Wednesday, June 30, 2004
I've seen some media flurry around the Iowa "joint physical care" bill, with proponents championing the bill as codifying father's rights, but I'm not so sure it isn't a non-issue.
Iowa law currently reads:
598.41 Custody of children.
(5)(a) Joint physical care may be in the best interest of the child, but joint legal custody does not require joint physical care. When the court determines such action would be in the best interest of the child and would preserve the relationship between each parent and the child, joint physical care may be awarded to both joint custodial parents or physical care may be awarded to one joint custodial parent.
In other words, if it's in the best interest of the child and preserving the relationships between parent and child, the Court may award joint physical care to both parents. On the other hand, if it's in the best interest of the child for physical care to be awarded to one parent, the Court can do that instead.
The bill changes that to read as follows:
598.41 Custody of children.
(5)(a) If joint legal custody is awarded to both parents, the court may award joint physical care to both joint custodial parents upon the request of either parent. If the court denies the request for joint physical care, the determination shall be accompanied by specific findings of fact and conclusions of law that the awarding of joint physical care is not in the best interest of the child.
Okay, the court can still either choose to award to one parent or to both, depending on the best interests of the child. Perhaps it emphasizes joint physical care as the best solution slightly more than the prior version of the bill. But practically, the only real difference is that the court must put its reasons into the order. A thing any good judge would have done anyway, no?
Iowa law currently reads:
598.41 Custody of children.
(5)(a) Joint physical care may be in the best interest of the child, but joint legal custody does not require joint physical care. When the court determines such action would be in the best interest of the child and would preserve the relationship between each parent and the child, joint physical care may be awarded to both joint custodial parents or physical care may be awarded to one joint custodial parent.
In other words, if it's in the best interest of the child and preserving the relationships between parent and child, the Court may award joint physical care to both parents. On the other hand, if it's in the best interest of the child for physical care to be awarded to one parent, the Court can do that instead.
The bill changes that to read as follows:
598.41 Custody of children.
(5)(a) If joint legal custody is awarded to both parents, the court may award joint physical care to both joint custodial parents upon the request of either parent. If the court denies the request for joint physical care, the determination shall be accompanied by specific findings of fact and conclusions of law that the awarding of joint physical care is not in the best interest of the child.
Okay, the court can still either choose to award to one parent or to both, depending on the best interests of the child. Perhaps it emphasizes joint physical care as the best solution slightly more than the prior version of the bill. But practically, the only real difference is that the court must put its reasons into the order. A thing any good judge would have done anyway, no?
A prime example of the dangers of getting into a political argument without thoroughly analyzing the issues, from James Lileks on The Bleat. He describes an encounter with a young political activist, canvassing door to door for Kerry. She proposes he vote for Kerry because he'll roll back the tax cuts that Bush enacted last year. He responds by pointing out that he used the tax cut to build the stairs she's standing on, profiting the masons who built the steps, the people who sold the stone, etc.
"'Well, it’s a philosophical difference,' she sniffed. She had pegged me as a form of life last seen clilcking the leash off a dog at Abu Ghraib. 'I think the money should have gone straight to those people instead of trickling down.' Those last two words were said with an edge.
'But then I wouldn’t have hired them,' I said. 'I wouldn’t have new steps. And they wouldn’t have done anything to get the money.'
'Well, what did you do?' she snapped.
'What do you mean?'
'Why should the government have given you the money in the first place?'
'They didn’t give it to me. They just took less of my money.'
That was the last straw. Now she was angry. And the truth came out:
'Well, why is it your money? I think it should be their money.'
Then she left."
"'Well, it’s a philosophical difference,' she sniffed. She had pegged me as a form of life last seen clilcking the leash off a dog at Abu Ghraib. 'I think the money should have gone straight to those people instead of trickling down.' Those last two words were said with an edge.
'But then I wouldn’t have hired them,' I said. 'I wouldn’t have new steps. And they wouldn’t have done anything to get the money.'
'Well, what did you do?' she snapped.
'What do you mean?'
'Why should the government have given you the money in the first place?'
'They didn’t give it to me. They just took less of my money.'
That was the last straw. Now she was angry. And the truth came out:
'Well, why is it your money? I think it should be their money.'
Then she left."
Thoughtful comments on the recent statements by the father of murder victim Nick Berg posted over at the Yin Blog:
Now, it is a fair criticism to say that the war hasn't been worth it; that we haven't planned properly for the aftermath; etc. However, Mr. Berg's fury is based on the fact that his son and 11,000 Iraqis have died as a result of the war, and the media is ignoring coverage of them. First, the media has covered Nick Berg's grisly death, and I can't imagine that there are many Americans who haven't felt terrible upon hearing about his beheading.
But more importantly, if Mr. Berg is going to be an advocate for those who suffer but receive no attention, shouldn't he also address the thousands of Iraqis who would have been tortured or killed by Saddam or his sadistic sons had the invasion not occurred? During the years 1991-2003, the media was certainly not doing a good job of reporting on Saddam's atrocities.
The comments are worth a read, too.
For the record, I tend to agree. I hold the highest respect for Michael Berg's right to mourn the horrific death of his son, both privately and publicly. On the other hand, I feel his political position is a bit simplistic. While it is fair to cite Iraqi and US fatalities as a point in the case against war, it is important not to minimize the countless deaths under Hussein's regime. This is far too complex an issue to sustain a lopsided argument.
Now, it is a fair criticism to say that the war hasn't been worth it; that we haven't planned properly for the aftermath; etc. However, Mr. Berg's fury is based on the fact that his son and 11,000 Iraqis have died as a result of the war, and the media is ignoring coverage of them. First, the media has covered Nick Berg's grisly death, and I can't imagine that there are many Americans who haven't felt terrible upon hearing about his beheading.
But more importantly, if Mr. Berg is going to be an advocate for those who suffer but receive no attention, shouldn't he also address the thousands of Iraqis who would have been tortured or killed by Saddam or his sadistic sons had the invasion not occurred? During the years 1991-2003, the media was certainly not doing a good job of reporting on Saddam's atrocities.
The comments are worth a read, too.
For the record, I tend to agree. I hold the highest respect for Michael Berg's right to mourn the horrific death of his son, both privately and publicly. On the other hand, I feel his political position is a bit simplistic. While it is fair to cite Iraqi and US fatalities as a point in the case against war, it is important not to minimize the countless deaths under Hussein's regime. This is far too complex an issue to sustain a lopsided argument.
Wireless networking is being test-driven in some Iowa rest stops. Is technology cool or what?
Wide Eyed Insolence has a few other travel tips.
Wide Eyed Insolence has a few other travel tips.
Several good letters to the editor in today's Press Citizen regarding the article defending Brian Ferentz' use of HUD housing despite his economic background. (NOTE: they aren't archived, so the link won't be good beyond today).
Tuesday, June 29, 2004
The Des Moines Register has this op ed piece on the Supreme Court decision on the Guantanamo detainees case. Eugene Volokh poses an interesting hypothetical - litigation as a new war tactic:
Say that we're fighting a World War II-like war, but against insurgent forces in various allied countries, and not against national governments. (You'll see in a moment why this proviso is important). We capture 50,000 alleged enemy soldiers, partly because some of the enemy forces have surrendered en masse; apparently we had captured millions that way towards the end of World War II. The allied countries don't have strong enough militaries to effectively detain these people themselves (think France in early 1945), so we detain them instead. This is actually quite normal for large-scale wars, consider again World War II, except that the war is a modern war against insurgents and not a traditional war against governments.
Now, the detainees file 50,000 petitions for habeas corpus, all claiming that they aren't actually enemy soldiers. This means civilian courts would have to process all those cases, and the military would have to respond to all the petitions, and get affidavits or even live testimony from various soldiers in the field whose testimony is relevant for this purpose. . . .
Litigation will become a tactic of warfare. As I understand it, soldiers generally think they have an obligation to continue trying to harass their captors — for instance, by trying to escape — even once they're captured. Here we'd be giving them a cheap (for them) and safe way of doing that. If I were the other side's general, I'd actually teach my soldiers how to file habeas petitions (not everyone would have to know how to do that — there'd just have to end up being some soldiers in every prison camp who can write the petition on their comrades' behalf). This would be a very substantial burden, and one that to my knowledge we've never had to labor under.
Read the whole debate here and here.
Say that we're fighting a World War II-like war, but against insurgent forces in various allied countries, and not against national governments. (You'll see in a moment why this proviso is important). We capture 50,000 alleged enemy soldiers, partly because some of the enemy forces have surrendered en masse; apparently we had captured millions that way towards the end of World War II. The allied countries don't have strong enough militaries to effectively detain these people themselves (think France in early 1945), so we detain them instead. This is actually quite normal for large-scale wars, consider again World War II, except that the war is a modern war against insurgents and not a traditional war against governments.
Now, the detainees file 50,000 petitions for habeas corpus, all claiming that they aren't actually enemy soldiers. This means civilian courts would have to process all those cases, and the military would have to respond to all the petitions, and get affidavits or even live testimony from various soldiers in the field whose testimony is relevant for this purpose. . . .
Litigation will become a tactic of warfare. As I understand it, soldiers generally think they have an obligation to continue trying to harass their captors — for instance, by trying to escape — even once they're captured. Here we'd be giving them a cheap (for them) and safe way of doing that. If I were the other side's general, I'd actually teach my soldiers how to file habeas petitions (not everyone would have to know how to do that — there'd just have to end up being some soldiers in every prison camp who can write the petition on their comrades' behalf). This would be a very substantial burden, and one that to my knowledge we've never had to labor under.
Read the whole debate here and here.
Friday, June 25, 2004
From the "Too Cheap to Live" department.:
CALCUTTA (AFP) - An errand runner in an Indian government office who was too poor to complete high school finally graduated at age 51 -- and was rewarded by his boss, the state finance minister, with one dollar.
Jaydeb Bayen said Friday he was determined to get his high school diploma so he could be promoted from the title of "peon" to "clerk" at the state finance department in Calcutta . . . .
Trivia: "peon" is really a title. I looked it up because it just seemed too over the top.
CALCUTTA (AFP) - An errand runner in an Indian government office who was too poor to complete high school finally graduated at age 51 -- and was rewarded by his boss, the state finance minister, with one dollar.
Jaydeb Bayen said Friday he was determined to get his high school diploma so he could be promoted from the title of "peon" to "clerk" at the state finance department in Calcutta . . . .
Trivia: "peon" is really a title. I looked it up because it just seemed too over the top.
The Stepford Senators
Somebody call the fashion police.
Use 911.
Tell them to bring reinforcements.
Via Wonkette.
Somebody call the fashion police.
Use 911.
Tell them to bring reinforcements.
Via Wonkette.
Thursday, June 24, 2004
Internet quiz of the week from the Yin Blog:
My inner child is sixteen years old!
Life's not fair! It's never been fair, but while
adults might just accept that, I know
something's gotta change. And it's gonna
change, just as soon as I become an adult and
get some power of my own.
How Old is Your Inner Child?
brought to you by Quizilla
Sounds about right, particularly after the travesty last night. Just ask my friends.
EEEEWWWWWW
UPDATE
Link to the actual court papers courtesy of Tusk and Talon.
EEEWWWWWW EEEWWWWWWW EEEEEEEWWWWW
UPDATE
Link to the actual court papers courtesy of Tusk and Talon.
EEEWWWWWW EEEWWWWWWW EEEEEEEWWWWW
Wednesday, June 23, 2004
Just read this article in the Chicago Tribune - registration required, sorry - regarding Colorado University President Elizabeth Hoffman's comment that former CU kicker Katie Hnida being called the "c- word" by a teammate as a "term of endearment." Apparently, in a press conference where the transcript was played, she was so upset she broke down into tears and had to leave the room.
Does anyone else see the irony in this?
Does anyone else see the irony in this?
I don't usually peruse the sports section for blogging material, feeling unqualified to comment, but this article goes too far. Key quote:
"And don't blame those taking advantage of the system - which includes the son of Iowa football coach Kirk Ferentz - but rather blame the U.S. Department of Housing and Urban Development for making changes in the Section 8 program that allows for this to happen."
I see . . . there's no personal responsibility involved, if you can screw the system you should at every turn. Even though who you actually are screwing is yourself and anyone else who pays taxes in this state. Nice set of morals, that.
This is the kind of attitude that makes me absolutely furious. You want to know why it's so hard to get good welfare or medicaid funding for truly deserving people? Because there are a bunch of assholes out there milking the system just because they can. They don't give a damn about who they're hurting or why.
Don't blame them? Please. They aren't "caught in a housing flap." They are stealing me blind, but worse, they are stealing housing in a city that has a homeless problem. How DARE they?
And don't give me the old line about poor college students. Most of that town has been there, done that. We worked our way through without a full ride thank you very much, put up with crappy apartments and crazy roommates, sadistic employment/exam convergences that left us sleepless for days. We timed our parties for dime or quarter draw nights, or got to know the bartenders very, very well. Ragstock was cool, but that was only half the reason we shopped there.
I'm not talking about that minority of the student population who happened to cruise in with new BMW convertibles on Daddy's tuition money. I also don't mean the pampered little full-ride atheletes: according to this article, as a full-scholarship athlete, Brian Ferentz receives free tuition, and the university also pays him $406 a month for housing and $298 a month for food and other college expenses. $406 per month for housing in an area where most two bedroom apartments range $600 to $700? And he gets $298 for food and "incidentals" without having to pay any tuition? Yep, he's poverty stricken. Just like the rest of the students, he is. Barely a cent to his name, poor kid.
There is no excuse for this, and there is no excuse for Kirk Ferentz' attitude toward it. You don't want your son scamming money off you for college, because you think it will let him live like a "normal student." As opposed to the rest of us, who needed to beg the occasional grocery money or take laundry home. Fine, so cut him loose. Let him get a thirty-hour-per-week job to pay his own way through.
Instead, you let him scam it off me, off the rest of society, and your excuse is that the "rules" let you do it? You say nothing while he claims poverty to get an apartment that should rightfully go to a truly destitute family? How cold can you get?
I'm told that in "the old days" it was considered a matter of pride not to take charity. Not having been alive then, I'll pass on the truth of that comment. But if it was true, then it's a rather sad commentary about the prevailing attitude now.
State 29 has blogged extensively on this subject if you want to hear more.
"And don't blame those taking advantage of the system - which includes the son of Iowa football coach Kirk Ferentz - but rather blame the U.S. Department of Housing and Urban Development for making changes in the Section 8 program that allows for this to happen."
I see . . . there's no personal responsibility involved, if you can screw the system you should at every turn. Even though who you actually are screwing is yourself and anyone else who pays taxes in this state. Nice set of morals, that.
This is the kind of attitude that makes me absolutely furious. You want to know why it's so hard to get good welfare or medicaid funding for truly deserving people? Because there are a bunch of assholes out there milking the system just because they can. They don't give a damn about who they're hurting or why.
