What Are the Limits of a Court's Power to Order Medical Treatment?

Eugene Volokh has an interesting post on the question of whether a court may order treatment on a woman on the basis of "delusional" religious beliefs.

“During a hearing conducted on March 1, 2011, the District Court determined that L.K. is not competent to make her own medical decisions and directed that she undergo a radical hysterectomy on March 3, 2011, against her desires. L.K. objects to the surgery on religious grounds, and expert testimony admitted at the hearing indicated that her religious objections are delusional.” So states an order of the Montana Supreme Court, in Office of State Public Defender on Behalf of L.K. v. Montana Fourth Judicial District Court; the Montana Supreme Court stayed the district court’s order, and ordered an expedited appeal.

So an expert testified that L.K.'s religious beliefs are delusional, but by whose standard?  One of the most commonly held religious beliefs, spanning almost the entire breadth of world religion is the belief in an afterlife or reincarnation or something similar, that is a belief that the soul will live beyond the corporal existence of the body.  We accept that religious tenant despite having almost no empirical proof of its existence.  One could argue that after millennia of a dearth of proof of an afterlife, that maintaining such a belief is delusional.

The trial court, presumably based on expert testimony as to the delusional nature of L.K., ordered her to undergo an hysterectomy, despite L.K.'s own testimony that she wants to have children, that her husband is agreeable AND that she might change her mind about undergoing the recommended procedure.  Since, informed consent is the hallmark of medical treatment, and this woman has, in an apparently rational basis, considered the advice, consulted with her husband and remains open to the notion that she might changer her mind and have the procedure, I am wondering how the trial court came to the conclusion to force her to undergo the procedure? From the portion quoted above, it does not say that L.K. is completely incompetent or otherwise insane, only that the religious beliefs underlying her objection are delusional.   How far can the courts go to require otherwise competent, religiously zealous, person to undergo medical treatment against their will?

This case has some serious implications beyond this single dispute. Is religious zeal now a "condition" by which someone can be determined to be legally incompetent to make their own medical decisions?  It seems to me that there is a case for arguing that the court has infringed upon someone's right to the free exercise of their religion.

What if we are talking about other medical treatments, other than a radical hysterectomy?  Could a court order a heart surgery?  Could a court order a kidney transplant?  What about other life-saving treatments that are not so radical?  Could a court order a morbidly obese person into treatment involving exercise and diet changes?  What if the person is objects on the grounds that "God made me fat and who am I to disagree with God?  It's his plan and I am but a part of that plan."  There might be no question that the person will likely die if they don't exercise and alter their diet, but I find it to be perfectly normal to believe that God's plan might include morbidly obese people.  That is not delusional or at least, I don't see how it is delusional.

Since we are talking, in L.K.'s case, about reproductive health, could a court order an abortion?  Could the court order an abortion even when doctors are certain that either the baby or the mother or both will die as a result of carrying the child to term?  What if the mother AND the father, both competent, agnostic or atheist adults believe that it is wrong to terminate a pregnancy and that view is not based on any religious doctrine?  What if those agnostics or atheists want to, in light of all the advice to the contrary, carry the child to term despite the risks?  How can a court order a procedure when a sane person has made an informed choice?  Where does the court draw the line as far as whose life is more important?

Is this not the opposite of the question of "death panels" wherein governmental bureaucracy might ration health care in cases where they deem it to be unlikely to succeed?  IN other words, are we going to have a health and legal system that can at once deny care in some cases and require and enforce care in others?  How is that freedom or liberty?

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Ninth Circuit Reinstates Strip Search Case

In a shocking display of common sense the 9th Circuit Court of Appeals reinstated a lawsuit challenging a school's strip search of a 13-year-old girl, with no prior disciplinary history, based on teh allegation that she gave a classmate an ibuprofen.

The opinion of the 11 judge panel is here.

The ludicrous opinion of the original three judge panel, which said that the search did not violate the girl's rights, is here.

A Nearly 30 Year Woman Evicted From Home Because She is Labeled A Sex Offender

The Atlanta Journal-Constitution writes:

Wendy Whitaker's name may be on Georgia's sex offender registry, but her offense suggests she is no predator.

At age 17, while a high school sophomore, Whitaker had oral sex with a 15-year-old male classmate. In 1997, she pleaded guilty to sodomy and got five years' probation. Whitaker, 28, has moved twice because of the sex offender law's restrictions that say an offender cannot live within 1,000 feet of places where children congregate. Whitaker was recently told by a sheriff she must move again because her home is within 1,000 feet of a church.

"It's a recurrent nightmare," Whitaker said Friday. "It's like a roller coaster. One minute, I'm OK. The next, I'm not. This time, I really thought everything was going to be all right."

Wendy Whitaker is a sex offender under Georgia's sex offender law because at age 17 she engaged in oral sex with a 15 year old boy and had the bad luck to get caught. Right now, I can all but guarantee you, there are teenagers in Georgia having sex. I am willing to be large, very large, sums of money on the notion. It does not make them sex offenders and certainly doesn't make them sex offenders for life.

