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Did Forty-Seven Senators Violate the Logan Act In Writing IRAN Leaders During U.S. Negotiations?

Saturday, March 21st, 2015

Logan Act

From Wikipedia, the free encyclopedia

Logan Act

Long title An Act for the punishment of certain Crimes therein specified.
Enacted by the 5th United States Congress


Statutes at Large Stat. 613


U.S.C. sections created 18 U.S.C. § 953

Legislative history

  • Introduced in the House by Roger Griswold (FCT)on December 26, 1798[1]
  • Passed the House on January 17, 1799 (58–36)
  • Passed the Senate on January 25, 1799 (18–2)
  • Signed into law by President John Adams on January 30, 1799

United States Supreme Court cases

United States v. Curtiss-Wright Export Corp.

The Logan Act (1 Stat. 61318 U.S.C. § 953, enacted January 30, 1799) is a United States federal law that forbids unauthorized citizens from negotiating with foreign governments having a dispute with the U.S. It was intended to prevent the undermining of the government’s position.[2]

The Act was passed following George Logan‘s unauthorized negotiations with France in 1798, and was signed into law by President John Adams on January 30, 1799. The Act was last amended in 1994, and violation of the Logan Act is a felony.




In 1798, amid tensions between the U.S. and France, President Adams sent three envoys to France to negotiate. Negotiations were unsuccessful. Dr. George Logan of Pennsylvania, a state legislator andpacifist, in 1798 engaged in semi-negotiations with France as a private citizen during the Quasi-War.[2][3]

Kevin Kearney, writing in the Emory Law Journal, described Dr. Logan’s activities in France:

Upon his arrival in Paris, he met with various French officials, including Talleyrand. During these meetings, he identified himself as a private citizen, discussed matters of general interest to the French, and told his audience that anti-French sentiment was prevalent in the United States. Logan’s conversation with Merlin de Douai, who occupied the highest political office in the French republic, was typical. Logan stated that he did not intend to explain the American government’s position, nor to criticize that of France. Instead, he suggested ways in which France could improve relations with the United States, to the benefit of both countries. He also told Merlin that pro-British propagandists in the United States were portraying the French as corrupt and anxious for war, and were stating that any friend of French principles necessarily was an enemy of the United States. Within days of Logan’s last meeting, the French took steps to relieve the tensions between the two nations; they lifted the trade embargo then in place, and released American seamen held captive in French jails. Even so, it seems that Logan’s actions were not the primary cause of the Directory’s actions; instead, Logan had merely provided convenient timing for the implementation of a decision that had already been made.[4]

Despite the apparent success of Logan’s mission, his activities aroused the opposition of the Federalist Party in Congress, who were resentful of the praise showered on Logan by oppositional Democratic-Republican newspapers. Secretary of State Timothy Pickering, also of Pennsylvania, responded by suggesting that Congress “act to curb the temerity and impudence of individuals affecting to interfere in public affairs between France and the United States.” The result was that Rep. Roger Griswold introduced the Logan Act. [5] It was pushed through by the Federalist majority in Congress by votes of 58–36 in the House, and 18–2 in the Senate.[4]

Subsequently, Logan himself was appointed and then elected as a Democratic-Republican to the United States Senate from Pennsylvania, and served from July 13, 1801, to March 3, 1807. He was unsuccessful in getting the Logan Act repealed. Despite the Logan Act, he went to England in 1810 on a private diplomatic mission as an emissary of peace in the period before the outbreak of the War of 1812, but was not successful.


§ 953. Private correspondence with foreign governments.

Any citizen of the United States, wherever he may be, who, without authority of the United States, directly or indirectly commences or carries on any correspondence or intercourse with any foreign government or any officer or agent thereof, with intent to influence the measures or conduct of any foreign government or of any officer or agent thereof, in relation to any disputes or controversies with the United States, or to defeat the measures of the United States, shall be fined under this title or imprisoned not more than three years, or both.

This section shall not abridge the right of a citizen to apply himself, or his agent, to any foreign government, or the agents thereof, for redress of any injury which he may have sustained from such government or any of its agents or subjects.

1 Stat. 613, January 30, 1799, codified at 18 U.S.C. § 953 (2004).

Constitutional authority for foreign relations[edit]

Article II, Section 2, Clause 2 of the United States Constitution includes the ‘Treaty Clause,’ which empowers the President of the United States to propose and chiefly negotiate agreements, which must be confirmed by the Senate, between the United States and other countries, which become treaties between the United States and other countries after the advice and consent of a supermajority of the United States Senate.

[The President] shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur…

In United States v. Curtiss-Wright Export Corp., 299 U.S. 304 (1936), Justice Sutherland, writing for the Court, observed,

“[T]he President alone has the power to speak or listen as a representative of the nation. He makes treaties with the advice and consent of the Senate; but he alone negotiates. Into the field of negotiation the Senate cannot intrude; and Congress itself is powerless to invade it. As Marshall said in his great argument of March 7, 1800, in the House of Representatives, ‘The President is the sole organ of the nation in its external relations, and its sole representative with foreign nations.’

Accusations of violations[edit]

In general, the Act is intended to prohibit unauthorized American citizens from interfering in disputes or controversies between the United States and foreign governments. Although attempts have been made to repeal the Act, it remains law and at least a potential sanction to be used against anyone who without authority interferes in the foreign relations of the United States.

Washington has threatened to use the Act to stop Americans from negotiating with foreign governments. For example, in February 1941 Under Secretary of State Sumner Welles told the press that former President Herbert Hoover might be a target for prosecution because of his negotiations with European nations over sending food relief.[6]

The only actual indictment under the Logan Act was one that occurred in 1803 when a grand jury indicted Francis Flournoy, a Kentucky farmer, who had written an article in the Frankfort Guardian of Freedom under the pen name of “A Western American.” In the article, Flournoy advocated a separate nation in the western part of the United States that would ally with France. The United States Attorney for Kentucky, an Adams appointee and brother-in-law of Chief Justice John Marshall, went no further than procuring the indictment of Flournoy. The purchase of the Louisiana Territory later that year appeared to cause the separatism issue to become moot.[2][7]

During the 1968 presidential election, Nixon supporter Anna Chennault, told the South Vietnamese government that Nixon would give them a better deal if they waited.[8][9]

In 1975, Senators John Sparkman and George McGovern were accused of violating the Logan Act when they traveled to Cuba and met with officials there. In considering that case, the U.S. Department of State concluded:

The clear intent of this provision [Logan Act] is to prohibit unauthorized persons from intervening in disputes between the United States and foreign governments. Nothing in section 953 [Logan Act], however, would appear to restrict members of the Congress from engaging in discussions with foreign officials in pursuance of their legislative duties under the Constitution. In the case of Senators McGovern and Sparkman the executive branch, although it did not in any way encourage the Senators to go to Cuba, was fully informed of the nature and purpose of their visit, and had validated their passports for travel to that country.

Senator McGovern’s report of his discussions with Cuban officials states: “I made it clear that I had no authority to negotiate on behalf of the United States — that I had come to listen and learn…” (Cuban Realities: May 1975, 94th Cong., 1st Sess., August 1975). Senator Sparkman’s contacts with Cuban officials were conducted on a similar basis. The specific issues raised by the Senators (e.g., the Southern Airways caseLuis Tiant’s desire to have his parents visit the United States) would, in any event, appear to fall within the second paragraph of Section 953.

Accordingly, the Department does not consider the activities of Senators Sparkman and McGovern to be inconsistent with the stipulations of Section 953.[10]

In 1984, President Ronald Reagan stated that the activities of the Reverend Jesse Jackson, who had traveled to Cuba and Nicaragua that year and had returned with several Cuban political prisoners seeking asylum in the United States, may have violated the Logan Act; but Jackson was never indicted.[2]

In 1987 and 1988, President Reagan was furious at what he felt to be House Speaker Jim Wright‘s “intrusion” into the negotiations between Nicaragua‘s Sandinista government and the Contras for a cease-fire in the long civil war. The National Security Councilconsidered using the Logan Act to muzzle Wright, but nothing ever came of it.

In June 2007, Representative Steve King introduced legislation that would prohibit then-Speaker of the House Nancy Pelosi from drawing on Federal funds to travel to foreign states which the U.S. deems to sponsor terrorism. King claimed that Pelosi’s dialogue with the Syrian government violated the Logan Act.[11] The amendment was not adopted.

In March 2015, 47 Republican senators sent a letter to the Iranian government regarding President Barack Obama‘s attempts to broker a nuclear arms agreement between Iran and six major powers (P5+1).[12][13] The letter warns Iran of the limitations of President Obama’s term in office and constitutional powers – noting that anything done without the advice and consent of the Senate could be undone by the next President. This prompted some commentators to suggest that the letter may have violated the Logan Act.[9][14][15][16] A petition on the White House‘s We The People website had accumulated signatures from over 300,000 people requesting the Obama administration to prosecute the 47 senators under the Logan Act.[3]


There has been little judicial discussion of the constitutionality of the Logan Act.

The Southern District of New York in Waldron v. British Petroleum Co., 231 F. Supp. 72 (S.D.N.Y. 1964), mentioned in passing that the Act was likely unconstitutional due to the vagueness of the terms “defeat” and “measures,” but did not rule on the question.

In 2006, the U.S. House Committee on Standards of Official Conduct warned departing members of the terms of the Act in an official Memorandum. The Committee commented in the Memorandum that the Act, “…has never been the basis of a prosecution, and this Committee has publicly questioned its constitutionality… Members should be aware, however, that the law remains on the books.”[17]

Proposed revisions[edit]

The chair of the House Judiciary Committee in the 109th Congress, F. James Sensenbrenner of Wisconsin, proposed a comprehensive revision and modernization of the federal criminal code in 2006. The bill, H.R. 6253, was not enacted into law. What is noteworthy is that the Logan Act was significantly revamped in the proposed legislation to prohibit only knowingly false statements made under oath. The section revising the Logan Act was proposed to read as follows:

Sec. 923. False statements influencing foreign government — Whoever, in relation to any dispute or controversy between a foreign government and the United States, knowingly makes any untrue statement, either orally or in writing, under oath before any person authorized and empowered to administer oaths, which the affiant has knowledge or reason to believe will, or may be used to influence the measures or conduct of any foreign government, or of any officer or agent of any foreign government, to the injury of the United States, or with a view or intent to influence any measure of or action by the United States or any department or agency thereof, to the injury of the United States, shall be imprisoned not more than ten years.[18]

See also[edit]



Friday, March 20th, 2015

March 20, 2015

In case you hadn’t been following the story, there’s quite a dispute in Alabama between state and federal judges.

The spat began with a January 2015 federal court ruling that struck down Alabama’s same-sex marriage bans as violating the U.S. Constitution.  After a couple of unsuccessful attempts to stay the ruling, the U.S. Supreme Court itself refused to stay the ruling (more on that in this post) – but not before Chief Justice of the Alabama Supreme Court Roy Moore issued an order instructing the state’s probate judges to refuse to comply with the federal court’s order.

That dispute continues today, with federal judges insisting that state judges comply with their rulings, and Alabama state judges – the state supreme court, specifically – countering that the same-sex marriage ban is perfectly constitutional.

Of course, there’s a case that’s directly on point in resolving this dispute, one that is coincidentally celebrating its 199th anniversary today: Martin v. Hunter’s Lessee.

The 1816 ruling should be familiar to law students as one of the major pillars of federal court jurisdiction and authority, in that it explicitly held that the U.S. Supreme Court is the nation’s ultimate authority on interpreting federal law, superseding all state court interpretations thereof.

The dispute in the case arose over competing claims to land owned by Lord Fairfax, a British loyalist during the Revolutionary War.  Virginia seized the land from Fairfax during the war and transferred it to David Hunter.  After the war, however, the U.S. entered into a treaty with Great Britain, and one of the provisions thereof guaranteed the protection of lands owned by loyalists such as Fairfax.

Subsequently, Thomas Martin, Fairfax’s nephew and heir to the land after Fairfax died in 1781, sued to recover the confiscated land in Virginia state court.  Martin won at the trial court level, but on appeal to the Virginia Court of Appeals (then the state’s highest court), Martin lost, with the court ruling that Hunter was the legal owner of the land.

Upon further appeal, the U.S. Supreme Court reversed the Virginia high court’s decision, finding that the tract of land rightfully belonged to Martin pursuant to the treaty.

However, the Virginia Court of Appeals refused to respect the Supreme Court’s ruling.  It further held once again that Hunter was the proper owner of the tract and that the U.S. Supreme Court had no authority to review and overturn its decisions.  Specifically, the Virginia court stated that state courts had the ultimate authority to interpret federal laws as they applied solely to state law concerns in state court.