Don't blame them? Please. They aren't "caught in a housing flap." They are stealing me blind, but worse, they are stealing housing in a city that has a homeless problem. How DARE they?
And don't give me the old line about poor college students. Most of that town has been there, done that. We worked our way through without a full ride thank you very much, put up with crappy apartments and crazy roommates, sadistic employment/exam convergences that left us sleepless for days. We timed our parties for dime or quarter draw nights, or got to know the bartenders very, very well. Ragstock was cool, but that was only half the reason we shopped there.
I'm not talking about that minority of the student population who happened to cruise in with new BMW convertibles on Daddy's tuition money. I also don't mean the pampered little full-ride atheletes: according to this article, as a full-scholarship athlete, Brian Ferentz receives free tuition, and the university also pays him $406 a month for housing and $298 a month for food and other college expenses. $406 per month for housing in an area where most two bedroom apartments range $600 to $700? And he gets $298 for food and "incidentals" without having to pay any tuition? Yep, he's poverty stricken. Just like the rest of the students, he is. Barely a cent to his name, poor kid.
There is no excuse for this, and there is no excuse for Kirk Ferentz' attitude toward it. You don't want your son scamming money off you for college, because you think it will let him live like a "normal student." As opposed to the rest of us, who needed to beg the occasional grocery money or take laundry home. Fine, so cut him loose. Let him get a thirty-hour-per-week job to pay his own way through.
Instead, you let him scam it off me, off the rest of society, and your excuse is that the "rules" let you do it? You say nothing while he claims poverty to get an apartment that should rightfully go to a truly destitute family? How cold can you get?
I'm told that in "the old days" it was considered a matter of pride not to take charity. Not having been alive then, I'll pass on the truth of that comment. But if it was true, then it's a rather sad commentary about the prevailing attitude now.
State 29 has blogged extensively on this subject if you want to hear more.
Tuesday, June 22, 2004
I've got a ton to do today, so blogging will be light. On the other hand, Jeff and Chad at Tusk and Talon have several detailed posts debating the existance of a health care crisis, the al Qaeda/Feyadeen connection and several Iowa college's attempts to monopolize the market - and your tuition dollars.
Monday, June 21, 2004
I had to laugh when I saw that the mainstream press finally got a tip that the Democratic Convention is credentialing bloggers. Gee, I could've told you that weeks ago, having seen it on Truth Laid Bear back on May 5th.
I've been watching the fallout from the Iowa Values Fund case in the Des Moines Register articles on the 18th and 19th. It's back to the same old/same old, with the democrats refusing to play ball with the replican economic ideas, and the republicans refusing to play ball without them. As far as I see it, though, since the line item veto won't work, Vilsack & Co. are either going to have to come to some kind of compromise, or they'll have to give up the IVF for now. A third alternative for either side is to pay lip service to the IVF but do nothing for the present, intending to save it up for election year ammunition, something along these lines: Dems: We tried to give you the IVF but the Reps bogged it down with unnecessary bills and killed it. Reps: We tried to play nicely with the Dems and give you the IVF, but they won't compromise and their illegal political maneuvering killed it.
Knowing our politicians these days, I predict the latter. Maybe I'm cynical, but it appears there's little interest in actually having a special session and reaching a compromise solution, just posturing.
Knowing our politicians these days, I predict the latter. Maybe I'm cynical, but it appears there's little interest in actually having a special session and reaching a compromise solution, just posturing.
Thursday, June 17, 2004
This has to be the lamest defense tactic I've seen in a while: In a lawsuit filed by women who say they were sexually assaulted by CU football players and recruits, a lawyer for one of the women asked University of Colorado President Elizabeth Hoffman about former CU kicker Katie Hnida being called the "c- word" by a teammate. Hoffman said she has heard a four-letter word used toward women as a "term of endearment."
Yep. It ranks right up there with the pet name "skank."
Yep. It ranks right up there with the pet name "skank."
Women: it's our fault if our man can't dress himself. Wait . . . so then, if women would only date rich guys, every man in the world would be rich? The Darwinian approach to economic policy?
Regardless of the logic, I do feel a certain sense of social responsibility. In the interests of bettering the male population, from now on I'm only going to insist on only dating hot guys. I mean, it's the least I can do for the cause, right?
(GDR)
Regardless of the logic, I do feel a certain sense of social responsibility. In the interests of bettering the male population, from now on I'm only going to insist on only dating hot guys. I mean, it's the least I can do for the cause, right?
(GDR)
Headline of the day:
A nude model, five bodies and the Mormon assassination plot attempt
Saw it on How Appealing.
Actually, the headline may be odd, but the story is an eerie echo of Helter Skelter.
A nude model, five bodies and the Mormon assassination plot attempt
Saw it on How Appealing.
Actually, the headline may be odd, but the story is an eerie echo of Helter Skelter.
Wednesday, June 16, 2004
Followed this link to a story on the Drudge Report that was posted by Chad at Tusk and Talon. I guess Time Magazine reported the location of Dick Cheney's secret hideout in enough detail to allow anybody with a map and basic geography to drop in on him.
Of course, Wonkette has her own special take on it:
"Personally, we'd like to stay as far away from Dick Cheney's "secret bunker" as possible, but thanks to Time, anyone with "basic geographical maps" and the inclination to can drop in. Just don't sneak up too fast -- wouldn't want to surprise him.
Drudge reports ("reports"?) that the WH is upset about Time letting the bunker out of the bag: "TIME magazine would have revealed secret the location of Anne Frank, if they knew it." It's a great analogy, because Cheney has also been in hiding from the Nazis -- the "energy policy Nazis," he calls them -- and he's been keeping a diary. Of course, instead of containing things like, "I still believe, in spite of everything, that people are truly good at heart," it's just a collection of Halliburton contracts and some doodles of Antonin Scalia shooting ducks."
Of course, Wonkette has her own special take on it:
"Personally, we'd like to stay as far away from Dick Cheney's "secret bunker" as possible, but thanks to Time, anyone with "basic geographical maps" and the inclination to can drop in. Just don't sneak up too fast -- wouldn't want to surprise him.
Drudge reports ("reports"?) that the WH is upset about Time letting the bunker out of the bag: "TIME magazine would have revealed secret the location of Anne Frank, if they knew it." It's a great analogy, because Cheney has also been in hiding from the Nazis -- the "energy policy Nazis," he calls them -- and he's been keeping a diary. Of course, instead of containing things like, "I still believe, in spite of everything, that people are truly good at heart," it's just a collection of Halliburton contracts and some doodles of Antonin Scalia shooting ducks."
Cop Talk reflects on the impact of the Maytag strike. It's a very difficult situation, and I don't know any easy answers.
The Press-Citizen has an article on the latest meth crackdown - they're trying to pass a city ordinance requiring you to sign a log and show photo identification at a pharmacy in order to buy pseudoephedrine.
Okay, I'm quite in favor of law enforcement techniques, as is obvious from my background. But this is taking it a bit too far. Can't we simply keep the restrictions on how much is bought, rather than requiring every poor schmuck with a cold to sign in? I mean, out in the boondocks where I live there's only one pharmacy in town, and it closes at 6:00. God forbid I get a cold or a sinus headache at 8:00 at night - I'd have to make a 45 minute trek into Coralville and pick it up at the Walmart or HyVee. And if it's 1:00 am? Is the friendly neighborhood pharmacist still going to be around, even at the big chain stores?
It's not like a single box of sudafed is going to be of much use for making vast quantities of meth. That's why the meth manufacturers always got several boxes around when the lab is raided.
This Des Moines Register article from last December has data showing people are willing to put up with this "minor inconvenience" in order to stop meth use. I really think they haven't thought through all the practicalities of it. I agree that it could be a "behind the counter" product like cigarettes. But to require a signature and a pharmacist and a limit? Good in theory, nasty in practice.
Okay, I'm quite in favor of law enforcement techniques, as is obvious from my background. But this is taking it a bit too far. Can't we simply keep the restrictions on how much is bought, rather than requiring every poor schmuck with a cold to sign in? I mean, out in the boondocks where I live there's only one pharmacy in town, and it closes at 6:00. God forbid I get a cold or a sinus headache at 8:00 at night - I'd have to make a 45 minute trek into Coralville and pick it up at the Walmart or HyVee. And if it's 1:00 am? Is the friendly neighborhood pharmacist still going to be around, even at the big chain stores?
It's not like a single box of sudafed is going to be of much use for making vast quantities of meth. That's why the meth manufacturers always got several boxes around when the lab is raided.
This Des Moines Register article from last December has data showing people are willing to put up with this "minor inconvenience" in order to stop meth use. I really think they haven't thought through all the practicalities of it. I agree that it could be a "behind the counter" product like cigarettes. But to require a signature and a pharmacist and a limit? Good in theory, nasty in practice.
Reviews are up at the Daily Iowan for both the City Circle and the Iowa City Community Theater performances of AVOW. Both did nicely. Deone finally got mentioned - you are no longer the invisible woman!
State 29 wants to start a Google bomb indicating John Kerry is an Elitist Douchebag. Never tried to google bomb, so I decided to learn a new set of skills in the interest of higher education.
So, all politics aside, I'd have to say Kerry is rather an elitist douchebag. Not that I know many people I'd call Elitist Douchebags. But knowing what I know about elitist douchebags, I'd definitely have to rank him in the group. He's not the head elitist douchebag, but he's definitely got some elitist douchebag tendencies.
(There, will that suffice?)
All kidding aside, I should include State 29's original post that led to the bomb. He indicates Kerry cruised up in a limo and cut in line in front of several thousand mourners at Reagan's funeral, did his little press photo op, and left - and he doesn't even agree with Reagan's politics. I suspect this was standard operating procedure for Washington bigwigs? If not, then, yes, he is definitely has elitist douchebag tendencies.
So, all politics aside, I'd have to say Kerry is rather an elitist douchebag. Not that I know many people I'd call Elitist Douchebags. But knowing what I know about elitist douchebags, I'd definitely have to rank him in the group. He's not the head elitist douchebag, but he's definitely got some elitist douchebag tendencies.
(There, will that suffice?)
All kidding aside, I should include State 29's original post that led to the bomb. He indicates Kerry cruised up in a limo and cut in line in front of several thousand mourners at Reagan's funeral, did his little press photo op, and left - and he doesn't even agree with Reagan's politics. I suspect this was standard operating procedure for Washington bigwigs? If not, then, yes, he is definitely has elitist douchebag tendencies.
There's an interesting article on Ayuwa.org regarding the torture of prisoners in Iraq and ongoing terrorism in the US. There may be a new round of scandals ahead, if the rumor mill is accurate. That won't bode well at all.
There's an interesting article on Ayuwa.org regarding the torture of prisoners in Iraq and ongoing terrorism in the US. There may be a new round of scandals ahead, if the rumor mill is accurate. That won't bode well at all.
WARNING: LONG LEGAL POST
The new opinions from the Iowa Supreme Court are up here.
The big newsmaker is going to be the decision regarding the suit between the legislature and Governor Vilsack over his line item veto. I decided to try to translate this very intricate opinion into semi-plain English for anyone who wanted to know the analysis behind the decision.
THE BACKGROUND
Governor Vilsack’s 2003 agenda featured an economic plan hinging on the creation of an “Iowa Values Fund” (IVF) , a source of funding for various projects that theoretically would stimulate the state’s economy. Vilsack wanted $500,000,000 committed to the Values Fund over a five-year period. The Republican legislature indicated it wanted tax reforms and regulatory reforms, as well as the Values Fund. The Governor opposed the proposals put forth by legislative Republicans. Negotiations broke down. In the end, while the House passed the IVF in House File 683 (HF 683), the Iowa Senate then failed to vote on HF 683 before the session adjourned, much to the Governor’s annoyance. On May 29, 2003, the Governor issued a proclamation reconvening the Legislature into an “extraordinary session” focused on the state’s budget for the 2004 fiscal year - but also including a reconsideration of the Values Fund. The results of these meetings were two bills, an amended HF 683 and House File 692 (HF 692). Together, these bills both created and funded a Values Fund and included provisions for tax and regulatory reform. HF 683 was the bill that funded the IVF. HF 692 created the IVF and outlined the tax and regulations reforms. It referenced HF 683, but was a distinct bill – I’m sure it was designed that way specifically to circumvent the veto power of the Governor. But the Governor didn’t give up. He passed HF 683, but returned HF 692 with several sections marked “disapproved.” The effect of the Governor’s item ‘vetoes’ was to eliminate the Legislature’s economic development priorities while preserving the Governor’s economic development priorities, including the Values Fund.
THE ANALYSIS
General Rules of Veto Power
Our form of government grants a “general” veto power to the national executive, which allows the executive to approve a bill presented by the legislature, to disapprove it, or to decline to act one way or another. If the executive declines to approve or disapprove, the bill automatically becomes law.
The laws also allow for a “pocket” veto power, to be used if the legislature decides to slip a bill pass right before the end of the session, or to adjourn right after they pass the bill, thus preventing the executive from returning the bill to them for reconsideration. The executive is given additional time to consider the bill, and in many cases the rules change so that the bill is automatically disapproved if the executive declines to act.
After the Civil War, states began to allow Governors to veto items on appropriations / spending bills without having to vote the entire bill up or down. This was to prevent the legislative practice of tacking on a bunch of minority interest items onto a single funding bill, in order to attain a majority vote. This constituted a major departure from prior practice, in that it essentially granted the Governor a limited legislative function – deviating from the traditional separation of powers that grants the function of appropriating money to the legislature.
Because it is a significant departure from the usual separation of powers that keeps our government balanced, the Courts tend to construe the veto power narrowly, with any doubt over the extent of the power resolved in favor of the traditional separation of governmental powers and the restricted nature of the veto.
Iowa Law on Veto Power
Under Iowa law, the Governor ordinarily has three days after a bill is presented to him, not counting Sunday, within which to veto it. If he does not veto it in those three days the bill becomes law without his signature. If he wishes to veto it, he must endorse his disapproval upon the bill and return it before the deadline to the house in which it originated so the legislature may reconsider it and possibly pass it by sufficient votes to override the veto.
However, if the general assembly adjourns too quickly for the Governor to be able to be return it to them for reconsideration, then the bill does not become law through the governor’s failure to sign or veto it within the regular period. Bills presented during the last three days of a session come within this exception because final adjournment shortens the available period for returning them. Instead, Iowa law gives the Governor thirty days after adjournment within which to decide whether to approve it, veto it, or let it die by failing to act.
With regard to appropriation bills, Iowa law gives the Governor the line item veto: the Governor may approve the bill in whole or in part, or can disapprove any particular item of the bill and approve the rest. Any item disapproved by the Governor is returned to the house in the same method with other bills. If he fails to approve or disapprove or any particular item, it will either: 1) Become law by default under normal circumstances; or 2) Lapse and not become law if it was turned into the Governor in the last three days of the legislative session; just as with other bills.
