Judge Rules Vermont's Legislature has Overreached ...Yet Again

The decision yesterday by U.S. District Judge Murtha in the case brought by Entergy against the State of Vermont is a clear victory for the plaintiff and one more rebuff of Vermont's Legislature for making laws that are unconstitutional. Vermont Attorney General Sorrell sits in an even darker shadow for apparently failing to provide proper legal guidance to the Legislature at the time these laws are considered.  Even to a layman the outcome of this case was obvious long before it was filed. The Commerce clause of the Constitution would prevail and Judge Murtha has ruled correctly.

Whether a Vermonter is for or against nuclear power generated in Vermont, one cannot fail to recognize that in this case and in prior cases dealing with election laws and prescription drug information, Vermont continues to step beyond the U.S. Constitution and has a losing record when challenged in Federal court. Let's hope that wisdom will prevail and that Vermont will not appeal this case to waste yet more money.

Vermonters deserve better from their Governor, their Legislature and their Attorney General. This and prior litigation at the Supreme Court has unnecessarily wasted millions of taxpayer dollars. More form the national media on the the Vermont Attorney General's court performances here from Dave Gram, a Vermont AP reporter, in the San Jose Mercury News.

Voters should pay heed to these events and elect people who have greater respect for the Constitution and who will resist their ideology-driven law-making.

Finally, kudos to those in the Vermont Senate who voted against these laws that have been found unconstitutional.

Tribe Believes that SOPA Violates the First Amendment

I haven't been following the ins and outs of the proposed SOPA legislation, but I hope to read this respected legal opinion when times are quieter. Tribe Legis Memo on SOPA 12-6-11 1

Blagovich Sentenced!

Bravo! Seems justice has been done.

from the Wall Street Journal (may be behind the paywall):

"A federal judge sentenced former Illinois Gov. Rod Blagojevich to 14 years in prison nearly three years after he was arrested and charged with a wide-ranging corruption spree that included trying to auction off President Barack Obama's former Senate seat.

Mr. Blagojevich, a onetime rising star in the Democratic party whose media-driven defense included stints on reality TV and a book tour, was convicted on 18 counts of corruption."

http://online.wsj.com/article/SB10001424052970203413304577084503226883644.html?mod=djemalertNEWS

July 8, 2011, Cheryl Hanna: Vermont likely to foot legal bill no matter who wins | Vermont Yankee Lawsuit: Commentary

An easy-to-read legal examination of the Vermont Legislature's passage of Act 47 in the last session which "gives Vermont the authority to bill back costs associated with litigation in state or federal courts that involve an entity holding a certificate of public good."

Professor Hanna concludes: "It is my humble yet considered judgment that not only is the law unenforceable, but it is also likely unconstitutional."

Sadly, the Legislature in recent years has saddled Vermont with substantial legal fees as the Attorney General continues to lose cases at the Supreme Court. Vermonters should be alarmed that the Legislature has a penchant for passing unconstitutional laws.

I fault Legislative leadership for this sorry state of affairs. Now, one of those leaders is Vermont's Governor. When will they ever learn?

A borderline case against the immigration law in Arizona - CSMonitor.com

A borderline case against the immigration law in Arizona - CSMonitor.com

TeamObama's court fight against Arizona's immigration status validity check law is obviously grounded in politics, not a legitimate and essential requirement to enforce existing federal laws. Stronger border security is favored by a vast majority of Americans and in recent polls nearly 70% support the Arizona law. Border security has been sadly neglected by TeamObama and catering to Hispanic voters is the obvious reason for the legal battle.

"...Arizona was also careful to anchor its statute in federal law, aiming to complement Washington’s efforts rather than work against them. No new requirements, for example, are imposed on aliens. (The Justice Department decided not to make a federal case out of concerns about possible racial profiling by Arizona police.)

The law, SB 1070, also does not preempt the federal role of defining the admission, authorization, or deportation of aliens. In fact, it builds on Supreme Court rulings that have long recognized the rights of states to discourage illegal immigration.

Rather than see the Arizona law as an obstacle to better enforcement, Obama must start to work better with the states as partners. As the often-quoted federal judge Learned Hand once wrote, “it would be unreasonable to suppose that [the federal government’s] purpose was to deny itself any help that the states may allow.”

More on the Supreme Court's Decision in CITIZENS UNITED v. FEDERAL ELECTION COMMISSION

As part of our body language when reacting to words being spoken by public speakers that we agree or disagree with, we often silently mouth words of support or dissent, shake our heads, applaud, boo, shout, etc.

Justice Samuel Alito was caught on camera appearing to mouth the words "that's not true" or "not true" when TeamObama castigated the Supreme Court's decision in CITIZENS UNITED v. FEDERAL ELECTION COMMISSION during the State of the Union address.

