Good news for Constitutional conservatives such as myself today in two out of three noteworthy court decisions in three separate courts, at least in regards to the rights of we, the people.
Let’s start with the two good news items, both related to the Constitutional right to equal protection under the law, and then the not-so-good news item, the one out of Wisconsin, where a predictable partisan divide succeeded in removing rights from American citizens…
CA’s Proposition 8
In response to a rather absurd argument by opponents of equal protection under the law in regard to marriage rights, a federal judge in San Francisco ruled that the judge who found California’s Prop 8 to be unconstitutional did not need to recuse himself from the case simply because he was gay. Wouldn’t, by the same argument, a straight judge have been similarly biased in favor of the law? Of course. The Chief U.S. District Judge found as much, noting that finding otherwise would also require “recusal of minority judges in most, if not all, civil rights cases.”
Sponsors of Proposition 8, California’s 2008 ban on same sex marriage, argued that Walker should have been disqualified because he failed to disclose his 10-year relationship with a male partner. Attorney Charles Cooper alleged that Walker, who overturned the same sex marriage ban in January 2010, had a personal interest in the outcome of the case.
U.S. District Court Judge James Ware upheld Walker’s ruling that Proposition 8 violated the Constitution’s equal protection clause, noting there was no evidence that Walker should have recused himself from the Proposition 8 trial because he was in a same sex relationship.
The ruling was another win for constitutional conservatives such as Theodore Olsen, George W. Bush’s Solicitor General, who joined with Al Gore’s 2000 Presidential election attorney David Boise to argue a federal constitutional challenge to the state ballot initiative which, for the time being, has brought a halt to same-sex marriages in the Golden State.
Supporters of the ban on equal rights have appealed Walker’s original verdict, which is likely to be heard soon by the U.S. Supreme Court
Federal “Defense of Marriage Act” (DOMA)
Another big win for supporters of equal protection under the law was seen in a federal court in San Francisco today, as the federal Defense of Marriage Act (DOMA) was again found to be unconstitutional, this time in an unusual and broad verdict as part of a bankruptcy case.
The same-sex couple challenging the law had been married in the state of California prior to the passage of Prop 8, after a conservative majority on the state Supreme Court had found the state constitution did not allow discrimination against gay couples. When they recently needed to file for federal bankruptcy protection, the federal government argued that DOMA, which requires that same sex marriages are not to be recognized under federal law, blocked the married couple from their right to file jointly.
19 of 24 judges in the Central District court took the opportunity to sign on to the ruling that DOMA unconstitutionally denied equal protection under the law to the couple.
Two legally married California men who filed a Chapter 13 petition to restructure and repay their debts should be allowed to file jointly and should be afforded the same bankruptcy rights as any other legally married couple, held Judge Thomas Donovan.
Eighteen of his 24 colleagues signed on to his opinion, as did one recently retired judge who sits by assignment.
…
[Judge Catherine] Bauer said it’s not unusual for bankruptcy judges in the Central District to sign on to each other’s opinions. “It saves a lot of money for folks if they know these judges sign onto this view of the law,” she said.
But it is rare for so many judges to sign on to a single decision, said Samuel Bufford, a former Central District bankruptcy judge and now a scholar in residence at Penn State Law.
And it’s “highly unusual” for a bankruptcy court to declare any aspect of the law unconstitutional, Bufford added.
Another win for lovers of freedom, liberty, rights and the constitution.
The same cannot be said about what happened in Wisconsin today…
WI’s Anti-Collective Bargaining Law
Finally, the bad news, at least for those conservatives who don’t believe big government ought to be in the business of stripping rights from citizens.
“Acting with unusual speed,” as Milwaukee’s Journal Sentinel described today’s surprising turn of events, “the state Supreme Court on Tuesday reinstated Gov. Scott Walker’s plan to all but end collective bargaining for tens of thousands of public workers.”
On the very same day the court decided officially to accept the case, they also issued their verdict. It was a largely predictable one, with all four Right-leaning members on the court siding with Walker and the state GOP which passed the controversial law without the presence of any of the 14 Democrats in the state Senate. All three Left-leaning appointees on the bench joined in the minority dissent.
“Tuesday’ 68-page decision was a thicket of concurrences and dissents, reflecting the sharp divide the measure has created in the state itself,” writes Reuters.
