July 31, 2005
Sovereign Immunity saves the progressive agenda ::
politics, legal — No Tags
6:49 pm
So, I realize that I haven’t been posting much over the past week, but the news has been slow and the outside world so interesting that I’ve turned my focus to to doing things rather than writing about it. Also, Jessamyn’s mom was visiting for the past couple of days, and that kept us off the computers as well.
So, to get back into the world of wonky posting. According to yesterday’s Rutland Herald, a Vermont Superior Court tossed out a lawsuit challenging Act 60, the legislation that mandates equalized school funding throughout the state. From the information contained in the article, this case seems to be another fight in the ongoing political battle that started with the Brigham decision, which loosely held that the Vermont Constitution mandated that all Vermont citizens have access to the same educational opportunities, regardless of the economic state in which their families find themselves.
Act 60 was the resulting legislation, which split the state into rich, donor towns and poorer, receiving towns. Money is collected into a central state-wide fund and is paid out based on economic need. It’s a social experiment that harkens back to the New Deal-type egalitarianism that leveled the ecomonic—and educational—playing field and furthered the belief that an individual’s success will be determined by their personal abilities and not by the position into which they happened to be born. For liberals in this state, it’s a wonderful policy that contrasts significantly with the social policies currently stagnating in Conservative-dominated Washington.
The towns who brought their suit—the so-called donor towns—don’t share that view. According to the Herald article, the plaintiffs argued that the legislation was finally mandated in such a way that mandates it be overturned. (The article refers to it as a “poison pill,” whatever that might mean). To use the language of the article, “[t]hey said the education fund is supposed to be used only to make payments to school districts and supervisory unions, cover costs of short-term borrowing in case of cash flow problems and to fund income sensitivity payments.”
What caught my eye was why the court dismissed the suit. The court reasoned that without a specific grant from the legislature, the state was immune from being sued. It’s the abrogation doctrine which (I think) anyone who takes Federal Courts learns about. Once again, the article:
[Judge Cohen stated that] “[i]t is incumbent upon the Towns seeking to maintain an action against the State to establish that the suit is either authorized by statute or that it falls within a recognized exception … (or) at least be expected to present a supportable argument why this court should forge the path in creating a new exception,” Cohen wrote. “Accordingly, because the Towns have not established a basis for this court’s jurisdiction in this matter, the Towns’ complaint is dismissed without prejudice.”
Interesting! Typically, a narrow interpretation of the Abrogration doctrine is the tool of the states rights/Federalist Society crowd, used to stop lawsuits against states that enforce civil rights. But here, it is has been applied in such a way that prevents the court from even addressing the merits of the towns’ suit. An unexpected surprise for those progressives who might be skeptical of the doctrines that require judicial restraint.
[Ed. note: I’d appreciate a copy of the court’s ruling, if anyone might have one.]
July 25, 2005
Roberts and the french fry ::
legal — tagged judges, legal, politics and SCOTUS
9:19 pm
So, despite my silence on the issue, I’m keeping track of the John Roberts nomination process. Throughout all the stories, I’m particularly interested in the substantive law that Roberts has developed throughout his very short career on the DC Circuit. Although many liberals and progressives are concerned about his stances on a variety of issues, from Congress’ power to regulate under the commerce clause to the reach of fourth amendment protections against searches and seizures, my understanding is that Roberts’ conclusions on these issues are more the result of his making a conservative interpretation of precedent, rather than is applying a conservative political ideology to the cases in which he as been involved. (It is a nuanced distinction, I know, but one worth paying attention to.)
As an example, look to Roberts’ opinion in Hedgepeth v. Washington Metropolitan Area Transit Authority (PDF opinion; the so-called french fry case). In that case, Judge Roberts spoke for a unanimous three judge panel of the DC Circuit Court of Appeals, upholding the arrest of a 12-year old girl whose only crime was eating a single french fry at a Metro station. Now, progressives have made a big deal about this case, because it suggests that John Roberts is insensitive to issues concerning individual civil rights. That’s a fair argument. But his conclusion has less to do with any specific political ideology or judicial philosophy, and more to do with precedents that have generally restricted rights to be free from individual searches and seizures. As an inferior court judge, Roberts, like all other circuit court judges, is required to follow the precedents of the Supreme Court, whether they be good or bad. And unfortunately, in the case of the Supreme Court, they have been quite bad when it comes to the Fourth Amendment. For a recent example, see Illinois v. Caballes, decided by the Supreme Court last term, in which the Court upheld a dog-sniff of the trunk of a car during an unrelated traffic stop. Considering that the Supreme Court is not bound by the precendents of any higher courts, his ruling in the french fry case indicates very little as to how he might rule in a similar case before the Supreme Court.
