Gay & Lesbian Studies in Kindergarten

Massachusetts has a statute that provides that parents must be given notice, and an opportunity to exempt their children from public school curriculum which primarily involves human sexual education or human sexuality issues. But, in Lexington schools, the school system doesn't think that book that depict gay marriage involve sexuality issues. So, kindergarten students and first grade students are given books and materials that talk about gay marriage, and same sex parents - and the student's parents have no say in whether their own children are required to be a part of these "lessons". According to the school, its a topic of non-discrimination, not sexuality. So, even the youngest of students needs to be taught these lessons at public schools. Apparently, parents cannot be trusted in Massachusetts with these issues.

Two families challenged the schools in Lexington, not over the decision to make the books part of the curriculum, but for not allowing the parents to have notice of what is being taught, and an opportunity to "opt out".

A Federal District Court favored the schools. Although the District Court acknowldeged that parent have a constitutuional right to direct the education of their children, parents don't have a right to say "how" their children will be educated. The Court found that the school is not compelling these very young kids to believe anything, or to hold beliefs contrary to their parent's upbringing and guidance. Nor are the parents prohibited from teaching a contrary message at home. Part of the Court's reasoning here is that Massachusetts permits gay marriage. In the end, the parents get no say in what their kids are taught, and cannot refuse to have their kids participate in lessons that are fundamentally at odds with the parents desire for their kids.

I might agree with the Court if the kids at issue were older - capable of discerning the source of the conflicting messages, and capable of deciding which of them they choose to believe or respect. But, 5 and 6 year old kids don't have this discernment as a general rule. If you live in Massachusetts, your kids better grow up quick...there's no time for them to learn about primary colors, animals, shapes or letters. They need to be getting into politically correct thinking before the schools deal with education.

Watch Where You Pay Your Taxes

The Texas Supreme Court recently decided that if a taxpayer pays his property taxes in the wrong county because of a boundary dispute between two different counties, the taxing entity who was supposed to get the tax dollars can't sue to recover the erroneous payments collected by another county.

Now, the opinion says that the Counties can't fight it out in court under the doctrine of sovereign immunity. One county can't sue the other. What is not decided is whether the taxpayer has to pay twice - once to the County that didn't deserve the taxes, and once to the County who did deserve the taxes, but can't collect them from the other county.

Double Taxation sounds wrong on quite a few levels, but when the taxpayer gets sued, I'm not sure his receipt for payment from another county amounts to any defense at all. If you pay in error, you might be entitled to a refund, but I wouldn't bet on it.

If you think this is a weird and unusual situation, you ought to look at the map for school districts and other taxing entities in Texas. If you think that you don't live near a boundary line, you might find that you do, and that this problem is more real than you thought.

The New Jersey Nets are a "Public Use"

Just this week, the 2nd Circuit handed down an opinion about a development project in Brooklyn, New York - the site of the new home for the wickedly important New Jersey Nets. Apparently, there are 15 homes and businesses in the area where the arena is supposed to be built that are in the way of this project. The homeowners and business owners do not want to sell, so they are going to be forcibly removed by the power of eminent domain.

Now, the project is not just a basketball arena, but a group of 16 high-rise apartment buildings, and several office towers. The man behind the dream is the owner of the New Jersey Nets - Bruce Ratner - who not only gets the arena with public money, but help with his other real estate projects (the apartment buildings and the office towers).

The 2nd Circuit acknowledged that the power of eminent domain is a "fundamental and necessary attribute of sovereignty" but didn't really bother to explain how Mr. Ratner became the sovereign. The Court finally held that the federal courts couldn't be bothered with disputes over such things, and that if the private owners didn't like this, they should vote someone into office that would protect their interests. The Court carefully notes that the "government" has designated this area of Brooklyn as "blighted", and that many of the buildings there are vacant or underutilized. Some of the property is in irregularly shaped lots, and there is crumbling brick and flaking paint on others. In addition, the project may someday include affordable housing (on the order of 5% of the total units).

So, that's public use. When the people in America finally get tired of being run over by their government, I don't think that the change is going to be very pretty.

The US Supreme Court better hurry up

Late last week, the 11th Circuit decided that an Alabama inmate who had challenged the lethal injection protocol in Alabama waited too long to file suit. The State of Alabama changed to lethal injection back in July of 2002. When it adopted a lethal injection protocol, the State allowed inmates the option to be executed by electrocution or by injection. Willie McNair abstained, and lethal injection was the default method.

When Mr. McNair's appeals and habeas corpus options expired, he filed a suit to challenge the lethal injection that he was destined to suffer. Too late for you, said the 11th Circuit. Mr. McNair should have complained about the procedure in 2002 or at least by 2004 (two years after the change in the procedure).

So, the saga of courts refusing to recognize that the Supreme Court is actually going to decide this issue, and that going through with an execution might be determined to be a violation of the Constitution continues. Why the 11th Circuit felt compelled to decide this case - to make any decision - while the real issue is before the US Supreme Court is a mystery to me. All they had to do was wait - until perhaps June - and they would have a guide for their decision in this case. Apparently, it is really important that Mr. McNair die.