Whitaker has been evicted from her home because 11 years ago she had sex as a teenager.

Such is the problem of bad legislation. The sex offender law was no doubt intended to prevent actual predatory sex offenders from being near children. But, as in Whitaker's case, the problem is exacerbated because the Georgia sex offender law labels anyone convicted of sex based offense as a sex offender, even if the sex was consensual between two teenagers.

I noted a similar story a couple of years ago, which may have been Whitaker's but the Post story doesn't say. I noted back then

So if two high school kids are caught having sex and charged with a sex crime, under this law not only are they not allowed to live within 1,000 feet of a school, playground, chruch or bus stop, apparently they would also be barred from attending their own high school.

How is that for an absurd result!!!



Whitaker is now suing alleging that the residency restrictions are unconstitutional and that the forced eviction is tantamount to a "taking."

I think the takings aspect is an interesting twist on the case. The sex offender residency restictions prohibits sex offenders from living within 1,000 feet of where children congregate. But Whitaker and her husband own their home, bought in January 2006. The Georgia Supreme Court previously ruled that the sex offender residency restrictions amounted to a taking under the constitution if the sex offender owned a home within the exclusionary boundary. So the Georgia legislature passed a law that said any home bought prior to July 2006 wouldn't apply. The tickle is that Whitaker's name did not appear on the deed to the couple's home until 2007, triggering the local sheriff to give notice that she vacate the house within 48 hours. I would imagine that the reason why Whitaker's name wasn't on the deed was to prevent the triggering of the residency rules.

So the question becomes now, after July 1, 2006, if a sex offender buys a house that is outside the exclusionary zone and then a church, a school or a school bus stop is built or designated within 1,000 feet of the home, is it a taking? I would argue yes, although less so for the church since that is usually a private entity buying the land.

But this whole legal think leaves unaddressed, is Wendy Whitaker really a sex offender? Simply put, based on her past, no--she isn't. I think clearly there needs to be a provision in place where people can petition to be let off the list, particularly in cases like Wendy Whitaker, what really is her crime? Consensual oral sex as a teenager? She was on probation until she was 22, five years after her crime. Six years later, she is still paying for it? Is this really justice?

Facial Challenges vs. As Applied Challenges

This article in ABA Journal seems to give the impression that the Roberts Court is not particularly interested in constitutional facial challenges to state laws, instead favoring as-applied challenges. David Savage noted that in a number of recent cases, invovling matters as diverse as election laws and lethal injection matters, the Court has rejected a broad attack on state laws.

The national legal director of the American Civil Liberties Union says the opinions signal a basic shift in litigating constitutional claims. “It’s important to understand this is a fundamental departure from what the court has done over the past four decades to protect civil and constitutional rights,” says Steven R. Shapiro of New York City.

As a point of comparison, he cites Harper v. Virginia Board of Elections, the 1966 decision that struck down the poll tax.

“The court in Harper didn’t say, ‘Bring us someone who cannot afford $1.50 and we will strike down the law as applied to those persons.’ They struck down the law on its face because it was about suppressing votes, not about protecting the integrity of the elections,” Shapiro says.

I am not sure that is necessarily the case that facial challenges are unfavored.

I think that cases will turn on the facts of the case and the nature of the right being asserted. The more fundamental a right, the more likely a facial challenge will be heard. But that still doesn't obviate the need to find a real plaintiff and that, I think, is where some of these "facial" challenges fail. I think some of the recent "facial" challenges of late failed on the notion of real injury of a real plaintiff, not a formulated or contrived plaintiff. In Harper, for example, on the face of the statute, it would appear that the poll tax was intended to help pay the costs of an election. But the law itself was not uniformly applied and was disproprotionately imposed on minorities, i.e. poor whites were often exempted from the law. It was the unequal application of the law that led most directly to its downfall.

I also think that the ACLU and other "rights" organizations are hitting a limit as to what the courts will find acceptable fodder for litigation. There are real injuries out there, but sometimes, the ACLU and others take matters a little too far in asserting "rights" that etiher, a) don't exist or b) are reasonably limited by statute. There is also a limit to the Constitutional rights that can be enforced through these kinds of facial challenges to state laws.

Justice Dept. Sued Over Political Bias

But the question is can they prove their claim?

Fatherlessness As Child Abuse?

La Shawn Barber makes the case for the statement.

That’s not a popular position to hold. What’s doubly sad is that criticizing people who deprive children this way is worse than actually depriving the children. Why? Please explain.

Losing a father through death is awful, but it’s not the same as losing him through divorce or being born into a fatherless home. In whichever case, a child will feel abandoned, but losing a father through divorce and being deprived of one from birth are deliberate acts of abandonment, worse than death in a sense. When a family loses a father through death, they keep his memory alive. His authority lingers. The children grow up knowing he loved them and their mother, made sacrifices for their well being, and did not walk out on them to pursue his own interests.