The U.S. Supreme Court once again heard the appeal from the Virginia court’s ruling, and once again reversed it.  The Court held that the Judiciary Act of 1789, authorized by Article III of the Constitution, expressly allows the Supreme Court to review decisions of state courts, and that the Supreme Court had the final say on all interpretations of federal law.

And that decision has stood for nearly 200 years as a pillar of authority for the Supreme Court.  Without it, not only would we no longer have numerous landmark Court decisions (including Brown v. Board of Education and Miranda v. Arizona), but every individual state would conceivably have its own version of the U.S. Constitution based on two centuries’ worth of state court interpretations.

In spite of Martin’s long established character as one of the most fundamental foundations of federal legal authority, we are today witnessing a state court system that is attempting to flout this authority.

There is, nevertheless, little doubt that Alabama will ultimately prove unsuccessful in its efforts to evade federal authority on the issue (assuming, of course, that the U.S. Supreme Court rules as expected in its forthcoming same-sex marriage decision).  And this inevitability is due to the principles first laid out in Martin.

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Rogue Alabama Chief Justice has no legal rationale

Thursday, March 19th, 2015

March 18, 2015 1:01 AM


Nancy Marcus

Alabama Supreme Court Chief Justice Roy Moore’s unauthorized, so-called “administrative order” to state officials instructing them to deny same-sex couples marriage licenses, in defiance of a federal court order (and Supreme Court order), continues to inspire vigilante behavior weeks later.

The continuing chaos from Moore’s “order” has been described by Moore’s colleague, Justice Michael Bolin, as the legal equivalent of a three-ring circus. Some state officials continue to cite Moore’s “order” as authority to refuse marriage licenses and, more recently, to deny adoptions, while others have returned to court seeking clarification of what should be settled law. In the meantime, ethics charges have, appropriately, been filed against Moore. This is not his first ethical fiasco; Moore was previously removed from the bench for disobeying a federal court order.

Although Moore has his defenders, there is nothing admirable about a state Supreme Court justice defying the rule of law. Court-watchers should not be blindsided by the rhetoric spouted by Moore defenders and followers. The law, quite simply, is not on his side.

Moore has failed to cite any legal authority allowing a unilateral “administrative order” in contravention of a federal judge’s order. Moore’s “order” was procedurally out of bounds – not connected with a case in his court, not agreed to by the Alabama Supreme Court and not authorized by Alabama procedural laws governing administrative orders.

Even if Moore had such authority, his justifications fail on the merits.

First, Moore attempts to hang his vigilante hat on misguided notions of state powers. For example, he has maintained in recent interviews that “there is no law right now that overcomes the Alabama Constitution,” calling the federal court orders a “federal intrusion into state sovereignty.” In a brazen display of disrespect toward the U.S. Supreme Court, he even warned that he would not follow a Supreme Court mandate ordering same-sex marriages.

Such a stubborn state-supremacist stance blatantly conflicts with basic constitutional principles. The U.S. Constitution’s Supremacy Clause and Fourteenth Amendment provide that state laws may not violate the federal Constitution and must protect all citizens equally. The Supreme Court spelled out in the school desegregation case Cooper vs. Aaron that states, including “the officers or agents by whom (the state’s) powers are exerted,” must comply with Supreme Court decisions even if they disagree with them.

Second, Moore has contended that Judge Callie V. Granade “does not have power over anything other than what’s before her court.” Moore’s defenders have elaborated upon this in two ways. Some argue that a federal court injunction may provide only relief to those specific plaintiffs who brought the case, not statewide relief. Others argue that injunctions bind only those defendants explicitly named.

Both contentions are wrong under long-established rules of law.

Federal rules governing injunctions explicitly allow orders directed at both the named defendant state officials and those acting in participation with them. Such broad injunctions are also explicitly allowed under the Declaratory Judgment Act. The Supreme Court and lower federal courts have commonly issued broad injunctions against unconstitutional laws. Ensuring that a federal court may “invalidate” an unconstitutional law in each of its applications is the whole point of such constitutional challenges. Even Justices Antonin Scalia and Clarence Thomas, while dissenting from the Supreme Court’s order allowing same-sex marriages in Alabama to proceed, recognized the customary practice of enjoining laws ruled unconstitutional; they argued only that courts should exercise discretion to “stay” those injunctions pending appellate review.

Thus, the valid federal injunction stopping enforcement of Alabama’s same-sex marriage ban validly extends to the state officials charged with issuing marriage licenses.

Moore similarly cannot justify limiting legal protections only to those plaintiffs who brought the case in the first place.

Failing to protect everyone equally within a federal court’s jurisdiction from unconstitutional state laws would create a serious Equal Protection problem. Although injunctive relief is limited to cases where plaintiffs establish the likelihood of ongoing harm, under that standard, the ongoing actions by Moore and other Alabama officials who continue to harm Alabama citizens by disobeying the federal orders establish the need for a broad injunction.

By thumbing his nose at federal court orders, Moore and his followers call to mind George Wallace standing in the schoolhouse door, blocking access of black schoolchildren to the equal protection of the law in violation of federal orders. The Constitution did not tolerate unequal protection last century, nor does it this century.

Moore would rather these constitutional principles not govern his actions, but they must. The United States Constitution, not the whims of Roy Moore, is the supreme law of this land.

This Ain’t Your Daddy’s Markman Hearing – What deference should Ct of Appeals give to U.S.District Court?

Thursday, March 19th, 2015

James Day and Andy Nguyen, The Recorder

March 18, 2015    | 0 Comments

The U.S. Supreme Court in January issued its opinion in Teva Pharmaceuticals USA Inc. v. Sandoz,13-854, which changed the level of deference the Federal Circuit must show to district court claim construction orders—in part.

For more than two decades, the U.S. Court of Appeals for the Federal Circuit has reviewed claim construction on a de novo basis; in other words, as a pure question of law without showing any deference to the district court. The de novo review standard resulted in a high rate of reversal by the Federal Circuit in claim construction decisions. This caused uncertainty, and the existing standard had been under attack even before being explicitly confirmed in Cybor Corp. v. FAS Technologies, 138 F.3d 1448 (1998).

The New Criteria

With the issuance of the Teva decision, the Supreme Court has changed that standard. The Federal Circuit must now review factual findings underlying a claim construction order for clear error, giving deference to district court judges, though the Federal Circuit will still review the interpretation of patent claim terms itself de novo even if that interpretation is based on the underlying findings of fact. Whether or not the new standard brings more predictability to patent litigation or changes the reversal rate of the Federal Circuit, one thing seems likely: We will be seeing more expert testimony—and the associated expense—in claim construction proceedings than we did under the old standard.

It will be even more critical now for litigants to retain and work with experienced patent litigation counsel to select highly qualified experts who not only have the right credentials and experience to opine on claim construction-specific issues, but who can also clearly and persuasively testify, if permitted, before a district court judge. It will also generally be in the patent owner’s interest to develop a factual record in the district court to make an appeal of those findings less likely to be successful under the clear error standard.

What the Supreme Court Changed

Since the decision in Markman v. Westview Instruments, 517 U.S. 370 (1996), federal district courts have been tasked with interpreting the meaning of terms in patent claims. Until now, those district court claim construction opinions were reviewed de novo by the Federal Circuit. The standard applied to claim constructions based exclusively on the intrinsic evidence, like the patent at issue and its prosecution history. It also applied to any factual conclusions drawn from extrinsic evidence, like expert testimony and dictionary definitions. Under this non-deferential standard, the Federal Circuit has reversed an unusually high percentage of the claim construction orders it has reviewed—sometimes estimated at 50 percent or more.

In the closely watched Teva Pharmaceuticals case, the Supreme Court was asked to change the standard of review to require the Federal Circuit to show deference to factual findings of the district courts. And it did. In a 7-2 decision, the court held that factual findings underpinning a claim construction must be reviewed for “clear error” on appeal.

In other words, the appellate court should accept factual findings of the district courts, unless the appellate court finds they are unsupported by substantial evidence.

How ‘Teva’ will Impact Patent Litigation

It is too soon to tell if the Supreme Court’s ruling will have any impact on the outcome of more than a few cases that turn on disputed expert testimony. As the Supreme Court confirmed in Teva, “When the district court reviews only evidence intrinsic to the patent (the patent claims and specifications, along with the patent’s prosecution history), the judge’s determination will amount solely to a determination of law, and the Court of Appeals will review that construction de novo.”

In other cases, where there are “subsidiary facts” in dispute, the district courts “will need to make subsidiary factual findings” based on the extrinsic evidence. It is “this subsidiary fact-finding [that] must be reviewed for clear error on appeal.” But even in cases where the district court resolves factual disputes, the judge “will then interpret the patent claim in light of the facts as he has found them,” and this “ultimate interpretation is a legal conclusion” subject to de novo review.

There is ample room in the new standard for the Federal Circuit to review most claim construction decisions largely, if not entirely, under the same de novo standard that has applied for years.

Whether or not the Teva decision will have any real impact at the appellate court level, it is likely to change the way litigants present their claim construction arguments and the way district court judges support their claim construction orders. Under the old standard, there was limited benefit to making a strong presentation of extrinsic evidence because even if it was convincing, any factual findings the district judge might make would be reviewed de novo by the Federal Circuit. The Federal Circuit takes the view that extrinsic evidence is “less significant” than the intrinsic record. Phillips v. AWH Corp., 415 F. 3d 1303 (2005).

In light of Teva, a claim construction order based solely on intrinsic evidence will be more easily reversed than a decision with specific factual underpinnings. Litigants are now incentivized to submit more extrinsic evidence, even in cases where they would not have under the old standard, and hope the district judge will use it to craft a favorable opinion with plenty of citations to underlying facts that must be reviewed with deference by the appellate court. There is a greater prospect for each claim construction dispute to become a “battle of the experts,” and there is at least the potential for other extrinsic evidence, like dictionary definitions, to take on greater importance.

All of this will likely lead to more frequent and more involved evidentiary hearings in connection with claim construction proceedings. Indeed, while live expert testimony is uncommon in claim construction proceedings under the old standard, the Teva decision makes live testimony more likely so the district judge can weigh competing evidence, assess credibility and make specific factual findings. Going forward, patent litigants should focus more energy on retaining experts who are qualified to offer testimony in support of specific claim construction positions but who are also effective, credible witnesses.

Why the Supreme Court Changed the Standard

The Teva case presents a situation where disputed extrinsic evidence proved to be dispositive, making it an example of a case where the change in standard may well alter the ultimate result. The main dispute in Teva concerned the meaning of the term “molecular weight” as it appeared in Teva Pharmaceutical’s asserted patent claim.

Sandoz, the defendant, argued the claim was indefinite because the term “molecular weight,” as used in the patent claim, could refer to any one of three different potential measures of molecular weight. The parties presented competing expert testimony on this point, and the district court accepted the testimony of Teva’s, finding the patent sufficiently definite and valid. On appeal, the Federal Circuit conducted de novo review of the lower court’s decision. It implicitly rejected Teva’s expert testimony, finding the term “molecular weight” indefinite.

The Supreme Court vacated the Federal Circuit’s judgment based primarily on Federal Rule of Civil Procedure 52(a)(6), which states a court of appeals “must not … set aside” a district court’s “[f]indings of fact” unless they are “clearly erroneous.” Continuing a theme that has developed over the past decade, the court decided there is no reason patents should be treated differently than other legal documents like contracts and deeds, indicating that, in general, patent law is not exempted from the basic procedures established for all other civil litigation.

According to the Supreme Court, Rule 52 sets out a “clear command.” And, although it ruled in Markman that claim construction poses a question of law for a judge, that did not imply or create an exception to Rule 52 regarding underlying factual disputes. The court also determined that precedent and practical considerations favored clear error review.

In Practice articles inform readers on developments in substantive law. Contact James Cronin with submissions or questions at

Jim Day is a partner in Farella Braun + Martel’s Intellectual property litigation department. He has 16 years of experience in state and federal courts litigating intellectual property and complex commercial disputes for Internet and other high technology companies. Andy Nguyen is a senior associate in Farella Braun + Martel’s intellectual property litigation department. His practice focuses on representing high technology clients in patent infringement litigation.