Analysis of Vilsack’s Line Item Veto on the Values Fund Bill
The Court indicated that every analysis of the item veto power must begin with a determination of the nature of the bill that the governor is attempting to item veto, because the fundamental prerequisite is that the bill to be item vetoed actually be an appropriation bill. The Court reviews each bill on an ad hoc basis to determine if it creates an appropriation.
The technical test for an appropriations bill is that it must allocate funds “whether from the general fund or from a revenue-producing bill, into a separate and distinct fund that the State can no longer utilize for other purposes absent subsequent legislation.”
There are two types of appropriations possible. The first is a traditional appropriation bill, which includes at least one flat out allocation of funds on the face of the bill. The other is a nontraditional bill, that doesn’t flat out allocate funds. There are two types of nontraditional bills, one that orders an expenditure. The second type is marked by the allocation of funds by either 1) the direct ordering of an expenditure or 2) an alteration to funding allocations already included in sections of the Iowa Code, which results in the expenditure of funds unless subsequent legislation is passed to stop the expenditure or somehow redirect it.
Once the Court determines whether the bill is an appropriations bill, it still must determine whether the language vetoed by the Governor was an “item” under the terms of Iowa law. The term “item” has proved difficult to interpret, with some arguing it applies only to monetary allocations, and others taking the broad view it can apply to anything in the bill. There are added twists: Can the Governor veto individual words? For example, if you strike the word ‘not’ from a sentence, you change the entire meaning to the opposite of what the writer intended. Can you veto the item being funded without vetoing the funding itself, thus getting a little extra money into the budget to play with? The Court has found that:
“We generally recognize three types of items that may be item vetoed. The first is a specific appropriation made on the face of the bill. The second is a rider, “an unrelated substantive piece of legislation incorporated in the appropriation bill.” Colton, 372 N.W.2d at 191. The third is a condition, “a provision in a bill that limits the use to which an appropriation may be put,” which may be vetoed only if the appropriation accompanying it is vetoed as well. Id. at 189; Welden, 229 N.W.2d at 709. However, a condition, standing apart from its appropriation, may not be item vetoed because such a veto would invade the legislative prerogative to “specify how money shall be spent,” granted through the general appropriation power. Welden, 229 N.W.2d at 710. A provision must fall within one of these three types and circumstances to be subject to the item veto power.”
The Governor argued that the references to HF 683 within HF 692 was enough to transform HF 692 into an appropriation bill. The legislature vehemently disagreed. The Court agreed with the legislature:
“If we were to accept and apply the Governor’s approach, we would be condoning a vast expansion of the scope and reach of the governor’s item veto power . . . every bill that is somehow linked to another bill that contains a related appropriation—which HF 683 undoubtedly does—could be reached by the governor’s item veto power. However, the item veto power is a limited, negative power and cannot be expanded in this way.”
The Governor based his argument on several distinct provisions within HF 692. The first involved Section 84 of HF 692, which dealt with setting up the IVF. That section stated that payment of interest, repayment of money loaned, and recaptures of grants or loans shall be deposited in the Iowa Values Fund, and it discussed the method by which funds leftover in the IVF would revert at the end of the fiscal year. The Governor contended that these provisions were appropriations. The Court rejected this argument, because the IVF provisions in HF 692 did not directly involve the allocation of funds by ordering an expenditure or “commanding alterations to standing allocations within sections of the Iowa Code resulting in the expenditure of funds absent subsequent legislation to stop the expenditure or somehow redirect it.” Instead, it was dependent on further legislative action outside of the policy provisions crafted in HF 692 to make the Values Fund functional – the provisions contained in HF 683. The Governor wanted the Court to read the two together, creating one merged appropriations bill. The Court declined, stating:
“In effect, we believe the provisions of HF 692 create a “savings account” for the Values Fund and describe how the fund will operate, but do not place funds or alter funds that are to be spent pursuant to mandatory statutory language that are currently placed in that account. It is that placement or alteration of funds which is at the heart of the appropriation power and which triggers the Governor’s ability to item veto.”
The second provisions which the Governor cited in HF 692 were ones providing for compensation and expense payments for members of boards created in HF 692, and changing fines and surcharges related to the workers’ compensation act, and reducing income tax rates. The Court stated:
“We do not believe the provisions providing for compensation and expense payments for board members are allocations of any sort. These provisions call for the director of the department of economic development and state auditor to “budget” for the positions but do not allocate funds to fulfill those budget items . . . The Governor’s contention that changes to fees related to the workers’ compensation act are appropriations is similarly infirm . . . The first change would increase the possible assessment that may result if an employer fails to file certain reports pursuant to the workers’ compensation act. This series of possibilities is contingent on matters extraneous to HF 692 . . . The second change adjusts an unemployment fund surcharge . . . this surcharge does not order an expenditure or affect a standing allocation because any allocation from the fund is dependent on later legislative action not contemplated in HF 692.”
Finally, the Governor contended that alterations to the state tax code to reduce income tax rates provided for in HF 692 were appropriations. The Court vehemently disagreed with that issue:
“This contention is divorced from our prior case precedents and basic logic. The effect of the provisions altering the tax code would result in the reduction of the state general fund. We simply cannot comprehend how a reduction in the general fund could be considered the allocation of funds . . .”
THE HOLDING
"[T]he Legislature immediately adjourned sine die after conveying HF 683 and HF 692 to the Governor. Thus, the Governor had thirty days in which to approve the bills or both would have failed due to the absence of the Governor’s affirmative approval. Iowa Const. art. III, § 16. The Governor attempted to approve HF 692 in part and disapprove it in part on the theory he was permitted to item veto its provisions. However, as we have discussed, the Governor’s attempted item vetoes were unconstitutional. More importantly, because they were unconstitutional, his act of attempting to veto certain provisions of the bill is rendered a nullity and ineffective. The effect of this circumstance is to render the bill whole, as if the item vetoes never occurred. However, this result creates an unanticipated quandary. Had the Governor impermissibly exercised his item veto authority during the period in which his general veto power was in effect, thus effectively failing to veto any provision, the bill would have become law automatically. The appropriate conclusion in such a situation would be that the bill became law because the Governor failed to approve or disapprove it before the end of three days. However, in this case, the Governor has impermissibly exercised his item veto authority during the period in which his pocket veto power was in effect, thus effectively failing to veto any provision . . . [W]e are constrained to conclude that by operation of the Iowa Constitution, no portion of HF 692 became law because the entire bill did not receive the affirmative approval of both the Legislature and Governor before the end of the thirty day period provided the Governor to consider a bill pursuant to the process for consideration of bills passed “during the last three days of a session.”
I did have to laugh at that last argument by the Governor, that a reduction in taxes was somehow an "appropriation." Nice try, that. All in all, the case is a fascinating glimpse into the political poker game that goes on every day in Des Moines.
The new opinions from the Iowa Supreme Court are up here.
The big newsmaker is going to be the decision regarding the suit between the legislature and Governor Vilsack over his line item veto. I decided to try to translate this very intricate opinion into semi-plain English for anyone who wanted to know the analysis behind the decision.
THE BACKGROUND
Governor Vilsack’s 2003 agenda featured an economic plan hinging on the creation of an “Iowa Values Fund” (IVF) , a source of funding for various projects that theoretically would stimulate the state’s economy. Vilsack wanted $500,000,000 committed to the Values Fund over a five-year period. The Republican legislature indicated it wanted tax reforms and regulatory reforms, as well as the Values Fund. The Governor opposed the proposals put forth by legislative Republicans. Negotiations broke down. In the end, while the House passed the IVF in House File 683 (HF 683), the Iowa Senate then failed to vote on HF 683 before the session adjourned, much to the Governor’s annoyance. On May 29, 2003, the Governor issued a proclamation reconvening the Legislature into an “extraordinary session” focused on the state’s budget for the 2004 fiscal year - but also including a reconsideration of the Values Fund. The results of these meetings were two bills, an amended HF 683 and House File 692 (HF 692). Together, these bills both created and funded a Values Fund and included provisions for tax and regulatory reform. HF 683 was the bill that funded the IVF. HF 692 created the IVF and outlined the tax and regulations reforms. It referenced HF 683, but was a distinct bill – I’m sure it was designed that way specifically to circumvent the veto power of the Governor. But the Governor didn’t give up. He passed HF 683, but returned HF 692 with several sections marked “disapproved.” The effect of the Governor’s item ‘vetoes’ was to eliminate the Legislature’s economic development priorities while preserving the Governor’s economic development priorities, including the Values Fund.
THE ANALYSIS
General Rules of Veto Power
Our form of government grants a “general” veto power to the national executive, which allows the executive to approve a bill presented by the legislature, to disapprove it, or to decline to act one way or another. If the executive declines to approve or disapprove, the bill automatically becomes law.
The laws also allow for a “pocket” veto power, to be used if the legislature decides to slip a bill pass right before the end of the session, or to adjourn right after they pass the bill, thus preventing the executive from returning the bill to them for reconsideration. The executive is given additional time to consider the bill, and in many cases the rules change so that the bill is automatically disapproved if the executive declines to act.
After the Civil War, states began to allow Governors to veto items on appropriations / spending bills without having to vote the entire bill up or down. This was to prevent the legislative practice of tacking on a bunch of minority interest items onto a single funding bill, in order to attain a majority vote. This constituted a major departure from prior practice, in that it essentially granted the Governor a limited legislative function – deviating from the traditional separation of powers that grants the function of appropriating money to the legislature.
Because it is a significant departure from the usual separation of powers that keeps our government balanced, the Courts tend to construe the veto power narrowly, with any doubt over the extent of the power resolved in favor of the traditional separation of governmental powers and the restricted nature of the veto.
Iowa Law on Veto Power
Under Iowa law, the Governor ordinarily has three days after a bill is presented to him, not counting Sunday, within which to veto it. If he does not veto it in those three days the bill becomes law without his signature. If he wishes to veto it, he must endorse his disapproval upon the bill and return it before the deadline to the house in which it originated so the legislature may reconsider it and possibly pass it by sufficient votes to override the veto.
However, if the general assembly adjourns too quickly for the Governor to be able to be return it to them for reconsideration, then the bill does not become law through the governor’s failure to sign or veto it within the regular period. Bills presented during the last three days of a session come within this exception because final adjournment shortens the available period for returning them. Instead, Iowa law gives the Governor thirty days after adjournment within which to decide whether to approve it, veto it, or let it die by failing to act.
With regard to appropriation bills, Iowa law gives the Governor the line item veto: the Governor may approve the bill in whole or in part, or can disapprove any particular item of the bill and approve the rest. Any item disapproved by the Governor is returned to the house in the same method with other bills. If he fails to approve or disapprove or any particular item, it will either: 1) Become law by default under normal circumstances; or 2) Lapse and not become law if it was turned into the Governor in the last three days of the legislative session; just as with other bills.
Analysis of Vilsack’s Line Item Veto on the Values Fund Bill
The Court indicated that every analysis of the item veto power must begin with a determination of the nature of the bill that the governor is attempting to item veto, because the fundamental prerequisite is that the bill to be item vetoed actually be an appropriation bill. The Court reviews each bill on an ad hoc basis to determine if it creates an appropriation.
The technical test for an appropriations bill is that it must allocate funds “whether from the general fund or from a revenue-producing bill, into a separate and distinct fund that the State can no longer utilize for other purposes absent subsequent legislation.”
There are two types of appropriations possible. The first is a traditional appropriation bill, which includes at least one flat out allocation of funds on the face of the bill. The other is a nontraditional bill, that doesn’t flat out allocate funds. There are two types of nontraditional bills, one that orders an expenditure. The second type is marked by the allocation of funds by either 1) the direct ordering of an expenditure or 2) an alteration to funding allocations already included in sections of the Iowa Code, which results in the expenditure of funds unless subsequent legislation is passed to stop the expenditure or somehow redirect it.
Once the Court determines whether the bill is an appropriations bill, it still must determine whether the language vetoed by the Governor was an “item” under the terms of Iowa law. The term “item” has proved difficult to interpret, with some arguing it applies only to monetary allocations, and others taking the broad view it can apply to anything in the bill. There are added twists: Can the Governor veto individual words? For example, if you strike the word ‘not’ from a sentence, you change the entire meaning to the opposite of what the writer intended. Can you veto the item being funded without vetoing the funding itself, thus getting a little extra money into the budget to play with? The Court has found that:
“We generally recognize three types of items that may be item vetoed. The first is a specific appropriation made on the face of the bill. The second is a rider, “an unrelated substantive piece of legislation incorporated in the appropriation bill.” Colton, 372 N.W.2d at 191. The third is a condition, “a provision in a bill that limits the use to which an appropriation may be put,” which may be vetoed only if the appropriation accompanying it is vetoed as well. Id. at 189; Welden, 229 N.W.2d at 709. However, a condition, standing apart from its appropriation, may not be item vetoed because such a veto would invade the legislative prerogative to “specify how money shall be spent,” granted through the general appropriation power. Welden, 229 N.W.2d at 710. A provision must fall within one of these three types and circumstances to be subject to the item veto power.”
The Governor argued that the references to HF 683 within HF 692 was enough to transform HF 692 into an appropriation bill. The legislature vehemently disagreed. The Court agreed with the legislature:
“If we were to accept and apply the Governor’s approach, we would be condoning a vast expansion of the scope and reach of the governor’s item veto power . . . every bill that is somehow linked to another bill that contains a related appropriation—which HF 683 undoubtedly does—could be reached by the governor’s item veto power. However, the item veto power is a limited, negative power and cannot be expanded in this way.”
The Governor based his argument on several distinct provisions within HF 692. The first involved Section 84 of HF 692, which dealt with setting up the IVF. That section stated that payment of interest, repayment of money loaned, and recaptures of grants or loans shall be deposited in the Iowa Values Fund, and it discussed the method by which funds leftover in the IVF would revert at the end of the fiscal year. The Governor contended that these provisions were appropriations. The Court rejected this argument, because the IVF provisions in HF 692 did not directly involve the allocation of funds by ordering an expenditure or “commanding alterations to standing allocations within sections of the Iowa Code resulting in the expenditure of funds absent subsequent legislation to stop the expenditure or somehow redirect it.” Instead, it was dependent on further legislative action outside of the policy provisions crafted in HF 692 to make the Values Fund functional – the provisions contained in HF 683. The Governor wanted the Court to read the two together, creating one merged appropriations bill. The Court declined, stating:
“In effect, we believe the provisions of HF 692 create a “savings account” for the Values Fund and describe how the fund will operate, but do not place funds or alter funds that are to be spent pursuant to mandatory statutory language that are currently placed in that account. It is that placement or alteration of funds which is at the heart of the appropriation power and which triggers the Governor’s ability to item veto.”
