
Last summer I posted that H.J. Res. 10, attempting to propose a flag desecration amendment to the Constitution, passed 286-130 by the easy requisite 2/3 majority. Today the Senate brought the companion resolution, S.J. Res. 12 to a vote, when it failed 66-34. A 2/3 majority would require 67 votes to propose the amendment to the States, where it would have to be approved by 3/4 of State legislatures in 7 years (38 States). It is unclear whether this would have happened, but it would have been the first "new" pending amendment in over 20 years (there are still 4 pending amendments that are not time-limited, and the fifth was ratified as 27th Amendment from its cozy place as the second article of the original Bill of Rights).
Analysis will come tomorrow. I'm too sleepy.
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Flag desecration amendment
The flag desecration Constitutional Amendment (House Joint Resolution 10 [H.J. Res. 10]) passed the House today by a vote of 286-130. Since the Constitution requires that for an Amendment to be proposed, it must pass by a 2/3 majority of each House (Art. V), so 2/3 of 416 voting is 278, which is clearly plenty enough (no it is not 2/3 of 435, just 2/3 of those voting, see ____ v. ____, __ U.S. __).
The corresponding joint resolution in the Senate, Senate Joint Resolution 12 [S.J. Res. 12] has yet to be taken up by the Senate, but is expected to be taken up by the Senate after the July 4 holiday. It is the same text as the House Joint Resolution.
The text of the resolution (and the amendment) is below:
109th CONGRESS
1st Session
H.J. RES. 10
[...]
JOINT RESOLUTION
Proposing an amendment to the Constitution of the United States authorizing the Congress to prohibit the physical desecration of the flag of the United States.
Resolved by the Senate and House of Representatives of the United States of America in Congress assembled (two-thirds of each House concurring therein), That the following article is proposed as an amendment to the Constitution of the United States, which shall be valid to all intents and purposes as part of the Constitution when ratified by the legislatures of three-fourths of the several States within seven years after the date of its submission for ratification:
Article--
'The Congress shall have power to prohibit the physical desecration of the flag of the United States.'.
In order for the amendment to be proposed for the States for ratification, it must be approved by a 2/3 majority of the Senate (67 if all Senators vote). The past six times that the House successfully passed this hurdle, the amendment failed in the Senate each time:
2003--H.J. Res. 4, passed House
300-125 (2/3=284)
S.J. Res. 4,
no vote
2001--H.J. Res. 36, passed House
298-125 (2/3=282)
S.J. Res. 7,
No vote
1999--H.J. Res. 33, passed House
305-124 (2/3=286)
S.J. Res. 14, failed in Senate
63-37 (2/3=67)
1997--H.J. Res. 54, passed House
310-114 (2/3=283)
S.J. Res. 40,
no vote
1995--H.J. Res. 79, passed House
312-120 (2/3=288)
S.J. Res. 31, failed in Senate
63-36 (2/3=66)
From what I have read currently, there are approximately 65 Senators who will vote for the Amendment (see
article). The article also notes that 35 Senators may be against the amendment (should everyone be in attendance, 67 is the needed majority), so it would fail. We shall see I suppose.
Should it be proposed and pass the Senate, it would have 7 years to garner ratification in 3/4 of the State legislatures. Assuming that no new States are admitted before the end of the seven year period, 3/4 is 38 States. There is no law that States by what type of majority it must be approved by, although there are quite a few bugaboos in the process (e.g., it is unconstitutional to ratify a Constitutional Amendment by referendum in a State [ _________ v. __________, __ U.S. __], but it is constitutional to call a "consultation vote"). It is possible that the time limit could be extended. Most people agree that if the time limit is embedded in the text of the amendment, it cannot be changed, but the theory is that it can be changed if the resolution proposing the amendment is changed. This was done to extend the ERA ratification time from seven to ten years, which promptly caused a lawsuit, but I do not believe it was adequately resolved before the ratification period ending.
And for everyone who wants to know, the reason that this amendment is being proposed is because of the Supreme Court decision, Texas v. Johnson (1989),
491 U.S. 397. The Court held 5-4 that flag desecration statutes were unconstitutional because it was a form of expression protected by the First Amendment (Brennan, Marshall, Blackmun, Scalia, and Kennedy were in the majority, with Kennedy also filing a concurring opinion; Rehnquist, White, and O'Connor dissented, as did Stevens in a seperate dissent). The decision probably would be upheld today if Souter, Ginsburg, and Breyer all voted with the majority as would be expected. The Court upheld a de facto reconsideration of Texas v. Johnson in United States v. Eichman (1990),
496 U.S. 310, invalidating a federal law prohibiting flag desecration (that was passed because of Texas v. Johnson) using the same reasoning (and the same 5-4 breakdown).
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Guess what comes out today?
Guess what comes out today boys and girls:
More Supreme Court decisions.
Any guesses what I'll be doing?
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Labels: law
Brief Post on the Merits of a Constiutional Robocracy
The only government type by the robots, of the robots, for the robots.
- Your typical day: Obeying the robots
- Your favorite kind of war: Disobeying the robots
- Your standard breakfast: RAM*
- How are you most likely to die?: Body energy oversiphoned by the robots... the horrible, horrible robots
- Why are you being jailed?: Laughter/weeping
- Your pet peeve: Being carbon-based
- What's your take on [something that shouldn't be mentioned here]: Anything to feel again
- You hate America because: America?!?
- Favorite punk-rock band: Devo**
*Some societies use the battery as their staple.
**Don't ask me why.
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