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What A Fishy Case Tells Us About How The Supreme Court Views Criminal Law

Tuesday, March 17th, 2015

Tuesday, March 17, 2015

The Supreme Court’s recent decision on the scope of a criminal anti-shredding law in Yates v. United States, 135 S. Ct. 1074 (2014), caught headlines in legal and mainstream publications for its unusual fact pattern. In short, a fisherman was accused of destroying fish that he had caught and stored that fell below the minimum length allowed. The odd twist in this story is that he was convicted under a law that was enacted in the face of widespread financial misconduct and often only applies to the destruction of information recording instances of corporate crime. The Justices ultimately gave the financial fraud law a narrow reading, but only in a split decision where no opinion garnered more than four votes.

If you look beyond the headlines and the immediate ruling, the Court’s forty-three page decision, split across plurality, concurring, and dissenting opinions, provides important guideposts about where the Justices see the current state of criminal law.

The Facts: Fishes And SOX

The dispute in Yates originated in 2007 when Officer John Jones of the Florida Fish and Wildlife Conservation Commission boarded a commercial fishing boat captained by John Yates operating in the Gulf of Mexico.  Officer Jones noticed that some caught Red Grouper aboard the vessel appeared shorter than the twenty-inch minimum length permitted by federal regulations. As every lawyer knows, in 2007, commercial fishing vessels such as Mr. Yates’ were required to release “immediately with a minimum of harm” all Red Grouper shorter than the twenty-inch minimum proscribed in 50 C.F.R. § 622.37(d)(2)(ii) (2007).  Officer Jones identified seventy-two fish that fell below the length proscribed in the Code of Federal Regulations but, notably, all seventy-two were within two inches of the minimum length. The officer issued a citation for the offense and instructed Yates and his crew members to leave the offending fish segregated until their ship returned to port.

When the ship returned to port several days later, several of the cold fish had mysteriously grown in length, leading Officer Jones to question the crew members about why the clearly deceased fish had grown. One of them eventually spilled the beans: Yates had instructed his crew to toss the fish that were initially measured by Officer Jones and replace them with new, longer fish.

Almost three years later, Yates was indicted and eventually convicted for violating 18 U.S.C. § 2232(a) and 18 U.S.C. § 1519. The parties agreed that the former statute – a nearly seventy-year-old provision that bars the knowing destruction of property to prevent seizure by government – applied to Yates. Section 1519 was more controversial and its application to Yates became the basis for the case that reached the Supreme Court.

Section 1519 of Title 18 the U.S. Code was enacted as part of the Sarbanes-Oxley Act of 2002, 116 Stat. 745, in light of revelations that Enron’s auditors, Arthur Andersen, had regularly destroyed incriminating evidence that could have implicate both its client and the audit company itself. Section 1519 proscribes that:

Whoever knowingly alters, destroys, mutilates, conceals, covers up, falsifies, or makes a false entry in any record, document, or tangible object with the intent to impede, obstruct, or influence the investigation or proper administration of any matter within the jurisdiction of any department or agency of the United States or any case filed under title 11, or in relation to or contemplation of any such matter or case, shall be fined under this title, imprisoned not more than 20 years, or both.

In short, the statute makes it a felony to modify or altogether destroy “any record, document, or tangible object” with the intent to obstruct an investigation or the administration of any matter within the jurisdiction of a federal agency.

Yates was eventually convicted of violating both § 2232(a) and § 1519 and sentenced to thirty days in prison followed by three year of supervised release.

Ohio Supreme Court weighs ex-inmate’s unlawful imprisonment suit

Thursday, March 12th, 2015


Filed on March 12, 2015 by Associated Press


Dale Johnston was sent to death row in 1984 for a double homicide he didn’t commit.

He’s spent the years since his 1990 release trying to get back the life he lost.

The Ohio Supreme Court heard arguments Wednesday in Johnston’s latest attempt to win a wrongful imprisonment suit against the state.

Now 81, Johnston described his years under a death sentence as “hell on earth.”

“Death row’s the most horrible place anybody could be,” he said in a recent interview at his home in Grove City in suburban Columbus. “Especially when you know they’re wanting to kill you for something you didn’t do.”

The case dates to 1982, after parts of the dismembered bodies of his stepdaughter, Annette Cooper Johnston, and her boyfriend, Todd Schultz, were discovered in a cornfield a few days after they went missing.

Johnston was indicted the following year, and in 1984, a three-judge panel in Hocking County, based in part on testimony by a hypnotized witness, convicted Johnston of the killings and sentenced him to death on the theory he’d been having an affair with his stepdaughter and killed both in a jealous rage.

An appeals court overturned the conviction and ordered a new trial, but a judge refused to allow the hypnotized witness’ testimony and other evidence and the case was dismissed.

In 2008, two men confessed to the crime, with one saying he killed the couple and the other that he helped dispose of the bodies.

Three years ago, a Franklin County judge declared Johnston innocent, allowing him to seek compensation from the state, but an appeals court reversed the ruling.

Arguing a series of technicalities, the state says because Johnston failed in an earlier attempt to prove wrongful imprisonment, he isn’t eligible to try again.

“Johnston already unsuccessfully brought a wrongful imprisonment action arising out of his criminal convictions,” Debra Gorrell, an assistant attorney general, argued in a court filing last year. “This case seeks a do-over.”

Johnston’s attorney said with the real killer in prison, the state’s arguments help perpetuate a “monstrous inequity.”

Finding that Johnston was wrongfully imprisoned “is necessary to preserve the reputation for justice that the Ohio courts have elsewhere earned,” attorney Todd Long said in a 2014 court filing.

Some justices seemed skeptical of the state’s efforts to fight Johnston, given the judge’s 2012 ruling in his favor.

“Why didn’t the state just suck it up and say, ‘Look, the prosecution of this thing was dead wrong. The investigation of it was wrong. It was a mess. It was a miscarriage of justice for Mr. Johnston’?” asked Justice Paul Pfeifer.

Stephen Carney, Ohio deputy solicitor, emphasized the state’s position that the 2003 law under which Johnston sued doesn’t apply to cases before it took effect.

Johnston worked in construction and later as a handyman, and he now lives quietly in a neat home with his wife, Roberta, on a 2-acre plot where he still puts in a large garden each year.

Ohio courts have awarded hundreds of thousands of dollars in the past in similar cases.

“If I am able to get everything that the state says I’m allowed to have, that’s still an insult when you figure what I lost,” Johnston said.

Innocence is not enough to get you out of prison.

Wednesday, March 11th, 2015


By Lara Bazelon


Innocence Network

In May, the Innocence Network will hold its annual conference at a glitzy Hilton in Orlando, Florida. Lawyers, students, and activists from all over the country who work to overturn wrongful convictions will gather to do all the regular conference-like things: attend panel discussions, listen to inspirational talks from boldface speakers, network, and socialize. There is also a part of the Innocence Network Conference that is unique and wonderful. Every year, it brings together scores of wrongfully convicted men and women, offering a variety of programs geared toward their specific needs and celebrating their freedom.

The most dramatic moment of the conference comes after a dinner in the hotel’s ballroom, when each exonerated man and woman is invited up to the stage. One by one, they come forward. They are male, female, black, white, Latino, Asian, and Native American. Some are still young and strong, others walk slowly and with assistance. They hail from the Deep South, the Midwest, the Rockies, the East and West coasts, from big cities and tiny rural communities. As their names are called, so are the number of years they served behind bars: five, eight, 13, 18, 28, 34, 39. Collectively, it adds up to centuries.

Slowly, the stage begins to fill, first one row, then another, then another. When every last exoneree has taken his or her place, scores of them are standing shoulder to shoulder, a dizzying tableau of faces and stolen lives. The weight of the collective injustice is heart-stopping. Then the music starts and the exonerees sing and dance together. The hope and joy in the room is deeply moving.

. Bloodsworth was the first American sentenced to death row who was exonerated by DNA fingerprinting.

But here is a dirty little secret about the exonerated, some of whom were on death row, some just days away from execution. They were able to prove that they were wrongfully convicted, yet very, very few could show that they were actually innocent. They were—they are—innocent, but in our legal system, that all-important fact is largely beside the point.

A wrongful conviction stems from a fundamental breakdown in the legal process—what the uninitiated like to call a “technical error.” Prosecutors buried crucial evidence, witnesses lied, police coerced false confessions, defense attorneys performed so poorly that they basically failed to advocate at all. These “technical” breakdowns matter because they violate the Constitution, which guarantees all criminal defendants the right to be free from police and prosecutorial abuses, to have access to favorable evidence in the state’s possession, and to have a defense attorney who will fight for their cause.

If you are a wrongfully convicted man or woman in this country, it is extremely difficult—if not outright impossible—to win your case by advancing the simple argument that you are innocent. Sounds crazy, right? But it’s true. The Supreme Court has repeatedly declined to hold that the federal Constitution allows for so-called freestanding claims of innocence, that is, the right to be let out of prison simply because you didn’t do it, without any other “technical” violation to back up your argument. In the United States, the inmate who raises a compelling case of innocence after a constitutionally proper trial may well be doomed.

This judicial perversion started with the Supreme Court’s 1993 decision in Herrera v. Collins, a textbook example of bad facts making bad law. Leonel Torres Herrera was charged with shooting Officer David Rucker in 1981 and leaving him to die beside his patrol car in a pool of blood. Also left at the crime scene was Herrera’s Social Security card. Officer Enrique Carrisalez and his partner saw Herrera’s car speeding away and gave chase. Herrera pulled over, and when Carrisalez approached, Herrera shot him in the chest. Carrisalez died less than two weeks later.

The state tried the Carrisalez case first, and evidence introduced against Herrera was overwhelming. Carrisalez’s partner testified that Herrera was the shooter, as did the victim himself in the days before he died. The license plate of the killer’s car matched that of Herrera’s girlfriend; when Herrera was arrested, he had the car keys in his pocket. He also had a handwritten letter in which he apologized for the killings. A jury convicted Herrera of capital murder, he was sentenced to death. After the verdict, Herrera pleaded guilty to killing Rucker.

“With any luck, we shall avoid ever having to face this embarrassing question again.”

Antonin Scalia

Nine years later, Herrera petitioned the Supreme Court to overturn both convictions. Because so many years had passed and because Herrera had been convicted in state court, he had to use a legal vehicle called habeas corpus, a centuries-old, last-ditch remedy that allows prisoners to argue that their imprisonment violates the federal Constitution. Because there is a strong presumption that the criminal justice system functioned correctly in the first instance, only a fraction of these claims succeed.

Herrera argued that he should be among the lucky few because newly discovered evidence proved his innocence. The evidence consisted of three sworn statements. One was written by a lawyer for Herrera’s dead brother, Raul, claiming that Raul confessed to him that he had killed Rucker and Carrisalez. The second, signed by a former cellmate of Raul’s, claimed the same thing. The third, signed by Raul’s son, claimed that he had witnessed his father shoot both officers.

By no stretch of the imagination could these biased affidavits—which conveniently blamed the murders on a dead man—prove Herrera’s innocence of the Carrisalez and Rucker murders, the latter of which he flat out admitted to committing. Herrera’s innocence claim, quite simply, was a farce. And yet it was this claim that the Supreme Court chose to review when deciding a profoundly important question: whether anyinmate with newly discovered evidence of innocence could argue that his conviction had been obtained in violation of the constitutional guarantees of due process and protection against cruel and unusual punishment.

Did Wisconsin Bar Counsel Overprosecute An Attorney?

Wednesday, March 11th, 2015

Tuesday, March 10, 2015

By Legal Profession Prof


A five-month suspension has been ordered by the Wisconsin Supreme Court for client-related misconduct in several matters.

One in particular may be of interest

On June 13, 2011, Attorney McClure sent an electronic response via a “legalmatch” website to M.K., J.K.’s mother, saying that Attorney McClure was a respected former prosecutor with 20 years of private practice criminal defense experience and that Attorney McClure could help J.K.  Attorney McClure told M.K. that he offered “a free consultation, convenient evening and weekend appointments and a simple up front flat fee.”  Attorney McClure went on to tell M.K., “The total fee that I would charge for this case is $2,500, pending more information from you.  The entire fee payment is due when I take your case.  Standard flat fee for domestic violence and felony child abuse charge.”

On June 16, 2011, M.K. hired Attorney McClure to represent her son and paid Attorney McClure a flat fee of $2,500, which Attorney McClure deposited directly into his business account.  There is no documentary evidence of a written fee agreement between Attorney McClure and M.K. and/or J.K.  J.K. obtained successor counsel, whose appearance was entered on September 8, 2011.

There were violations involving another client solicited through “legalmatch.”