Three out of four black babies are born in the United States to women who aren’t married to the fathers. Fatherlessness leads to a multitude of problems, the worst of which is the repeated cycle of fatherlessness. You’ve read the studies. Even if you haven’t, you’ve seen firsthand the effects of fatherlessness on children, especially boys.

Despite what selfish and shameless adults think, children want fathers. They need fathers. They need masculine men in their lives who love them and would do anything to protect them, men who live with them, raise them, and sacrifice for them. Millions of children grow up without being loved or care for by the men who sired them. It makes me angry, bitterly so.

I believe that La Shawn has a point, however, I have to treat the case of divorce a little differently. (Note: later in her post La Shawn notes that divorce due to domestic violence or sexual/physical is the right thing to do).

Raising a child in a fatherless household from the start may not meet the legal definition of child abuse, but I can see La Shawn's case, not that from a legal standpoint it is likely to happen. But "fatherlessness" due to divorce is a little tricky though. Are some divorces based on the "selfishness" of the parents? I am positive of that. But by the same token, some divorces actually create better parents because the parents themselves are happier with their lives and thus better able to provide loving care and guidance without the drama infused by bickering parents. If the parents, whether married or divorced, put the welfare of their child first, and put the requisite time and energy into raising that child, then does it really matter if the parents are married? Can a father not provide adequate guidance for a child even if he lives in another home? Does not a child feel the love of a devoted father, whether that father is there or not?

Building on La Shawn's dead father memory, what about fathers who are absent for extended periods of time, whether due to military service or other jobs that require travel? The military dad or traveling dad is not only alive and more or less guaranteed to return, but provides a role model of sacrifice for the family/country that is a model of selflessness.

Now that should be contrasted with the divorced family where one parent, usually the father, suddenly does not become a regular part of the child's life. That produces the fatherlessness that I think La Shawn has a right to properly criticize. That our society has deemed this an acceptable model somewhat decries the unofficial motto of family courts, i.e. "what is best for the child."

I think La Shawn unfairly conflates the fatherlessness issue with the homosexual marriage issue. I do believe that kids raised in homosexual relationships can be well loved. I do think that children of homosexual couples need both mother and father figures and I think such parents should make an effort to ensure that such figures are available on a regular basis. But again, La Shawn makes a good point about the selfishness of some parents. Just because a parent has a particular sexual orientation does not mean they abdicate their role as parent. The Rosie O'Donnell example is too easy to criticize as selfish.

It is easy to become a biological father and harder to become a societal father. But the courts, if they become involved, tend to take the easy way out, allowing absentee parents (usually fathers) to "fulfill their parental obligations" by simply making a monthly child support payment. In return, the father gets a few days a month to be a parent. But this is too easy, it is like the child visiting a favority aunt or uncle, a family figure that can "spoil the child" for a few days and then the child goes back home. The absentee father is given a free pass from the hard part of parenting. They get to be the "cool" parent that does fun things for a few days, but does not have to make the hard decisions, does not have to say no or deal with real parenting.

To a certain extent I blame the family courts for this. I think family courts should do a better job of not just requiring financial child support but also fatherly support. Ordering a father to pay money to a mother for support of the child has become the legal substitute for actually requiring a father to parent a child and our society may be better off if more family courts started ordering more time of an absent parent in addition to the money.

But society as a whole, mothers who permit the slacking of fathers and grandparents who do so also, need to shoulder a fair amount of the blame. I am not sold on the idea that fatherlessness is akin to child abuse, but fatherlessness does abuse society and we are a whole lot worse off because of it.

Obama and The Supreme Court

Henry Mark Holzer wonders, what kind of justices would Obama appoint, probably those like liberal icon William Brennan:

Those who subscribe to Living Constitution ideology believe that the founding principles of this Nation are passé, that the Declaration of Independence’s ringing endorsement of limited government and individual rights is outdated, that the Constitution’s creation of a representative republic is from a long past moment in history, and that the Bill of Rights is not a restraint on government but rather a source of newly invented “rights.”

The Living Constitution’s partisans’ high priest was the late Warren Court era Supreme Court Justice William J. Brennan, Jr. According to him, in a 1985 speech, the Constitution “embodies the aspiration to social justice, brotherhood, and human dignity that brought this nation into being. * * * Our amended Constitution is the lodestar for our aspirations. Like every text worth reading, it is not crystalline. The phrasing is broad and the limitations of its provisions are not clearly marked. Its majestic generalities and ennobling pronouncements are both luminous and obscure.” (My emphasis.)

Brennan was saying that: the Constitution, rather than delegating specific powers to the federal government (Articles I, II and III), respecting state sovereignty (Tenth Amendment), and recognizing the existence of enumerated (Amendments I-VIII) and unenumerated (Amendment IX) rights, instead embodies amorphous “aspirations.” Whose aspirations, Brennan did not inform us.

