Archive for May 2006

There He Stands

May 31, 2006

As an outcast. Tom Parker is running against Drayton Nabers for Chief Justice. Yet today at a news conference Associate Justice Mike Bolin said:

While Tom Parker’s tenure has been marked by divisiveness, an activist judicial philosophy and an inability to do his job, Chief Justice Nabers is a hard worker and strong conservative leader who runs the court fairly, effectively and with integrity.

I do not have to tell you how remarkable it is for a sitting justice – one not involved in any election this year – to so strongly endorse a judicial candidate. Justice Bolin explains:

“I am not a press conference happy jurist,” Bolin said, but he said the race for chief justice is too important to stay silent.

As for Mini-Moore’s call to ignore the U.S. Supreme Court:

“I wouldn’t let someone like the San Francisco mayor ignore the rule of law and pick and choose which laws to follow, and I’m not willing to let Tom Parker do it either,” Bolin said.

Mini-Moore says he believes in the rule of law, but he thinks

the rule of law is the Constitution.

No doubt it is. The question, though, is who gets to decide what it means. When is a search unreasonable? Or a punishment cruel and unusual? What is due process? No two people will provide the same answers to these questions. Every court that considers them will come to a different conclusion. Hence, someone has to have the final word. That word may not be correct, but it is essential if we want coherent laws.

As evidence, I again ask you to compare Mini-Moore’s jurisprudence:

a judge takes an oath to support the constitution — not to automatically follow activist justices who believe their own devolving standards of decency trump the text of the constitution. Thus, faithful adherence to the judicial oath requires resistance to such activism

To Martin Luther’s theology:

“Unless I am convicted by Scripture and plain reason—I do not accept the authority of popes and councils, for they have contradicted each other—my conscience is captive to the Word of God. I cannot and will not recant anything, for to go against conscience is neither right nor safe.”

I see no difference between the two theories. Thus, applying Mini-Moore’s would cause the same problem as does the application of Luther’s: Schism.

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Unintended Consequences

May 31, 2006

The Decatur Daily asks today whether Alabama’s new anti-gay people amendment will unintentionally undermine domestic violence prosecutions. That was the result when Ohio decided to write homophobia into its constitution. In this decision, an Ohio Appellate Court held that the amendment prohibited prosecuting non-married people for domestic violence.

Ohio’s condemnatory Amendment states:

Only a union between one man and one woman may be a marriage valid in or recognized by this state and its political subdivisions. This state and its political subdivisions shall not create or recognize a legal status for relationships of unmarried individuals that intends to approximate the design, qualities, significance or effect of marriage

The Domestic Violence statute protected anyone “living as a spouse.” The statute defined “person living as a spouse” as:

a person who is living or has lived with the offender in a common law marital relationship, who otherwise is cohabiting with the offender, or who otherwise has cohabited with the offender within five years prior to the date of the alleged commission of the act in question.

The court held that this expansive definition created a “legal status for relationships of unmarried individuals that intends to approximate the design, qualities, significance or effect of marriage.” The defendant and the victim were not legally married; they were quasi-spouses. The victim in the case was protected soley by virtue of being a quasi-spouse. Because the amendment prohibited treating quasi-spouses like spouses, the amendment prohibited the domestic violence prosecution.

Here is Alabama’s proposed gay-people-are-gross amendment:

No marriage license shall be issued in Alabama to parties of the same sex and that the state shall not recognize a marriage of parties of the same sex that occurred as a result of the law of any other jurisdiction

This ignorance is already codified at Section 30-1-19 of the Alabama Code:

(a)This section shall be known and may be cited as the “Alabama Marriage Protection Act.”

(b) Marriage is inherently a unique relationship between a man and a woman. As a matter of public policy, this state has a special interest in encouraging, supporting, and protecting the unique relationship in order to promote, among other goals, the stability and welfare of society and its children. A marriage contracted between individuals of the same sex is invalid in this state.

(c) Marriage is a sacred covenant, solemnized between a man and a woman, which, when the legal capacity and consent of both parties is present, establishes their relationship as husband and wife, and which is recognized by the state as a civil contract.

(d) No marriage license shall be issued in the State of Alabama to parties of the same sex.

(e) The State of Alabama shall not recognize as valid any marriage of parties of the same sex that occurred or was alleged to have occurred as a result of the law of any jurisdiction regardless of whether a marriage license was issued.