Here's what TeamObama said in the speech: ''With all due deference to the separation of powers, the court last week reversed a century of law that I believe will open the floodgates for special interests -- including foreign corporations -- to spend without limit in our elections.''

As I have stated before, a corporation, whether 'the press' or other legal entity should have substantially the same free speech rights under our Constitution as an individual because a corporation or an association is a 'person' under our law. Moreover, I believe these political contributions should be public information so that voters can know the source of funding for various political messages. Armed with that information voters can decide the value of those paid messages at the ballot box.

Some may not like the fact that corporations, groups or labor unions can spend money delivering their political messages, but our Constitution guarantees free speech, however it may be amplified or delivered.

The blog linked to above at The Economist has an interesting take on this:

"Obama claimed that last week's campaign-finance ruling by the Supreme Court "reversed a century of law".

That's a claim that is often bandied around. But it is not true, says Linda Greenhouse of the NYT:

"The law that Congress enacted in the populist days of the early 20th century prohibited direct corporate contributions to political campaigns. That law was not at issue in the Citizens United case, and is still on the books. Rather, the court struck down a more complicated statute that barred corporations and unions from spending money directly from their treasuries — as opposed to their political action committees — on television advertising to urge a vote for or against a federal candidate in the period immediately before the election. It is true, though, that the majority wrote so broadly about corporate free speech rights as to call into question other limitations as well — although not necessarily the existing ban on direct contributions."

Meanwhile, here's Bradley Smith on why he agrees with the court's decision:

"To truly appreciate the stakes in Citizens United, one must remember the government's legal position in the case. Implicit in its briefs but laid bare at oral argument, the government maintained that the Constitution allows the government to ban distribution of books over Amazon's Kindle; to prohibit a union from hiring a writer to author a book titled, "Why Working Americans Should Support the Obama Agenda"; and to prohibit Simon & Schuster from publishing, or Barnes & Noble from selling, a book containing even one line of advocacy for or against a candidate for public office. As David Barry would say, "I am not making this up.""

Response to an Email from a Friend

Our government exists on this basic premise: ".. in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defense, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity..."

Inherent in this ideal is the expectation that people will be reasonably free to conduct commerce, business and trade to enrich themselves in order to participate in and benefit from the framework of government created under the Constitution.

Certainly much has changed with respect to commerce and government in the intervening centuries, but one thing has not changed. That constant is the nature of Man.

While Man is capable of noble thoughts and deeds, our basic nature is inherently sinful, selfish, and greedy. Else why do we need laws to regulate and punish errant behavior and protect us from each other?  Laws are necessary to control the limits of greed and other destructive behaviors carried to extremes by some.
As long as we expect men and women to provide for their personal and family well-being and to create wages and wealth to be taxed for the 'general welfare and 'common defense,' the inherent traits of 'selfishness and greed' are a far more effective stimulus for individuals than any government decree or general prohibition.

I don't want my government prescribing how I should earn my living, regulating how much money I should earn, how much or how little wealth I can own or what business I can engage in. A framework of laws and sensible regulation for the common good, yes, but our Founders wisely recognized the inherent nature of man and intended that it flourish within a system of necessary  laws and common sense. This is the essence of freedom and an appeal to, but no guarantee of, nobler motives.

Yet because the interconnected systems of banking, finance and commerce have become so entwined and interconnected in this digital age, we are in uncharted territory. This calamitous complexity certainly could not have been envisioned by our Founders, perhaps not even by Mr. Friedman.

To avoid collapse, intervention by government is necessary, but we should recognize they are only human, too, and none of them have been down this road before. To some degree, they are winging it.

I'm not particularly an Obama fan, primarily because of his inexperience and understandable lack of wisdom. Perhaps he will mature in office. I am deeply concerned that 'team Obama' intends to implant an ideological agenda in our country disguised as an economic recovery plan and likely to spend ourselves into servitude to crushing debt and rampant inflation resulting in the country's rapid economic demise.

2008 VT 39

2008 VT 39 Vermont Supreme Court Rules on Aerial Surveillance as an Intrusion on Privacy

Justice Dooley argues that the Supreme Court's decision is flawed by its overly broad interpretation of law in a marijuana conviction (overturned). The case involved a low level helicopter flight (no warrant for the flight) that identified plots of marijuana grown by the defendant close to his home on private property adjacent to a national forest.