But Brennan did tell us what those aspirations are: “social justice, brotherhood, and human dignity.”

We can aspire to those things, but when it comes to the law, what are the legal definitions of those ideals?

Therein lies the problem. The law, which admittedly, has its gray areas, must depend upon the definitions of words and Justices must struggle mightily with the definitions. To this day, I don't think anyone can give me a clear, commonly understood, objectively sound definition of any of Brennan's aspirations.

That is the danger of Obama admiring a man like Brennan. While Brennan may have provided a conscience for the Court, we need judges to make tough decsions and those decisions need to be based on law as it is written, not as we aspire the law and society to be.

Tomorrow Big Day at Supreme Court

Chief Justice John Roberts announced that tomorrow the Supreme Court will issue opinions in the remaining cases from the October 2007 term. From Scotusblog's Lyle Denniston:

At the close of Wednesday’s public session, Chief Justice John G. Roberts, Jr., announced that the Court will issue all remaining decisions for the Term at 10 a.m. Thursday. The test case on whether the Second Amendment protects an individual right to possess a gun is among those remaining (District of Columbia v. Heller, 07-290). The others still pending are cases on the constitutionality of the so-called “Millionaire’s Amendment” on campaign finance (Davis v. FEC, 07-320), and on federal regulators’ power to undo wholesale energy sales contracts (Morgan Stanley Capital v. Public Utility District, 06-1457, and a companion case).

Lots of fodder tomorrow for Court watchers.

Today's decisions included Kennedy v. Louisiana, the death penalty for child rape case.

RedState on the California Gay Marriage Ruling

Here is what RedState had to say:

For all the high-minded talk about constitutional rights, what informs the Court's decision is a value judgment that all sexual choices are equal. This is, of course, what motivates all activists on this issue, since it is logically and legally nonsensical to insist upon "equal rights" when the defining thing that separates one class of persons from another is not some innate visual characteristic but rather a behavior. All people are equal under the law. This is the meaning of the phrase "equal rights." No serious person argues that all actions are equal under the law - and even if they did, this would not be called "equal rights." It would be called instead "anarchy."

It is often argued (although never proven) that there is a biological basis for homosexuality. For a moment, I will concede the point. Those who argue along this line generally also accept that there are biological bases for alcoholism, drug addiction, and a whole host of other behavioral tendencies. This does not lead to the conclusion under the rubric of "equal rights" that the alcoholic and drug addict may not be held accountable for the fruits of their biologically-based addiction. This illustrates with clarity that "equal rights" is not the driving force behind the gay marriage movement; it is instead a desire to impose the value judgment that homosexual sexual activity is a value-neutral choice, akin to the choice between Pepsi and Coke (all sane people will of course choose Coke, but that is beside the point).

I couldn't agree more (especially about the Coke thing).

But there is a fundamental problem that I have with the decision, regardless of the legal reasoning. This is a matter that the people of California voted on in a referendum (and probably will again in November). So not only as the California Supreme Court overturned a valid law, passed by the penultimate legislative body, the voters themselves, they appear to have done so without a shred of irony about the matter. So what are we left with, the notion that no matter how the people act, in a perfectly and authorized legitimate manner, there will always be some judge who thinks they know better.

This is not a court taming a legislative impulse gone wrong, but a Court that has decided that their moral judgment is better than the collective wisdom of the largest state in the union.

Now before some gets all high and mighty on me. I would have the same reaction if a more conservative court has ruled that a referendum permitting same sex marriage was a vioaltion of rights. Gay marriage is a matter of public policy, the resolution of which is properly before the legisalture or the voters.

Heller v. DC is at the Supreme Court Today

In what is one of the most anticipated cases all term, the Supreme Court will hear oral arguments in Heller v. DC today. Randy Barnett a Georgetown law professor and author of an amicus brief, has a column in todays Wall Street Journal about the case.

He makes a couple of interesting points about what will likely be a 5-4 decision (and just so you know, no not all Supreme Court Decisions are a 5-4 split). The one point that I like (and have talked about before) is:

The Second Amendment protects an individual right. In the 1960s, gun control advocates dismissed the Second Amendment as protecting the so-called "collective right" of states to preserve their militias -- notwithstanding that, everywhere else in the Constitution, a "right" of "the people" refers to an individual right of persons, and the 10th Amendment expressly distinguishes between "the people" and "the states." Now even the District asserts the new theory that, while this right is individual, it is "conditioned" on a citizen being an active participant in an organized militia. Therefore, whoever wins, Heller won't be based on a "collective" right of the states.

I have argued that it is somewhat ludicrous to look at the Bill of Rights and see that the First Amendment is a series of individual rights and protections as are Amendments 3 through 9. The Tenth Amendment distinguishes between states and people. So how it is that the Framers stuck a "collective" right into the Second Amendment.