After finding multiple violation, the referee made this unusual observation

But something is unusual.  Why are there so many separate Counts charged here?  It appears that Complainant decided to include in its Complaint every possible wrong it could find.  While that is its right, it still causes the Referee to wonder why this happened in a case where the attorney of over 33 years here in Wisconsin had never had any prior discipline and no client or medical provider lost any funds and OLR knew of the personal hardships which impacted that attorney during the period of misconduct.  OLR has not challenged Respondent’s assertion of him having many, many serious personal issues affecting him during the time period of the misconduct.  It appears to the referee from the case record that the reason for Complainant bringing so many Counts was/is to create, for the Sanction portion of the proceeding, an impression that a great wrong has occurred because of the number of findings of misconduct and, therefore, a major and significant penalty should be imposed.

The danger with that approach is that the prosecutor then is forever encouraged to overcharge in cases where there is clear wrong-doing on one or a few Counts in order to argue for and obtain the imposition of ever more severe sanctions.  Here the Respondent acknowledged his wrongdoing as can be seen by the stipulation that was received into the case record.  But when all is said and done the Respondent still is seen to have committed acts of misconduct in the areas of his Trust Account, his fee agreement/communication document and dishonesty.  Saying the foregoing is in no way an effort to diminish the misconduct that occurred.  But did Respondent’s conduct warrant a complaint with 21 separate Counts?  A schoolyard metaphor would be that piling on was occurring by youngsters during the recess.

. . . .

In this case it appears that the prosecutor has filed an unreasonable and excessive number of Counts, not because it could meet its burden, but in order to coerce and unfairly impact that portion of the proceedings that addresses sanctions.  The referee doesn’t know what should be the exact number of Counts in this case, but 21 would appear clearly excessive and intended to influence the sanctions that should be imposed.

Respondent is a very good, but not a perfect, man and attorney.  On balance in his 33-plus years as a lawyer he has labored hard and brought great credit to the legal profession.  . . .  That said, however, it is also clear that he has violated . . . the Supreme Court Rules that regulate all attorneys in this State.  The public must be protected from misconduct by an attorney that causes resources to be converted and diminishes respect for the rule of law.  While respondent’s misconduct was real and over a substantial period of time, it is mitigated by his very positive and exemplary 33 year career as a practicing lawyer, his actions taken to correct the consequences of his misconduct, and by the great number of personal struggles that confronted and motivated him as he lost his moral compass during the very period when the misconduct occurred.  . . .  As a 59 year old man with no prior lawyer misconduct, he is seeking an opportunity to be sanctioned fairly and appropriately.

The court

With respect to the appropriate level of discipline, upon careful review of the matter, we conclude that a five-month suspension is appropriate.  As the referee pointed out, Attorney McClure’s law practice now spans more than 34 years and he has no prior disciplinary history.  It is also significant to reiterate that no clients or medical providers lost any funds, and that Attorney McClure fully cooperated with the OLR and entered into a stipulation whereby he admitted virtually all the facts alleged in the complaint.  We also find it significant that the referee, who was in the best position to judge witness credibility, found Attorney McClure to be genuinely remorseful.  In addition, the OLR does not dispute the fact that Attorney McClure was faced with a multitude of personal problems during the time period at issue in this case.

(Mike Frisch)


How the US Supreme Court Has Treasonously Destroyed America’s Democratic Republic

Sunday, March 8th, 2015


By Joachim Hagopian


Global Research, March 08, 2015

This presentation will focus on how our Big Government in general and the US Supreme Court in particular have undermined and destroyed America’s onetime democratic republic. The judicial branch of the American government consisting of the federal district courts, the circuit courts of appeal and the Supreme Court in tandem with the prosecutorial legal arm of the executive branch the Justice Department represent the United States of America’s federal judicial system that’s supposed to operate above the fray of petty politics and polarized partisanship. All these federal judges appointed by the US president who presides over the executive branch are then formally approved of by the legislative branch US Congress. Unlike these two branches, federal judges enjoy permanent tenure with a fixed income for life to ostensibly reinforce the notion of bipartisan impartiality in constitutional interpretation of both legislative laws passed and executive orders and decisions made.

By design this checks and balances system compliments of our Founding Fathers has always been intended to act as a safeguard against the federal government’s potential tyranny and oppression. This article will show how during the first few years of the twenty-first century the Supreme Court has led the way in giving license to all three branches of government to be seriously compromised, corrupted and treasonously usurped by powerful self-interests that no longer represent, much less care about the well-being of the American people that they have sworn oaths to protect.

All three branches take a similar oath to the one below for both members of Congress. Keep in mind they all must swear to follow their oath throughout their tenure in office under penalty of law.

I do solemnly swear (or affirm) that I will support and defend the Constitution of the United  States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; that I take this obligation freely, without any mental reservation or purpose of evasion; and  that I will well and faithfully discharge the duties of the office on which I am about to enter:

So  help me God.

The specific federal law prohibiting violation of the above oath is worded as follows:

Federal law regulating oath of office by government officials is divided into four parts along with an executive order which further defines the law for purposes of enforcement. 5 U.S.C. 3331, provides the text of the actual oath of office members of Congress are required to take before assuming office. 5 U.S.C. 3333 requires members of Congress sign an affidavit that they have taken the oath of office required by 5 U.S.C. 3331 and have not or will not violate that oath of  office during their tenure of office as defined by the third part of the law, 5 U.S.C. 7311 which explicitly makes it a federal criminal offense (and a violation of oath of office) for anyone  employed in the United States Government (including members of Congress) to “advocate the  overthrow of our constitutional form of government”. The fourth federal law, 18 U.S.C. 1918 provides penalties for violation of oath office described in 5 U.S.C. 7311 which include: (1)  removal from office and; (2) confinement or a fine.

Agents operating in high levels at all three branches of our government have repeatedly engaged in treasonous acts as traitors in violation of Article 3 of the US Constitution, the same Constitution they all swore to preserve, defend, uphold, protect and honor. In the face of the growing tyranny and dismantling of our Constitution since 9/11, their proven disloyal actions have regularly violated their sworn allegiance to the nation, the Constitution and the American people. Since all members of the three branches of government must take an oath of allegiance that many then subsequently fail to comply with, clearly violating the aforementioned codified federal law, and since we do have the legal teeth, it’s high time to finally hold those who have been disloyal to our Constitution fully accountable.

Back in December 2000 the Supreme Court clearly usurped its own authority one month after the democratically elected Al Gore had won both the popular and electoral vote had all the votes per the Florida Supreme Court been allowed to rightfully continue to be counted. But in an unprecedented move that transgressed beyond its role and boundaries, for the first time in US history, the Supreme Court decided a presidential election by interfering where it had no legal authority to unilaterally halt that recount and prematurely proclaim the actual election loser George W. Bush the winner.

The subsequent untold damage done to the world by eight years of the diabolical Bush-Cheney regime that stole a second term in office with yet another fraudulent 2004 electionset into irreversible motion the Zionist neocon takeover responsible for the most heinous crimes of the ages – the inside 9/11 job, the lies promoting the immoral bloody wars in the Middle East and North Africa still raging out of control under Obama today. The sheer loss of life and utter horror willfully inflicted on so many nations and people none of whom ever posed a real threat to the United States is unforgiveable. That fateful, turn-of-the-century decision by the US Supreme Court to interfere in the 2000 election may just go down among the all-time most destructive and devastating court decisions in recorded human history.

The next major actions unveiling the court’s true partisan colors arose over the ongoing, perennially unsettled issue of illegal gerrymandering of congressional redistricting to unfairly gain House seats. Back in 2003 the then Republican House majority leader Tom Delay’s blatant machinations in Texas stacking GOP seats in Congress finally arrived at the Supreme Court for deliberation in 2006. But because the Supreme Court justices were deadlocked along partisan lines, ultimately they refused to intervene. Though both political parties are guilty of grappling to gain unfair advantage, the GOP’s gerrymandering power grab helped enable the Republican Party to capture of the Houses of Representatives. The highest court’s ineffectual response to this ongoing redrawing of political boundaries based on changing demographics within the states ensured that Republicans outnumbered Democrats in Congress. Whatever efforts the court has attempted in finally resolving this longstanding, hot button issue have invariably failed. Devising a fair and objective standard by which to remap congressional districts has proven ever elusive.

So the partisan battle wages on. The latest development surfaced this week when the Supreme Court heard arguments from both sides. The case involves Arizona’s commissionvoted by the state’s voters in 2000 to begin handling redistricting duties that stripped the GOP controlled state legislature from its power to divvy up districts. Not surprisingly, the majority of conservative/GOP judges in the Supreme Court all line up favoring the status quo’s literal interpretation that the Founding Fathers stipulated the responsibility lie with the state “legislature” while the liberal/Democrat justices prefer the more loosely applied definition to mean the “legislative process.” This would support the voters assigning the task to an appointed commission. Stakes are huge as the largest state California made a similar arrangement several years ago as did Washington and a few others as a viable alternative means of resolving this long contentious issue. So dozens of congressional districts around the nation could be overturned by the high court’s decision.

Though the big money handlers (Koch brothers, Sheldon Adelson, PAC’s) pour millions in strings attached donations to candidates from both parties in order to ensure that the elite’s undue influence and control over whomever gets elected is secured either way, they generally favor the Republican Party. Thus the GOP ascension to power in both houses of Congress has rendered the legislative branch in this century as the most ineffective, inept and morally corrosive in all of American history. Last year a poll found that an overwhelming majority of Americans believe that Congress members are controlled by special interest groups. With the unending quagmire that paralyzes Washington, undoubtedly that percentage of public contempt and alienation will only continue to rise over time.

By design this divide and conquer strategy permeates at all levels in America (and the world) both historically and currently, and in our federal government it produces a co-opted excuse absolving all responsibility for continued failure simply by blaming the other side of the aisle. In this way the forever game of partisan politics is maintained whereby the Democrats get to always blame the Republicans, the Republicans the Democrats, and the Democrat president always blames the now Republican controlled House and Senate. As a result, the government always operates contentiously gridlocked and mired at a chaotic standstill – its inability to work effectively together as its convenient excuse to not do its proper job in protecting and promoting the interests of the American people. This then provides the necessary perfect public cover to continue in dysfunctional, abysmal failure, of course all at citizens’ expense.

See how these momentous, monumentally significant, game-changing actions from the nation’s highest court have directly impacted and caused such grave damage degenerating our republic into an oligarchy? Again by design, relentlessly pointing the finger at each other deceptively obscures the real truth of the bigger picture from ever getting noticed or recognized. Through the feds’ and their MSM’s nonstop propaganda and lies, as long as the US populace can continue to be fooled and controlled, in its complacency it will only continue to tolerate its government’s failures and accepted inadequacies, never demanding more as a disempowered, seemingly impotent, disenfranchised citizenry. The backbiting bickering between two thoroughly corrupted, co-opted political parties in the US is mere side show distraction designed to conceal the sleight of hand thievery of the banking cabal pulling all the side show puppet strings. As the late great truth-telling George Carlin used to say, the elite “doesn’t give a shit about you or me.” It’s an abomination of criminal deceit that’s bamboozled dumbed down Americans kept in the dark for far too long.

And to this day they still don’t get it. A Reuters-Ipsos poll reported this week that only 24% of Americans believe that Congress should more closely oversee the Federal Reserve private banking cabal that’s been drowning us in debt for over a century. More than twice that amount believe “the Fed should be left alone.” These must be the same sheeple who loudly complain about how horrible Congress is, yet last November turn around and re-elect 91% of the incumbents despite only a 10% approval rating. The lies are so often repeated that the voting public gets invariably conned into voting against its own self-interest again and again.

Still another Supreme Court decision that put the final dagger into the heart of our dying democratic republic was 2010’s Citizens United case followed up by last year’s McCutcheon case that opened up the purse-string floodgates giving carte blanche power for oligarchs to buy off elected politicians with absolutely no oversight or accountability. With no dollar limits making bribery perfectly legal and completely private and untraceable by high court endorsement, by no accident a joint university study last year made it official – America is no longer a republic but an oligarchy where the power interests of the few dictate and control how our federal government votes and makes laws. Rather than pay any attention to its blatant conflict of interest in violating every democratic principle, the Supreme Court has also made it official – our government is up for sale to the highest bidder. Those who simply spend the most money now own our elected representatives who are totally beholding to the hand that feeds them rather than to their constituents that send them to Washington. Of course the direct consequence of these totally undemocratic court decisions placing exclusive monetary value on funding means that Congress members will only devote more time, energy and effort to raising money to get re-elected than doing their job on Capitol Hill. The 2012 presidential election at both national and state levels cost a total of $60 billion, the most ever. With each of these dramatically impactful court rulings, the onetime democratic republic of America fades ever further into distant memory as the disconnect between the Americans and their oligarchic form of government widens exponentially.