Dooley is right that this broad decision is not serving the interests of law enforcement nor anyone else. I was particularly struck by the quote from 'Professor LaFave' that Dooley uses:

"My disagreement with the majority lies in its assertion that it has written “narrowly” by refraining from ruling based on the altitude of the helicopter and by  relying instead upon the totality of the circumstances.  By relying on a multitude of factors, most of which are irrelevant to whether a search occurred here, and by refusing to assign any particular weight to any factor, the majority has painted with the broadest brush imaginable, far broader than any other court in the land.  Every factor the majority introduces into the analysis makes the grounds for its decision broader.  This is not narrow decision making.  Increasingly, we are using rationales in Article 11 cases that require the intervention of this Court before it can be determined whether law enforcement conduct was lawful, because no law-enforcement officer, citizen, or trial court judge could ever predict what we will ultimately decide.  Professor LaFave has explained the problem with an approach like the majority’s as follows:

  The basic premise is that Fourth Amendment doctrine, given force and effect by the exclusionary rule, is primarily intended to regulate the police in their day-to-day activities and thus ought to be expressed in terms which are readily applicable by the police in the context of the law enforcement activities in which they are necessarily engaged. A highly sophisticated set of rules, qualified by all sorts of ifs, ands and buts and requiring the drawing of subtle nuances and hairline distinctions,  may be the sort of heady stuff upon which the facile minds of lawyers and judges eagerly feed, but they may be literally impossible of application by the officer in the field.

   If the rules are impossible of application by the police, the result may be the sustaining of motions to suppress on Fourth Amendment grounds with some regularity, but this can hardly be taken as proof that the people are secure in their persons, houses, papers, and effects against unreasonable searches and seizures. Rather, that security can only be realized if the police are acting under a set of rules which, in most instances, make it possible to reach a correct determination beforehand as to whether an invasion of privacy is justified in the interest of law enforcement.  In short, we must resist the understandable temptation to be responsive to every relevant shading of every relevant variation of every relevant complexity lest we end up with a [F]fourth [A]mendment with all of the character and consistency of a Rorschach blot.

2 W. LaFave, Search and Seizure § 5.2(c), at 448-49 (2d ed. 1987) (footnotes and internal quotations omitted).  The rule announced by the majority today falls into precisely the trap Professor LaFave outlines.  No one, be it the trial courts, law-enforcement officers, or the citizens of this State will consistently be able “to reach a correct determination beforehand as to whether an invasion of privacy is justified” under similar circumstances.  Id.   I do not think we administer justice with such an approach, and we hardly guarantee to “the people” that they will be secure in “their persons, houses, papers, and effects against unreasonable searches and seizures.”  Id. (quotations omitted).

¶  64. I would reverse and remand, but on a much narrower rationale, fully consistent with the precedents from this Court and courts in other jurisdictions, thus giving better guidance to trial courts, ordinary citizens, and law enforcement.  Thus, although I concur that the helicopter observation violated defendant’s rights,  I cannot approve of the majority’s mode of constitutional analysis or of the remedy it imposes.

(Emphasis added by dju)

2008 VT 39

Spitzer Is Linked to Prostitution Ring - New York Times

Payback time for Governor Spitzer, the 'holier than thou' prosecutor who built a reputation on the backs of business and thr seemingly limitless prosecution of Wall Street firms. Let's watch and wait for his defenders to excuse this behavior.

Meanwhile, the Wall Street Journal editorial on March 11, 2008 seems to hit the nail on the head: Spitzer was an out-of-control bully.

And people elected him. PT Barnum got it right! Now his decision is when to resign. And the law's decision is whether to prosecute him.

"ALBANY - Gov. Eliot Spitzer, who gained national prominence relentlessly pursuing Wall Street wrongdoing, has been caught on a federal wiretap arranging to meet with a high-priced prostitute at a Washington hotel last month, according to a law enforcement official and a person briefed on the investigation."

Spitzer Is Linked to Prostitution Ring - New York Times

The Feminine Critique - New York Times

Why do I get the sense that this is more about providing full employment for academics and researchers than anything else. Do we really expect to change a man into a woman or vice versa? Humans are divided mostly according to gender and act according to millenia of conditioning. Right or wrong, that's the way life is. Our system of laws can guarantee equal opportunity, but not equal realities.

Use My Photo? Not Without Permission - New York Times

The Intricacies of Online Sharing of Photos

This scenario described by Cohen in the Times targets the growing issues associated with sharing information & photos on Web sites. I think the Creative Commons licensing scheme is a good idea and I use the "Attribution-Noncommercial-Share Alike" option for my photos on Flickr. A few months ago I had a request form a travel guide to use one of my photos and I agreed. The system works and seems fair to me as long as people understand that photographers have rights to their photos.

In this case the lawsuit is about the rights of a person in a photograph. They obviously have rights and people who know what they are doing will get a release from the subjects before using a photo or video including a real person.

Prominent Lawyer to Be Indicted - New York Times

This is very good news. These 'class action lawsuit' attorneys were apparently fraudulently rounding up and paying off people to act as plaintiffs in these frivolous lawsuits. They collected/extorted huge settlements from corporations which they sued and sucked money illegally out of our legal system. I'm disappointed only that its taken so long for our justice system to snag them.

Lawyers/shysters like these are the worst of their trade and should be dealt with harshly if/when proven guilty.