It still seems to me that John Roberts will be nominated. That’s not such a bad thing. He has consistently proven, both as an attorney and as a judge, to be a brilliant legal mind. He has adhered to the demands of precedent, even if it is inconsistent with the conservative political agenda (see, for example, his advocating in favor of race-based classifications for the state of Hawaii). That ability, more than any other, is the mark of a truly excellent jurist. But that is also an assertion of his potential—the world won’t really know what he’s like as a Justice until he’s actually on the bench.
[Note that this opinion is subject to change.]
Kents Ledge trip ::
narrative, personal — No Tags
10:38 am
So, Kents Ledge is one of the “hidden” attractions in South Royalton. Since my law school is there, most—if not all—Vermont Law students find their way up to the top of the hill at some point during their time at the school. This weekend, Jessamyn and I finally made the hike ourselves. The trip up was exhausting, but the view was spectacular.
[Ed. note: this paragraph is an update.] The whole reason we were even able to find the trail leading up to Kent’s Ledge was because of the help of one of the circ desk employees working at the Vermont Law School library. Before calling, Jessamyn and I debated whether the person who answered the phone would be able to help us—she was sure that whoever answered the phone would know, while I wasn’t so sure. When we did actually call, it turned out the person did know, thus proving me wrong. I should remember this story for the future, whenever I come to doubt the knowledge of any library employee.
Also, since I’ve tried to make a point of being more physically active, I’ve developed an appreciation for physical accomplishments. Looking out over Interstate 89 brought on just such a feeling. So, despite being fully aware that many people have completed the trip before me, I continue to be quite happy that both Jessamyn and I were able to complete that walk yesterday.
After enjoying the view, as well as a few peanut butter crackers and some water, we headed back down the trail. The trip back went much faster, of course. But my legs were quite sore once we got to the bottom. Clearly, descending a steep hill for a couple of miles requires a set of muscles different from the ones I’ve grown accustomed to using during my bike rides and regular trips to the town pool.
For those who are interested, Jessamyn has put up an annotated map of our trip, as well as a page on her site that details our walk.
July 21, 2005
VT legal links ::
legal — tagged judges, legal, politics and SCOTUS
1:03 pm
So, yesterday went by and I didn’t post anything. That’s what happens when you’re working on two separate memos all day. The lack of interesting news—outside of the continuing saga of the Rove/Plame scandal (note to White House: receiving notice is never good for your case) and the developing record of Judge John Roberts (expect to see more on this site regarding him)—also contributed to the day-long silence. but irrespective of that, here are a few interesting Vermont legal links I found during my morning procastination time:
The Valley News reported today that Republican legislator Duncan Kilmartin plans to introduce a bill next January reinstating the death penalty in this state. At this point, reception has been cool at best, with even the Governor showing clear signs of amivalence. As the Governor’s spokesperson put it:
[T]he Fell verdict was a “reflection that Vermonters are far (more mainstream) than perhaps the makeup of the general assembly would suggest,� but suggested a death penalty bill has next to no chance of becoming state law.
Incidentally, you may recognize Kilmartin from his appearance on Switchboard with former appellate capital public defender Mike Mello, where he discussed the prospect of bringing capital punishment back to the state.
Moving on to Free Speech in the Classroom. The Times Argus has a story on an attempt by the Brattleboro school board to limit teachers’ ability to express opinions at schools. Apparently the controversy stems from “hate America’ signs on some teachers’ doors.” Not much content in this news story—we know only that the posters were critical of the war, but there are no specifics on what they said. Without more facts, it’s impossible to determine whether the posters are protected speech.
Finally, Politics Vermont has this piece on the nomination of John Roberts. They posit that Roberts is conservative, but not too conservative for America. Mostly fair reporting, though I did notice this closing statement:
Conservative leaders who helped elect Bush made it clear this was payback time: They wanted a nominee with a long and clear record of social conservatism who could tip the court to the right on abortion, gay rights, prayer in schools and other hot-button issues.
True enough, but from what I can tell Judge Roberts has not offered a single opinion on these issues. And for that reason, the extreme right is very trepidacious about the appointment. Even if he winds up not to be the same colossal dissappointment to conservatives as David Souter, I still believe that his commitment to the rule of law will often lead him to conclusions that are in stark disagreement with the political ideologues.
July 19, 2005
It’s Judge John G. Roberts ::
legal — tagged judges, legal, politics and SCOTUS
10:21 pm
So there you have it. Not a woman. Not a hispanic. Not a red-flag, firebrand conservative like Judge Bork.