Fallout from the "Bong Hits for Jesus"

The public school in Saginaw, Michigan has a school project that they call "Classroom City". Students are assigned the task of developing a product for sale, and the school then becomes a small "city" where these products are offered, and the kids are competing for the "class room city" dollars that are the medium of exchange. Of course, the administrators have to approve of the product being sold. That all sounds like an interesting exercise in economics and such.

Joel Curry, a 5th grader at the Handley School wanted to sell candy cane tree ornaments made of pipe-cleaners, and wanted to attach a card to the product explaining why the candy cane was representative of a variety of Christian messages. The school banned the explanatory card. Joel brought suit, and lost in Curry v. Saginaw City School District.

The 6th Circuit held that the principal's decision to prohibit the Christian message on the product was within the principal's discretion. The principal thought that other students and parents might be offended by the product. Moreover, the principal thought that because the product was being sold at the Classroom City project, others might conclude that the candy cane ornaments and the accompanying card had the express approval of the school, and that the school favored Christianity over other religions.

Now, I'm not sure that I can fault the 6th Circuit's analysis of the Constitutional problems presented by Joel's candy cane and card. But, I do wonder when the populace got so sensitive to a 5th grader's class project that they thought lives would be ruined if the kid put a message on his product that inspired him, if no one else. The Classroom City project was designed to simulate the marketplace...so if the marketplace was offended or didn't like the product, I guess that young Joel would have learned that business and religion don't mix well. What Joel learned, though, is that freedom is a bit illusory in Saginaw, Michigan, and that the heavy hand of government falls on 5th graders just like it does on everyone else.

Say Thank You to Amazon.com

Last summer, a grand jury in Wisconsin sent a subpoena to Amazon.com asking it to disclose the identity of used book buyers who supposedly bought books from a guy that the government was investigating for tax evasion. According to the opinion just recently unsealed (In Re: Grand Jury Subpoena to Amazon.com dated August 7, 2006, 2007 U.S. Dist. Lexis 86563), one of the prolific used book dealers on Amazon was a fellow who sold 24,000 books onlineand didn't report the income. None of the buyers (Amazon's on-line customers) was suspected of any wrongdoing. Nor was Amazon accused of doing anything wrong. The government wanted to talk to the customers to build their case against the used bookseller.

Amazon fought the subpoena, contending that the disclosure of the reading habits or preferences of anyone was simply none of the government's business. And, the Magistrate Judge agreed. The subpoena, he said, "...permits the government to peek into the reading habits of specific individuals without their prior knowledge or permitssion". And, "it is an unsettling and un-American scenario to envision federal agents nosing through the reading lists of law-abiding citizens while hunting for evidence against somebody else."

United States Magistrate Judge Stephen L. Crocker, of the Western District of Wisconsin deserves praise for this opinion, and decision. And, I applaud Amazon.com for sticking up for its customers - which it clearly did not have to do. I can certainly envision an on-line vendor quietly supplying lists like this, and letting customers wonder how the feds got the information. Not Amazon -- they stood up for their customers.

The 5th Circuit Affirms Punitive Damages without any Compensatory Damages

In Abner v. The Kansas City Southern Railroad Co., the 5th Circuit reviewed a case under Title VII for employment discrimination. The facts are pretty bad for the Railroad...lots of "n-word" references in the evidence, along with KKK references and pictures of a noose. The jury found that the Plaintiffs were subjected to a "hostile working environment", but did not award any compensatory damages. In other words, the Plaintiffs didn't lose a job, lose a raise or promotion, or fail to receive some other benefit because of the color of their skin. But, the jury was outraged by the conduct (apparently) because it awarded each Plaintiff $125,000 in punitive damages.

The general reaction from lawyers about such an award would be that it could not stand. Punitive damages, generally, are not permissible unless there are compensatory damages. But, to my surprise, the 5th Circuit followed other circuits that have held that Title VII permits punitive damages without compensatory damages. The only prerequisite is that there be a Constitutional violation.

The reason this is permitted is two-fold. First, there is a high threshold for liability (a plaintiff must show "malice" or "conscious indifference"). Second, there is a cap on punitive damages - a system that insures that the punitive award won't be so high as to implicate due process concerns. From a plaintiff's viewpoint, this is a welcome reading of the law -- but one that I believe is highly influenced by the horrible facts. Less egregious actions in the workplace would probably not be so convincing to the 5th Circuit. From a defense standpoint, it is probably a case that is limited to its facts. I don't see any of the Circuits as likely to "binge" on punitive damages just because of this case.

Don Imus on the Golf Channel?

I was more than a little surprised to learn that an "anchor-person" on the Golf Channel was recently suspended for making untoward remarks during a golf match. KellyTilghman (who I've never heard of) was working with a more famous golfer (Nick Faldo) at the Mercedes-Benz Championship. Faldo said something about whether any of the younger players were capable of challenging Tiger Woods as the World's Number 1 player in golf. Faldo then suggested that maybe they shoudl just "gang up for a while". At which point Tilghman said, "Lynch him in a back alley". That's the only context that is reported in the news now, and I didn't see the broadcast.

