Archive for the ‘Eleventh Circuit’ category

Some Updates

March 21, 2007

First, the raises. Here’s the list of  legislators who voted to override the Governor’s veto and give themselves a 62% pay increase.  My local rep – Patricia Todd – is, good for her, NOT on it. Reactions? For one side of the story, see this apology; for the other, see this vow of retribution. Here’sa first hand report of the unsuccessful protest in Montgomery.

Second, on the subject of legislation the main purpose of which is benefiting sitting legislators, the Eleventh Circuit heard arguments yesterday in a case challenging Alabama’s ballot access laws.

Third, about the US Attorneys issue. Jeff Sessions and Richard Shelby both voted to eliminate a provision of the Patriot Act that had allowed unilateral appointment of USAs by the president. If this becomes law, things would then work as they always had prior to the patriot act – the President nominates the USAs, and the senate will confirm them. That’s good for justice, and bad for cronyism.

Fourth, and again on the USA issue. I’m having a hard time thinking of anything more ridiculous than this:

Under growing political pressure, the White House offered to allow members of Congressional committees to hold private interviews with Karl Rove, the president’s senior adviser and deputy chief of staff; Harriet E. Miers, the former White House counsel; and two other officials. It also offered to provide access to e-mail messages and other communications about the dismissals, but not those between White House officials.

Democrats promptly rejected the offer, which specified that the officials would not testify under oath, that there would be no transcript and that Congress would not subsequently subpoena them.

Give me a break. What possible justification is there for these restrictions? If the argument is that it would somehow be unseemly or a violation of the separation of powers for these folks to have to testify before Congress, than why let them testify at all? How does giving them permission to lie solve the problem? And if the argument is that this whole investigation is nothing but, in Dubya’s words “a partisan fishing expedition aimed at honorable public servants.” Then why not put it all to rest by once and for all going on the record under oath and telling us the whole truth? 

Note, please, I am not saying that only a guilty person refuses to testify. I would, for example, be very sympathetic to an argument that Harriet Myers, because she is the President’s lawyer (contra the AG and USAs), should not testify at all before Congress about her dealings with the President. What I am saying is that only a person with something to hide would offer to testify, BUT only if all procedures designed to ensure truth-telling are NOT followed during the testimony.  

Anyway, moving back to the local scene, here’s the latest on another person who refuses to answer legitimate questions:

Carol Forge Hatcher, a Birmingham consultant who said she has $1.5 billion in private money lined up to complete both an entertainment district in addition to a domed stadium and hotel, made her second appearance before the council during the meeting.

Hatcher, however, has refused to identify the source of the money, citing confidentiality agreements.

Hatcher, Roger Hoffman of the Utah-based Nexus Group and Steve Kellogg of Florida-based Aligned LLC said last week they had the money to do the entire project, but complained they were not taken seriously by the BJCC board.

Council members Tuesday told [BJCC Director Jack] Fields and BJCC lawyer Tom Stewart to put in writing a list of questions they need Hatcher to answer before they can evaluate her project. Hatcher and Kellogg spoke at last week’s BJCC board meeting, but didn’t give specific information about financing.

“We weren’t able to review enough information to move forward,” Fields said.

Council members said they want to give Hatcher every opportunity to explain her proposal, but Tuesday will be their final invitation if she again does not answer the BJCC board’s questions.

And finally, at least some folks are concerned about finding the naked truth.


Lookin’ For Love In All The Wrong Places

February 15, 2007

This had to be intentional: Yesterday, which was Valentines Day, the Eleventh Circuit again upheld Alabama’s law prohibiting the sale of sex toys.

How, exactly, is this law constitutional in light of Scotus’s holding that states have to recognize man-on-multiple-minor-male-beasts marriages? Well, despite the parade of horribles often seen in its trail by its detractors, Lawrence v. Texas is not so broad, applying only to private consensual sexual contact, whereas, in the Eleventh Circuit’s words: “There is nothing ‘private’ or ‘consensual’ about the advertising and sale of a dildo.” Hence, states may prohibit those sales.