To talk about myself for a moment: I remember mentioning back in January that I thought Judge Roberts would make an “excellent CJ appointment.” Things turned out differently from what I expected, but I’m surprised that my earlier take was not totally off base. Maybe my predictive abilities are a little stronger than I expected.
Like many others, I’ll have a lot more to say about this as I do a little more research. So stay tuned. In the meantime, I have two useful links that will most likely contain evenhanded information about Judge Roberts. First, WikiPedia has a profile, which has been tagged as a current event so expect an explosion of information over the next few days; and second, the Supreme Court Nomination Blog has a rolling list of Roberts opinions;
Extra fast Clement post ::
legal — tagged judges, legal, politics and SCOTUS
1:14 pm
So, with the late-breaking news that President Bush may nominate Justice O’Connor’s replacement as early as this afternoon, I wanted to get a post out before doing so became irrelevant. Quite link heavy, with very little analysis, and for that I am quite sorry.
First, the Supreme Court Nomination Blog has a list of Edith Clement resources on their site, which provides some interesting biographical facts on Judge Clement (and not much else at this point—she seems a cypher!).
TalkLeft also has a post on Judge Clement, which is mostly a big quote from a Washington Post piece.
And of course once again the award for most humorous law-related post goes to Article III Groupie, who has this account of Judge Clement. It also comes with the potentially-apt title, “Associate Justice Clement: ‘Happy Happy Joy Joy,” or Souter in a Dress?’”
And finally, for a little perspective, the people of Think Progress have an interesting post on their Supreme Court blog discussing the flaws in the current Supreme Court nomination procedures. In relevant part:
It is easy to name a full Shadow Court of Democratic and Republican appellate judges, outside the Court, who are equally if not more talented than the judges now on the Court. Yet when a seat opens up, there’s hardly any suggestion that most renowned appellate judges, of proven talent, actually be promoted to the High Court. It’s as if the New York Knicks were to ignore college basketball, and rely instead on loyal elementary school students for its opening lineup.
update: S. Ct. Nomination Blog has this rolling list of Clement opinions on their site as well.
VT Legal news survey ::
politics, legal — No Tags
9:25 am
In the same vein as many other websites that do “legal news roundups,” I thought I’d give it a try on this site, only focusing on interesting legal news in the state of Vermont.
First off, The Vermont Supreme Court ruled 3-2 in favor of a state decision to upgrade a stretch of land along Lake Bomoseen to a more rigorously-protected wetland. To use the language of the article, this means the land is now “a significant, or Class I, wetland with a 100-foot buffer in which land use is restricted.” A group of residents had challenged the government’s decision to reclassify the land, and are unhappy because it makes development more difficult.
To be a little more specific about the decision: the Supreme Court actually dismissed the case for lack of jurisdiction. The opinion is here.
According to the Times Argus, an ammonia spill has killed thousands of fish in the Upper Winooski river. The spill apparently came from the the Cabot Creamery. Health officials are telling people to stay away from the river. (No surprise there).
In federal legal news, Radio Free Brattleboro, an unlicensed community radio station in Brattleboro, VT, which as had several run-ins with the FCC, is celebrating its birthday with a farewell broadcast.
In the continuing saga of the Donald Fell death sentence, Mr. Fell is currently being held in a New York Prison.
Also, in the developing discussion of capital punishment spawned by the Fell conviction, Switchboard is going to have a discussion tonight at 7 p.m. EST on the prospects of bringing the death penalty back to this state. If you wind up missing the show tonight, you can subscribe, via RSS, to the show’s podcast.
July 18, 2005
Watergate Day ::
politics — tagged crime, legal, politics, president bush and watergate
12:07 am
After surveying the news stories and blog entries dealing with Karl Rove today, I think it is appropriate to call July 17, 2005 “Watergate Day.” This was, as near as I can tell, the first day that the Rove/Plame scandal reached the a level comparable to the early stages of Watergate.
Remember that Watergate was not just about a single burglary. It was instead about a Whitehouse that, to paraphrase a top official in the Nixon Administration, tried to find an unethical way of doing just about everything. As Frank Rich notes in his OpEd piece today:
we shouldn’t get hung up on [Karl Rove]—or on most of the other supposed leading figures in this scandal thus far. Not Matt Cooper or Judy Miller or the Wilsons or the bad guy everyone loves to hate, the former CNN star Robert Novak. This scandal is not about them in the end, any more than Watergate was about Dwight Chapin and Donald Segretti or Woodward and Bernstein. It is about the president of the United States. It is about a plot that was hatched at the top of the administration and in which everyone else, Mr. Rove included, are at most secondary players.