Keep in mind, the Bill of Rights was a condition of ratification for a number of states. There were concerns about the power of the new national government and a fair number of leaders, namely the Anti-Federalists, but a few others, felt that a Bill of Rights, laws that prohibited the national government from infringing upon the rights of the People were necessary. Read the Preamble to the Constitution, it read "We the People... do ordain and establish."

Now for a little esoterica. The Constitution is nothing if not a contract between the People of the United States and the Government they created. The contract gives the Government certain rights to do certain things and prevents them from doing other things. For example, the People decided that having and Army and a Navy were good things, but things that individuals and even states are not equipped or capable of doing. The same thing with a Postal System (although obviously less true today), or immigration laws. But the People also decided, by ratifying a Bill of Rights, that the government was not permitted to do other things, like prohibit the freedom of speech or quarter soldiers in someone's home (that was a big problem in pre-Revolutionary times) or have an unwarranted serach and seizure. So the People created a Constitution, between themselves and the govnerment that provided for the rights and obligations of each--a contract.

One of the most basic principles of contract interpretation, indeed so basic that law students learn within the first few weeks of law school, is to look at the words on the page. What do they say and what do they mean. Certain inferences based on the words of the page are also relevant, but they must derive logically from the actual words.

So it is a logical step to say that the Second Amendment, when looked at from the perspective of all the other Bill of Rights--individual rights save the 10th Amendment, which distinguishes between individual rights and states' rights, and come to the conclusion that the Second Amendment is a collective right? It just seems to strain the logic and hangs too much upon an anachronism--of a militia. Keep in mind, in the late 18th Century, the militia was not nearly as regulated as you might think--particularly in comparison to our National Guard of today.

At any rate, there will be a great of discussion and parsing of the oral arugments. A decision is likely in June.

Future Litigation

Jack Balkin takes us into a fictional Supreme Court opinion in Spitzer v. United States (not a real case in case you were wondering), which gives constitutional protection to patronize prostitutes.

It is based, not unreasonably on Lawrence v. Texas, which defined a "sexual liberty."

Hey, if prostitution were legal and that is how you wanted to spend your money, then go ahead. I would say that you had that sexual liberty. Your spouse might not think so, but as far as the state is concerned, you can do so.

Interesting reading.

Hat Tip: The Instapundit.

'Text-Only' Web Obscenity Case Attracts National Attention

Intersting free speech/free press issue and obscenity. The question seems to be whether or not text only websites can be obscene.

The two motions to dismiss presented a strict scrutiny argument and said obscenity laws should not be applied to text where no pictures were involved. Walters said there hasn't been a case that has applied obscenity laws to text since the U.S. Supreme Court refined the test for obscenity in its 1973 case Miller v. California.

The three-pronged Miller test requires that an average person using contemporary community standards would find that the work only appeals to prurient interests, that it depicts sexual conduct as defined by state law and that it lacks "serious literary, artistic, political or scientific value," according to court documents.

Walters said Conti denied his motions to dismiss based on a 2005 ruling by the 3rd U.S. Circuit Court of Appeals in U.S. v. Extreme Associates Inc.

The legal standards in Miller are more than a little squishy (as most Supreme Court tests are). I am not sure if obscenity has been defined as visual media only, i.e. pictures, video, etc., exempting text. I don't think the bar for literary value is very high, but there is a problem.

Apparently these stories by teh defendant depict in words the kidnap and rape of under age characters. But what makes that different from any other work for fiction that depicts the kidnap and rape of characters--the mere fact that one character is underage. We are talking about fictional characters here not real live persons. Posting of pictures or video would probably not pass muster, but have we really gone so far down the high horse morality that we are now offended by mere words?

Indiana Voter ID Cases on SCOTUS Docket

Lyle Denniston has an analysis. Given that the cases will be heard in January or February, a decsion may have impacts on a few states's primaries, and certainly the general election.

Disney Wins Pooh Case

Winnie-the-Pooh that is. I didn't know that rights concerning Winnie-the-Pooh were being litigated, but Howard Bashman has the story. From the L.A. Times story:

Walt Disney Co. on Tuesday won an important appeals court ruling in its 16-year battle with a family that holds the lucrative merchandising rights to Winnie the Pooh.

The three-judge panel upheld Los Angeles County Superior Court Judge Charles W. McCoy's 2004 decision, which dismissed the state court lawsuit brought by the family of Stephen Slesinger.

McCoy took the extraordinary step of terminating the case after he found that the Slesinger family tried to gain an edge in the litigation by stealing confidential Disney documents from trash and then lying and altering court papers to cover up the thefts.

Stephen Slesinger obtained merchandising rights to the silly old bear in 1930 from the author of the Pooh stories, A.A. Milne. When Slesinger died more than 50 years ago, the Pooh merchandising rights were passed to his widow and young daughter.

Attorneys hired by Slesinger's daughter, Patricia Slesinger, had tried to argue that McCoy did not have the power to throw out the family's case. But, in what some attorneys say is a precedent-setting ruling, the appellate court found otherwise.