The second provisions which the Governor cited in HF 692 were ones providing for compensation and expense payments for members of boards created in HF 692, and changing fines and surcharges related to the workers’ compensation act, and reducing income tax rates. The Court stated:
“We do not believe the provisions providing for compensation and expense payments for board members are allocations of any sort. These provisions call for the director of the department of economic development and state auditor to “budget” for the positions but do not allocate funds to fulfill those budget items . . . The Governor’s contention that changes to fees related to the workers’ compensation act are appropriations is similarly infirm . . . The first change would increase the possible assessment that may result if an employer fails to file certain reports pursuant to the workers’ compensation act. This series of possibilities is contingent on matters extraneous to HF 692 . . . The second change adjusts an unemployment fund surcharge . . . this surcharge does not order an expenditure or affect a standing allocation because any allocation from the fund is dependent on later legislative action not contemplated in HF 692.”
Finally, the Governor contended that alterations to the state tax code to reduce income tax rates provided for in HF 692 were appropriations. The Court vehemently disagreed with that issue:
“This contention is divorced from our prior case precedents and basic logic. The effect of the provisions altering the tax code would result in the reduction of the state general fund. We simply cannot comprehend how a reduction in the general fund could be considered the allocation of funds . . .”
THE HOLDING
"[T]he Legislature immediately adjourned sine die after conveying HF 683 and HF 692 to the Governor. Thus, the Governor had thirty days in which to approve the bills or both would have failed due to the absence of the Governor’s affirmative approval. Iowa Const. art. III, § 16. The Governor attempted to approve HF 692 in part and disapprove it in part on the theory he was permitted to item veto its provisions. However, as we have discussed, the Governor’s attempted item vetoes were unconstitutional. More importantly, because they were unconstitutional, his act of attempting to veto certain provisions of the bill is rendered a nullity and ineffective. The effect of this circumstance is to render the bill whole, as if the item vetoes never occurred. However, this result creates an unanticipated quandary. Had the Governor impermissibly exercised his item veto authority during the period in which his general veto power was in effect, thus effectively failing to veto any provision, the bill would have become law automatically. The appropriate conclusion in such a situation would be that the bill became law because the Governor failed to approve or disapprove it before the end of three days. However, in this case, the Governor has impermissibly exercised his item veto authority during the period in which his pocket veto power was in effect, thus effectively failing to veto any provision . . . [W]e are constrained to conclude that by operation of the Iowa Constitution, no portion of HF 692 became law because the entire bill did not receive the affirmative approval of both the Legislature and Governor before the end of the thirty day period provided the Governor to consider a bill pursuant to the process for consideration of bills passed “during the last three days of a session.”
I did have to laugh at that last argument by the Governor, that a reduction in taxes was somehow an "appropriation." Nice try, that. All in all, the case is a fascinating glimpse into the political poker game that goes on every day in Des Moines.
Tuesday, June 15, 2004
NOTE: There was a prior version of this up for a while that I fired off rather rapidly before lunch. This is the edited-for-coherence version.
The Des Moines Register is disappointed with the 9th Circuit ruling in Newdow yesterday. Key quote:
"Talk about those pesky legal technicalities cheating the people out of an answer to an important question. Is the phrase constitutional or isn't it? In the past the Supreme Court has ruled government should remain neutral on matters of religion. The court's own precedents would seem to point toward prohibiting the phrase "under God" in an oath that is recited at the behest of a government, as in a public school."
For the record, I'd like to know whether it's constitutional or not as well. But this was not some "pesky legal technicality."
First, there's the familial situation behind the suit. According to the press, Newdow has been fighting with his ex-girlfriend in court for years over the custody of their child, and his tactics have been utterly appalling. Check out this USA today article here, the WorldNet Daily story here or the Fox News story here.
The background: apparently, Banning and Newdow dated briefly after her divorce. They split up and she got pregnant. At first, he tried to get out of his parental responsibilities, claiming he had been "date raped" - which the judge in his family court hearing called patently ridiculous. At some point, Newdow has a change of heart and decides he wants custody of the kid. He isn't given full custody, but instead visitation rights. He doesn't find that fair because it isn't a 50/50 split. He's also got a pending suit against the family court system trying to get it declared unconstitutional. Apparently he's a numbers guy - if it's his kid, he wants her half the time. He hasn't discovered this whole "best interest of the child" standard that is driven by her needs and not a timeclock. And he apparently doesn't take her interests or opinion into account at all - I say that because the child and her mother both regularly attend the Calvary Chapel, and the kid herself is noted as liking to lead the class in the pledge and vehemently disagreeing with her father's lawsuit.
In other words, this suit could be just a pawn in the entire custody game. If nothing else, it makes life very difficult for the child.
Picture you're 9 and your father stirs up all this national media attention surrounding you, and it's on an issue you don't even agree with him on. He doesn't give a damn about your opinion, just his cause. Yet, he can use you as he likes to bring suit in your name without having custody of you or the ability to make legal decisions on your behalf. I'd find that rather frustrating, particularly knowing how the other kids are likely to tease or harass her for her father's views. It's one thing for a 9-year-old to take on that kind of pressure if the kid agrees with the cause, but an utterly different one if the kid is forced into taking it on for a cause she doesn't agree with.
Of course, that's just the emotional argument. Here's the legal one:
1) It is Banning, not Newdow, who is that child's custodial parent, and has the right to decide her religious and educational upbringing. If Newdow doesn't like how his child is being raised, the proper place to fight it out is the family courts. Otherwise, there could be all kinds of collateral suits incidental to acrimonious divorces clogging up the federal and state courts.
2) As a rule, standing is required in order to ensure that the person suing is one who is actually harmed by the alleged wrong being claimed. This is to keep the Courts from being clogged with suits brought by people who are bored or fanatics. Start thinking about the possibilities that could come about if someone could bring suit for something they don't like that was being done to another person in the world, whether the object of the suit wanted to sue or not. If you take the hypothetical out far enough, plaintiff's firms could make a killing by cutting out the plaintiff and suing directly in their name. None of this 1/3 contingency fee crap, we want the whole thing!
3) We have one Supreme Court with nine very human judges and they don't have the capability or the time to tackle every issue that anyone in the country thinks is important. So we have to limit the number of suits brought before them to a manageable number. One way is through requiring the person bringing suit to actually have a stake in the outcome. It is a nice rule, because it culls out suits for a reason, not just some arbitrary lottery. The people who favored Newdow's position can always bring suit on behalf of their own, similarly-situated children.
We'll get an answer eventually. I won't recommend we do it by sacrificing the standing issue. It culls out frivolous or malicious suits and helps ensure that the Court spends its time hearing cases that actually make a difference in the lives of the litigants, not acting as law professors or philosophers by making sweeping proclamations of what the law should be on some theoretical plane.
UPDATE:
Professor Yin's got a post on the standing issue.
He also got a new flatscreen TV. I just had to replace the TV and the computer as the ex took them, but I blew my budget on a really cool laptop, complete with a flatscreen monitor, cordless keyboard and mouse, and integrated scanner/fax/printer, so I couldn't afford a flatscreen. I got a nice regular 32". Of course, now I wonder if I chose wisely, but isn't that always how it goes? I also found a few intelligent guys at Best Buy who really were helpful in selecting some of the peripherals, though I'd already decided on the computer itself. It's getting to be a better store, they used to be long on pressure and short on knowledge.
The Des Moines Register is disappointed with the 9th Circuit ruling in Newdow yesterday. Key quote:
"Talk about those pesky legal technicalities cheating the people out of an answer to an important question. Is the phrase constitutional or isn't it? In the past the Supreme Court has ruled government should remain neutral on matters of religion. The court's own precedents would seem to point toward prohibiting the phrase "under God" in an oath that is recited at the behest of a government, as in a public school."
For the record, I'd like to know whether it's constitutional or not as well. But this was not some "pesky legal technicality."
First, there's the familial situation behind the suit. According to the press, Newdow has been fighting with his ex-girlfriend in court for years over the custody of their child, and his tactics have been utterly appalling. Check out this USA today article here, the WorldNet Daily story here or the Fox News story here.
The background: apparently, Banning and Newdow dated briefly after her divorce. They split up and she got pregnant. At first, he tried to get out of his parental responsibilities, claiming he had been "date raped" - which the judge in his family court hearing called patently ridiculous. At some point, Newdow has a change of heart and decides he wants custody of the kid. He isn't given full custody, but instead visitation rights. He doesn't find that fair because it isn't a 50/50 split. He's also got a pending suit against the family court system trying to get it declared unconstitutional. Apparently he's a numbers guy - if it's his kid, he wants her half the time. He hasn't discovered this whole "best interest of the child" standard that is driven by her needs and not a timeclock. And he apparently doesn't take her interests or opinion into account at all - I say that because the child and her mother both regularly attend the Calvary Chapel, and the kid herself is noted as liking to lead the class in the pledge and vehemently disagreeing with her father's lawsuit.
In other words, this suit could be just a pawn in the entire custody game. If nothing else, it makes life very difficult for the child.
Picture you're 9 and your father stirs up all this national media attention surrounding you, and it's on an issue you don't even agree with him on. He doesn't give a damn about your opinion, just his cause. Yet, he can use you as he likes to bring suit in your name without having custody of you or the ability to make legal decisions on your behalf. I'd find that rather frustrating, particularly knowing how the other kids are likely to tease or harass her for her father's views. It's one thing for a 9-year-old to take on that kind of pressure if the kid agrees with the cause, but an utterly different one if the kid is forced into taking it on for a cause she doesn't agree with.
Of course, that's just the emotional argument. Here's the legal one:
1) It is Banning, not Newdow, who is that child's custodial parent, and has the right to decide her religious and educational upbringing. If Newdow doesn't like how his child is being raised, the proper place to fight it out is the family courts. Otherwise, there could be all kinds of collateral suits incidental to acrimonious divorces clogging up the federal and state courts.
2) As a rule, standing is required in order to ensure that the person suing is one who is actually harmed by the alleged wrong being claimed. This is to keep the Courts from being clogged with suits brought by people who are bored or fanatics. Start thinking about the possibilities that could come about if someone could bring suit for something they don't like that was being done to another person in the world, whether the object of the suit wanted to sue or not. If you take the hypothetical out far enough, plaintiff's firms could make a killing by cutting out the plaintiff and suing directly in their name. None of this 1/3 contingency fee crap, we want the whole thing!
3) We have one Supreme Court with nine very human judges and they don't have the capability or the time to tackle every issue that anyone in the country thinks is important. So we have to limit the number of suits brought before them to a manageable number. One way is through requiring the person bringing suit to actually have a stake in the outcome. It is a nice rule, because it culls out suits for a reason, not just some arbitrary lottery. The people who favored Newdow's position can always bring suit on behalf of their own, similarly-situated children.
We'll get an answer eventually. I won't recommend we do it by sacrificing the standing issue. It culls out frivolous or malicious suits and helps ensure that the Court spends its time hearing cases that actually make a difference in the lives of the litigants, not acting as law professors or philosophers by making sweeping proclamations of what the law should be on some theoretical plane.
UPDATE:
Professor Yin's got a post on the standing issue.
He also got a new flatscreen TV. I just had to replace the TV and the computer as the ex took them, but I blew my budget on a really cool laptop, complete with a flatscreen monitor, cordless keyboard and mouse, and integrated scanner/fax/printer, so I couldn't afford a flatscreen. I got a nice regular 32". Of course, now I wonder if I chose wisely, but isn't that always how it goes? I also found a few intelligent guys at Best Buy who really were helpful in selecting some of the peripherals, though I'd already decided on the computer itself. It's getting to be a better store, they used to be long on pressure and short on knowledge.
Monday, June 14, 2004
The Supreme Court ruled today that Michael Newdow had no standing to challenge his daughter's exposure to the pledge of allegiance in school, as he didn't have custody of the girl. Her mother, who did have primary custody, did not object to the pledge - quite the opposite, she actively campaigned against Newdow's suit in the media.
I had believed something like this would happen. The Court never wants to decide on the merits if they have a nice procedural dismissal available - the less they can mess with the document the better, in essence. The text of the opinion is not yet up on the Supreme Court website, but I snagged a copy from SCOTUSblog, which you can read here. (Way to get that early text out there!)
For anyone who'd prefer not to wade through the whole thing, I've pulled the key quotes, which are as follows (No, this isn't short - but at least it isn't 15 pages):
"Sandra Banning, the mother of Newdow's daughter, filed a motion for leave to intervene, or alternatively to dismiss the complaint. App. 82. She declared that although she and Newdow shared physical custody of their daughter, a state-court order granted her exclusive legal custody of the child, including the sole right to represent [the daughter's legal interests and make all decision[s] about her education and welfare. . . Banning further stated that her daughter is a Christian who believes in God and has no objection either to reciting or hearing others recite the Pledge of Allegiance, or to its reference to God. . . .
The command to guard jealously and exercise rarely our power to make constitutional pronouncements requires strictest adherence when matters of great national signifi cance are at stake. Even in cases concededly within our jurisdiction under Article III, we abide by a series of rules under which [we have] avoided passing upon a large part of all the constitutional questions pressed upon [us] for decision. . .
One of the principal areas in which this Court has customarily declined to intervene is the realm of domestic relations. Long ago we observed that ih[t]he whole subject of the domestic relations of husband and wife, parent and child, belongs to the laws of the States and not to the laws of the United States. In re Burrus, 136 U. S. 586, 593 594 (1890). . .
This case concerns not merely Newdow's interest in inculcating his child with his views on religion, but also the rights of the child's mother as a parent generally and under the Superior Court orders specifically. And most important, it implicates the interests of a young child who finds herself at the center of a highly public debate over her custody, the propriety of a widespread national ritual, and the meaning of our Constitution. The interests of the affected persons in this case are in many respects antagonistic. Of course, legal disharmony in family relations is not uncommon, and in many in stances that disharmony poses no bar to federal-court adjudication of proper federal questions. What makes this case different is that Newdow's standing derives entirely from his relationship with his daughter, but he lacks the right to litigate as her next friend. . . .
Court of Appeals, which possesses greater familiarity with California law, concluded that state law vests in Newdow a cognizable right to influence his daughter's religious upbringing. . . The court based its ruling on two intermediate state appellate cases holding that while the custodial parent undoubtedly has the right to make ultimate decisions concerning the child's religious upbringing, a court will not enjoin the noncustodial parent from discussing religion with the child or involving the child in his or her religious activities in the absence of a showing that the child will be thereby harmed. . . .
Nothing that either Banning or the School Board has done, however, impairs Newdow's right to instruct his daughter in his religious views. Instead, Newdow . . . wishes to forestall his daughter's exposure to religious ideas that her mother, who wields a form of veto power, endorses, and to use his parental status to challenge the influences to which his daughter may be exposed in school when he and Banning disagree. The California cases simply do not stand for the proposition that Newdow has a right to dictate to others what they may and may not say to his child respecting religion. . .
In our view, it is improper for the federal courts to entertain a claim by a plaintiff whose standing to sue is founded on family law rights that are in dispute when prosecution of the lawsuit may have an adverse effect on the person who is the source of the plaintiff's claimed standing. When hard questions of domestic relations are
sure to affect the outcome, the prudent course is for the federal court to stay its hand rather than reach out to resolve a weighty question of federal constitutional law. There is a vast difference between Newdow's right to communicate with his child - which both California law and the First Amendment recognize - and his claimed right to shield his daughter from influences to which she is exposed in school despite the terms of the custody order. We conclude that, having been deprived under California law of the right to sue as next friend, Newdow lacks prudential standing to bring this suit in federal court."