Finally last April’s Supreme Court decision to not intervene in a Court of Appeals ruling that overturned the district court that had declared the 2012 National Defense Authorization Act (NDAA) unconstitutional sealed the nail in the coffin on whatever civil liberties we Americans still had left. Though courageous citizens like journalist Chris Hedges had filed a lawsuit on our behalf challenging NDAA’s legality and one very bold federal district court judge decided in Hedges et al’s favor, by the Supreme Court’s choice to uphold the Appeals Court decision overruling the lower court to keep the NDAA law on the books, life as we legally knew it in the United States ceased to exist. In effect, both the Appellate and Supreme Courts violated American citizens’ Fourth and Sixth Amendments as well as overturned the Posse Comitatis law that existed since after the Civil War. Comitatis was the legal protection that prohibited the US military from intervening in civil affairs that were historically under the jurisdiction of law enforcement agencies and each state’s National Guard. Currently under the 2012 NDAA law, the military can come into our homes without a warrant and arrest us without charges, detain us for an unlimited, indefinite period of time without access to either legal representation or due process and without even a trial.

Constitutional attorney John W. Whitehead comments:

No matter what the Obama administration may say to the contrary, actions speak louder than words, and history shows that the U.S. government is not averse to locking up its own citizens for  its own purposes. What the NDAA does is open the door for the government to detain as a threat to national security anyone viewed as a troublemaker. According to government guidelines for identifying domestic extremists—a word used interchangeably with terrorists, that technically applies to anyone exercising their First Amendment rights in order to criticize the government.

The highest court’s gross and inhumane failure to protect our civil liberties and our constitutional right to due process has given way to the CIA-like “black sites” currently operating in secret locations throughout America where US citizens are being rounded up, brought to detention centers, shackled and tortured without being booked or charged with any crime. In effect, we are all now potential targeted victims of the US police state under the most brutal totalitarian rule. These egregious actions of the US Supreme Court have desecrated and destroyed our rule of law that for more than two centuries used to be the United States Constitution. What we now have are criminals operating within our highest court who are nothing more than traitors who need to be held accountable.

We also have a standing president who has assumed dictatorial powers through countless executive orders that bypass both congressional approval and our civil rights. Though he campaigned on a promise of transparency and openness, he has betrayed the American people who elected him by becoming the most secretive president in US history. His administration has turned down more Freedom of Information requests than any prior using the pathetic mantra of “national security” as his always lame excuse. He has charged far more whistleblowers with the archaic espionage act than all other previous presidents combined. He has been the most aggressive amongst all past presidents in pursuing and harassing journalists, both executing and threatening arrests for their seeking to tell the truth while exercising their constitutional protection to not violate confidentiality of their sources. This blatant, over-the-top violation of civil liberties of both whistleblowers and journalists again shows Obama’s true colors that he is at war with free speech and the free press obviously no longer guaranteed by our First Amendment.

Essentially since 9/11 all three branches have been taken over and hijacked by malevolent and sinister forces that no longer serve the interests of the American people but a handful of oligarch puppet masters that is the long time controlling elite. Their intent is in fact to destroy America and to a great extent the entire world as the final step toward fulfilling their globalist agenda of a one world government. For numerous centuries the international globalists have utilized their central banking cabal to own and operate a morally corrupt and thoroughly broken, unsustainable Ponzi scheme of an economic system designed to historically steal and plunder the earth’s natural resources and enslave through insurmountable debt and feudal servitude the global masses. The brutal and ruthless tyranny of the New World Order has effectively seized control over the entire planet’s population. Under the auspices of the American Empire doing its brutal bidding along with its subservient appendage of the NATO-European Union, a pro-Zionist elite spearheaded by the likes of Israel’s Bibi Netanyahu has subversively driven humanity to the brink of global self-annihilation. Through geopolitical polarization into two militarized opposing armed camps, the West is diabolically baiting and pushing the East (Russia, China, India and Iran) into global conflict amounting to World War III.

The hard kill tactics of global war and violence in conjunction with the soft kill method of environmental degradation (i.e., pollution of air, water, soil and food production through cumulative Monsanto GMO/chemical and chemtrail toxicity and ever-rising levels of radiation) makes our living earth habitat unsustainable that is increasingly producing widespread lethality amongst all life forms. The oligarchs’ eugenic plan of reducing the world population from 7.2 billion to a half to one billion is in current process of being successfully attained. Within a few years a very strong likelihood exists that roughly 13 out of 14 of us currently living and breathing on this planet will be dead or all life forms on planet earth will have perished.

With these longshot odds on survival becoming increasingly apparent, we humans as mindful citizens of the world have nothing left to lose at this near endgame point but to fight and take back our only home from those bent on fast destroying it. As outlined here, clear violations of the US Constitution have been egregiously been committed by members of all three branches of the federal government and under the penalty code of those laws, they sorely need to be enforced. Indeed it is both the citizens’ right and obligation to do so. We have no other rational or moral choice but to mobilize and actively oppose the destructive forces currently in demonic control over the earth’s dominion.

Joachim Hagopian is a West Point graduate and former US Army officer. He has written a manuscript based on his unique military experience entitled “Don’t Let The Bastards Getcha Down.” It examines and focuses on US international relations, leadership and national security issues. After the military, Joachim earned a master’s degree in Clinical Psychology and worked as a licensed therapist in the mental health field for more than a quarter century. He now concentrates on his writing and has a blog site at http://empireexposed. blogspot. com/.


jury instruction in a medical negligence claim based on an alleged lack of informed consent should be a general professional duty instruction

Saturday, March 7th, 2015

By David Kramer

In a recent 2-1 decision (see it here) by Chief Judge Glenn Acree, the Kentucky Court of Appeals held in Horsley v. Smith that the jury instruction in a medical negligence claim based on an alleged lack of informed consent should be a general professional duty instruction and not a separate instruction outlining specific legal duties relating to informed consent. The opinion also analyzed at length the language and legislative history of the Kentucky informed consent statute, KRS 304.40-320, and held that it did not affirmatively impose a duty on a physician, but rather created a “safe harbor,” compliance with which should absolve the physician from liability for an alleged lack of informed consent.

Interestingly, the jury in Horsley was instructed by the trial court that the defendant physician had initially lied at his deposition about not having sent an anonymous pre-suit mailing to the plaintiff recounting instances where physicians countersued lawyers for filing unsuccessful malpractice claims. The doctor later came clean and was sanctioned and fined by the trial court. He still won at trial.

Even more interesting is the fact that the Horsley decision openly disagrees with a 2012 Court of Appeals decision (Oghia v. Hollan) that was authored by current Justice Michelle Keller when she was on the Court of Appeals. Horsley also states (correctly) in a footnote that a 1992 informed consent opinion of the Kentucky Supreme Court “errantly” described the nature of the informed consent duty as being based on a community versus a national standard.

The opinion was designated for publication in the South Western Reporter but is not yet final as there is currently pending a petition for rehearing. Once that petition is ruled on, the losing party has a right to seek discretionary review by the Kentucky Supreme Court.

David Kramer is a Partner in the law firm of Dressman Benzinger LaVelle, with offices in Cincinnati, Ohio, Crestview Hills, Kentucky, and Louisville, Kentucky

Does Campaign Money Corrupt Judges

Friday, March 6th, 2015

Charles A. Kelbley, The Legal Intelligencer

March 6, 2015    | 0 Comments

Back in 2009, Lanell Williams-Yulee, a Tampa, Florida, attorney, made a decision to run for the office of county court judge. She began her campaign by sending a mass mailing to potential supporters, asking for contributions ranging from $25 to $500. Her appeal did not attract any response, but it did engender a complaint from the Florida bar, which charged her with violating a rule of judicial ethics by personally soliciting donations from potential supporters. But Williams-Yulee claimed that the Florida bar’s rule violated the First Amendment by wrongfully restricting her speech.

The Florida Supreme Court rejected her First Amendment claim, reprimanded her for not adhering to the ethics rule, and ordered her to pay court costs of nearly $1,900.

Williams-Yulee’s case is now before the U.S. Supreme Court, and the question it will decide is whether a rule of judicial conduct that prohibits candidates for judicial office from personally soliciting campaign funds violates the First Amendment.

The answer will favor Williams-Yulee if she can show that the Florida bar’s ban on personal solicitations violates her First Amendment’s free speech rights. That may depend, however, on whether judges are deemed to be different, in some important respects, from other public officials, such that judges’ speech must be limited.

Politicians, legislators and others who are running for political offices are in general free to personally solicit donations for their campaigns. Indeed, the Supreme Court has in recent years protected campaign financing in decisions such as Citizens United v. Federal Elections Commission, No. 08-205, 558 U.S. 310 (2010), and McCutcheon v. Federal Election Commission, 133 S.Ct. 1242 (2013). Those cases opened the floodgates that allowed virtually limitless amounts of money to flow, in one way or another, to political campaigns under the aegis of political speech. Giving money, we have learned, is considered speech and protected under the umbrella of the First Amendment.

Some commentators think that the campaign contributions members of Congress and other politicians seek and receive from Washington lobbyists and other special interest groups are not, on the whole, without serious ethical problems. Members of Congress are known to spend much of their time seeking financial support for their re-election bids. The case against it has been made in at least two important books, the first by Harvard Law School professor Lawrence Lessig in “Republic, Lost: How Money Corrupts Congress—and a Plan to Stop It,” where Lessig uses the term “dependency corruption” to describe the effect of a constant search for money on the integrity of our political processes; and the second, by constitutional scholar Zephyr Teachout, in “Corruption in America: From Benjamin Franklin’s Snuff Box to Citizens United,” a book that traces American policies on the ethical effects of gifts to government officials since the founding era.

As noted earlier, however, judges may be different from legislators and other politicians. Perhaps now we can see why they must be different in order to avoid as much as possible the temptations toward corruption. The people elect the members of the executive and legislative branches of government. Thirty-nine of our 50 states likewise hold elections for some or all of their judges. But here’s the difference: legislators and members of the executive branch, from the president on down, serve the people and constitute the “political” branches of the government. They look to the people to elect them and retain them in office, based upon public approval and satisfaction with their performance.

But the judicial branch is supposed to be “above the fray.” Judges do not serve the people, at least not directly or primarily; they serve the law, which is their primary duty; upholding the Constitution and the law is their essential calling. In this way they serve the interest of litigants and the public only indirectly and secondarily. So there are good reasons why judges are not “in the fray” and lack agency within the political branches: judges must be independent, impartial and fair, and not beholden to donors whose influence might compromise and corrupt their judicial virtues.

Many Americans are likely to agree that they should have the right to elect the judges in their states. But many other Americans, including many judges, are not happy with the election of judges; they favor a process of “merit selection,” which they claim will result in the appointment of highly qualified judges who are not beholden to voters’ views or preferences. It is notable that on this subject, retired U.S. Supreme Court Justice Sandra Day O’Connor is a vocal critic of electing judges.

Here in Pennsylvania, retired Superior Court Judge Edmund B. Spaeth Jr.—often thought of as one of Pennsylvania’s most respected and distinguished judges—has long opposed the election of judges. When his term as president judge of the state Superior Court was about to end, he decided not to seek re-election in order to avoid asking donors for money and conducting a campaign, which, from prior experience, he had found “mostly meaningless” for a judicial candidate. For him, the decision was a matter of principle.

The reasons a judge might refuse to ask for or accept campaign contributions are multiple. As U.S. Supreme Court Justice Ruth Bader Ginsburg said during oral argument in this case, judges should be “above the fray,” and Justice Antonin Scalia’s remarks were similar, to the effect that “there are things we just don’t let judges do, like publish op-eds in newspapers to respond to criticism of the court’s decisions. Both Ginsburg’s and Scalia’s remarks were referring to the “dignity of the office” of a judge. And Spaeth’s decision might also be construed in that way.

Florida’s ethics rule, however, has an interesting twist. Although personal appeals for donations are forbidden, campaign committees are permitted to handle donations on the candidate’s behalf and inform judges about donors’ identities, which permits judges to acknowledge those donations. This would appear to contradict the purpose of the ban on personal solicitations, which is to avoid a direct link between judges and donors.

This direct link is the harbinger of some ethical strains: once donors are known, judges may learn more about their interests and motives, their corporate, business and professional values, and much more. The danger then is that the judges will become more like the members of the political branches of the government, serving the interests of the donors and turn away, however slightly, from serving the law.