The state Supremes were asked by Walker to decide the case after a lower court judge invalidated the law. She had found that that the legislature violated the state’s open meetings law requiring 24 hour notice before convening to discuss a law in committee. In fact, the committee discussed the law with less than two hours public notice after they’d hastily moved provisions stripping collective bargaining rights of most public unions from a state budget bill (which requires a two-thirds majority to pass) into a stand alone bill that could be passed with a simple majority.
The lawmakers’ attempt to take rights away from citizens in the legislation had led to massive protests at the state capital in Madison earlier this year and led Democratic Senators to flee the state in order to deny the Republicans of the quorum needed to vote on a budget bill.
The basis for the court’s split decision was somewhat remarkable, as they found that the open meetings law does not actually apply to the state legislature!
…
The court concluded that [Dane County Circuit Judge Maryann] Sumi exceeded her jurisdiction, “invaded” the Legislature’s constitutional powers and erred in halting the publication and implementation of the collective bargaining law.
The court added that its role is limited to determining whether the Legislature employed a “constitutionally violative process in the enactment of the act. We conclude that the Legislature did not violate the Wisconsin Constitution by the process it used.”
Making the decision even more remarkable, the paper added, until today, “the court had not officially said whether it would even accept the case.” But the state legislator had informed the court that, short of a ruling today, they planned to move the union-stripping measures into a different piece of legislation which they vowed to take up this evening.
Of course, Justice David Prosser, a former colleague of Walker’s, added what appeared to be partisan heat to the decision by including his own concurrence with the majority. Prosser, in one breath during his recent election campaign, promised fealty to the Governor and his legislative agenda. In all the other campaign breaths, the hard right Partisan, somewhat laughably, claimed to be a judicial independent.
Prosser’s concurrence did little to underscore his lack of partisanship.
“David Prosser, whose recent reelection to the state’s high court had been hotly contested by opponents of the union measure,” reports Reuters, “wrote in his eight-page concurrence that GOP legislators had good reason to rush things they way they did, given the ugly mood of protesters at the Capitol.”
“They inappropriately use this court’s original jurisdiction, make their own findings of fact, mischaracterize the parties’ arguments, misinterpret statutes, minimize (if not eliminate) Wisconsin’s constitutional guarantees, and misstate case law, appearing to silently overrule case law dating back to at least 1891,” the three said.
“It is long on rhetoric and long on story-telling that appears to have a partisan slant,” Chief Justice Shirley S. Abrahamson wrote of Justice Prosser’s opinion, as noted by the New York Times. “This kind of order seems to open the court unnecessarily to the charge that the majority has reached a pre-determined conclusion not based on the facts and the law, which undermines the majority’s ultimate decision,” she wrote.
Though the law will take affect immediately, it is likely to be challenged in court again for different reasons.
Nonetheless, Firedoglake’s David Dayen spared no ire for the court’s decision today, which he described as “a total abdication by the branch designed to settle disputes of this nature.”
“What we have here is a court saying ‘If the Legislature does it, then it’s not illegal,’ he wrote, before concluding in despair:
Certainly this could add fuel to the [upcoming recall elections of 6 Republican and 3 Democratic state Senators]. But public employees have lost most of their collective bargaining rights, and unions will wither in the state as a result. Scott Walker may lose a few battles, but he’s won the war.
As readers of The BRAD BLOG likely know, we covered the dubious results and subsequent disastrous “recount” of the incredibly close April 5th state Supreme Court election between Prosser and Asst. Attorney General JoAnne Kloppenburg in tremendous detail over the past several months, even as the “cascade of widespread irregularities” and failures of the state’s e-voting system were largely ignored by the entirety of the mainstream media.
Kloppenburg conceded the race on May 31, despite thousands of votes found to have been originally mis-tallied, far more discovered in “wide open” or ripped, unsealed, duct-taped and otherwise defective ballot bags and poll tapes after a “recount” where hundreds of official, on-the-record objections and evidentiary exhibits were never reviewed by the state election authority before they certified the results of the contest as “correct”.