"We hold that when a plaintiff's deliberate and egregious misconduct makes any sanction other than dismissal inadequate to ensure a fair trial, the trial court has inherent power to impose a terminating sanction," the 54-page ruling concluded.

Ouch.

Really, Who Cares About Janet Jackson's Breast Anymore?

Well, I am sure the Third Circuit Court of Appeals wishes they could just move past the wardrobe malfunction.

The case is the second recent test of the federal government's powers to regulate broadcast indecency. Last June, a federal appeals court in New York invalidated the government's policy on fleeting profanities uttered over the airwaves.

The 3rd U.S. Circuit Court of Appeals in Philadelphia will hear arguments about the Feb. 1, 2004 halftime show when 90 million Americans watched singer Justin Timberlake pull off part of Janet Jackson's bustier, briefly exposing one of her breasts. The episode was later explained as a problem with her costume.

The FCC fined CBS Corp. $550,000. CBS challenged the fine, claiming "fleeting, isolated or unintended" images should not automatically be considered indecent. The agency noted it has long held that "even relatively fleeting references may be found indecent where other factors contribute to a finding of patent offensiveness."

While I am all for seeing more decent television, surely there are other issues more pressing when dealing with indencency on the airwaves than a 3.5 year old video of a breast fleetingly on the air.

Frederick County Maryland Seeks To Overturn Supreme Court Ruling on Illegal Immigrants

Frederick County Maryland, my home county, is seeking to leap into the national spotlight with a bill that would deny any county funds to assist the children of illegal immigrants to attend public schools.

Frederick County Commissioner Charles A. Jenkins said Tuesday that he wants the county to lead the way in a legal challenge to a 1982 Supreme Court decision that forces schools to enroll illegal immigrants.

In order for parents to enroll their children in Frederick County Public Schools, they must prove residency in the county, their child’s date of birth, and vaccinations.

Jenkins (R) is proposing legislation that would require all agencies that receive county money — which includes schools — to verify that the people they help are in America legally, before the funding is provided.

Frederick County Public Schools receives more money than all other county departments combined — $222 million in fiscal 2008 alone.

Jenkins believes the federal government has failed to protect the U.S. border, and he wants to submit a bill to the Maryland General Assembly that would set up a challenge to the Supreme Court’s 1982 decision.

The case in question, Plyler v. Doe, 457 U.S. 202 (1982) held

A Texas statute which withholds from local school districts any state funds for the education of children who were not "legally admitted" into the United States, and which authorizes local school districts to deny enrollment to such children, violates the Equal Protection Clause of the Fourteenth Amendment.

The bill being proposed by Jenkins would directly challenge that ruling.

However, there are some procedural issues involved. Frederick County, for the most part, cannot implement its own legislative proposals. The County Commission must submit to the Frederick County General Assembly delegation a list of proposed bills, which then must be approved by the full General Assembly in the normal legislative process. The rub is that the General Assembly has a veto proof majority of Democrats and has not demonstrated any inclination to stem the flow of illegal immigration into Maryland. Indeed, Maryland is practically an undeclared sanctuary state. Of course the Democrats don't need a veto proof majority since Governor Martin O'Malley (D) is not likely to sign any legislation denying illegal immigrants any "benefits."

While I support Jenkin's creativity in attempting to redress a growing problem in Frederick, namely an influx of illegal immigrants moving to the county due to lower rents and otherwise cheaper housing, Jenkins is facing a pretty tough road. But there is hope.

The dissent to Plyler v. Doe, written by Chief Justice Warren Burger and joined by the Court's then "conservative wing" of Justices Byron White, William Rehnquist and Sandra Day O'Connor, accuses the majority, comprised of Justices William Brennan (who authored the opinion) Thurgood Marshall, Harry Blakmun, Lewis Powll and John Paul Stevens, of an "unabashedly result-oriented approach" in coming to the decsion in Plyler. Burger writes in dissent:

Were it our business to set the Nation's social policy, I would agree without hesitation that it is senseless for an enlightened society to deprive any children - including illegal aliens - of an elementary education. I fully agree that it would be folly - and wrong - to tolerate creation of a segment of society made up of illiterate persons, many having a limited or no command of our language. 1 However, the Constitution does not constitute us as "Platonic Guardians" nor does it vest in this Court the authority to strike down laws because they do not meet our standards of desirable social policy, "wisdom," or "common sense." See TVA v. Hill, 437 U.S. 153, 194 -195 (1978). We trespass on the assigned function of the political branches under our structure of limited and separated powers when we assume a policymaking role as the Court does today.

The Court makes no attempt to disguise that it is acting to make up for Congress' lack of "effective leadership" in dealing with the serious national problems caused by the influx of uncountable millions of illegal aliens across our borders. 2 [457 U.S. 202, 243] See ante, at 237-238 (POWELL, J., concurring). The failure of enforcement of the immigration laws over more than a decade and the inherent difficulty and expense of sealing our vast borders have combined to create a grave socioeconomic dilemma. It is a dilemma that has not yet even been fully assessed, let alone addressed. However, it is not the function of the Judiciary to provide "effective leadership" simply because the political branches of government fail to do so.