Now I don’t know many people who have been publicly forced to buy, er, sexual toys, and I’m sure the authors of the opinion don’t, either. I think what they are trying to say is that this law involves commercial activity, whereas Lawrence involved personal intimacy. And commercial activity gets less due process protection than personal activity. So, while the fact that some lawmaker thinks some personal activity is gross will not justify outlawing that activity, if the lawmaker thinks some commercial activity is gross, the lawmaker can on that basis alone eliminate the activity.  In other words, if the Alabama law prohibited the use of the devices, the result may have been different.

As an aside if you doubt that Federal Courts are extremely, I mean extremely, deferential to the powers of legislatures, you need to read this decision. Commercial activity or not, if grossness alone is a rational reason to prohibit an activity, than 1) the word rational has no meaning whatsoever, and 2) we do not live in a free society.  

Here’s my previous coverage of this case.

Hyperventilating Overreactions 101

February 6, 2007

Normally, when I read A Bama Blog I just shake my head and laugh. Occasionally, though, when the rhetoric gets too overblown I may make a comment in an attempt to bring the discussion back to reality. For instance, I had to respond to this post:

Today marks the 514th anniversary of Christopher Columbus’s arrival in the New World. It’s fashionable these days to be down on Columbus and other Western explorers and colonists, but those who wallow in the mire of such political correctness always seem more than happy to reap (or sometimes, to plunder) the benefits of what those brave men of the West accomplished. Columbus and those who followed in his wake brought the gifts of Western civilization and Christianity to formerly savage and heathen lands.

I don’t know who the ungrateful fashionistas are, but I think my comment summed up the likely response to that post from all of us who not only value cars, air conditioning and democracy, but historical accuracy as well:

“Columbus and those who followed in his wake brought the gifts of Western civilization and Christianity to formerly savage and heathen lands.”

did you really write that?

i’m not going to dispute that 1) pre-Columbus America was “savage and heathen” or that it is now 2) western and civlilized, though both are very debatable. but to call the change a gift is silly indeed. a conquest yes. a gift? by no sensible definition of the term.

our ancestors did not “give” western values to the natives, they slaughtered the natives and then continued to live as westerners but in a new location. 

Today, though, I decided that instead of a chuckle or a comment, I would actually respond to one of Lee P.’s ridiculous posts with a post of my own.

Initially, I wanted to critique this one, in which he freaks out over a recent lawsuit that argued Alabama’s method of funding its colleges was unconstitutional. He’s gotten himself into a tizzy about this case in earlier screeds. Today’s does not add anything of substance, only including a list of Alabama academics who supported the plaintiff’s and then stating:

Maintaining the proper constitutional balance between the federal government and the states is essential to the Republic’s survival under the present Constitution. That these seven respected and influential professors of law and history would have us deviate so radically from that balance – while caring not a whit for the consequences – is really quite disturbing.

What I wanted to say was “Well, thank the Lord we have knowledgeable folks like Lee – who have studied at the feat of historical and legal scholars like Rush Limbaugh, Dinesh D’souza, Ramesh Ponnuru and Ann Coulter – to save us from the silly mistakes made by people like Charles Gamble, Wayne Flint and Howard Walthal.” But that would just be snarky.

I also wanted to take him to task for the overall tone of the post (and his previous one on the same topic). Basically, what the lawsuit was arguing was that Alabama’s method of funding education perpetuated racial segregation. I agree with the court, and Lee P., that the allegation was not true. Or at least the evidence was not strong enough to justify relief.

Lee, though, following in the footsteps of George Wallace, Roy Moore, and Tom Parker, seems to think that even if the allegation was true, no federal court could do anything about it. Alabama, in his view, would be perfectly free to violate the constitution. That’s where I get off the boat. If Alabama was using its tax structure to perpetuate segregation, then I agree wholeheartedly that Alabama’s funding system would have to be radically changed, even if that meant changes in the tax code. Alabama is subject to the law just like you and I are subject to the law.