You can already see that Alabama’s hostility towards gay people will not affect our domestic violence laws. The key to the Ohio decision was the prohibition of any legal status for quasi-marriages. Because the domestic violence statute protected quasi-marriages, it violated the amendment. Alabama, to its credit, does not go so far. All we prohibit is gay marriage itself. There is no ban on creating legal relationships similar to marriage. Hence, it does not matter whether or not Alabama’s domestic violence law grants quasi-marital status to non-married people.

No, the only result of our soon to be enacted amendment is the intended one: Letting gay people know we do not want them around. The sponsor of the Amendment, Sen. Hinton Mitchem, D-Albertville, puts it best:

“I do not wear my religion on my sleeve,” Mitchem said. “I [introduced the amendment] after a trip to San Francisco where I saw a black man and a white woman two men on television in a public place kissing deeply. I do not think it is appropriate for children to grow up in a home where they see that.”

Right. The law has no higher purpose than preventing public displays of affection.

Objection, Your Honor, Relevance?

May 31, 2006

I almost wholeheartedly agree with this statement by the Montgomery Advertiser:

Voters in the Democratic [Attorney General] primary have one of the all-time political no-brainers in this contest. John Tyson, veteran district attorney in Mobile County, is a proven prosecutor with proposals to fight crime that are tough in practice, not just in talk. Tyson, who served 14 years on the state Board of Education before becoming district attorney, would stand out in any field, but in this one his fitness for the office outshines that of his opponent by light-years.

Tyson’s opponent in the primary, Larry Darby, once served as a spokesman for the state’s atheist organization. He has since moved to the most distant fringes of political thought — denying the Holocaust occurred, calling for the declaration of martial law to address immigration issues, blasting the federal government as a tool to “advance the interests of the subversive state of Israel” and vowing to attack “subversive interests” such as Alabama newspapers owned by “foreign corporations” he says “appear complicit in treason against Alabama.”

Darby does not merit the serious consideration of any voter.

I agree with the conclusion, but that Darby is an atheist is irrelevant to it. He believes there is no god. O.K., how will that change the way he performs his duties as A.G.? What does his atheism tell voters about his legal abilities? I’ve said it before, and I’ll say it again, a candidate’s choice of a deity is as relevant to their job as my choice in sports teams is relevant to mine. There was no reason to include Darby’s theology in this summary of his lunacy. It is neither a reason to vote for Darby, nor a reason to vote against Darby. Including his atheism in this list was error, harmless error because removing it does not change the result, but error nonetheless.

Tom Parker Hates Your Family

May 30, 2006

Have you seen the newest anti-Parker add? You can read about it, and see parts of it, here. Basically it says he hid donations made by trial lawyers to his 2004 campaign.

What bothers me is why the add says that is a bad thing. If they wanted to attack Mini-Moore for ignoring the reporting laws, fine. If the creators think concerns about vague and attenuated negative consequences for the economy should trump an individual’s right to their day in court, and the adds are evidence Mini-Moore disagrees, fine. But what the add asserts is that trial lawyers are out to destroy families.

That is just plain stupid. First of all, let’s get the terms straight. Just about every lawyer will end up in court some day. Hence all of them are potentially trial lawyers. Presumably, though, what dopes like the creators of this add mean by trial lawyers is lawyers who usually represent injured individuals in lawsuits against businesses.

But in that battle, who is anti-family? The attorney who represents the bread winner who got run over by the negligent truck driver? Or the guy defending the truck driver’s insurer, who drags the litigation on as long as possible in order to pad his own bill and encourage the plaintiff to settle for less than the full value of the claim?

I am not saying civil defense attorneys are evil, all I am doing is pointing out the obvious: Every attorney will do things that could be labeled “anti-family.” That is because our loyalties are to our clients, not to someone else’s social agenda. No group of attorneys is more family friendly than another.

Sure, lawyers who typically sue businesses are bad for businesses. Opposing a candidate because he is unduly favorable to those lawyers is perfectly fine if you want to support the businesses. Just be honest about the reasons. Don’t give us this crap about family values.

The Clones And Abortion

May 30, 2006

In Alabama,

no person shall perform an abortion upon an unemancipated minor unless he or his agent first obtains the written consent of either parent or the legal guardian of the minor. (Ala.Code 26-21-3(a)).

There are two exceptions. First, if the pregnancy is the result of incest, “written notice to the minor’s mother by certified mail shall be sufficient.” (Ala.Code 26-21-3(b). Second:

A minor who elects not to seek or does not or cannot for any reason, including unavailability or refusal by either or both parents or legal guardian, obtain consent from either of her parents or legal guardian under this section, may petition, on her own behalf, the juvenile court, or court of equal standing, in the county in which the minor resides or in the county in which the abortion is to be performed for a waiver of the consent requirement. (Ala.Code26-21-3(e)).