The Court's holding today manifests the justly criticized judicial tendency to attempt speedy and wholesale formulation of "remedies" for the failures - or simply the laggard pace - of the political processes of our system of government. The Court employs, and in my view abuses, the Fourteenth Amendment in an effort to become an omnipotent and omniscient problem solver. That the motives for doing so are noble and compassionate does not alter the fact that the Court distorts our constitutional function to make amends for the defaults of others.

In a sense, the Court's opinion rests on such a unique confluence of theories and rationales that it will likely stand for little beyond the results in these particular cases. Yet the extent to which the Court departs from principled constitutional adjudication is nonetheless disturbing.

I have no quarrel with the conclusion that the Equal Protection Clause of the Fourteenth Amendment applies to aliens who, after their illegal entry into this country, are indeed physically "within the jurisdiction" of a state. However, as the Court concedes, this "only begins the inquiry." Ante, at 215. The Equal Protection Clause does not mandate identical treatment of different categories of persons. Jefferson v. Hackney, 406 U.S. 535, 549 (1972); Reed v. Reed, 404 U.S. 71, 75 (1971); Tigner v. Texas, 310 U.S. 141, 147 -148 (1940).

The dispositive issue in these cases, simply put, is whether, for purposes of allocating its finite resources, a state has a legitimate reason to differentiate between persons [457 U.S. 202, 244] who are lawfully within the state and those who are unlawfully there. The distinction the State of Texas has drawn - based not only upon its own legitimate interests but on classifications established by the Federal Government in its immigration laws and policies - is not unconstitutional.

The Court acknowledges that, except in those cases when state classifications disadvantage a "suspect class" or impinge upon a "fundamental right," the Equal Protection Clause permits a state "substantial latitude" in distinguishing between different groups of persons. Ante, at 216-217. Moreover, the Court expressly - and correctly - rejects any suggestion that illegal aliens are a suspect class, ante, at 219, n. 19, or that education is a fundamental right, ante, at 221, 223. Yet by patching together bits and pieces of what might be termed quasi-suspect-class and quasi-fundamental-rights analysis, the Court spins out a theory custom-tailored to the facts of these cases.

In the end, we are told little more than that the level of scrutiny employed to strike down the Texas law applies only when illegal alien children are deprived of a public education, see ante, at 223-224.

In looking at this theory, that the state is not required to spend the same amount of resources on illegal immigrants as well as the notion that education is not a fundamental right and illegal aliens are not a suspect class, Commissioner Jenkins may have a plausible case and may actually be able to find some sympathetic ears in the General Assembly.

Maryland is facing, in a rosy outlook, a $1.5 billion deficit next year, largely due to a strucutural deficit created by mandatory education spending. In a less rosy outlook, due to falling real estate values and restricted development, a $2 billion plus deficit may be more realisitic. In either case, the General Assembly's purse is more than a little light and the state might be willing to restrict funding for students in the country illegally. Perhaps not completely cut off funding but perhaps fudning at a lower level. If Commissioner Jenkins can make the case for no fudning but offer an alternative of lesser funding, or lesser services, then he may have a better case.

Of course, the difficulty is that funding for students is not based on the student, but upon the school population. Thus, if a school has 550 students, it receives funding for 550 students, there is no mechanism currently in place to distinguish between students who are citizens, legal alients and illegal aliens. The complexity of the now needed mechanism creates an administrative burden upon the schools, themselves, but one that can be overcome.

As localities struggle with the cost of the illegal immigration problem, there will be challenges to the various laws and court rulings that have permitted benefits to accrue to illegal aliens. In a time when budgets are going to be pinched over the next few years, due in large part to the real estate market adjustments, I would imagine that the Supreme Court is going to be looking at this issue again in a few years.

Now That's A Creative Defense!!

Accused DC Madam Deborah Jean Palfrey's attorneys are now arguing the government's prosecution is an extension of its anti-terrorism efforts:

The woman accused of being the D.C. Madam now argues that the fact that Muslim men used her elite, Washington-based escort service before the Sept. 11, 2001, terrorist attacks might have played a role in the government's effort to prosecute her.

Deborah Jeane Palfrey says she might need to divulge classified information that has sensitive national security implications -- perhaps including the identities of Middle Eastern customers -- to defend herself against the charges. She is asking a federal judge for a hearing behind closed doors to discuss the information as it relates to the government's charges.

Prosecutors, who have charged Palfrey with running an illegal prostitution ring in the District from 1993 to 2006, have declined to comment on Palfrey's newest claims. Previously, Palfrey unsuccessfully argued that the attorney general needed to appoint a special counsel to investigate her case because the Justice Department might be covering up information that former prosecutors were customers of her escort service.

Creative, very, very creative.