As noted above, 39 states elect some of their judges. Thirty of those states have rules in their ethical codes that forbid judicial candidates to make personal requests for donations. Thus, a majority of the states have banned such requests. But if their state codes have a rule like Florida’s, banning personal requests but allowing a judge to know who has donated, and allowed also to send those donors thank you notes, they will not be helping their judges to adhere to a strong ethical norm. They may, on the contrary, be inviting the very habits they wish to ban from the practices of judges and judicial candidates.

It is notable that there is significant disagreement among the federal courts on the ban of candidates soliciting funds for their campaigns. At least three state supreme courts and two federal appeals courts uphold the ban, whereas four federal appeals courts have struck down the ban. In Florida itself, there is a conflict between the state’s Supreme Court, which upholds the ban, and the U.S. Court of Appeals for the 11th Circuit, which includes Florida.

Finally, a 2013 survey, commissioned by the Brennan Center for Justice at New York University School of Law, shows that a vast majority of American voters fear that campaign donations skew judges’ decisions. That means that judges who have received donations, especially those they solicited, have the appearance of impropriety for the general public. What we need, arguably, is a rule far stricter than the Florida rule. We should have a rule that completely isolates judges and candidates from donors and money. Without that, the judiciary moves closer to the political branches’ characteristic embrace of donors and their donations, which are fraught with ethical danger..

Charles A. Kelbley is a Philadelphia lawyer. Previously, he was a professor of constitutional law at Fordham University School of Law and a visiting professor of law and social policy at Bryn Mawr College. He is working on a book on the amendments to the U.S. Constitution. His email is

Judge David Allen Barberk of Prestonsburg named to a vacant seat on the Supreme Court

Thursday, March 5th, 2015

Gov. Steve Beshear on Wednesday appointed former state Court of Appeals Judge David Allen Barber to a vacant seat on the Supreme Court, according to a news release.

Barber replaces former Justice Will T. Scott, who resigned to seek the Republican nomination for governor in the May primary.

Barber, of Prestonsburg, is an advisor in the legislative office of House Speaker Greg Stumbo, D-Prestonsburg

Barber served on the Court of Appeals from 2000 to 2007.

Beshear’s office said Barber serve until the results of an election to fill the seat in November are certified.


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Supreme Court Chief Justice John Roberts Could Again Swing Obamacare Case In Government’s Favor

Tuesday, February 24th, 2015


Feb. 24, 2015
By Lawrence Hurley

WASHINGTON, Feb 24 (Reuters) – Three years ago, Supreme Court Chief Justice John Roberts cast the tie-breaking vote in a ruling that saved President Barack Obama’s signature healthcare reform. As the high court prepares to weigh another challenge that could shatter Obamacare, a review of Roberts’ recent votes and opinions suggest he could again sway the case the government’s way.

The conservative challengers in the case aim to persuade Roberts and the other eight justices that the federal government has overreached by providing tax subsidies to millions of people in 34 states that didn’t create their own insurance exchanges.

Their argument will revolve around wording in the 2010 law that insurance would be provided through exchanges “established by the state,” which they argue rules out a federal role.

But in several key cases in recent years Roberts has voted in ways that could favor the government’s arguments. He has raised concerns about upsetting the balance between federal and state law, particularly when there is ambiguity in a law’s wording. He has also recognized the need to consider the overall context of a law, not just an isolated phrase.

The government says the Obamacare law, read as a whole, shows the subsidies were intended to be available nationwide.

Oral arguments are set for March 4, with the ruling expected by the end of June. If the challengers win, millions of people in states that do not have their own exchanges would lose the subsidies, dealing a potentially crippling blow to Obamacare.

Appointed by Republican President George W. Bush in 2005, former corporate lawyer Roberts joined the court’s liberal wing in the 2012 case, which ruled Obamacare was constitutional.

Roberts may be the most likely of the five conservative justices to side with the four liberals on the court, but Anthony Kennedy, often the swing vote in close cases, could also be in play for the government. It is, however, difficult to predict how any individual justice will vote, particularly before hearing his or her questions at oral arguments.

Although the recent cases testing the interpretation of statutes are on a range of subjects, they give an insight into the legal methodology that Roberts uses.


Last year, Roberts wrote an opinion in a criminal case in which he cited states’ rights in relation to Congress’ power to implement treaties the U.S. government has signed. Lawyers for a Pennsylvania woman accused of trying to poison her husband’s lover said Congress had overstepped in interpreting a treaty to cover crimes involving household chemicals.

In throwing out the woman’s federal conviction under a chemical weapons law, Roberts signaled his concerns about infringing on the rights of the states, which usually play the lead role in prosecuting such crimes. If there is ambiguity in a statute, he wrote, the court should attempt to interpret the law in a way that does not harm the states.

The government has cited that case in support of its Obamacare defense, arguing that a ruling against the law would similarly have an unintended negative impact on states. The healthcare law does not explicitly say that subsidies would be denied to people in states that did not set up exchanges.

Jonathan Adler, a professor at Case Western Reserve University School of Law and one of the architects of the challengers’ legal theory, conceded in an interview that the states’ rights question could appeal to Roberts and Kennedy.

“I think that’s a serious argument,” he said.

The government is also highlighting a case from 2014. Then, Roberts was in the majority in partially upholding the Obama administration’s first regulations to address climate change.

Roberts signed on to conservative colleague Antonin Scalia’s majority opinion, which stressed the notion that interpretation of statutory language concerns not just the specific phrase at issue but also the broader context. Along with Kennedy, Roberts has voted most often since 2005 to support a government agency’s interpretation of the law, according to a 2014 survey by Jack Beermann, a professor at Boston University School of Law.

Roberts has not always deferred to the government, even if warned of major consequences. In January, he rejected the government’s interpretation of a whistleblower law despite what he conceded were genuine security concerns about the disclosure of sensitive information. He threw the ball back to the Republican-controlled Congress, as he could do with Obamacare.

“Those concerns are legitimate. But they are concerns that must be addressed by Congress or the president, rather than by this court,” Roberts wrote. (Reporting by Lawrence Hurley; editing by Stuart Grudgings)

State Supreme Court Justice Warns He May Abolish Marriage Entirely If Same-Sex Weddings Are Allowed

Wednesday, February 18th, 2015




“State Supreme Court Justice Warns He May Abolish Marriage Entirely If Same-Sex Weddings Are Allowed”

If loving married couples like this one come to Alabama, Justice Glenn Murdock may try to destroy the institution of marriage

An obscure, two-page opinion by an Alabama Supreme Court justice contains an ominous warning. If marriage equality remains the law in Alabama, Justice Glenn Murdock may vote to abolish marriage in his state altogether.

Justice Murdock’s opinion is attached to a brief order from the state supreme court as a whole declining to offer further guidance to Alabama probate judges regarding whether they must comply with a federal court order holding that same-sex couples are entitled to the same marriage rights as straight couples. In a brief opinion concurring in that order, Murdock hints that, if this federal court order is permitted to stand, then his own court should strike down all marriages within the state of Alabama.

Murdock suggests that, had the state legislature known that its decision to exclude gay couples from the right to marry was unconstitutional, it might have preferred not to permit anyone to be married in the state of Alabama. This potential preference for no marriages over equality matters, according to Justice Murdock, because of a prior state supreme court decision holding that, when part of a state law is struck down, the law may be declared “wholly void” if “the invalid portion is so important to the general plan and operation of the law in its entirety as reasonably to lead to the conclusion that it would not have been adopted if the legislature had perceived the invalidity of the part so held to be unconstitutional.”

Thus, according to Murdock, if gay couples and straight couples must enjoy the exact same marriage rights under the Constitution, the proper remedy might be to deny those rights to everyone, rather than extending them to same-sex and opposite-sex couples alike.

In the unlikely event that a majority of the state supreme court adopts this approach, that could cause a largely academic matter that has divided federal judges to suddenly become hugely important. Though the overwhelming majority of federal judges to consider the question after the Supreme Court’s most recent gay rights decision in 2013agree that the Constitution does not permit anti-gay marriage discrimination, these judges have split on rationale. Some judges have held that denying equal marriage rights to gay, lesbian and bisexual individuals deprives them of their right to equality under the law; while others have held that denying such rights to these individuals violates a “fundamental right” to marry. (Other judges have embraced both rationales in favor of marriage equality, or they’ve embraced a hybrid of the two rationales.)

Currently, this distinction between legal rationales has little practical impact on couples asserting their newly recognized right to marry. If Alabama attempted to abolish marriage altogether, however, the distinction could suddenly matter a great deal.

The Constitution’s promise of equality is just that — a promise of equality. In the gay rights context, a state complies with this constitutional requirement by treating people of all sexual orientations the same way. Thus, a state could potentially meet its obligation to treat all couples similarly by denying the same right to all of them.

If marriage is a fundamental right, on the other hand, that could lead federal courts to conclude that states have an obligation to provide marriage rights to their residents whether they want to or not (although they may need to overcome one Supreme Court decision to do so). Under this rationale, Justice Murdock and his court would be forbidden from destroying the institution of marriage.

The federal judge that ordered Alabama to provide equal rights to gay couples, for what it is worth, held that “the institution of marriage itself is a fundamental right protected by the Constitution,” although this rationale will not necessarily be adopted by either the federal appeals court that oversees Alabama or by the Supreme Court.


This Supreme Court Decision Could Encourage One Of The Worst Forms Of Racism

Tuesday, February 17th, 2015


Posted: 02/17/2015 9:26 am EST Updated: 25 minutes ago

For the larger part of the 20th century, housing discrimination in the United States was overt and unambiguous. Racial segregation was largely the norm, and those who worked to preserve it were under little obligation, legal or social, to hide their intentions. At least it was easy to spot:


Help came in 1968 with the federal Fair Housing Act, which prohibited racial discrimination in the sale, rental and financing of homes. The law explicitly barred practices with a discriminatory intent.

The country has progressed since the late ’60s, and blatant prejudice is now much less common. Yet housing discrimination persists, often due to bias built into the system. So over the years, the federal courts have expanded the Fair Housing Act to cover practices with a discriminatory outcome. Under this theory, known as “disparate impact,” a policy or practice can be illegal if it disproportionately affects minorities, regardless if that was its purpose. Disparate impact claims are crucial to fighting racial inequality today.

But this key weapon could soon be taken away. The Supreme Court will likely rule this summer in a case, Texas Department of Housing and Community Affairs v. The Inclusive Communities Project, that may forbid disparate impact claims under the Fair Housing Act. Such a decision would effectively defang the law. It would also shed a disturbing light on how this court believes the law should react to entrenched discrimination.

The underlying reality of the Texas case is that certain housing policies disadvantage minorities more than whites, whether by hidden design, careless disregard or unfortunate coincidence. It’s this type of discrimination — in housing, but also employment, voting and education — that today produces some of the biggest barriers to bridging the racial divide. If the Supreme Court acknowledges this truth and believes justice is best served by fostering equality “in fact, and not simply in form” –to borrow a phrase from Justice Ruth Bader Ginsburg – its decision should be easy. That it probably won’t be helps explain why racial inequality remains such an unrelenting problem for the nation.

Here’s what you need to know about the case, its history and why it could be a landmark decision:

In the past, property owners and policymakers openly supported segregation.

During the first half of the 20th century, racially restrictive covenants were commonly used to keep minorities from moving into white neighborhoods. Under these private agreements, property owners would stipulate that their land could not be sold to or occupied by anyone who wasn’t white. Sometimes, a group of neighbors would sign a contract prohibiting all current and future owners of their properties from selling or leasing to African-Americans. Violating the contract could lead to forfeiture of the property.

Local authorities also played a role in maintaining segregated neighborhoods. Though the Supreme Court had ruled that explicit racial zoning was unconstitutional in 1917, exclusionary zoning to preserve the character of a community was — and is — allowed. Neighborhoods can be zoned to allow only more expensive, low-density housing while prohibiting smaller homes or affordably priced apartment buildings. Because of racial differences in household wealth, many minorities are priced out of the exclusive areas. This practice, which has repeatedly been upheld by courts, is still widely used around the nation.


A big part of the problem was how the federal government limited minority access to mortgages.

Established in 1934, the Federal Housing Administration enforced policies for decades that helped preserve segregation. Chief among these was “redlining,” under which it declined to back home loans to people living in certain often-minority neighborhoods. This discouraged mortgage lenders from extending financial services to those areas. The consequences of redlining on home ownership and economic development are still apparent today in many urban areas.