Section 26-21-4 provides the standard the court is to use in deciding whether to waive the parental consent requirement:

The required consent shall be waived if the court finds either:

(1) That the minor is mature and well-informed enough to make the abortion decision on her own; or

(2) That performance of the abortion would be in the best interest of the minor.

I mention this for two reasons. First, you sometimes hear folks say that we have “abortion on demand” in this country. I think these statutes refute that claim, for minors at least. The result of the statute is that women under eighteen do NOT have a right to an abortion. They have a right to ask their parents or a court to let them have an abortion. Minors only get the abortion if a parent or a court allows it. That may be a good thing, it may be a bad thing, but it is not “abortion on demand.”

Second, Supreme Court hopeful Ben Hand is ignoring the law and the facts when he attacks Justice Lyons for “showing insufficient sensitivity to the lives of unborn children.” Hand is mad that on two occasions Justice Lyons voted to allow an abortion without parental consent. Here is Hand’s position:

“To me, a life is a life, and [Lyons has] messed it up several times,” he said. “I would say there should be a blanket denial to any of them. … I believe the same Constitution that protects your right to life protects the life of an unborn child.”

He may want to deny every waiver case, but the law does not allow him to do so. The law requires a case by case consideration. If the particular minor is mature and well informed or the abortion is in the best interests of the child, then the court has to allow the abortion. Hand may not like it, but that is the law.

Obviously, the waiver standard is amorphous. There will be some cases where everyone agrees the child has not met the standard; there will be some cases where everyone agrees the child has met the standard. But most of the cases could go either way. The deciding factor in those cases will be the judge’s beliefs about abortion. This is where Hand ignores the facts. According to the same story, in seventy five percent of the cases Lyons has heard, Lyons has concluded that the waiver was not appropriate. Whenever he can, Lyons is ruling against the abortion. In other words, Lyons is expressing his pro-life position within the bounds of the law.

That, in sum, is the difference between Clones like Hand and Justices like Lyons. Everyone agrees that personal beliefs play a role in judicial decision making. It is unavoidable. The difference is the size of the role. The Clones beliefs are the stars of their decisions. Real judges make beliefs a small part of the supporting cast.

??????????

May 30, 2006

From a description of a Roy Moore speech:

Wyndell Williams drove from his home in Cullman to hear Moore. Holding a sign with a photo of him and his Filipino wife, who has not yet been granted permission to come to the United States, Williams applauded Moore.

“He’s a man of his word and a man we can trust to defend our borders,” said Williams referring to the on-going immigration issue.

Williams said when his wife, whom he met by browsing through what he called “sort of a catalogue,” comes to America it will be legally. “That’s what Roy Moore is for, legal immigration. And so am I.”

You guess is as good as mine. I just hope she isn’t inflatable.

Whose Fault Is That?

May 30, 2006

Recently, Roy Moore’s spokesman J. Holland said:

he’s tired of Moore being pigeon-holed as a one-issue candidate, saying Moore is the only candidate that has a platform. He’s taken stands against accepting political action committee money, and hammered Riley and the Legislature for approving annual property tax reappraisals, which Moore says are tantamount to annual tax increases. He also wants the state Legislature to meet every other year instead of every year, and supports term limits and closing the U.S. borders to illegal aliens. “Judge Roy Moore is a well-rounded candidate,” Holland said.

Sure he is. I have no idea why anyone would think of Moore as a one issue candidate. Of course, there is stuff like this:

[Yesterday] at Birmingham’s Linn Park, Moore addressed more than 300 supporters, including veterans. Moore wore a black ball cap with gold lettering spelling out “Vietnam veteran.” The West Point graduate, who served in Vietnam, held most of his audience spellbound as he quoted from speeches, much of it from memory, of past presidents and dead soldiers.

The speeches or parts of speeches Moore used all took him to his central point for the day – that America and Alabama were once places that acknowledged God, but are now places where that acknowledgment is under attack.

“For the last 20 years, we’ve seen an attack to take away our acknowledgment of God,” Moore told the crowd. He criticized efforts to ban prayer in public schools. He criticized “men in black robes” who he said think they know more than God and who unlawfully order removal of the Ten Commandments from courthouses.

If Holland does not want people to see Moore as a one issue candidate, then Moore needs to change his message. The problem is Roy Moore, not perceptions of Roy Moore.