But I’m not going to discuss that, either, because someone beat me to it.

The post I will discuss is entitled “Indoctrination 101.” I could not possible summarize the post in way that makes it sound any more idiotic than does Lee’s own introductory paragraph:

To find the latest example of leftist ideology masquerading as scholarship, we don’t have to go very far. Undergraduates at the University of Alabama had an opportunity this semester to register for a new class called “Modern Gay America.”

Why is Lee so upset about this class? He offers two pretexts for his opposition.


it should be a subject reserved for graduate or post-graduate work. The focus of undergraduate education should be exposure to a broad-based curriculum in the humanities, the sciences, mathematics, and history. For college students to be familiar with the text of the U.S. Constitution is essential. For them to be familiar with the subtexts of the Wizard of Oz is optional.

Again, good thing we have Lee P. to let all those silly academics know what a college education ought to include. Lee would even have to teach the class about the constitution, seeing as how he just told us that no-one in the state but him, and maybe some judges on the Eleventh Circuit, really understands it. 

Seriously, though, this class is just what Lee says an undergrad curriculum ought to include: history. From the syllabus:

Date Topic

Wed. 10/1 Introduction to the 20th century: The Early Years of Gay Life . . . 

Mon. 10/6 Gay Hollywood and the 1940’s- Kaiser Ch. 1

Wed. 10/8 The 1950’s: Early Gay Struggle and Liberation- Kaiser Ch. 2, . . .

Fri. 10/10 The Beginnings of Community: Gay Cities and Workplace Culture-Kaiser Ch. 2 Continued.

Mon. 10/13 Nature vs. Nurture: Science and Religion in Gay Life- Kaiser: pg. 52-58, [Handout]

Wed. 10/15 The 1960’s: Gay Rebellion, Stonewall 1969- Kaiser Ch. 3, (pg. 192-202), first assignment due.

Fri. 10/17 The 1970’s: Mainstream Culture and Gay Club Life- Kaiser Ch. 4 (pg.253-265)

Mon. 10/20 The 1980’s: In the Shadow of Death- Kaiser Ch. 5 (pg 275-325) . . .

That does not sound any different than, for instance, the modern south class I took as an undergrad, or the history of the Supreme Court class I took in law school. It’s just a study of how a particular group of people have lived during a particular period in history. One of the affects of the study will be a better understanding and appreciation of the group. If that group was anyone but “the gays,” I really can’t imagine anyone complaining.

Here’s the second pretext:

In fact, this course has little to do with the scholarly study of history, but is instead entirely devoted to the advocacy of a very narrow view of history in which truth is less important than dogma.

Lee P., of course, makes this judgment without having been to this class, or, I assume, talking to anyone who has. Instead he quotes the syllabus:


1) To acquire an appreciation of the diversity of American identities and experiences, particularly the lost history of Gay and Lesbian history, identity, and growth in a culture that ignored, or forget them.

2) To understand a range of cultural artifacts: novels, plays, autobiographies, memoirs, photography, film, painting, and music that one can utilize in the study of the development of an individual and unique Gay and Lesbian community during the 20th century.

3) To understand the connections between such diverse cultural spheres as popular entertainment, consumer culture, the fine arts and broader American cultural values. We also want to look at how Gay and Lesbian people working in secret helped to shape the different emerging American cultural moment that was the 20th century.

To me that course description sounds like the usual meaningless mumbo-jumbo found in any course description, and like any other course description is pretty much useless if what you want to know is what will actually happen in class.

So let’s click the mouse a few more times than did Lee P. and see what the actual subjects of this nefarious plot by the left to subordinate America to their radical homosexual agenda think about the actual class. From the Crimson White:

The class was scheduled to have 30 students, but was expanded to 40 because of the interest from students, [the teacher, Josh] Burford said.

“The most unexpected thing about this class is that I’ve had to turn away at least a dozen students,” Burford said. “It hurts me to have to tell them no, but we have limited space.”