Housing speculators capitalized on the fact that most African-American homebuyers couldn’t access federally insured mortgages. In Chicago, for instance, mostly white speculators bought up cheap properties in black neighborhoods and marked up the prices, sometimes to twice what they had initially paid. These houses were sold under a contract that called for monthly payments until the entire price was paid — and only then would the buyer receive the deed to or gain any equity in the property. If the buyer managed to pay off the contract in full, he or she owned a house in a minority neighborhood that would likely not appreciate in value. If the buyer didn’t fulfill the terms of the contract, eviction with nothing to show for payments made was the usual response.

In the late 1960s, a group of black homeowners in Chicago began to fight this predatory system. A federal class-action lawsuit was filed in 1969 against speculators, contract sellers and financial institutions involved in the scheme. Activists also organized protests and holdouts, in which homeowners refused to make payments to the sellers. There were standoffs with police, arrests, negotiations, and in 1971, thanks to a policy change by regional banks and insurance companies, the homebuyers finally began converting their contracts into mortgages in large numbers.

Yet when the federal case finally went to trial in 1975, the black plaintiffs couldn’t convince the mostly white jury that they had been price-gouged because of their race. As one juror reportedly concluded, “It was economics, not civil rights, in play.”


Congress passed the Fair Housing Act in 1968.

Passed just a week after Martin Luther King Jr.’s assassination, the law made it illegal to discriminate in the sale, rental or financing of housing based on race, religion and national origin. It prohibited the sort of straight-up racist language and policies long used to maintain housing segregation. The more blatant forms of redlining, for example, were banned. (Gender, familial status and disability were later added to the list of protected classes.)

But as the Chicago case shows, it can be hard to prove that someone was motivated by racial animus. With the aid of the courts, the Fair Housing Act has also been used to target less explicit bias. Over the past 40 years, judges have repeatedly read the statute to forbid many policies and practices with a disparate impact on minorities, even where no racist intent can be shown.

In a rule issued in February 2013, the Department of Housing and Urban Development clarified the formula for deciding disparate-impact housing cases: If the plaintiff can demonstrate that a practice has a discriminatory effect, the burden shifts to the defendant to show that the practice serves a substantial, nondiscriminatory interest that can’t be served by a less discriminatory means. If the defendant meets that burden, the plaintiff can still win by showing that, in fact, there is a less discriminatory means that would serve the defendant’s needs.

Note this means that a policy with a disparate impact that also has a valid justification and no less-discriminatory alternative is legal. For that reason, there are plenty of legitimate housing restrictions and requirements that disproportionately affect minorities today — like occupancy limits, credit score standards and income verification.

Housing advocates and federal prosecutors still use the law to fight housing discrimination.


number of high-profile disparate impact cases have been settled in the past few years alone. Many focused on financial institutions and lenders that were accused of offering less favorable rates and services, on average, to minority customers than to white customers.

In 2011, for example, mortgage giant Countrywide Financial reached a record $335 million settlement with the Department of Justice following allegations that it had charged higher fees and rates to hundreds of thousands of Hispanic and African-American customers than it had to white customers with similar financial standing. The Justice Department investigation also found that Countrywide, which was purchased by Bank of America after the alleged misconduct, had offered subprime mortgages to 10,000 minority borrowers while offering regular loans to white borrowers with similar credit profiles. Using a disparate impact argument, federal prosecutors didn’t need evidence that Countrywide’s practices were driven by discriminatory intent, only that they had discriminatory outcomes.

The National Fair Housing Alliance reported that 27,352 housing discrimination complaints were made nationwide in 2013. The organization estimates that at least 4 million violations actually occur each year.


It’s hard to overstate the ongoing importance of access to fair housing. Decades of segregation have helped to concentrate poverty in minority neighborhoods. Communities with large percentages of black and Hispanic residents tend to havefewer economic and employment opportunitieslower-quality education; less access to medical care, healthy food and public transportation; and lower levels of public safety.

While a number of studies released over the past few years have shown some progress in urban areas, fair housing advocates say the problem is far from solved.

“While recent modest declines in black segregation levels are welcome, the 2010 census shows that the average black resident still lives in a neighborhood that is 45 percent black and 36 percent white,” William Frey, chief demographer at the Brookings Institution, told The New York Times. “At the same time, the average white lives in a neighborhood that is 78 percent white and 7 percent black. Black segregation levels are even higher for children.”

For more on how ZIP codes correlate with opportunity, check out this tool created by Opportunity Nation and Measure of America.


Even with disparate impact claims, the government has often done a poor job fostering housing equality.

The persistence of segregated communities suggests, at least in part, a decades-long failure at the Department of Housing and Urban Development. A lengthy 2012 report by ProPublica reported that HUD had injected billions of dollars into communities without vigorously enforcing the Fair Housing Act:

HUD’s largest program of grants to states, cities and towns has delivered $137 billion to more than 1,200 communities since 1974. To receive the money, localities are supposed to identify obstacles to fair housing, keep records of their efforts to overcome them, and certify that they do not discriminate.

ProPublica could find only two occasions since [George] Romney’s tenure [as HUD secretary, ending in 1972,] in which the department withheld money from communities for violating the Fair Housing Act. In several instances, records show, HUD has sent grants to communities even after they’ve been found by courts to have promoted segregated housing or been sued by the U.S. Department of Justice. New Orleans, for example, has continued to receive grants after the Justice Department sued it for violating that Fair Housing Act by blocking a low-income housing project in a wealthy historic neighborhood.

The Supreme Court is now debating whether disparate impact claims can even be raised in housing cases.

On Jan. 21, the justices heard oral arguments in Texas Department of Housing and Community Affairs v. The Inclusive Communities Project. The Dallas-area nonprofit, which promotes racially and economically diverse communities, filed suit after finding that for the past few decades, the Texas housing department had allocated almost all affordable-housing tax credits to developments in minority neighborhoods, while denying credits to those in white neighborhoods. This effectively kept low-income residents from moving to white communities. The nonprofit is raising a disparate impact claim under the Fair Housing Act.

The Texas agency, unable to show there was no less-discriminatory alternative to its practice, lost the case in federal district court and in the U.S. Court of Appeals for the 5th Circuit. It petitioned the Supreme Court to rule for the first time on the overall permissibility of disparate impact claims under the Fair Housing Act. Court watchers suggest the decision may come down to Justice Antonin Scalia, who during oral arguments indicated sympathy with both sides.


Opponents argue that disparate impact claims are unfair to policymakers, financial institutions and property owners. If housing policies and practices are instituted for legitimate reasons based on race-neutral criteria, the basic argument goes, then they should be legal despite any unintended discriminatory effects — and the people who implement those policies and practices should not be blamed.

During oral arguments, Texas Solicitor General Scott Keller suggested another problem: that housing officials and developers wary of possible Fair Housing Act lawsuits might make race-conscious decisions in favor of minorities, creating “the functional equivalent of a quota system.” This would raise constitutional issues of its own.

Other critics have expressed concerns that the idea of disparate impact is too fluid — that just because a practice unevenly affects a minority group doesn’t mean that it harms the group or that it doesn’t help other minority groups.

Supporters of disparate impact think the law is on their side, if not necessarily the justices.

Since 1974, 11 federal circuit courts have upheld an interpretation of the Fair Housing Act that allows for disparate impact claims. Moreover, in 1988, when Congress amended the statute, it chose not to add language ruling out such claims, but it did include language that implied their use.

Amicus briefs have flooded in — from lawmakers, public interest advocates and business interests — seeking to sway the justices. There are 14 supporting the Texas agency and 23 backing the nonprofit. One brief in favor of the Inclusive Communities Project comes from the federal government, 17 states and an assortment of civil rights groups.

“This was really the last legislative victory of the civil rights movement, and it was Dr. King’s last victory, too,” Philip Tegeler, executive director of the Poverty & Race Research Action Council, told The Washington Post. “This is the message that Dr. King brought to Chicago in 1966, talking about de facto segregation in the North, segregation wherever it exists — that we need to address it. That’s in large part what the Fair Housing Act was trying to do.”

Fair housing advocates remain concerned — in part because this is the third time the Supreme Court has agreed to consider disparate impact claims under the Fair Housing Act in less than four years. The two earlier cases were each settled less than a month before they were heard by the justices. Civil rights groups, which pushed for those settlements, worry that the justices’ eagerness to rule on this issue could spell trouble.

“It is unusual for the court to agree to hear a case when the law is clearly settled. It’s even more unusual to agree to hear the issue three years in a row,” Ian Haney López, a law professor at the University of California, Berkeley, told ProPublica.


A Supreme Court ruling against disparate impact would cap a string of controversial civil rights decisions.

“The way to stop discrimination on the basis of race is to stop discriminating on the basis of race,” Chief Justice John Roberts wrote in a 2007 decision on school desegregation in Seattle. That sounds simple enough, but such a focus on explicit racial preferences overlooks the issues of structural discrimination — the kind found in housing and other areas today.

In 2009, the Supreme Court declared that New Haven, Connecticut, had violated the civil rights of white firefighters when it threw out a promotion exam that no black firefighter had passed. The city took the racial gap in exam results as a sign that the test itself might violate employment protections under the Civil Rights Act, but the court ruled against New Haven. In 2013, the Supreme Court gutted a key section of the Voting Rights Act that determined which states had to obtain pre-approval from the federal government before making changes to their voting systems. And last year, the justices upheld a Michigan ban on affirmative action, declaring that a state’s voters can prohibit the use of race as a factor in college admissions.

As ProPublica noted, a ruling against disparate impact claims this year would give the Roberts Court a dubious hat trick: It would have effectively undermined the three most substantial civil rights laws of the 1960s — the 1964 Civil Rights Act, the 1965 Voting Rights Act and the 1968 Fair Housing Act.

Whatever the Supreme Court decides in the current case, some of the justices are clearly unconvinced that discrimination not driven by overt bias is a problem, or at least one that the law should take a stand against.

Justice Sonia Sotomayor spoke to this troubling pattern last year in her dissent in the Michigan affirmative action case. “The way to stop discrimination on the basis of race is to speak openly and candidly on the subject of race, and to apply the Constitution with eyes open to the unfortunate effects of centuries of racial discrimination,” she said, responding to Roberts’ quote from seven years earlier.

Sotomayor, one of only two racial minorities on the high court, chose to read aloudher dissent, something the justices do only when they feel particularly strongly.

A ruling in Texas Department of Housing and Community Affairs v. The Inclusive Communities Project is expected sometime in June.



COAKY Holds Prejudgment Interest, Unlike Attorney’s Fees, Need Not Be Requested in a Pleading

Monday, February 16th, 2015

By David Kramer

The Kentucky Court of Appeals recently held that a party making a claim for recovery of liquidated damages that would give rise to entitlement to prejudgment interest need not plead a claim for such interest, since prejudgment interest on liquidated damages is awarded as a matter of right under Kentucky law. Hall v. Rowe, 439 S.W.3d 183 (Ky. App. 2014).

This case should be distinguished from O’Rourke v. Lexington Real Estate Co., LLC, 365 S.W.3d 584 (Ky. App. 2012), in which the Court held that a party seeking attorney’s fees based on a statute or contract must specifically plead a claim for fees in the body of the pleading, and not merely ask for fees in the ad damnum clause of the complaint.

Note: The foregoing post includes commentary reprinted from the forthcoming 2015 supplement to 6 Philipps & Kramer, Rules of Civil Procedure Annotated, 6th ed. (Kentucky Practice Series), by David V. Kramer, with permission of the author and publisher. Copyright (c) 2015 Thomson Reuters. For more information about this publication click here.

Obama Administration Is Quietly Racking Up Court Victories For Birth Control, Despite Hobby Lobby

Sunday, February 15th, 2015



“Obama Administration Is Quietly Racking Up Court Victories For Birth Control, Despite Hobby Lobby”

On Wednesday, a panel of the United States Court of Appeals for the Third Circuit upheld federal rules intended to ensure access to birth control, over a claim that employers who object to following those rules on religious groups should be exempt from them. With that, the Third Circuit became the fourth federal appeals court to reach a similar conclusion in a challenge brought by an employer who objects to some or all forms of birth control, despite concerns that the Supreme Court’s decision in Burwell v. Hobby Lobby would impede access to contraceptive care.

The Hobby Lobby opinion permitted an employer to ignore a version of the Obama Administration’s birth control rules, yet it also contained language suggesting that, with a slight tweak to those rules, access to contraceptive care could be restored. The rule inHobby Lobby required employers to cover contraception in their employer-provided health plan. The tweaked version of the rule only requires employers with religious objections to birth control to send a form or a letter to the federal government saying that they wish to invoke an exemption to the rule, and informing the government “which company administers their health-insurance plan.” Once this occurs, the employer is freed from its obligation to comply with the law, and the government works separately with the insurance administrator to ensure that the objecting employer’s workers receive contraceptive coverage.