UPDATE:
Eugene Volokh has the law professor's view of the outcome:
"Great! One less case that I have to try to edit down to a manageable size for the textbook supplement that I have due in a few weeks."
I had believed something like this would happen. The Court never wants to decide on the merits if they have a nice procedural dismissal available - the less they can mess with the document the better, in essence. The text of the opinion is not yet up on the Supreme Court website, but I snagged a copy from SCOTUSblog, which you can read here. (Way to get that early text out there!)
For anyone who'd prefer not to wade through the whole thing, I've pulled the key quotes, which are as follows (No, this isn't short - but at least it isn't 15 pages):
"Sandra Banning, the mother of Newdow's daughter, filed a motion for leave to intervene, or alternatively to dismiss the complaint. App. 82. She declared that although she and Newdow shared physical custody of their daughter, a state-court order granted her exclusive legal custody of the child, including the sole right to represent [the daughter's legal interests and make all decision[s] about her education and welfare. . . Banning further stated that her daughter is a Christian who believes in God and has no objection either to reciting or hearing others recite the Pledge of Allegiance, or to its reference to God. . . .
The command to guard jealously and exercise rarely our power to make constitutional pronouncements requires strictest adherence when matters of great national signifi cance are at stake. Even in cases concededly within our jurisdiction under Article III, we abide by a series of rules under which [we have] avoided passing upon a large part of all the constitutional questions pressed upon [us] for decision. . .
One of the principal areas in which this Court has customarily declined to intervene is the realm of domestic relations. Long ago we observed that ih[t]he whole subject of the domestic relations of husband and wife, parent and child, belongs to the laws of the States and not to the laws of the United States. In re Burrus, 136 U. S. 586, 593 594 (1890). . .
This case concerns not merely Newdow's interest in inculcating his child with his views on religion, but also the rights of the child's mother as a parent generally and under the Superior Court orders specifically. And most important, it implicates the interests of a young child who finds herself at the center of a highly public debate over her custody, the propriety of a widespread national ritual, and the meaning of our Constitution. The interests of the affected persons in this case are in many respects antagonistic. Of course, legal disharmony in family relations is not uncommon, and in many in stances that disharmony poses no bar to federal-court adjudication of proper federal questions. What makes this case different is that Newdow's standing derives entirely from his relationship with his daughter, but he lacks the right to litigate as her next friend. . . .
Court of Appeals, which possesses greater familiarity with California law, concluded that state law vests in Newdow a cognizable right to influence his daughter's religious upbringing. . . The court based its ruling on two intermediate state appellate cases holding that while the custodial parent undoubtedly has the right to make ultimate decisions concerning the child's religious upbringing, a court will not enjoin the noncustodial parent from discussing religion with the child or involving the child in his or her religious activities in the absence of a showing that the child will be thereby harmed. . . .
Nothing that either Banning or the School Board has done, however, impairs Newdow's right to instruct his daughter in his religious views. Instead, Newdow . . . wishes to forestall his daughter's exposure to religious ideas that her mother, who wields a form of veto power, endorses, and to use his parental status to challenge the influences to which his daughter may be exposed in school when he and Banning disagree. The California cases simply do not stand for the proposition that Newdow has a right to dictate to others what they may and may not say to his child respecting religion. . .
In our view, it is improper for the federal courts to entertain a claim by a plaintiff whose standing to sue is founded on family law rights that are in dispute when prosecution of the lawsuit may have an adverse effect on the person who is the source of the plaintiff's claimed standing. When hard questions of domestic relations are
sure to affect the outcome, the prudent course is for the federal court to stay its hand rather than reach out to resolve a weighty question of federal constitutional law. There is a vast difference between Newdow's right to communicate with his child - which both California law and the First Amendment recognize - and his claimed right to shield his daughter from influences to which she is exposed in school despite the terms of the custody order. We conclude that, having been deprived under California law of the right to sue as next friend, Newdow lacks prudential standing to bring this suit in federal court."
UPDATE:
Eugene Volokh has the law professor's view of the outcome:
"Great! One less case that I have to try to edit down to a manageable size for the textbook supplement that I have due in a few weeks."
Professor Yin posts on the disparity in salary between law firms and the academic world. Unfortunately for me, lower-level in-house counsel don't fare as well as either of them. And prosecutors? Puh-leaze. I would go back to it in a heartbeat, but I can't afford it.
Thursday, June 10, 2004
An in-depth look at the concept of individual rights over at the Volokh Conspiracy. It's worth a read if you haven't studied the subject - I can't tell you how many otherwise educated people have tried to claim the right to happiness is secured by the Constitution.
Wednesday, June 09, 2004
A Ciudad Juarez jail offers violent inmates aromatherapy.
Somebody should tell them it might not work.
Somebody should tell them it might not work.
The Court also addressed the issue of corporal punishment:
STATE V. MAGNESON
THE ISSUE:
Was the defendant merely punishing his 9-year-old son, or was it criminal child endangerment?
THE FACTS:
"The counts resulted from two incidents at a Des Moines hospital where Magneson was visiting a friend. He became unhappy when J.M. wished to visit one of his own friends who apparently was also there. The first incident occurred outside the surgical intensive care unit where Magneson became furious with J.M. and yelled at him to “sit the fuck down and stay the fuck there.” Magneson grabbed the crying child by his arms and three times forcefully pushed him down to the floor. J.M. kept getting up and called out, “No, Dad, stop. You always hit me.” The third time J.M. got up Magneson pushed him into the wall and said, “We’re going to leave and I’m going to beat your ass.” J.M. was very scared and upset and, according to the State’s witnesses, the confrontation left red marks on J.M.’s biceps.
The second incident occurred after Magneson did start to leave the hospital. Magneson shoved a nurse aside, grabbed J.M.’s arm and “whipped” him into a wooden guardrail using even more force than he had used in the first incident. The force caused J.M. to hit the side of his head on a rail, fall to the floor, and curl “up in a fetal position,” crying. As this happened J.M. again protested, “Quit hitting me, you always hit me.” Magneson again denied he was hitting him and warned him about what would happen when they got to the car."
THE RULING
"Iowa law “recognizes parents have a right to inflict corporal punishment on their child, but that right is restricted by moderation and reasonableness.” State v. Arnold, 543 N.W.2d 600, 603 (Iowa 1996); see also Hildreth v. Iowa Dep’t of Human Servs., 550 N.W.2d 157, 159 (Iowa 1996). Corrective discipline “must be for the purpose of behavior modification rather than to satisfy the passions of an enraged parent.” Arnold, 543 N.W.2d at 603. Whether a parent’s conduct goes beyond reasonable correction depends on whether “the amount of force used or the means employed by the parent rendered such punishment abusive rather than corrective in character.” Id. A determination of reasonableness varies with a child’s age, physical condition, and the nature of the child’s misconduct. Id. The evidence here, taken in the light most consistent with the verdict, justifies a jury finding that the punishment inflicted by Magneson was unreasonable, was a reaction to his own passions and anger, and was not a reasonable attempt to modify J.M.’s behavior."
STATE V. MAGNESON
THE ISSUE:
Was the defendant merely punishing his 9-year-old son, or was it criminal child endangerment?
THE FACTS:
"The counts resulted from two incidents at a Des Moines hospital where Magneson was visiting a friend. He became unhappy when J.M. wished to visit one of his own friends who apparently was also there. The first incident occurred outside the surgical intensive care unit where Magneson became furious with J.M. and yelled at him to “sit the fuck down and stay the fuck there.” Magneson grabbed the crying child by his arms and three times forcefully pushed him down to the floor. J.M. kept getting up and called out, “No, Dad, stop. You always hit me.” The third time J.M. got up Magneson pushed him into the wall and said, “We’re going to leave and I’m going to beat your ass.” J.M. was very scared and upset and, according to the State’s witnesses, the confrontation left red marks on J.M.’s biceps.
The second incident occurred after Magneson did start to leave the hospital. Magneson shoved a nurse aside, grabbed J.M.’s arm and “whipped” him into a wooden guardrail using even more force than he had used in the first incident. The force caused J.M. to hit the side of his head on a rail, fall to the floor, and curl “up in a fetal position,” crying. As this happened J.M. again protested, “Quit hitting me, you always hit me.” Magneson again denied he was hitting him and warned him about what would happen when they got to the car."
THE RULING
"Iowa law “recognizes parents have a right to inflict corporal punishment on their child, but that right is restricted by moderation and reasonableness.” State v. Arnold, 543 N.W.2d 600, 603 (Iowa 1996); see also Hildreth v. Iowa Dep’t of Human Servs., 550 N.W.2d 157, 159 (Iowa 1996). Corrective discipline “must be for the purpose of behavior modification rather than to satisfy the passions of an enraged parent.” Arnold, 543 N.W.2d at 603. Whether a parent’s conduct goes beyond reasonable correction depends on whether “the amount of force used or the means employed by the parent rendered such punishment abusive rather than corrective in character.” Id. A determination of reasonableness varies with a child’s age, physical condition, and the nature of the child’s misconduct. Id. The evidence here, taken in the light most consistent with the verdict, justifies a jury finding that the punishment inflicted by Magneson was unreasonable, was a reaction to his own passions and anger, and was not a reasonable attempt to modify J.M.’s behavior."
The new decisions of the Iowa Court of Appeals are up.
In skimming them this morning, a case involving a sentencing issue caught my eye, possibly because the judge doing the sentencing, Mike Moon, practiced in Marshalltown where I used to prosecute. He’s an excellent judge, but in this case didn’t make enough of a record regarding his reasons for sending the defendant to prison, according to the Court of Appeals.
STATE V. JOY - full decision here.
THE FACTS
Brienne Joy had been drinking cognac and beer in the Tama casino when she thought it would be fun to go for a drive with her two-year-old daughter in the snow and ice. She lost control of her car while going around a curve, and the car left the roadway and struck a telephone pole. Tyra was thrown from her car seat and suffered a fractured skull and a collapsed lung. She was airlifted to the hospital, placed on a ventilator, and remained in intensive care for over a week. A blood test at the time of the accident showed Joy had a .109 alcohol concentration. She was charged with child endangerment resulting in serious injury (Count I), child endangerment resulting in bodily injury (Count II), operating while intoxicated (OWI) first offense (Count III), serious injury by vehicle (Count IV), and driving while barred
(Count V).
THE PLEA DEAL
Joy entered into a plea agreement with the State wherein she would enter guilty pleas to the child endangerment resulting in bodily injury, the OWI first offense, and the serious injury by vehicle charge. The State agreed to drop the remaining charges, and to recommend probation rather than jail, with any sentences on the three counts to run concurrently. The state was to recommend placement in a residential correction facility. (Incidentally, these were the recommendations of the pre-sentence investigation (PSI) made by the department of corrections, so it is possible that the agreement was simply to concur with the recommendations in the PSI. It’s a common enough plea proposal, as the Court generally goes along with the PSI anyway). Joy entered her guilty pleas pursuant to the plea agreement, and the court accepted her pleas.
THE SENTENCING
The sentencing court, however, did not agree with the recommendations by the State and in the PSI report. (NOTE: The Court is not bound by any recommendations made by the State as part of a plea deal. Pursuant to Iowa Rule of Criminal Procedure 2.10 (3) and (4) the Judge is supposed to indicate to the defendant at the time of the plea whether the Court will agree to be bound by the plea agreement or not, and afford the defendant an opportunity to withdraw the plea or decide to take their chances). Judge Moon said:
"Miss Joy, one of the things that you have the unfortunate or dubious distinction of running into today is a judge who has absolutely no tolerance for people who endanger the lives of their children. I absolutely abhor it. There is no excuse for it. I don’t care what your problems are, you do not endanger the lives of children. They have no choice. They have absolutely no choice in the matter. So, I’m not going to put you on probation. I’m going to send you to prison. I’m going to tell you that right now. You’re going today."
The defendant then appealed the sentence based on the allegation that Judge Moon didn’t take into account any of the factors required by Iowa law other than the nature of the crime she committed. The Court of Appeals examined what Iowa law requires be considered in sentencing a defendant:
"When a sentence is not mandatory, the district court must exercise its discretion in determining what sentence to impose. The district court must demonstrate its exercise of discretion by stating upon the record the reasons for the particular sentence imposed. The sentencing court, however, is generally not required to give its reasons for rejecting particular sentencing options. State v. Thomas, 547 N.W.2d 223, 225 (Iowa 1996) . . the sentencing court . . . should weigh and consider all pertinent matters in determining proper sentence, including the nature of the offense, the attending circumstances, defendant's age, character and propensities and chances of his reform. The courts owe a duty to the public as much as to defendant in determining a proper sentence. The punishment should fit both the crime and the individual."
The Court of Appeals found that Judge Moon had made no other record other than the paragraph listed above, and decided that wasn’t sufficient to show he’d taken into account Ms. Joy’s age, character, etc.
THE RULING
"Based on our review of the entire record, including the transcript of the sentencing hearing and the written sentencing order, we conclude the sentencing court relied solely on the nature of the offenses in making its sentencing determination. The above quoted statement from the sentencing hearing was the only reason offered by the court for the sentences imposed. This statement of reasons relies only on the nature of the offenses (i.e. that of endangering a child.) In the written order the court merely states that a suspended sentence with probation was not warranted based on the factors considered, and the reasons given, on the “verbatim record.” However, as set forth above, the “verbatim record” from the sentencing hearing shows only the consideration of one factor, the nature of the offenses. The written order does not demonstrate consideration of any of the other “minimal essential factors.” The nature of the offenses may of course be considered, and we do not suggest what appropriate sentences should be."
Note that last sentence. That’s a huge hint that Judge Moon can resentence Joy to prison if he likes, so long as he considers her age, character, propensity to crime, and so on. In the Iowa Courts Online website, it indicates she was born in 1980, which makes her 23. Other than the case at hand, the website indicates she’s pled guilty to the following:
FAILURE TO HAVE VALID LICENSE/PERMIT WHILE OPER. MOTOR VEH 1998
FAILURE TO HAVE VALID LICENSE/PERMIT WHILE OPER. MOTOR VEH. 1999
VIOLATION - FINANCIAL LIABILITY COVERAGE 1999
DRIVING WHILE LICENSE DENIED,SUSP,CANCELLED 1999
FAIL TO MAINTAIN SAFETY BELTS 1999
DRIVING WHILE LICENSE DENIED,SUSP,CANCELLED 1999
DRIVING WHILE LICENSE DENIED,SUSP,CANCELLED 2001
VIOLATION - FINANCIAL LIABILITY COVERAGE 2001
CRIMINAL MISCHIEF 5TH DEGREE (SMMS) 2002
DRIVING WHILE LICENSE DENIED,SUSP,CANCELLED 2002
CHILD ENDANGERMENT 2002
VIOLATION - FINANCIAL LIABILITY COVERAGE 2002
OPERATION W/O REGISTRATION 2002
FAILURE TO SECURE CHILD 2002
I’d think she may be facing a similar sentence when the case is remanded back to Judge Moon. The Magic 8 Ball says “As I see it, yes.”