Burford said this is the first class where most of his students never miss class, are excited about his lectures and stay after class ends to ask questions.

“What’s really nice about the class is that they’ve formed a little community,” Burford said. “I see them helping each other and hanging out together.”

Wow. Sure looks like students are voluntarily taking this ELECTIVE and benefitting from it, too. How can the students in this classroom not realize – like Lee P. in Huntsville realizes – that though they think they are using their own free will and critical thinking abilities, they are in fact being manipulated by the radical homosexual leftist communistislamofascists? Outrageous, really. Here’s the view of another young victim:

I for one am in the class and one of the straight people and also from the south. I can honestly say there is no homosexual agenda especially in this class. the class is simply trying to teach about a culture, it is no different than women studies, african american studies, or any of the other cultural studies that exist. An LGBT major is no different than any of the other new college majors and just because he isn’t a science or math major doesn’t mean his life is useless and we should cast him (and the entire community that wishes to know about gay culture) out of society.

Well, then, so much for the pretexts. I won’t speculate about the real source of Lee’s disgust. I will just offer another student’s view:

The Good Book says Adam and Eve, NOT Adam and Steve. There is enough sin on this campus with the Frats and Sororities. What we don’t need on this campus is a class that will sanction a sinful and disgusting agenda.

I will be praying for this university and all the sodomites today.

Maybe that guy ought to run for Attorney General. I bet Lee P. would vote for him. Unless he wants higher taxes.   

The End Of The Latest Monkey Trial

December 20, 2006

The Cobb County sticker case is over:

The Cobb County evolution saga is finally over, more than four years after school officials ordered stickers warning that evolution is “a theory, not a fact” pasted into thousands of science textbooks.

The end came Tuesday, when the Cobb County school board announced it had settled a lawsuit filed by parents who said the disclaimer violated the constitutional prohibition against government-established religion. . . .

In the settlement, the school system agreed not to take out or edit materials on evolution in textbooks and to pay $166,659 toward attorney fees in the case.

This is certainly a “W” for the plaintiffs. I’ve previously commented on this case, after the 11th Circuit remanded it back to the District Court for further hearings. I did not think the sticker itself was all that harmful, though I recognized the motives behind it were probably one hundred percent bad. Today’s story confirms my belief about the motives:

Marjorie Rogers, the Cobb parent who led the drive that resulted in the stickers’ placement, said she was disappointed.

“The stickers were just a compromise the school board made to satisfy those of us who were offended by the material in the textbooks,” said Rogers, a creationist.

Once again, the nefarius right not to be offended trumps education. Even better is this reaction:

Larry Taylor, one of the parents who originally lobbied the school board for the stickers, expressed frustration at the decision to settle. He blamed the American Civil Liberties Union, which represented the parents who sued the school district.

“They were trying to do the right thing,” said Taylor, a parent of three Cobb students. “It’s terrorist organizations like the ACLU that are hijacking our country’s educational system by imposing their own secular agenda on the rest of us.”

Speaks for itself, huh? Yes, an organization that uses courts to uphold the Constitution and the rule of law, that’s just like an organization that flies planes full of people into crowded office towers in order to impose its barbaric religious views on another country. And who is “hijacking our country’s educational system?” The organization that tries to make sure school science classes teach science? Or the religious nut jobs who want science withheld from all students whenever that science conflicts with their own bad theology? What an idiot.  Someone was trying to do the right thing here, but it wasn’t Larry Taylor or the Cobb County School Board.

Microsoft Works

December 6, 2006

That’s probably my favorite oxymoron. There are two other very interesting examples in this Eleventh Circuit decision. The plaintiffs lost on procedural grounds and the court never discussed the merits, but here’s the facts:

Plaintiffs Adam Elend, Jeff Marks, and Joe Redner allege that their First Amendment rights were violated on November 2, 2002, when they attempted to protest at a political rally attended by President Bush at the University of South Florida (USF) Sun Dome.