In Geneva College v. Secretary of Health and Human Services, however, several employers objected even to the tweaked version of the rule, claiming that it still rendered them “complicit” in a woman’s use of contraception because their act of informing the government that they wished to be exempt “triggers” a series of events that lead to someone receiving birth control.

The Third Circuit disagreed. Quoting a decision by the Seventh Circuit that reached a similar conclusion in a similar case, the court explained that “[f]ederal law, not the religious organization’s signing and mailing the form, requires health-care insurers, along with third-party administrators of self-insured plans, to cover contraceptive services.” According to the court, the plaintiffs “real objection” isn’t to sending a form or letter to the federal government, it is to “what happens after the form is provided—that is, to the actions of the insurance issuers and the third-party administrators, required by law, once the [plaintiffs] give notice of their objection.” Federal law, does not grant these plaintiffs “a religious veto against plan providers’ compliance with those regulations, nor the right to enlist the government to effectuate such a religious veto against legally required conduct of third parties.”

So this decision is good news for women whose employers seek to deny them access to birth control. Nevertheless, there are three reasons why the ultimate outcome of this dispute between religious employers and the women who work for them remains uncertain.

The first reason is that the Supreme Court appeared to speak with two voices in the week it handed down Hobby Lobby. As the D.C. Circuit explained in its opinion upholding the tweaked version of the rules, the Supreme Court “stressed” in Hobby Lobby that this version “alleviates the burden on the plaintiffs of having to provide contraceptive coverage and ‘serves HHS’s stated interests equally well.’” Indeed, Justice Samuel Alito’s majority opinion in Hobby Lobby went even further in suggesting that the just-fill-out-a-form option struck the right balance between protecting religious liberty while ensuring compliance with the law. Filling out a form, according to Alito, “does not impinge on the plaintiffs’ religious belief that providing insurance coverage for the contraceptives at issue here violates their religion, and it serves HHS’s stated interests equally well.”

Only four days after Hobby Lobby, however, the Supreme Court granted temporary relief to a religious college that objected to filling out the form because it believed that doing so would make it “complicit in the provision of contraceptive coverage.” In dissent, Justice Sonia Sotomayor accused the Court of moving the goal posts when it granted this temporary relief. “Those who are bound by our decisions usually believe they can take us at our word,” Sotomayor wrote. “Not so today.”

The second caveat to the Third Circuit’s decision is that, while it accurately describes the purpose of the Religious Freedom Restoration Act (RFRA), the federal law that religious objectors rely upon in these cases, it misses a key line in the Hobby Lobby decision that attempts to rewrite much of RFRA’s history.

RFRA was enacted to restore American religious liberty law as it existed before Justice Antonin Scalia’s 1990 majority opinion in Employment Division v. Smith, which drastically cut back the scope of legal protections for people who raise religious objections to the law. As the Third Circuit notes, however, pre-Smith law did not give religious objectors unlimited license to ignore the law. Among other things, “[p]re-Smith free exercise cases, which RFRA was crafted to resurrect, have distinguished between what a challenged law requires the objecting parties to do, and what it permits another party—specifically, the government—to do.”

The problem with this portion of the Third Circuit’s analysis, however, is that, while it is an accurate description of what RFRA sought to accomplish and what the law said prior to Smith, it does not account for a line in Justice Alito’s Hobby Lobby opinion that undermines this analysis. In Hobby Lobby, Alito claims that an irrelevant 2000 amendment to RFRA was “an obvious effort to effect a complete separation from” pre-Smith law. Alito’s interpretation of that amendment is hard to square with the text of the law. Nevertheless, in a hierarchical judicial system, a false statement by the Supreme Court trumps a true statement by a federal appeals court.

Though this failure to account for a portion of Hobby Lobby is not fatal to the Third Circuit’s analysis, nor does it necessarily undercut decisions by other appeals courts that have ruled in favor of birth control, it does present a weak point in the opinion that other judges might cite to attack it.

The third caveat to the Third Circuit’s opinion — and probably the most significant one — is that it was decided by a panel made up entirely of Democratic appointees. The same istrue of the D.C. Circuit’s decision siding with birth control, although Republicans did join two pre-Hobby Lobby decisions upholding the just-fill-out-the-form option.

It remains to be seen whether more GOP-friendly courts of appeals continue to side with access to birth control over the objections of bosses who disapprove of contraception.

(HT: Jessica Mason Pieklo)




Editorial: Government should pay legal fees when it loses public records lawsuits

Sunday, February 15th, 2015


Friday, February 13, 2015 6:48pm

Florida’s open meetings and public records laws aren’t just under attack in the state Capitol. They also face a serious threat at the Florida Supreme Court.

Florida’s open meetings and public records laws aren’t just under attack in the state Capitol. They also face a serious threat at the Florida Supreme Court. The justices heard arguments this month in a case that could set a tougher standard for collecting legal fees in cases where courts rule that public agencies violated public records laws. That would make it next to impossible for Floridians to go to court when government blocks their access to public records, and the Supreme Court should not go down that road.

A Jacksonville resident, Curtis Lee, sought public records from the Jacksonville Police and Fire Pension Fund, which wanted to charge him hundreds of dollars in fees. A circuit court judge found that the pension fund violated public records laws by charging Lee excessive fees. But the judge declined to require the pension fund to pay Lee’s attorney’s fees, finding that the pension fund did not intentionally violate the law. The 1st District Court of Appeal overturned the trial judge and ruled the pension fund had to pay Lee’s legal fees, and the pension fund appealed to the Florida Supreme Court.

The public records law is an essential tool for Floridians to keep tabs on what government is doing, from city hall to the county courthouse to the state capital. When local governments and public agencies refuse to provide public records or impose unreasonable fees that block access, the only recourse for citizens is to go to court. That normally requires hiring a lawyer, and lawyers are unlikely to take on public records cases unless they are certain that if they win the government will have to pay their legal fees.

In Board of Trustees, Jacksonville Police and Fire Pension Fund vs. Curtis W. Lee, the pension fund would make it more difficult for the public to get access to public records that are denied to them. It would not be enough for a judge to find a public agency violated the public records law for a plaintiff to be awarded legal fees. The plaintiff also would have to prove that the agency did not act in good faith. “Oops” should not be a shield for government to avoid paying legal fees in public records cases that it loses.

Justices Charles Canady and Ricky Polston sounded sympathetic to the pension fund’s argument during oral arguments. Polston raised a hypothetical extreme where a judge could find a public records fee was $5 too much and have no choice but to award attorneys fees of thousands of dollars. There have been recent situations where the public records law has been abused by lawyers seeking to win legal fees in essentially nuisance lawsuits. But those are rare situations, and there are narrower remedies for dealing with rogue lawyers than making it more difficult for all citizens to obtain public records by effectively limiting their access to the courts.

A brief filed by the First Amendment Foundation and news organizations including Times Publishing Co., the publisher of the Tampa Bay Times, says the public records law does not leave it up to a court to decide whether to award legal fees in cases where a public agency unlawfully blocked access to public records. It argues that the pension fund’s effort to create a “good-faith” exception for public agencies to avoid paying legal fees when they violate the public records law would force plaintiffs to investigate the motives of every official involved in a decision not to produce public records.

The issue is not as complicated as some justices suggested. If public agencies are found by a court to have illegally denied access to public records, they should pay the plaintiff’s legal fees. The Florida Supreme Court should affirm that clear standard rather than create a new one that would let government off the hook.

Editorial: Government should pay legal fees when it loses public records lawsuits 02/13/15 [Last modified: Friday, February 13, 2015 6:47pm] 

Federal appeals court reverses birth control ruling

Thursday, February 12th, 2015

By Brian Bowling and Megha Satyanarayana

Wednesday, Feb. 11, 2015, 3:39 p.m.
Updated 11 hours ago

A federal appeals court ruled Wednesday the religious rights of the Catholic Church would not be violated if church officials are required to sign a paper certifying they morally object to providing health insurance coverage for contraceptives and medications that could terminate pregnancy.

The ruling lifts the injunctions the District Court handed down.

The Pittsburgh and Erie dioceses and a private Beaver Falls college sought to avoid signing the document, which would exempt them from providing contraceptive coverage under the Affordable Care Act but allow either the insurer itself or a third-party administrator of an insurance plan to offer contraceptive coverage directly to their employees.

Judge Marjorie O. Rendell, writing for a three-judge panel of the U.S. Court of Appeals for the Third Circuit in Philadelphia, said in her opinion that once an organization claims it will not pay for contraceptive coverage, it faces no additional burden on its religious freedom if the claim triggers third-party or insurer offerings of birth control.

Bishop David Zubik of the Pittsburgh Diocese said in a statement that the ruling was disappointing.

“Such a ruling should cause deep concern for anyone who cares about any First Amendment rights, especially the right to teach and practice a religious faith. This decision says that the church is no longer free to practice what we preach,” Zubik said.

The diocese is considering whether to petition the Supreme Court or seek another appeal hearing before a nine-judge panel of the Third Circuit. Geneva College is as well.

“All Americans should oppose unjust laws that force people — under threat of punishment — to give up their fundamental freedoms and act contrary to their beliefs,” said attorney Gregory S. Baylor in a statement for the college. “The administration has no business punishing people of faith for making decisions consistent with that faith.”

Geneva College is affiliated with the Reformed Presbyterian Church.

Religious organizations across the nation said the Affordable Care Act exemption for churches did not extend to the charities, schools or other services provided by churches. Because they did not want to provide contraception or possible abortifacient medications to their employees either, they sought another vehicle to exempt those agencies.

Federal authorities made an “accommodation” — a document for church officials to sign certifying that the church objects to the coverage.

The government would fine religious organizations that refused either to provide the services or sign the certification. During court hearings, diocese officials said those fines would drive their non-profits out of business.

The church, which funds its own health insurance plan and contracts administration to insurers such as Highmark and UPMC, refuses to sign the accommodation, which would set in motion a plan by which an insurer, or in the case of the Pittsburgh diocese, a third-party administrator, would be able to offer what could amount to a rider to coverage.

The college objects only to providing abortion-related services; the dioceses object to providing any of the contraceptive services required by the Affordable Care Act.

The lower court ruling said requiring the certification would violate the religious beliefs of the church groups.

“Because we disagree with the District Courts and conclude that the accommodation places no substantial burden on the appellees, we will reverse,” Rendell wrote in her opinion.

The reversal does not apply to the Greensburg diocese, said diocese spokesman Jerry Zufelt. Their hearing on the same matter has not been scheduled.

Brian Bowling and Megha Satyanarayan are Trib Total Media staff writers .

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Alabama Chief Justice Roy Moore: Tyrannical courts trample 10th Amendment

Thursday, February 12th, 2015


Roy S. Moore12:36 a.m. CST February 12, 2015



Under Article VI of the U.S. Constitution, the Constitution is “the supreme law of the land; and the judges in every state shall be bound thereby.”

Indeed, state courts have authority equal to that of federal trial and appellate courts to interpret the Constitution.

Decisions of such federal courts may be highly persuasive, but they are not binding upon state courts.

In a concurring opinion in 1993, Justice Clarence Thomas made that clear: “In our federal system, a state trial court’s interpretation of federal law is no less authoritative than that of the federal court of appeals in whose circuit the trial court is located.”

The Constitution has not delegated to the federal government the power to redefine the institution of marriage. The 10th Amendment states that all power not delegated to the United States is “reserved to the states respectively, or to the people.” By redefining marriage, the federal courts — without any authority in the Constitution — upend the most hallowed institution in human history.

When the imaginative opinions of federal judges conflict with the plain language of the Constitution, utter chaos and disorder result in our society.

Federal judges are not infallible. Should state courts have obeyed the 1857 ruling of the Supreme Court in Dred Scott that black people were property? Absolutely not! When federal courts stray beyond the limits of their legitimate authority into realms of public policy, they become tyrants and violate the 10th Amendment.

As Justice Benjamin Curtis wrote in his dissent in Dred Scott, “When a strict interpretation of the Constitution, according to the fixed rules which govern the interpretation of laws, is abandoned, and the theoretical opinions of individuals are allowed to control its meaning, we have no longer a Constitution; we are under the government of individual men who, for the time being, have power to declare what the Constitution is according to their own views of what it ought to mean.”

Roy S. Moore is chief justice of the Alabama Supreme Court.