In skimming them this morning, a case involving a sentencing issue caught my eye, possibly because the judge doing the sentencing, Mike Moon, practiced in Marshalltown where I used to prosecute. He’s an excellent judge, but in this case didn’t make enough of a record regarding his reasons for sending the defendant to prison, according to the Court of Appeals.
STATE V. JOY - full decision here.
THE FACTS
Brienne Joy had been drinking cognac and beer in the Tama casino when she thought it would be fun to go for a drive with her two-year-old daughter in the snow and ice. She lost control of her car while going around a curve, and the car left the roadway and struck a telephone pole. Tyra was thrown from her car seat and suffered a fractured skull and a collapsed lung. She was airlifted to the hospital, placed on a ventilator, and remained in intensive care for over a week. A blood test at the time of the accident showed Joy had a .109 alcohol concentration. She was charged with child endangerment resulting in serious injury (Count I), child endangerment resulting in bodily injury (Count II), operating while intoxicated (OWI) first offense (Count III), serious injury by vehicle (Count IV), and driving while barred
(Count V).
THE PLEA DEAL
Joy entered into a plea agreement with the State wherein she would enter guilty pleas to the child endangerment resulting in bodily injury, the OWI first offense, and the serious injury by vehicle charge. The State agreed to drop the remaining charges, and to recommend probation rather than jail, with any sentences on the three counts to run concurrently. The state was to recommend placement in a residential correction facility. (Incidentally, these were the recommendations of the pre-sentence investigation (PSI) made by the department of corrections, so it is possible that the agreement was simply to concur with the recommendations in the PSI. It’s a common enough plea proposal, as the Court generally goes along with the PSI anyway). Joy entered her guilty pleas pursuant to the plea agreement, and the court accepted her pleas.
THE SENTENCING
The sentencing court, however, did not agree with the recommendations by the State and in the PSI report. (NOTE: The Court is not bound by any recommendations made by the State as part of a plea deal. Pursuant to Iowa Rule of Criminal Procedure 2.10 (3) and (4) the Judge is supposed to indicate to the defendant at the time of the plea whether the Court will agree to be bound by the plea agreement or not, and afford the defendant an opportunity to withdraw the plea or decide to take their chances). Judge Moon said:
"Miss Joy, one of the things that you have the unfortunate or dubious distinction of running into today is a judge who has absolutely no tolerance for people who endanger the lives of their children. I absolutely abhor it. There is no excuse for it. I don’t care what your problems are, you do not endanger the lives of children. They have no choice. They have absolutely no choice in the matter. So, I’m not going to put you on probation. I’m going to send you to prison. I’m going to tell you that right now. You’re going today."
The defendant then appealed the sentence based on the allegation that Judge Moon didn’t take into account any of the factors required by Iowa law other than the nature of the crime she committed. The Court of Appeals examined what Iowa law requires be considered in sentencing a defendant:
"When a sentence is not mandatory, the district court must exercise its discretion in determining what sentence to impose. The district court must demonstrate its exercise of discretion by stating upon the record the reasons for the particular sentence imposed. The sentencing court, however, is generally not required to give its reasons for rejecting particular sentencing options. State v. Thomas, 547 N.W.2d 223, 225 (Iowa 1996) . . the sentencing court . . . should weigh and consider all pertinent matters in determining proper sentence, including the nature of the offense, the attending circumstances, defendant's age, character and propensities and chances of his reform. The courts owe a duty to the public as much as to defendant in determining a proper sentence. The punishment should fit both the crime and the individual."
The Court of Appeals found that Judge Moon had made no other record other than the paragraph listed above, and decided that wasn’t sufficient to show he’d taken into account Ms. Joy’s age, character, etc.
THE RULING
"Based on our review of the entire record, including the transcript of the sentencing hearing and the written sentencing order, we conclude the sentencing court relied solely on the nature of the offenses in making its sentencing determination. The above quoted statement from the sentencing hearing was the only reason offered by the court for the sentences imposed. This statement of reasons relies only on the nature of the offenses (i.e. that of endangering a child.) In the written order the court merely states that a suspended sentence with probation was not warranted based on the factors considered, and the reasons given, on the “verbatim record.” However, as set forth above, the “verbatim record” from the sentencing hearing shows only the consideration of one factor, the nature of the offenses. The written order does not demonstrate consideration of any of the other “minimal essential factors.” The nature of the offenses may of course be considered, and we do not suggest what appropriate sentences should be."
Note that last sentence. That’s a huge hint that Judge Moon can resentence Joy to prison if he likes, so long as he considers her age, character, propensity to crime, and so on. In the Iowa Courts Online website, it indicates she was born in 1980, which makes her 23. Other than the case at hand, the website indicates she’s pled guilty to the following:
FAILURE TO HAVE VALID LICENSE/PERMIT WHILE OPER. MOTOR VEH 1998
FAILURE TO HAVE VALID LICENSE/PERMIT WHILE OPER. MOTOR VEH. 1999
VIOLATION - FINANCIAL LIABILITY COVERAGE 1999
DRIVING WHILE LICENSE DENIED,SUSP,CANCELLED 1999
FAIL TO MAINTAIN SAFETY BELTS 1999
DRIVING WHILE LICENSE DENIED,SUSP,CANCELLED 1999
DRIVING WHILE LICENSE DENIED,SUSP,CANCELLED 2001
VIOLATION - FINANCIAL LIABILITY COVERAGE 2001
CRIMINAL MISCHIEF 5TH DEGREE (SMMS) 2002
DRIVING WHILE LICENSE DENIED,SUSP,CANCELLED 2002
CHILD ENDANGERMENT 2002
VIOLATION - FINANCIAL LIABILITY COVERAGE 2002
OPERATION W/O REGISTRATION 2002
FAILURE TO SECURE CHILD 2002
I’d think she may be facing a similar sentence when the case is remanded back to Judge Moon. The Magic 8 Ball says “As I see it, yes.”
Tuesday, June 08, 2004
There are multiple interesting posts on The Volokh Conspiracy regarding this 9th Circuit Opinion regarding statutory rape laws and the mentally handicapped. Basically, it was a criminal case in which a man was charged with statutory rape for having sexual intercourse with a woman whose mental age was somewhere in the 5-8 range. He sought to have his conviction overturned by arguing, along with many other things, that the recent Supreme Court rulings declaring anti-sodomy laws unconsitutional created a 14th Amendment right to consensual sex that would outweigh the statutory rape statute OR. REV. STAT. § 163.375, which read:
(1) A person who has sexual intercourse with
another person commits the crime of rape in the first
degree if:
. . .
(d) The victim is incapable of consent by reason
of mental defect, mental incapacitation or physical
helplessness.
OR. REV. STAT. § 163.305(3) indicated that “Mentally defective” means that a person suffers from a mental disease or defect that renders the person incapable of appraising the nature of the conduct of the person.
The majority found the argument unpersuasive:
"Anderson argued that the recent Supreme Court holding in Lawrence v. Texas, 123 S. Ct. 2472 (2003), established a new constitutional right that compelled us to remand this case to the district court for reconsideration of the statutory vagueness claim. We address Lawrence only so far as to state that it has no impact on Anderson’s vague-ness claim. The Lawrence Court held that the Due Process Clause of the Fourteenth Amendment protects the right of two individuals to engage in fully and mutually consensual private sexual conduct. The holding does not affect a state’s legiti-mate interest and indeed, duty, to interpose when consent is in doubt."
The dissent disagreed:
The first reason why section 163.305(3), as written and as read to the jury at Anderson’s trial, could implicate constitutionally protected conduct is that it is susceptible to a construction that JH will never be able legally to consent to sex. The jury could have easily interpreted the phrase “incapable of appraising the nature of the conduct” to mean that either JH is always capable of consenting to sex or she never is. This binary view of mentally retarded individuals generally and JH in particular might well be an unconstitutional imposition on their sexual liberty. Despite the lack of a consistent clinical definition of what constitutes a “valid” consent, see infra note 10, there is clear consensus among experts in the field of men-tal retardation that mentally retarded individuals experience sexual desire and can meaningfully consent to sex in some situa-tions. 9 The prosecution expert witnesses conceded as much at trial. Moreover, JH has evidently engaged in voluntary sexual intercourse on a number of occasions in a manner that offended neither her mother nor the state. Given the general clinical belief that mentally retarded individuals desire and can “ethically” consent to sex, as well as JH’s own desire and demonstrated capacity to understand and appreciate sexual contact, it could well be unconstitutional for Oregon law to hold that JH can never legally consent to sex. Section 163.305(3) is readily susceptible to this type of potentially unconstitutional application. . .
I am convinced that section 163.305(3) implicates constitutionally protected conduct for a different reason. Specifically, the statutory provision alternatively invites those applying the law to invoke their own sexual mores and override JH’s sexual choice when deciding whether JH is capable of consent in a particular instance. During the pre-trial hearing, the prosecutor first interpreted the statutory scheme in precisely this contextual manner. The prosecution’s initial attempt at interpreting the statute was to propose a rule that JH’s mother could provide consent on JH’s behalf. Realizing the problem with that interpretation, the prosecution suggested that JH’s consent would be legally valid in the con-text of a “boyfriend-girlfriend” relationship. Finally, the pros-ecution arrived at the following reading of the statute: “I guess, what we would argue is that she is incapable of consent under all circumstances. It’s just that in some circumstances we would not charge a crime and those were circumstances that were condoned by her mother, condoned by her in the sense of relationship and that gave her an individual right to life — life like the rest of us lead.” . . . That the state may not burden a particular sexual choice out of distaste or disagreement is the central holding of Lawrence. 123 S. Ct. at 2478 (“When sexuality finds overt expression in intimate conduct with another person . . . [t]he liberty protected by the Constitution allows homosexual persons the right to make this choice.”). Taking Anderson’s version of the facts as true (the jury having rejected the only other version of the facts available), JH’s sexual choice was clearly demon-strated and uncoerced.
The extensive postings on the Volokh Conspiracy here, here,and here, and Clayton Cramer's post here make for a fascinating debate on the issue.
I wonder if the psych experts would agree there is a mental "age" of consent as well as a physical one - in other words, is a person who is not physically incapable of having adult intercourse always presumed mentally capable of consenting to it under the correct circumstances? Or is there a certain mental age beyond which society should prohibit sex altogether, just as we do with children? Although it could be argued that the person being protected by the law have the constitutional right to override it by indicating consent in some affirmative manner, would society have to allow that? We don't let adults put pressure on a five-year-old child to "consent" to sex, should we allow the same pressures on a mentally five-year-old adult? Of course, because of the physical maturity of the subject, society would still have to allow a defense based on affirmative proof that accused was (reasonably??) unaware of the subject's incapability to consent. All in all, a very interesting issue.
UPDATE:
The American Bar Association Journal also has an article on the ramifications of the Lawrence case. Not as comprehensive as the Volokh stuff, though.
(1) A person who has sexual intercourse with
another person commits the crime of rape in the first
degree if:
. . .
(d) The victim is incapable of consent by reason
of mental defect, mental incapacitation or physical
helplessness.
OR. REV. STAT. § 163.305(3) indicated that “Mentally defective” means that a person suffers from a mental disease or defect that renders the person incapable of appraising the nature of the conduct of the person.
The majority found the argument unpersuasive:
"Anderson argued that the recent Supreme Court holding in Lawrence v. Texas, 123 S. Ct. 2472 (2003), established a new constitutional right that compelled us to remand this case to the district court for reconsideration of the statutory vagueness claim. We address Lawrence only so far as to state that it has no impact on Anderson’s vague-ness claim. The Lawrence Court held that the Due Process Clause of the Fourteenth Amendment protects the right of two individuals to engage in fully and mutually consensual private sexual conduct. The holding does not affect a state’s legiti-mate interest and indeed, duty, to interpose when consent is in doubt."
The dissent disagreed:
The first reason why section 163.305(3), as written and as read to the jury at Anderson’s trial, could implicate constitutionally protected conduct is that it is susceptible to a construction that JH will never be able legally to consent to sex. The jury could have easily interpreted the phrase “incapable of appraising the nature of the conduct” to mean that either JH is always capable of consenting to sex or she never is. This binary view of mentally retarded individuals generally and JH in particular might well be an unconstitutional imposition on their sexual liberty. Despite the lack of a consistent clinical definition of what constitutes a “valid” consent, see infra note 10, there is clear consensus among experts in the field of men-tal retardation that mentally retarded individuals experience sexual desire and can meaningfully consent to sex in some situa-tions. 9 The prosecution expert witnesses conceded as much at trial. Moreover, JH has evidently engaged in voluntary sexual intercourse on a number of occasions in a manner that offended neither her mother nor the state. Given the general clinical belief that mentally retarded individuals desire and can “ethically” consent to sex, as well as JH’s own desire and demonstrated capacity to understand and appreciate sexual contact, it could well be unconstitutional for Oregon law to hold that JH can never legally consent to sex. Section 163.305(3) is readily susceptible to this type of potentially unconstitutional application. . .
I am convinced that section 163.305(3) implicates constitutionally protected conduct for a different reason. Specifically, the statutory provision alternatively invites those applying the law to invoke their own sexual mores and override JH’s sexual choice when deciding whether JH is capable of consent in a particular instance. During the pre-trial hearing, the prosecutor first interpreted the statutory scheme in precisely this contextual manner. The prosecution’s initial attempt at interpreting the statute was to propose a rule that JH’s mother could provide consent on JH’s behalf. Realizing the problem with that interpretation, the prosecution suggested that JH’s consent would be legally valid in the con-text of a “boyfriend-girlfriend” relationship. Finally, the pros-ecution arrived at the following reading of the statute: “I guess, what we would argue is that she is incapable of consent under all circumstances. It’s just that in some circumstances we would not charge a crime and those were circumstances that were condoned by her mother, condoned by her in the sense of relationship and that gave her an individual right to life — life like the rest of us lead.” . . . That the state may not burden a particular sexual choice out of distaste or disagreement is the central holding of Lawrence. 123 S. Ct. at 2478 (“When sexuality finds overt expression in intimate conduct with another person . . . [t]he liberty protected by the Constitution allows homosexual persons the right to make this choice.”). Taking Anderson’s version of the facts as true (the jury having rejected the only other version of the facts available), JH’s sexual choice was clearly demon-strated and uncoerced.
The extensive postings on the Volokh Conspiracy here, here,and here, and Clayton Cramer's post here make for a fascinating debate on the issue.