Marks and Redner held up placards, while Elend videotaped the event and distributed copies of certain Supreme Court decisions pertaining to the FirstAmendment. Plaintiffs began to conduct this activity on a median adjacent to a parking lot on the USF campus, approximately 150 feet from the nearest Sun Dome entrance and 30 feet from event attendees who were waiting in line.

Soon after the commencement of this activity, USF police officers told the Plaintiffs that they would have to stand in the “First Amendment zone,” an area estimated to be one quarter of a mile away from the Sun Dome. The “protest zone” consisted of a metal fence patrolled by law enforcement personnel, some of whom were on horseback.

Plaintiffs contend that others carrying placards and signs indicating support of President George Bush or Governor Jeb Bush were not asked to move to the protest zone.

Plaintiffs explained to USF officers their belief that the creation of such a zone unconstitutionally restricted their freedom of speech. At that point, they were approached by a purported agent of the Sun Dome, Kelly Hickman, who also requested they move to the protest zone. When Plaintiffs refused to relocate, Hillsborough County Sheriff’s deputies arrested them for “trespass after warning.”

Which is worse? Calling a structure designed to keep out the elements the “Sun Dome?” Or calling a metal cage surrounded by armed guards a “First Amendment Zone?”

Actually, now that I think about it, only the former is an oxymoron; that is “A rhetorical figure in which incongruous or contradictory terms are combined, as in a deafening silence and a mournful optimist.” Sun Dome is by itself contradictory. The purpose of the dome is to keep out the sun. First Amendment Zone, on the other hand, is fine by itself. It only makes you scratch your head when someone applies it to a location designed to stifle speech. In that case, doublespeak is probably the better term: “language deliberately constructed to disguise its actual meaning.”

UPDATE: In case you’re a visual learner, here’s the Sun Dome:

And a free speech zone (though this is actually from the 2004 Democratic National Convention, I’m pretty sure they’re all about the same):

More From 11th Circuit On Lethal Injection And 1983

October 9, 2006

I posted about an earlier decision here. This one reaches the same result: The court finds that the inmate waited too long to raise the issue, so it evades the merits and dismisses the suit, leaving the state free to kill the inmate.

This opinion also slams the attorney:

The schedule we set provided that Rutherford’s opening brief would be due within 20 days from June 30, the date of our instructions; the State’s answer brief would be due within 14 days from receipt of Rutherford’s; and he then would have 7 days from receipt of the State’s brief to file a reply.

Rutherford filed his opening brief on the last possible day under the schedule; the State filed its answer brief several days early; and Rutherford did not file his reply brief when it was due. Instead, the day Rutherford’s reply brief was due we received a motion for a thirty-day extension.

One of the reasons his attorney gave for needing the extension was that she had taken an eight-day vacation in the midst of the briefing schedule. We denied her request for a 30-day extension but gave her one of twenty-three days, which resulted in her having a total of thirty days from receipt of the State’s brief to file Rutherford’s reply brief. Rutherford’s attorney waited until the last day of that extended period to file the brief, which resulted in completion of the supplemental briefing being delayed until September 1.

This is why it is better to be a judge then an attorney. When things like vacations, or golf, or dates with the federalist society, get in the way of work judges can just dismiss some cases, or else crank out some opinionless decisions. Attorneys, however, have to beg the judge for more time. Sarcasm aside, it’d be tough to come up with a meritorious reason for waiting until the day the brief is due to ask for an extension.

And that wasn’t the only misstep:

On September 22, 2006, the Governor of the State of Florida rescheduled Rutherford’s execution for the period from October 16 through October 23, 2006. In doing so the Governor noted that the warden had chosen October 18 at 6:00 p.m. as the specific date and time for the execution.

No one informed this Court or its Clerk of that development until September 25, which is the date that Rutherford filed a mandamus petition in the Supreme Court and provided our Clerk’s Office with a copy of it. The mandamus petition asked the Supreme Court to expeditiously order this Court to remand this case to the district court.