Flying Imams Dropping John Does from Suit

Michelle Malkin has the breaking news.

Charges Dropped Against Oregon "Sex Offender" Boys

Remember the Oregon boys charged with criminal sexual assault for slapping teh behinds of female classmates? Well a judge has dropped the charges after the boys made a public courtroom apology to their "victims."

Pressure has been building on prosecutors to drop the charges against Cory Mashburn and Ryan Cornelison, with critics saying they had blown the matter out of proportion and were overzealous. Four girls listed as victims by prosecutors joined in the call for charges to be dropped.

Judge John Collins said Monday his decision was in the "interest of justice."

snip

They were originally charged with felony and misdemeanor sex abuse charges in February.

Amid growing public opposition to sending the boys to prison and putting them on a sex offenders' registry, prosecutors dropped the felony sex abuse charges and added misdemeanor harassment charges, then later dropped all sex abuse charges, leaving only the harassment counts.

The judge dismissed the final charges following negotiations between prosecutors and the defense, and discussions with the four girls about whether they wanted the case dismissed.

The boys apologized to the girls in the courtroom Monday.

What is most troublesome about this particular case is that a public apology before the school could have saved these boys and their families the expense of a trial, saved the taxpayers the expense of all the pre-trial activity, and the public outcry that has embarassed the prosecutor's office.

As I noted in a previous post, there may be room for the boys to sue both the principal and the school's assigned police officer for infringement upon their rights, including a custodial interrogation without their Miranda rights and without their parents present.

Betsy Newmark comments:

Can't we have some return to common sense when dealing with children? A good principal can deal with this sort of problem at school by meeting with the kids and their parents and than meting out some appropriate punishment. For example, I'd recommend that kids who have their minds in the gutter mind benefit from after-school service cleaning bathrooms at the school. Whenever I proposed such punishments when I taught in middle school I was told that we weren't allowed to assign kids such labor as any sort of discipline. After or in-school suspension when they'd sit in a study hall and do homework and then read a book was the preferred punishment. Somehow I think that scrubbing a toilet or two or emptying garbage cans would be more of a deterrent than sitting in an air-conditioned study hall. But we need to get away from criminalizing piggish behavior.

I couldn't agree more with a little manual labor punishment.

The purpose of a punishment is to remind the students of their poor behavior. The punishmnent must be a significant disruption to their normal routine that they are forced to think about their actions and why they are being punished. In-school or after school suspenstion or detention is not a disruption, in fact it is a study hall-a sort of benefit.

In this case, I think a little punishment for the prosecutors is in order. Threatening the boys with a life-long "sex offender" tag is beyond the pale in this case and cannot be simply forgotten. But these prosecutors will have no punishment or reprobation, but these boys will forever be scarred by the process. Yes, they should have been punished for their behavior, but they did not need to be hauled into court for that punishment to stick.

Michael Vick Has Ties to Al Qqeda?

Wha, wha, WHATTTTT!!!

This is exactly what a $63 billion dollar (yes that is Billion with a B and not a Type)lawsuit filed against Michael Vick alleges. FOXNews.com has the story:

Embattled NFL quarterback Michael Vick, facing federal charges related to his alleged participation in dogfighting, has been hit with a "$63,000,000,000 billion dollar" lawsuit filed by a South Carolina inmate who alleges the Atlanta Falcons star stole his pit bulls and sold them on eBay to buy "missiles from Iran," FOX News has learned.

Jonathan Lee Riches filed the handwritten complaint over "theft and abuse of my animals" on July 23 in the U.S. District Court in Richmond, Va.

Riches alleges that Vick stole two white mixed pit bull dogs from his home in Holiday, Fla., and used them for dogfighting operations in Richmond, Va. The complaint goes on to allege that Vick sold the dogs on eBay and “used the proceeds to purchase missiles from the Iran government.”

The complaint also alleges that Vick would need those missiles because he pledged allegiance to Al Qaeda in February of this year.

“Michael Vick has to stop physically hurting my feelings and dashing my hopes,” Riches writes in the complaint.

Riches wants $63 billion dollars “backed by gold and silver “ delivered to the front gates to the Williamsburg Federal Correctional facility in South Carolina. Riches is an inmate at the facility serving out a wire fraud conviction.

This story is just too funny.

Riches claims that his 1st, 2nd, 4th, 5th, 6th, 8th, and 14th Amendment rights were violated. The complaint is too humerous for words. The fourth count alledged by Mr. Riches (who has asserted a copyright on his name--no joke) includes:

On February 10, 2007 Michael Vick plead allegience to Al-qeada
Michael Vick subjected me to microwave testing
Micahel Vick used drugs in school zones
Micahel Vick is in the business of illegal steroids.

In addtion to his $63 billion dollar request for damages to be delivered in gold and silver, he wants it deliverd via UPS!!!!

Very good humorous writing, if it were not real and taking up the Court's time.

By the way, he may have a case on the theft of his dogs, but the remainder is just funny.