I wonder if the psych experts would agree there is a mental "age" of consent as well as a physical one - in other words, is a person who is not physically incapable of having adult intercourse always presumed mentally capable of consenting to it under the correct circumstances? Or is there a certain mental age beyond which society should prohibit sex altogether, just as we do with children? Although it could be argued that the person being protected by the law have the constitutional right to override it by indicating consent in some affirmative manner, would society have to allow that? We don't let adults put pressure on a five-year-old child to "consent" to sex, should we allow the same pressures on a mentally five-year-old adult? Of course, because of the physical maturity of the subject, society would still have to allow a defense based on affirmative proof that accused was (reasonably??) unaware of the subject's incapability to consent. All in all, a very interesting issue.
UPDATE:
The American Bar Association Journal also has an article on the ramifications of the Lawrence case. Not as comprehensive as the Volokh stuff, though.
More extremes on religion and education: Having blogged on the 6th Circuit opinion yesterday regarding Rhea County Tennessee attempting to include religious instruction in its public school curriculum, I was interested in this story noted via Instapundit today:
I taught "Merchant of Venice" to seniors one year; in it there's a line where one character is insulting another, by saying something along the lines of "He damns the ears of all who hear him, by calling him 'fool.'" One of the kids asked me what that meant, so I explained that one of the lesser-known verses of the Book of Matthew has Jesus saying that anyone who calls another a fool will be damned. (I recited chapter and verse, though I can't remember it now.) I went on to talk about the very funny use Voltaire made of that in his essay "The Jesuit Berthier" (an angel tells a priest to stop giving his stupid, boring sermons, because instead of winning souls for God he's endangering the souls of all who hear him, because they all call him a fool), and explained also that this is why cartoony villians in movies developed the habit of using "Fool!" as their default insult; for people familiar with the Bible, the fact that the villian always says "Fool!" is just one more proof that this is an evil, evil dude.
"So anyway," I said to the class, "back in Shakespeare's day, when people were far more familiar with the Bible than they are now, instead of insulting someone by saying 'You are a fool,' you'd say 'You are a--well, I can't SAY what you are because then I'd go to hell.' That's what he's doing in the play."
Next day I get called into the principal's office; some parents were FURIOUS that I had told their kids that Jesus said anyone who says 'fool,' will go to Hell.
"But he did," I pointed out.
"It doesn't matter, Jennifer. You can't insult kids' religions."
"Well, the kid asked me what that line from the play meant! What was I supposed to do?"
"Just tell him you don't know."
Okay, there's a huge difference between forcing kids to ingest religious indoctrination during classroom time, and explaining the correct reference in a work of literature. The school system doesn't have to pretend that religion doesn't exist like some elephant in the corner.
UPDATE:
Scrappleface's take on the whole issue.
I taught "Merchant of Venice" to seniors one year; in it there's a line where one character is insulting another, by saying something along the lines of "He damns the ears of all who hear him, by calling him 'fool.'" One of the kids asked me what that meant, so I explained that one of the lesser-known verses of the Book of Matthew has Jesus saying that anyone who calls another a fool will be damned. (I recited chapter and verse, though I can't remember it now.) I went on to talk about the very funny use Voltaire made of that in his essay "The Jesuit Berthier" (an angel tells a priest to stop giving his stupid, boring sermons, because instead of winning souls for God he's endangering the souls of all who hear him, because they all call him a fool), and explained also that this is why cartoony villians in movies developed the habit of using "Fool!" as their default insult; for people familiar with the Bible, the fact that the villian always says "Fool!" is just one more proof that this is an evil, evil dude.
"So anyway," I said to the class, "back in Shakespeare's day, when people were far more familiar with the Bible than they are now, instead of insulting someone by saying 'You are a fool,' you'd say 'You are a--well, I can't SAY what you are because then I'd go to hell.' That's what he's doing in the play."
Next day I get called into the principal's office; some parents were FURIOUS that I had told their kids that Jesus said anyone who says 'fool,' will go to Hell.
"But he did," I pointed out.
"It doesn't matter, Jennifer. You can't insult kids' religions."
"Well, the kid asked me what that line from the play meant! What was I supposed to do?"
"Just tell him you don't know."
Okay, there's a huge difference between forcing kids to ingest religious indoctrination during classroom time, and explaining the correct reference in a work of literature. The school system doesn't have to pretend that religion doesn't exist like some elephant in the corner.
UPDATE:
Scrappleface's take on the whole issue.
State 29 posted this link to this Des Moines Register article about lowering the voting age. The premise seems to be that it would get high school kids more involved in the political process.
***************Soapbox Vent Alert*********************
My response: And that's a good thing? Voting is a responsibility, and if nothing else the whole 2000 election should have taught us it is something to be taken VERY seriously. I understand that many high school kids have well-reasoned opinions for their age. So do many grade school kids. Key concept: for their age. It takes a certain amount of maturity and life experience before one should be allowed to vote, to drive, to fight in a war, to sit on a death penalty jury. Simply being intelligent and/or wanting to participate is not enough. If you think I'm exaggerating with the grade school kids idea, look at this quote from the article:
"Germany is looking at allowing people to vote from the time they are infants, with parents helping until age 12."
How many constitutional issues can you spot in that sentence? What if the five-year-old voter wants someone different from Mommy? Can mommy be sued for pressuring the child? Could campaigns slip brainwashing political advertisements into Sesame Street? What about sending the entire under-5 population the latest $2 trinket in a massive ad campaign? Would that be legal? What happened to a secret ballot - have we violated Jr's constitutional rights? Speaking of ballots, would they now need to be understandable by a two-year-old in order to be legal? Could we keep the polls open past their bedtimes? What would Germany do when Barney won the chancellorship? Would "I Love You, You Love Me" become the new national anthem? Being it's Germany, would the average adult voter think that was actually a good idea, in order to make up for the mistakes of the past?
My own opinion: Pick an age. Eighteen, sixteen, whatever. Do a little scientific research and just choose one. Let it be the drinking age, voting age, driving age. One side of it, you are a legal child. Even if you're very, very mature. The other side, you are a legal adult. Even if you're very immature. Of course it will be arbitrary - deal with it. Any age cutoff will necessarily be arbitrary. But at least we won't have this silly graduated system that allows for the voting and soldiering to occur a full three years before the "kid" can pop a beer.
Then, while we're at it, stop babysitting the adults. (Are you listening, University of Iowa administration?) Stop allowing them to bring lawsuits based on "undue influence" or "pressure" by peers, bartenders, the fast-food industry, etc., absent evidence of fraud or a diagnosable mental defect. Allow them to hear the song "In Heaven There Is No Beer" without worrying about the corrupting influence on their morals.
Just my 2 cent's worth of a vent.
******************End of Soapbox**********************
***************Soapbox Vent Alert*********************
My response: And that's a good thing? Voting is a responsibility, and if nothing else the whole 2000 election should have taught us it is something to be taken VERY seriously. I understand that many high school kids have well-reasoned opinions for their age. So do many grade school kids. Key concept: for their age. It takes a certain amount of maturity and life experience before one should be allowed to vote, to drive, to fight in a war, to sit on a death penalty jury. Simply being intelligent and/or wanting to participate is not enough. If you think I'm exaggerating with the grade school kids idea, look at this quote from the article:
"Germany is looking at allowing people to vote from the time they are infants, with parents helping until age 12."
How many constitutional issues can you spot in that sentence? What if the five-year-old voter wants someone different from Mommy? Can mommy be sued for pressuring the child? Could campaigns slip brainwashing political advertisements into Sesame Street? What about sending the entire under-5 population the latest $2 trinket in a massive ad campaign? Would that be legal? What happened to a secret ballot - have we violated Jr's constitutional rights? Speaking of ballots, would they now need to be understandable by a two-year-old in order to be legal? Could we keep the polls open past their bedtimes? What would Germany do when Barney won the chancellorship? Would "I Love You, You Love Me" become the new national anthem? Being it's Germany, would the average adult voter think that was actually a good idea, in order to make up for the mistakes of the past?
My own opinion: Pick an age. Eighteen, sixteen, whatever. Do a little scientific research and just choose one. Let it be the drinking age, voting age, driving age. One side of it, you are a legal child. Even if you're very, very mature. The other side, you are a legal adult. Even if you're very immature. Of course it will be arbitrary - deal with it. Any age cutoff will necessarily be arbitrary. But at least we won't have this silly graduated system that allows for the voting and soldiering to occur a full three years before the "kid" can pop a beer.
Then, while we're at it, stop babysitting the adults. (Are you listening, University of Iowa administration?) Stop allowing them to bring lawsuits based on "undue influence" or "pressure" by peers, bartenders, the fast-food industry, etc., absent evidence of fraud or a diagnosable mental defect. Allow them to hear the song "In Heaven There Is No Beer" without worrying about the corrupting influence on their morals.
Just my 2 cent's worth of a vent.
******************End of Soapbox**********************
Monday, June 07, 2004
A real tribute from the Iowa Libertarian:
"I never voted for President Reagan. I was a registered Democrat at the time. God, was I a moron."
More Reagan memorial posts can be found at Tusk and Talon by Chad, Jeff and Don; TechCentralStation, Andrew Sullivan, Virginia Postrel, and James Lileks.
From Lilek's column:
“The people have spoken, the idiots,” I wrote in my journal after he was elected in 1980. I was living in a boarding house a block from the Valli, an English major at the U, a college paper columnist taking all the usual brave stances: Republicans are repressed hypocrites, Playboy insults women, etc. . . .
I am reminded of the thrill I got when I heard the words “Mr. Gorbachev, tear down this wall.” Because you can sum up Reagan’s legacy by polling any random high-schooler and reading that line.
“What wall?” they’d probably ask.
The wall, kid. You know: The Wall. The fortified gash. The thin lethal line that stood between tyranny and freedom. I mean, we lived in a time when there was a literal wall between those concepts, and we still didn’t get it."
I've nothing to add that hasn't been said better by others, so I'll refrain.
"I never voted for President Reagan. I was a registered Democrat at the time. God, was I a moron."
More Reagan memorial posts can be found at Tusk and Talon by Chad, Jeff and Don; TechCentralStation, Andrew Sullivan, Virginia Postrel, and James Lileks.
From Lilek's column:
“The people have spoken, the idiots,” I wrote in my journal after he was elected in 1980. I was living in a boarding house a block from the Valli, an English major at the U, a college paper columnist taking all the usual brave stances: Republicans are repressed hypocrites, Playboy insults women, etc. . . .
I am reminded of the thrill I got when I heard the words “Mr. Gorbachev, tear down this wall.” Because you can sum up Reagan’s legacy by polling any random high-schooler and reading that line.
“What wall?” they’d probably ask.
The wall, kid. You know: The Wall. The fortified gash. The thin lethal line that stood between tyranny and freedom. I mean, we lived in a time when there was a literal wall between those concepts, and we still didn’t get it."
I've nothing to add that hasn't been said better by others, so I'll refrain.
I'm a little late on this one, but there's a new Iowa blog called State 29. According to Tusk and Talon, this may be the new incarnation of Cedar Pundit.
The Rhea County Tennessee Public Relations Department is at it Again.
According to How Appealing, the same group of people that brought us the Scopes Monkey Trial, and last year voted to ban homosexuals, has just lost a suit on religious instruction - apparently that whole pesky separation-of-church-and-state thing really does prohibit religious instruction in the public school system. The opinion is here if you want to read the whole thing.
The facts: For several years the Board of Education allowed staff and students from Bryan College in Dayton, Tennessee to conduct a program known as the Bible Education Ministry in the county’s public elementary schools. Bryan College refers to itself as a Christian school, whose motto is “Christ Above All.” The BEM classes took place for thirty minutes, once a week, during the school day, in three county schools. The lesson plans included the following gems:
"[T]he objective of one lesson plan for second graders is to “Teach the children God’s commandments and that we should obey all of them.” A subsequent lesson plan expressed a teacher’s intention to “Teach them how God gives us the best and leads us where He wants us to go.” The lessons also seek to “teach the kids that God provides for us, even in the worst situations.” Moreover, in explaining “How I Plan to Help Students See the Truth,” one BEM teacher wrote, “Teach – ‘Read your Bible[,] pray everyday.’ ‘Jesus loves you.’ – (if acceptable)?” . . . In a lesson plan for first graders, dated November 7, 2000, the lesson objective was, “[To] reinforce how much God loves them [the students]; God wants to be their friend; You can be personal with God.” In a lesson plan for first graders, a BEM instructor planned to “Teach the children that God created everything and teach them which days He created certain things.” And in a lesson plan dated December 3, 2000, a BEM instructor stated, “[W]e will make sure that they know the true meaning of Christmas is. It was that God sent his son to the earth to be born as a baby; a baby who would [] one day die on the cross for our sins so that we can be saved. (We’ll make sure to tell them this in a way that is ok – so we don’t break any of the school rules).”
The plaintiffs, parents of two daughters in the school system who were required to attend the classes, sued as John Doe and Mary Roe. The county didn't like that, and appealed the order allowing them to hide their names.
The Court examined the standards for proceeding pseudonymously: "(1) whether the plaintiffs seeking anonymity are suing to challenge governmental activity; (2) whether prosecution of the suit will compel the plaintiffs to disclose information “of the utmost intimacy”; (3) whether the litigation compels plaintiffs to disclose an intention to violate the law, thereby risking criminal prosecution; and (4) whether the plaintiffs are children."
The Court noted the local pressures brought to bear on the plaintiffs:
"[I]n a letter to the editor of a local paper, one Nancy Rogers wrote: '[Y]ou are [] cowards because you won’t give us your name. You know the people in Rhea County would come up to your face and tell you what we think of you. I would love to come face to face with you because yes I would tell you what I thought of you and I would let my sons tell you too. You have hurt my sons and I will not let no one [sic] hurt one of my children. We might not know you but someone higher does [,] and yes you will answer to him.' . . . Indeed, in an article about the lawsuit, the principal of Rhea County High School stated that if he had known the person challenging the BEM, he 'would have tried to alert him . . . I’d have said: "Look do you want to cause your family trouble? This is a rural, conservative place, and very emotional about religion. Attack religion and crusades begin. But you need to follow your own conscience.”'"
The court found that the threats specific enough to warrant anonymity on the part of the plaintiffs.
That having been decided, it turned to the merits of the case. The Court examined the classes in light of the Lemon Test (Lemon v. Kurtzman, 403 U.S. 602, 612-13 (1971)), which gives three factors to be considered when a violation of the Establishment Clause is alleged: "(1) whether the government practice has a secular purpose; (2) whether the principal effect is one that either advances or inhibits religion; and (3) whether the practice fosters excessive government entanglement with religion." The classes could not violate any of the three requirements, or they would be found unconstitutional under the test.
Rhea County argued that the classes a secular purpose: "to teach character development, as required of all Tennessee public schools. . . value-driven themes, such as responsibility and courage, which . . . instill positive morals in students attending Rhea County schools."
