Patterico's Pontifications


Behind the New Haven Firefighter Case

Filed under: Court Decisions — DRJ @ 1:57 pm

[Guest post by DRJ]

The New York Times delves into the story of 40-year-old Lieutenant Ben Vargas, the lone Hispanic firefighter plaintiff in Ricci vs DeStefano, and why he did what he did:

“Gesturing toward his three young sons, Lieutenant Vargas explained why he had no regrets. “I want them to have a fair shake, to get a job on their merits and not because they’re Hispanic or they fill a quota,” he said. “What a lousy way to live.”

Vargas is of Puerto Rican heritage like Sonia Sotomayor. His parents are from Puerto Rico and his sister lives there now. Here’s how Vargas explains the difference between Sotomayor’s perspective and his:

“She’s from Puerto Rico, and I’m from Puerto Rico,” he said. “She obviously feels differently than I do.”
“I consider myself an American — I was born and raised here,” he said in an interview on the porch of his home in the wooded suburb of Wallingford. “I love my people. I love my culture. I love our rice and beans, our salsa music, our language — everything my parents raised us with. But I am so grateful for the opportunity only the United States can give.”

Vargas’ mentor Deputy Chief John Marquez puts it this way:

“It seems that if you’re not the right type of minority, you get hammered.”



Chrysler Judge to Rule on Dealer Terminations

Filed under: Court Decisions,Government,Obama — DRJ @ 11:02 am

[Guest post by DRJ]

Chrysler bankruptcy Judge Arthur Gonzalez is conducting a hearing today to decide whether Chrysler should be able to terminate 789 of its dealerships. Judge Gonzalez began the hearing by saying that Chrysler has a good case for termination but, nevertheless, he thinks it’s “still important to have this hearing.”

I’m sure that is comforting to the owner of Quality Jeep Chrysler, Inc., of Albuquerque, New Mexico, whose attorney is appearing today to object to the termination of his franchise. Here’s an excerpt from his Opening Statement:

“14. As just one of many examples, Quality Jeep Chrysler, in Albuquerque, New Mexico, was designated for rejection. The Dodge dealer down the block was designated for assumption. That was an exceedingly strange decision. The assumed Dodge dealer: i) is insolvent, ii) has been closed for over three months, iii) was publicly accused by the New Mexico Attorney General of conducting an “automotive Ponzi scheme,” and iv) had a contempt order entered against it for fraud and deceptive trade practices. Yet Chrysler seeks to assume that Dodge dealer’s franchise agreement. There is something rotten in the state of Denmark.”

The terminated dealers aren’t just complaining, they also offer solutions:

“15. As set forth above, there is a way for the Court to take a hard look at Chrysler’s business judgment without unnecessarily delaying the closing of the Sale Transaction. All the American government, the UAW and Fiat have to do is cause New Chrysler to accept for assignment, those dealer agreements that this Court determines, in an expedited process, were improperly designated for rejection by Chrysler in the first instance. There should be no
objection to that.”

There are other stories of terminated dealerships at the first link. In light of Judge Gonzalez’s statement before the hearing began, I have an idea what will happen to them and Quality Jeep Chrysler, Inc.



Ricci v. DeStefano

Filed under: Court Decisions,Law,Race — DRJ @ 2:06 pm

[Guest post by DRJ]

Powerline posts on a New Haven CT case, Ricci v. DeStefano, that has been granted review by the U.S. Supreme Court:

The Supreme Court has decided to review the Second Circuit’s decision in Ricci v. DeStefano. In that case, New Haven firefighters — one Hispanic and more than a dozen whites — sued the city after they were denied promotion because the city disregarded the results of its own test for determining who would be promoted. The city threw out the test results because not enough black firefighters scored high enough to earn a promotion. It did so even though the test was designed by experts to eliminate the possibility of racial bias.

The link details the unusual history of the case in the trial court and on appeal in the Second Circuit.

This may be the first big case during the Obama Administration that will tackle the issue of racial preferences. It will be interesting to see how the Obama DOJ responds.