The victory for the incumbent Prosser to a new 10-year term assured the 4 to 3 balance in favor of the Republican agenda in Wisconsin on the state’s Supreme Court, even when that agenda includes the legislative removal of rights from citizens — the same thing that Republicans pretend to be against when it comes to things like the federal “Patient Protection and Affordable Care Act” passed last year by the U.S. Congress and signed into law by President Obama.
CORRECTION: We had originally referred to “Republican-appointed” and “Democratic-appointed” justices on the WI Supreme Court when, in fact, they are actually elected rather than appointed — as we know all too well, but managed to get it wrong in the above anyway.
In general there has been no jury verdict presented to any court for entry of a court judgment accepting the jury verdict.
These cases (CA, WI) are judicial decisions, judgments of law by judges. A jury verdict deals with the facts, a court judgment of this type deals with the law.
IMO the greater impact of the two cases is the labor case judgment in WI, because it enters into the stream of a greater national trend.
That trend indicates the demise of the environment, the demise of labor, the demise of green employment, and in general a large unemployment figure as the norm.
We are seeing too many unnatural things becoming the norm, which does not bode well for the general populace.
Hello Brad,
All I can say is it’s great to be a Republican. IOKIYAR! All the sleaze all the time. The Democrats are doing their best to out sleaze them but the Republicans are World and Universal Champions. They have retired the titles.
It’s a good thing Repugs are so adamantly opposed to judicial activism.
The word “Justice” is inappropriately affixed to the name “David Prosser” — a man who admitted that he had participated in the felonious misuse of state resources and employees for partisan gain when he served as the speaker of the WI Assembly.
While his second ten-year term begins in August 2011, he is also subject to recall beginning in August 2012.
Whether recall will be an effective remedy in a jurisdiction which relies on oft-failed and easily manipulated opt scan systems remains to be seen.
There is another option available in the face of this all out assault on their fundamental right of collective bargaining — a general strike!
Shut it down!
Ernie,
Exactly.
General strike!!! I’ve been listening to ‘Sly in the Morning’ on 1670 WTDY and Sly has been terrific but today he disappointed me when a caller wanted to discuss the irregularities surrounding the recount and he pretty much shut her down. He also said it was too late for a general strike. I get the impression that he will only go so far and he’s just another mainstream media mouthpiece.
Yes, until we all become like Egyptians it ain’t happenin’.
Just want to comment on my own comment.
No one should ever be allowed to get away with using the term “judicial activism” in an argument It’s horseshit. More than being another one of those it’s-okay-if-your’e-a-Republican things(which it is), the phrase just doesn’t mean anything. ALL decisions from the bench are judicial activism. Judges are making choices based on their interpretations, values, beliefs, biases. That’s the way it is. To pretend there is some absolute, correct, universally valid, consistent ruling to be had based on some pure universally agreed upon past reality is disingenuous. The judges are their precisely to give their interpretations. That’s what they do. That’s why it’s important who gets the gig. Why electing them fairly should matter.
So if anybody ever tries to make a charge against some liberal judge interpreting something in a liberal way to prove a point, just point them to this absurd decision and say, “Bullshit, it’s ALL judicial activism.”
Several members of the House, both republican and democrat, including Conyers, Kuchinich, and Paul, sued President Obama in the Federal District Court in the District of Columbia.
They are asking for injunctive relief as well as declarative relief, arguing that the Libya war is illegal.
Hey the egyptians are still run by their military! I do not understand what a strike is for? If they try to make you union illegal and you do not strike that is pretty much game over right? I mean what circumstances DO warrant a strike if not this?
Jon5,
Egypt is following the Wisconsin Walker model. 😉
“All three Democratic appointees on the bench joined in the minority dissent.”
Small point: the Wisconsin Supreme Court justices are elected, not appointed, and are supposedly non-partisan as opposed to directly party-related. Of course, with Prosser’s election, that is no longer true based on what I have seen these past two months.
Shelley – Thanks! Boy, you’d think I’d not have screwed up *that* one, of all things! 🙂 Have corrected above. Thanks for pointing out my error!
So now we know polite doesn’t work. Those of us that are paying attention know protests are taking place all over the world. Go Spain!! They aren’t as polite as we were in Madison. Once we start to feel the real pain of this bill and further tanking of the economy, more people who once supported Walker will join us and then we wont’ be so polite. This was a beta test and it failed. Next time we up the ante. In the meantime, we recall!