The Court found that even if the classes filled that nominally secular purpose, they still existed to teach the Bible as religious truth, and that such statements cannot be described as having a secular purpose. It also found that in viewing the program in its specific context, an objective observer in the same position as the children (the target audience of the classes) "would conclude that it communicates a message of government endorsement of religion, generally, and of Christianity in particular." Thus violating the second prong of the Lemon test. As to the entanglement branch of the test, the Court pointed out that: "BEM takes place on school premises, during the school day, with the explicit sanction of the Board of Education. . . the program’s administration – which seems to have been left entirely in the hands of the students of Bryan College – creates a “grave potential for entanglement,” Comm. for Pub. Educ. & Religious Liberty v. Nyquist, 413 U.S. 756, 794 (1973), by delegating a governmental function to a religious institution." It found the classes unconstitutional under all three branches of the test, granting summary judgment to the plaintiffs.
What I find astonishing is the disconnect between the different areas of the country. Los Angeles County removes a microscopic cross from its county seal just in case someone might someday be offended (though leaving untouched The Goddess Pomona - the goddess of gardens and fruit trees according to Eugene Volokh's article on the history and symbolism of the seal). Yet this area of Tennessee wonders why teaching Christianity as part of the public school curriculum could cause a constitutional problem and takes an obvious constitutional violation up the appellate ladder.
According to How Appealing, the same group of people that brought us the Scopes Monkey Trial, and last year voted to ban homosexuals, has just lost a suit on religious instruction - apparently that whole pesky separation-of-church-and-state thing really does prohibit religious instruction in the public school system. The opinion is here if you want to read the whole thing.
The facts: For several years the Board of Education allowed staff and students from Bryan College in Dayton, Tennessee to conduct a program known as the Bible Education Ministry in the county’s public elementary schools. Bryan College refers to itself as a Christian school, whose motto is “Christ Above All.” The BEM classes took place for thirty minutes, once a week, during the school day, in three county schools. The lesson plans included the following gems:
"[T]he objective of one lesson plan for second graders is to “Teach the children God’s commandments and that we should obey all of them.” A subsequent lesson plan expressed a teacher’s intention to “Teach them how God gives us the best and leads us where He wants us to go.” The lessons also seek to “teach the kids that God provides for us, even in the worst situations.” Moreover, in explaining “How I Plan to Help Students See the Truth,” one BEM teacher wrote, “Teach – ‘Read your Bible[,] pray everyday.’ ‘Jesus loves you.’ – (if acceptable)?” . . . In a lesson plan for first graders, dated November 7, 2000, the lesson objective was, “[To] reinforce how much God loves them [the students]; God wants to be their friend; You can be personal with God.” In a lesson plan for first graders, a BEM instructor planned to “Teach the children that God created everything and teach them which days He created certain things.” And in a lesson plan dated December 3, 2000, a BEM instructor stated, “[W]e will make sure that they know the true meaning of Christmas is. It was that God sent his son to the earth to be born as a baby; a baby who would [] one day die on the cross for our sins so that we can be saved. (We’ll make sure to tell them this in a way that is ok – so we don’t break any of the school rules).”
The plaintiffs, parents of two daughters in the school system who were required to attend the classes, sued as John Doe and Mary Roe. The county didn't like that, and appealed the order allowing them to hide their names.
The Court examined the standards for proceeding pseudonymously: "(1) whether the plaintiffs seeking anonymity are suing to challenge governmental activity; (2) whether prosecution of the suit will compel the plaintiffs to disclose information “of the utmost intimacy”; (3) whether the litigation compels plaintiffs to disclose an intention to violate the law, thereby risking criminal prosecution; and (4) whether the plaintiffs are children."
The Court noted the local pressures brought to bear on the plaintiffs:
"[I]n a letter to the editor of a local paper, one Nancy Rogers wrote: '[Y]ou are [] cowards because you won’t give us your name. You know the people in Rhea County would come up to your face and tell you what we think of you. I would love to come face to face with you because yes I would tell you what I thought of you and I would let my sons tell you too. You have hurt my sons and I will not let no one [sic] hurt one of my children. We might not know you but someone higher does [,] and yes you will answer to him.' . . . Indeed, in an article about the lawsuit, the principal of Rhea County High School stated that if he had known the person challenging the BEM, he 'would have tried to alert him . . . I’d have said: "Look do you want to cause your family trouble? This is a rural, conservative place, and very emotional about religion. Attack religion and crusades begin. But you need to follow your own conscience.”'"
The court found that the threats specific enough to warrant anonymity on the part of the plaintiffs.
That having been decided, it turned to the merits of the case. The Court examined the classes in light of the Lemon Test (Lemon v. Kurtzman, 403 U.S. 602, 612-13 (1971)), which gives three factors to be considered when a violation of the Establishment Clause is alleged: "(1) whether the government practice has a secular purpose; (2) whether the principal effect is one that either advances or inhibits religion; and (3) whether the practice fosters excessive government entanglement with religion." The classes could not violate any of the three requirements, or they would be found unconstitutional under the test.
Rhea County argued that the classes a secular purpose: "to teach character development, as required of all Tennessee public schools. . . value-driven themes, such as responsibility and courage, which . . . instill positive morals in students attending Rhea County schools."
The Court found that even if the classes filled that nominally secular purpose, they still existed to teach the Bible as religious truth, and that such statements cannot be described as having a secular purpose. It also found that in viewing the program in its specific context, an objective observer in the same position as the children (the target audience of the classes) "would conclude that it communicates a message of government endorsement of religion, generally, and of Christianity in particular." Thus violating the second prong of the Lemon test. As to the entanglement branch of the test, the Court pointed out that: "BEM takes place on school premises, during the school day, with the explicit sanction of the Board of Education. . . the program’s administration – which seems to have been left entirely in the hands of the students of Bryan College – creates a “grave potential for entanglement,” Comm. for Pub. Educ. & Religious Liberty v. Nyquist, 413 U.S. 756, 794 (1973), by delegating a governmental function to a religious institution." It found the classes unconstitutional under all three branches of the test, granting summary judgment to the plaintiffs.
What I find astonishing is the disconnect between the different areas of the country. Los Angeles County removes a microscopic cross from its county seal just in case someone might someday be offended (though leaving untouched The Goddess Pomona - the goddess of gardens and fruit trees according to Eugene Volokh's article on the history and symbolism of the seal). Yet this area of Tennessee wonders why teaching Christianity as part of the public school curriculum could cause a constitutional problem and takes an obvious constitutional violation up the appellate ladder.
Meanwhile, the Press-Citizen logs in with these earth-shattering opinions: Learning good, mosquitos bad, voting good.
Noted this article on blawgs on How Appealing. My favorite quote is from Associate Justice William W. Bedsworth of the Fourth Appellate District Court in Santa Ana in A Criminal Waste of Space, a great little blawg that deals with the quirkier issues and the law (today's involved Famous Amos cookies and the penological system of Greenland):
"I write it to get the basic lunacy which is a large part of my psyche out of my system. Writing about seal penises and monkey smugglers and Kirk Kerkorian's divorce in this space bleeds off the silliness, so I don't feel the need to write opinions that say, 'Your sentence of 25 years to life is affirmed, but did you hear the one about the nun and the rabbi and the parrot?' "
"I write it to get the basic lunacy which is a large part of my psyche out of my system. Writing about seal penises and monkey smugglers and Kirk Kerkorian's divorce in this space bleeds off the silliness, so I don't feel the need to write opinions that say, 'Your sentence of 25 years to life is affirmed, but did you hear the one about the nun and the rabbi and the parrot?' "
Friday, June 04, 2004
An interesting piece over at Tech Central Station regarding the ability of health insurers to underwrite risks by charging different rates for insureds who are obese than those who are physically fit. Apparently it isn't done because the industry believes it is illegal. But maybe it isn't. Saw it on Instapundit.
The Des Moines Register has an editorial in favor of "The Day After Tomorrow." The premise? Because it "conjures debates" about global warming, the movie is important despite being another cheesy disaster flick.
Obviously exaggerated misinformation and bad science adds legitimacy to the global warming debate? What color is the sky in your world?
The Register rightly points out: "Global warming is pegged by some as a bunch of hot air - a creation of tree-hugging, environmentalists who want all of America to eat granola and ride bikes." Yep. And a demonstrably false, laughably overhyped movie funded by people who are associated with the global warming movement is supposed to undercut that opinion?
If a philosophical world view could be viewed as 'contagious' and adherents actively trying to 'infect' others by converting them, then when a mutation of the philosophy evolves that is demonstrably false or foolish the false hybrid can act as an innoculation by closing the mind of the subject against the original philosophy as well. I'm sure there is some technical psychological label for this - if anyone knows please post it in the comments. I call it the 'innoculation effect' for lack of a better term.
I find it more than a bit ironic that the environmental movement is actively promoting its own poison pill.
UPDATE: An interesting debate in the comments forces me to make the following admission: Although it's my position that the movie won't generate reasoned discussion regarding global warming, I must at least admit it will generate debate regarding whether or not it will generate discussion. Because we're having a discussion.
UPDATE UPDATE: For additional authority on extremist views sabotaging a cause, check out this column in the Boston Globe about the removal of a microscopic cross from the Los Angeles County Seal. The premise: "When secularists go after a tiny cross on a county seal or Christmas decorations at a firehouse, they lend substance to the 'religious persecution' complex -- and play right into the extremists' hands." Spotted on the Volokh Conspiracy.
(No, I'm not saying it proves my point. Just that lots and lots of people agree with me. So there. Nyah.)
Obviously exaggerated misinformation and bad science adds legitimacy to the global warming debate? What color is the sky in your world?
The Register rightly points out: "Global warming is pegged by some as a bunch of hot air - a creation of tree-hugging, environmentalists who want all of America to eat granola and ride bikes." Yep. And a demonstrably false, laughably overhyped movie funded by people who are associated with the global warming movement is supposed to undercut that opinion?
If a philosophical world view could be viewed as 'contagious' and adherents actively trying to 'infect' others by converting them, then when a mutation of the philosophy evolves that is demonstrably false or foolish the false hybrid can act as an innoculation by closing the mind of the subject against the original philosophy as well. I'm sure there is some technical psychological label for this - if anyone knows please post it in the comments. I call it the 'innoculation effect' for lack of a better term.
I find it more than a bit ironic that the environmental movement is actively promoting its own poison pill.
UPDATE: An interesting debate in the comments forces me to make the following admission: Although it's my position that the movie won't generate reasoned discussion regarding global warming, I must at least admit it will generate debate regarding whether or not it will generate discussion. Because we're having a discussion.
UPDATE UPDATE: For additional authority on extremist views sabotaging a cause, check out this column in the Boston Globe about the removal of a microscopic cross from the Los Angeles County Seal. The premise: "When secularists go after a tiny cross on a county seal or Christmas decorations at a firehouse, they lend substance to the 'religious persecution' complex -- and play right into the extremists' hands." Spotted on the Volokh Conspiracy.
(No, I'm not saying it proves my point. Just that lots and lots of people agree with me. So there. Nyah.)
Thursday, June 03, 2004
Meanwhile, Chad and Don over at Tusk and Talon take their recent Press-Citizen media blitz to heart, giving up the details about Chad's sordid past and Don's ability to satisfy women half his age. It involves shaved testicles and Harrison Ford. I don't think I should say much more.
Speaking of science, there's a critique of The Day After Tomorrow posted at the Volokh Conspiracy. Key quote:
"This movie is not a danger to the republic; it is attack of the killer tomatoes. I advise fellows on the right to relax and enjoy the fun. If you can't laugh at the end of the world, what can you laugh at?"
"This movie is not a danger to the republic; it is attack of the killer tomatoes. I advise fellows on the right to relax and enjoy the fun. If you can't laugh at the end of the world, what can you laugh at?"
Courtesy of Overlawyered.com - an autopsy performed on a mouse claimed by the plaintiffs to have been found in a bowl of vegetable soup at a Cracker Barrel store reveals that the mouse died of a skull fracture - making it highly unlikely he got into the soup accidentally. Plaintiffs have been arrested for fraud.
This reads like some mouse-Sopranos episode: who offed Mickey? How did he get into the bowl of soup with his little cement shoes?
And who in the Cracker Barrel corporate office had the nerve to come forward with the brilliant suggestion - "We need an autopsy on that mouse." Where do you find a mouse coroner anyway? Did Quincy do this kind of work?
This reads like some mouse-Sopranos episode: who offed Mickey? How did he get into the bowl of soup with his little cement shoes?
And who in the Cracker Barrel corporate office had the nerve to come forward with the brilliant suggestion - "We need an autopsy on that mouse." Where do you find a mouse coroner anyway? Did Quincy do this kind of work?
There's also a debate brewing in legal circles about the science of fingerprinting. This article in the Washington Post covers the issue, and is worth the trouble of free registration.
I recall learning about this in Michael Sak's "The Law, Litigation and Science" class back in my second year of law school. After reviewing basic scientific principles (correlation doesn't equal causality, results must be replicable, etc.), he pointed out: 1) There's actually no way to test the theory that all fingerprints must be distinct; 2) We rely on "points" of similarity - if a certain number of key characteristics are similar, then the powers-that-be declare the print to be a match. These things don't exactly jibe with the scientific principles.
I ran into this on a burglary case I had my first year out, where there were footprints being matched to the defendant's shoes. The DCI had found something like 9 points of similarity and were calling the shoes a match. Prior to depositions, I asked the agent what the standards were for matching - how many points did one need? I was told that there were no set standards, it would depend on how unique the characteristic is and the number of matches found, as well as other factors. That would have concerned me, had there not been sufficient corroborating evidence to convince me of the defendant's guilt, including a co-conspirator confession.
So what does one do with a partial print and eight points of similarity? Run the statistics on how likely the eight points are in that amount of a print? But fingerprint evidence is rarely put forth in terms of probability, like DNA evidence is. Maybe it should be.
I recall learning about this in Michael Sak's "The Law, Litigation and Science" class back in my second year of law school. After reviewing basic scientific principles (correlation doesn't equal causality, results must be replicable, etc.), he pointed out: 1) There's actually no way to test the theory that all fingerprints must be distinct; 2) We rely on "points" of similarity - if a certain number of key characteristics are similar, then the powers-that-be declare the print to be a match. These things don't exactly jibe with the scientific principles.
I ran into this on a burglary case I had my first year out, where there were footprints being matched to the defendant's shoes. The DCI had found something like 9 points of similarity and were calling the shoes a match. Prior to depositions, I asked the agent what the standards were for matching - how many points did one need? I was told that there were no set standards, it would depend on how unique the characteristic is and the number of matches found, as well as other factors. That would have concerned me, had there not been sufficient corroborating evidence to convince me of the defendant's guilt, including a co-conspirator confession.
So what does one do with a partial print and eight points of similarity? Run the statistics on how likely the eight points are in that amount of a print? But fingerprint evidence is rarely put forth in terms of probability, like DNA evidence is. Maybe it should be.
Thanks to How Appealing for reading and linking to my synopsis of the 7th Circuit opinion by Judge Evans. And for anyone who looks to keep up with legal news, you really should check out How Appealing on a regular basis. It's more comprehensive and current than anything else on the net.
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