Josh Marshall also backs this up in his post:
this isn’t about Valerie Plame or Joe Wilson or even Karl Rove. It’s not about exposing a CIA agent. That’s merely the tear in the fabric, the third-rate burglary, if you will. This is about a president who knowingly took his country to war on the basis of lies and the war on the homefront against anyone and everyone who’s tried to peel back the lies and expose the truth.
Indeed, Watergate Day must be the day that any president dreads. The day that the inquiry becomes broader, and is not isolated to a single official. After today, it could be that that the Rove/Plame problem becomes dramatically more unmanageable.
Now with all that, keep in mind that I stand by my previous post. From a political standpoint this is not manna for the Democrats—it could prove poisonous if Karl Rove is not indicted. More importantly, the problem this case represents goes beyond the politics of any single party. Anyone who is truly concerned about national security—not to mention the survival of a healthy democracy—should be concerned whenever government officials use their power as public servants to meet their own political ends.
July 17, 2005
Fell jurors not talking ::
legal — No Tags
5:28 pm
Today’s Times Argus has an article about the press’ attempts to get the jurors to talk about their experience at the Donald Fell trial. What was the jurors’ overall response? They weren’t saying anything. That dynamic spawned an interesting discussion on the appropriateness of jurors being placed under a gag order after the verdict is handed down and the case is drawn to a close.
There are legitimate reasons for placing such a gag order on jurors. Having the mental impressions and opinions of jurors as a part of the public record could go a long way in prejudicing a convicted defendant, and harm the fairness of their appeal. But on the other hand, does such an order impinge on the juror’s first amendment rights? It seems that the juror’s right to free speech would be a very heavy counter-weight to the defendant’s right to a fair appeal. The article makes note of this balance between the two interests, by way of discussing a law review article addressing the issue.
“What dangerous revelations do jurors make to the press that justify restricting the First Amendment rights of the press to gather news, the jurors to speak their minds and the public to receive information about the operation of our courts?” [the author] added. “After reviewing 18 years’ worth of juror interviews published in a major metropolitan newspaper, I can only wonder what all of the fuss has been about.”
I’m not sure whether Judge Sessions placed such a gag order on the Fell jurors. Assuming that there was not any such order, each of the jurors could have had their own reasons for not talking to the press. And on an emotional level, I can imagine that going through such a strenuous trial would be quite exhausting for the jurors. Probably the last thing they would want to do is relate their story to the press.
July 16, 2005
Zephyr for Congress ::
politics — No Tags
6:02 pm
So, with Bernie making a run for Jim Jeffords’ senate seat in 2006, the hot election next year is going to be for the house seat he’s vacating. Since Peter Welch, the President Pro Tempore of the State Senate, announced his candidacy a while back, the show has pretty much been all about him, and would most likely continue to be all about him until the general election sometime next year. (Yes, it is true that Peter Shumlin is considering making a run as well, but as near as I can tell he has not received too much support for the run.)
But the latest news is that Zephyr Teachout, of Dean Campaign fame is seriously considering a run for the seat as well. I’m excited at the prospect of Teachout running for Congress for many reasons. First, she’s smart, articulate, and gets technology. Second, she’s a member of my generation, which—not without exception, of course—tends to be ignored by both political parties. But more generally, she would challenge the established Democrats in this state, who are a little behind the technological curve when it comes to applying technology to political campaigning.
Cathy Resmer over at 802 Online has a thoughtful analysis of the current gap between the young and the established politicos in this state (what she terms the “digital political divide”):
There’s an entire class of tuned in, tech-savvy politics watchers — some of them Vermonters — for whom Zephyr is a celebrity, a household name. NTodd, for example. The establishment state Democratic Party still hasn’t connected with these folks. This is no surprise. Does anyone remember Peter Clavelle’s truly terrible flash Internet ad of the last campaign? Despite our former Governor’s success with all things online, the state Democrats don’t seem to really get the net.
I personally wasn’t familiar with the whole Clavelle/Douglas move. But it really does drive the point home, I think. So with that being the case, maybe Zephyr is just the shot in the arm the party needs.
July 15, 2005
Fell verdict reactions ::
legal, vermont — tagged capital punishment, crime, donald fell, legal and vermont
12:22 pm
The news world is replete with stories of the Fell trial. Here’s a list of stories I found most relevant, mostly by searching Google News:
The Rutland Herald has this piece in which Professor Michael Mello responds to the death sentence. He notes particularly that the chances of reversal are slim:
While he calls capital punishment law and procedures the most complicated, contradictory and inconsistent area of law he had ever encountered, Mello said Sessions handled the penalty phase so well he would be surprised if the sentence is reversed on appeal.