The request came despite the fact that Rutherford had never asked this Court to expedite its consideration of the case and his own attorney had delayed the completion of briefing and submission of the case to us for decision. Among other things, the mandamus petition she filed accuses this Court of “sit[ting] upon a capital case remanded to it,” and charges that “[t]he Eleventh Circuit and the Florida Attorney General have been the architects of the trap being set to ensnare Mr. Rutherford.” The mandamus petition does not disclose that the attorney who penned those allegations took a vacation during the briefing schedule, leading to a delay in submission of the case to us for decision.

A mandamus petition is something you file with a superior court that asks them to order (mandamus – mandare – to command) the lower court to do its job. It isn’t like an appeal, where the appellant says the court just made an error, this is basically saying the lower court is willfully refusing to do its job. Serious accusations. So if you’re going to bring out this heavy artillery, you ought to make sure you have first exhausted other options. Like, oh say, asking the lower court to do whatever it is you want before you file mandamus about whatever it is you want.

The rest of the opinion is more of the same stuff I discussed in the other post. All I’ll say now is that these cases are not as simple as they appear. It’s easy to dismiss these as “dilatory.” After all, the guy had been on death row for twenty years.

But until 2005, there were no serious studies that suggested lethal injection was actually a gratuitously painful way to execute someone. And until Scotus decided Hill v. McDonough last summer, the 11th Circuit would have summarily dismissed any 1983 claim that lethal injection was cruel and unusual punishment. So it’s really only been possible to raise these things for the last few months.

I see the other side as well, but I don’t think it would be overly burdensome on anyone involved for the courts to decide the merits of the claims.

Some Non-Foley Improper Communications

October 5, 2006

The Eleventh Circuit decided an interesting case yesterday: US v. Eckhardt. They affirmed a conviction for making obscene phone calls.

Initially, I was just going to make some stupid comments, but as I read the opinion, I think they may have made the wrong decision. No doubt this guy said some outrageously awful stuff, and you should NOT read this opinion unless you have really thick skin. But I don’t know if what he said is a crime.

The charges:

In Counts V and VI of the Indictment, the government charged Eckhardt with violating § 223(a)(1)(A). Section 223(a)(1)(A) prohibits individuals from using, in interstate communications, a telecommunications device to knowingly make “any comment, request, suggestion, proposal, image, or other communication which is obscene or child pornography, with intent to annoy, abuse, threaten, or harass another person . . . ” Id.

The definition of obscene:

In Miller [v. California], the Supreme Court defined obscenity as a work that (1) taken as a whole, appeals to the prurient interest under contemporary community standards,(2) depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law, and (3) taken as a whole, lacks serious literary, artistic, political, or scientific value. 413 U.S. at 24, 93 S.Ct. at 2615.

My first issue would be that this definition applies to “a work.” Phone calls are not “a work.” Hence, they cannot be obscene. At least not under this definition. Would this have succeeded? I don’t know, the defendant did not make this argument.

What he did argue is that the calls did not satisfy the third element. He said he made them because he was mad at his employer. The facts are not very clear, but it sounds like he was a contract employee for a local chapter of the Teamsters. His phone calls were to an office worker and in those calls he said things like this [these are the clean parts]:

Hey Sue! Why don’t you take one of them f****n’ school buses or one of them f****n’ passenger buses and use it like a vibrator . . . .

You listen to this. I said no over the road, I’m stayin’ right where I’m at.

No garbage, no over the road, no nothin’

To me, that sounds like he is complaining about a job assignment. His purpose was not to make sexually obscene comments; his purpose was to complain about his job and he used sexually obscene comments to do it.

He cited two sort of similar cases to support his claim that his intent to complain meant the calls were not obscene. In one, a man in the middle of a divorce proceeding used this type of language in a call to his wife. In another, a prisoner used this type of language against a US Attorney. In both cases, because the defendant had some legitimate purpose, the calls were not obscene.

The court quickly dismissed both cases, saying the current case did not involve a divorce or a government official. But that seems a bit shaky. The principle from those cases seems to apply here, even if the facts are different.

So I don’t know. This guy’s a loser, no doubt. But a criminal?