Jerry Brown Files Legal Brief Saying Proposition 8 Is Unconstitutional

Filed under: Civil Liberties,Constitutional Law,Court Decisions,General — Patterico @ 7:55 pm

Via Xrlq we learn that California Attorney General Jerry Brown has filed a brief arguing that Proposition 8 is unconstitutional.

In a dramatic reversal, Brown filed a legal brief saying the measure that amended the California Constitution to limit marriage to a man and a woman is itself unconstitutional because it deprives a minority group of a fundamental right. Earlier, Brown had said he would defend the ballot measure against legal challenges from gay marriage supporters.

“The amendment-initiative process does not encompass a power to abrogate fundamental constitutional rights without a compelling justification,” he wrote. “Proposition 8 lacks such a justification.”

While I haven’t reviewed the legal arguments, it’s hard for me to imagine that a right announced just this year is so fundamental that it can’t be changed in the same manner that we generally change the state constitution.

But then, a right first announced just 35 years ago is generally treated as the most fundamental and immutable right of them all. So maybe I shouldn’t be surprised.

Exit question, as the man says: what does this do to Gov. Moonbeam’s 2010 gubernatorial aspirations?


Will the U.S. Supreme Court Rule Proposition 8 Unconstitutional?

Filed under: Civil Liberties,Constitutional Law,Court Decisions,General — Patterico @ 10:44 pm

Law professor Brian Gray argues in this morning’s L.A. Times that California’s Proposition 8 may violate the federal Constitution — and that we could see a ruling to that effect some day, written by one Anthony Kennedy.

Is he right? The answer depends on whether you believe Justices Kennedy and O’Connor, on one hand — or Justice Scalia, on the other.

If you’re inclined to believe Justice Scalia, then Professor Gray may well be right: the U.S. Supreme Court might one day mandate gay marriage.

I’m not sure why Gray relies on the old case of Romer v. Evans, which declined to overrule Bowers v. Hardwick, rather than Lawrence v. Texas, which did. I think Gray is drawing a parallel between Proposition 8 and the measure invalidated in Romer, because each involved a statewide ballot measure to place in a state’s constitution a provision disfavoring gays. But whether Proposition 8 would be struck down depends much more on Lawrence than on Romer, because Lawrence went much further to defend the rights of gays.

So would the Court find Proposition 8 unconstitutional? It depends on who you believe. If you believe the justices in the Lawrence majority, they might not. If you believe Justice Scalia (in dissent), they definitely will.

In Lawrence, Justice Kennedy took care to say that the case’s holding would not necessarily extend to gay marriage — although Kennedy put this elliptically, using the following language:

The present case does not involve minors. It does not involve persons who might be injured or coerced or who are situated in relationships where consent might not easily be refused. It does not involve public conduct or prostitution. It does not involve whether the government must give formal recognition to any relationship that homosexual persons seek to enter.

In other words, it does not involve gay marriage.

Justice O’Connor, in her concurrence, was more explicit:

Texas cannot assert any legitimate state interest here, such as national security or preserving the traditional institution of marriage. Unlike the moral disapproval of same-sex relations–the asserted state interest in this case–other reasons exist to promote the institution of marriage beyond mere moral disapproval of an excluded group.

In dissent, Justice Scalia said that the principles articulated in the majority opinion would necessarily mean approval of gay marriage down the road:

At the end of its opinion–after having laid waste the foundations of our rational-basis jurisprudence–the Court says that the present case “does not involve whether the government must give formal recognition to any relationship that homosexual persons seek to enter.” Ante, at 17. Do not believe it. More illuminating than this bald, unreasoned disclaimer is the progression of thought displayed by an earlier passage in the Court’s opinion, which notes the constitutional protections afforded to “personal decisions relating to marriage, procreation, contraception, family relationships, child rearing, and education,” and then declares that “[p]ersons in a homosexual relationship may seek autonomy for these purposes, just as heterosexual persons do.” Ante, at 13 (emphasis added). Today’s opinion dismantles the structure of constitutional law that has permitted a distinction to be made between heterosexual and homosexual unions, insofar as formal recognition in marriage is concerned. If moral disapprobation of homosexual conduct is “no legitimate state interest” for purposes of proscribing that conduct, ante, at 18; and if, as the Court coos (casting aside all pretense of neutrality), “[w]hen sexuality finds overt expression in intimate conduct with another person, the conduct can be but one element in a personal bond that is more enduring,” ante, at 6; what justification could there possibly be for denying the benefits of marriage to homosexual couples exercising “[t]he liberty protected by the Constitution,” ibid.? Surely not the encouragement of procreation, since the sterile and the elderly are allowed to marry. This case “does not involve” the issue of homosexual marriage only if one entertains the belief that principle and logic have nothing to do with the decisions of this Court. Many will hope that, as the Court comfortingly assures us, this is so.

Count me among those in that hopeful crowd. I have said that I am a supporter of gay marriage, but I have also said I do not believe that goal should be accomplished through illegitimate judicial legislation.

Tell Tony Kennedy to stay the hell out of this issue.


Supreme Court Balancing

Filed under: Court Decisions — DRJ @ 12:41 pm

[Guest post by DRJ]

Yesterday the Supreme Court heard oral arguments in Winter v. Natural Resources Defense Council, an appeal from federal district court and Ninth Circuit rulings that enjoined the Navy’s use of sonar in submarine-hunting training exercises because sonar might interfere with marine mammals’ ability to navigate and communicate. The district court order created a 12-nautical-mile no-sonar zone along the southern California coast and ordered the Navy to shut off all sonar use within 2,200 yards of a marine mammal.

Thus, the issue before the Supreme Court is how to balance the national security and environmental concerns related to the Navy’s use of sonar. On one side, the Bush Administration contends sonar training is “vitally important for sailors who may be deployed around the world in search of enemy submarines” and is crucial to national security. The Administration claims there is scant evidence that sonar harms whales and dolphins.

On the other side, the Natural Resources Defense Council says sonar’s piercing sound is “comparable to the noise of a jet engine magnified 2,000 times” and claims that beaked whales are especially susceptible to damage that “can cause them to strand themselves onshore.”

The linked AP article quotes Justice Stephen Breyer’s response to balancing these interests [emphasis supplied]:

You are asking us who know nothing about whales and less about the military to start reading all these documents to try to figure out who’s right in the case where the other side says the other side is totally unreasonable.”

Quote of the Day, folks.



Osvaldo Aldrete-Davila Sentenced

Filed under: Court Decisions,Crime,Immigration — DRJ @ 1:32 pm

[Guest post by DRJ]

The El Paso Times reports:

“Osvaldo Aldrete Davila was sentenced to 9 1/2 years Wednesday for smuggling more than 100 kilos of marijuana in 2005.”

Aldrete-Davila was sentenced by U.S. District Judge Kathleen Cardone, the same judge who sentenced Ignacio Ramos and Jose Compean.



Pathetic Piece of Journalism From LAT Re Raid of “Medical Marijuana” Dispensary in LA

Filed under: Constitutional Law,Court Decisions,Crime,Dog Trainer — WLS @ 2:55 am

[Posted by WLS]

This isn’t about a debate over whether there should or should not be valid state laws authorizing the distribution and use of medical marijuana.

The fact is that marijuana is a Schedule I controlled substance by act of Congress, making it illegal for any and all purposes.  It is a federal felony to DISTRIBUTE or POSSESS WITH THE INTENT TO DISTRIBUTE any Schedule I controlled substance.  It is a misdemeanor to possess it with the intent to use it.

The Supremacy Clause of the US Constitution means that state laws cannot override that federal statute so long as it is on the books.  Convince Congress to change the law — fine.  Until then, MJ distribution is illegal, whether medicinal or otherwise.