This assessment is consistent with other accounts of the penalty phase of the trial I have heard. If one shred of good news comes of this story, it is that Donald Fell’s trial was conducted in a fair manner consistent with Due Process.
The Vermont Standard has this piece noting that the Fell case has reinvigorated the capital punishment debate in the state.
Despite such arguments, public opinion across the state has not been convincingly assessed in years. The most recent published poll, taken by State Sen. William Doyle on Town Meeting Day 1999, suggested that the state is divided: 48 percent of those who responded said the death penalty should be restored, with 41 percent opposed. Although Doyle’s poll reached thousands of people, it only included the opinions of those who chose to participate, and the question was posed as neighboring Massachusetts debated a death penalty bill.
The Standard also notes that Howard Dean—who many regard as a left-wing ideologue—was a supporter of Capital Punishment during his tenure as Governor:
Sensing the absence of a statewide consensus, recent Vermont governors have straddled the fence. In the midst of the state’s 2001 debate on the issue, then-Gov. Howard Dean said he wouldn’t introduce a death penalty bill, but added that he wouldn’t veto one that reached his desk. In 2003, during his bid for president, Dean told Meet the Press, “The problem with life without parole is that people get out for reasons that have nothing to do with justice.”
On a national level, the Boston Globe has this thoughtful article on the Fell case, which includes a good timeline of the case.
The New York Times, the LA Times, the Washington Post, the Chicago Tribune, and the Guardian (UK) all have articles on the verdict as well, though from what I could gather they were mostly rehashed wire stories.
And finally, and possibly most relevant at this point, is the Burlington Free Press article on what’s next in the Fell case.
What he said ::
politics — No Tags
11:14 am
Marshall Whittmann has some helpful advice for Democrats as the Plame scandal continues to implicate Karl Rove. Quite simply, that advice is, don’t put all your eggs in the scandal basket.
Ultimately though, his fate is in the hands of the grand jury and the special counsel – or according to the latest reports – in the hands of Bob Novak. Either they have the goods on him or they don’t. We’ll know soon. In the meantime, if the Democrats obsess on him and he is innocent of the charges, he could re-emerge even stronger. If he or another member of the Administration is indicted, however, it will be devastating and the Democrats will have little to do with it.
But more importantly, the Moose goes the extra step and makes the point I should have made in my earlier foray into the Rove/Plame scandal:
The point is that the Democrats can’t merely be the party of “no”—or “we hate Karl.” While we are seething with our justifiable anger, the Republican Chairman is making serious overtures to the African-American community. And what kind of effective out reach is the Democratic Party making to groups that have been estranged from the party in recent years?
I want to double up on the admonishment that focusing too intently on Rove right now could backfire. Remember what happened to the Democrats after the Lewinsky scandal: they gained power after Clinton beat the impeachment rap. We could see the same thing happen to the Republicans if Rove—or some other White House official—avoids an indictment.
Jeremy’s Back! ::
meta, personal — No Tags
11:03 am
After a two-month (or so) haitus, I’m happy to see that Jeremy is once again posting. And the best part is, he’s got a new addition to the family, Celia Alice.
I’m sure I am not alone when I say, Welcome back! Cyberspace has deeply missed Strenturgent.
July 14, 2005
Death sentence for Donald Fell ::
legal, vermont — tagged capital punishment, crime, donald fell, legal and vermont
2:31 pm
In an update to a previous post: a federal jury has sentenced Donald Fell to Death:
Fell showed no emotion as the jury’s recommendation was read to the court by the clerk, but then his lawyer stood and told jurors that he had a statement from Fell.
Fell’s attorney then read the statement:
“He respects your decision. He appreciates your hard work and wants to tell you and the family of his sincere remorse. He did not want to do it at any other time publicly as it would be construed to be less genuine,” the lawyer said.
As I noted here, this is the first death sentence handed down in Vermont in nearly 50 years. It is disturbing any time a jury unanimously decides an individual should die. But also because we have no death penalty in this state, I find this outcome particularly unsettling.
Fell jury deliberates ::
legal — tagged capital punishment, crime, donald fell and legal
11:54 am
The Rutland Herald posts this story on the Fell trial today. Some important details:
The seven men and five women headed into the jury room to decide Fell’s fate at 2:47 p.m. Wednesday. Shortly before 9 p.m., they sent word to Judge William Sessions they would retire for the night and return this morning to continue their deliberations in Vermont’s first death penalty case in more than 40 years.
Different defense attorneys have different superstitions regarding the length of the deliberation process. So any guess on which way the jury is trending would be pure speculation at this point.