Now to the LAT story today on the DEA raid.  Here’s the paragraphs that are so pathetic:

Federal agents raided a Culver City medical marijuana dispensary where they spent more than four hours this afternoon, serving a search warrant that resulted in no arrests but left the shop in disarray.

Drug Enforcement Administration agents arrived about noon at Organica Collective in the 13400 block of Washington Boulevard, said Sarah Pullen, a spokeswoman for the Los Angeles office of the agency.

“Marijuana remains a controlled substance, and it is illegal under federal law to possess, dispense or cultivate marijuana in any form,” Pullen said of the purpose of the raid.

The federal operation came on the same day an appellate court in San Diego ruled that federal law does not preempt the state’s law allowing the use of medical marijuana — a ruling touted by supporters of California’s medical marijuana law as a significant win.

What Court?  What is the basis of the decision?

Read through the LAT article 2, 5, 10 times and you won’t find another mention of it.

The reference seems to cast doubt on the legitimacy of the law enforcement activity undertaken by DEA, which is described in the most “horrifying” details by LAT Staff Writer Tami Abdollah — I guess her salary is cheap enough that it wasn’t necessary to lay her off.  And the LAT is getting journalism worth every penny they are paying her.

So, what court decision came down today?

It seems that the California Fourth Circuit Court of Appeals in San Diego ruled against the City of San Diego, which had brought a civil suit to invalidate the state ID Card program which is being used as a foundation for California’s medical marijuana laws.  San Diego argued that because distributing marijuana is illegal under federal law, the state ID card program is also invalid.  The California state appeals court held otherwise, saying federal laws banning the distribution of marijuana don’t invalidate the ID law.

The bottom line on that is, for good or ill, state appellate courts have absolutely zero ability to determine what is or is not valid federal law.  So long as Congress deems that marijuana distribution, for medicinal purposes or otherwise, is illegal — its going to remain illegal and DEA is going to continue to raid these dispensaries.

Explanation for the pathetic reporting in this story?  I don’t know.  Maybe the LAT fired so too many editors.


Justice Department Seeks Rehearing in Case Ruling Death for Child Rape Unconstitutional

Filed under: Constitutional Law,Court Decisions,Crime,General — Patterico @ 7:05 am

The Justice Department yesterday asked the Supreme Court to rehear Kennedy v. Louisiana, the case that ruled unconstitutional the death penalty for child rape.

According to SCOTUSblog, the move is especially unusual because the Justice Department was not involved in the case the first time around. But after a blogger noted that the Supreme Court’s finding of a “national consensus” against the death penalty for child rape had ignored Congress’s specific and recent approval of that penalty in the Uniform Military Code of Justice, the omission made it to the front page of the New York Times. And now, the Justice Department has decided that it might be time to get involved.

The motion says:

Because the Court did not have a complete description of the relevant legal landscape, the Court’s decision rests on an erroneous and materially incomplete assessment of the “national consensus” concerning capital punishment for child rape. That error undermines the foundation for the Court’s decision.

Indeed. Not that it will make the slightest difference to Anthony Kennedy, the Court’s worst justice.


Five FLDS Members Turn Themselves In

Filed under: Civil Liberties,Court Decisions — DRJ @ 4:47 pm

[Guest post by DRJ]

Last week, the Texas Attorney General announced indictments in the FLDS case on charges of sexual assault, bigamy and failure to report child abuse. One indictment was returned against Warren Jeffs and the remaining indictments were sealed until the suspects could be arrested.

Five suspects have turned themselves in to the Schleicher County Sheriff:

“* Raymond Merril Jessop, 36, the alleged husband of a 16-year-old daughter of Warren Jeffs, is charged with one count of sexual assault of a child.

* Allan Eugene Keate, 56, is charged with one count of sexual assault of a child.

* Michael Gorge Emack, 57, is charged with one count of sexual assault of a child.

* Merril Leroy Jessop, 33, is charged with one count of sexual assault of a child and bigamy.

* Lloyd Hammond Barlow, 38, is charged with three [misdemeanor] counts of failure to report child abuse.”


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