One surprising thing is the Kelly is a female golfer, and my stereotype for racist remarks does not usually include females at all. The other surprising thing is that the amount of press for this remark does not seem to resemble the public outcry when Don Imus make a very tacky remark about a girl's basketball team.

Tiger Woods almost immediately remarked (through his people) that the remark "unequivocally" had no "ill intent". Al Sharpton felt otherwise, and has made his feelings known. But, other than a few remote comments on the Web, this one has been under the radar. I would have thought that golf and women's basketball were on about the same plane of public interest, but I guess not. Or maybe racist and feminine-phobic is worse than just racist.

Steroids and Alger Hiss

Your Congress has fallen back into the very bad habit of calling people before them to testify...the sole purpose of which is to HOPE that they lie so that they can be charged with perjury. Ask your father or grandfather who Alger Hiss is. He was a rock-star political guy during the Red Scare, and a not-too-well-known writer/reporter said that Alger Hiss was a communist. There was no crime that he could be charged with, so he was called before Congress to say, under oath, whether he was a Communist or not. The end result of his emphatic denial before Congress was two trials for perjury (one hung jury and one conviction). Now, all this kept the media not only employed, but very busy. In the end, though, the public got nothin'.

So it goes with Roger Clemens and Andy Petitte, and probably a later string of players. The whole point of Congressional hearings can only be to have these fellows hopefully lie before Congress so that they can be charged with perjury. The public hearings will allow the Congresspeople put on their indignant faces and publicly wonder how a baseball player could have ever made more money and received more public attention than an elected representative. The later trial will diminish these athletes in the public eye, I'm sure. But, I wonder whether the marketplace will do that by itself -- without the horrendous expenditure of public funds and energy.

If I've made myself clear in this post, it is apparent that these are not the only times that this method has been used to puff up the collective congressional chest. Other examples?

What Version of Free Speech Do You Prefer?

I read an editorial column recently about what it called the "phenomenon" of "libel tourism" - where plaintiffs bring their defamation of character cases in the courts of England rather than in the United States, because the UK is so plaintiff-friendly in defamation cases. Defamation claims in the US are somewhat difficult to win because the 1st Amendment reflects a core value of speech and open dialogue that is willing to permit some rather horrendous falsehoods rather than to compensate every wrong. In the UK, reputation and privacy are valued above speech and openess to an extent that permits compensation where the US would not.

The question of which is more valuable (free speech or privacy) contains a bit of irony in America since there appears to be a "right of privacy" guaranteed by our Constitution, but is a less-valued Constitutional (but "fundamental") right than the right to freedom of speech. So, our right to privacy includes a lot of things (raising families, contraception, and sex partners), but does not include what would seem to be the most basic part of privacy - the right to be left alone.

Of course, one's perception on which is more valuable (free speech or privacy) would depend greatly on what side of the blog you are on. Authors/speakers want speech. Subjects of speech want privacy. But, whatever side you are on, I wonder whether the British feel less informed on important matters than we do in America. I'll bet they don't.

Another Post about Night-Time Activites

The Minnesota Supreme Court made an interesting ruling recently. It overturned a narcotics conviction because the search that uncovered the drugs was unreasonable under the 4th Amendment. Why was this search unreasonable? Because it was conducted at night.

Susan Ranae Jackson's home was raided at night, with a search warrant. But, in this case, the warrant contained no information that provided an adequate basis to conclude that the search needed to occur at night. I'm guessing that if there were some danger that evidence might disappear or that danger to the warrant-serving officers were in the affidavit supporting the warrant, things might have been different.

But, what is interesting is that the "night-time" search issue provided a basis for reversal of a conviction. The 4th Amendment says nothing about the time of day for searches, nor has the United States Supreme Court said that searches should normally be in daylight hours. All that you can read in the Constitution is that searches should not be "unreasonable". Even the "original intent" readers of the Constitution would have to concede that the use of the term "unreasonable" leaves room for courts to put a gloss of some kind on the strict language of the Constitution. But, the U.S. Supreme Court has said that searches are unreasonable when there is a objective reason to know that people would expect privacy in certain areas. I guess that applies not only to geography, but to time of day.

Night-time searches could be arguably unreasonable because of the occupant's vulnerability at night. The mid-night phone call is alarming enough -- compare that to having your door blasted open by cops while your are in your bed-time attire and maybe asleep. The Minnesota court noted that 12 of the original states, plus the First Congress prohibited night-time searches by statute (as the State of Minnesota apparently has). While I never really considered whether the cops ought to be out busting down doors at night (since they do it so often on TV), I find myself in agreement with the Minnesota court. If there is a good reason to go into a home at night, then the cops ought to be able to articulate it. If not, everyone ought to get some sleep and take care of business in the morning.

The Texas Pole Tax

You've got to hand it to the Texas Legislature. Beginning in January, Texas will collect a tax on patrons at strip clubs - $5.00 per head for each visitor. According to estimates, the tax will bring in $40 million per year.

What makes this a brilliant move is that the Legislature claims that the tax will go to help rape victims. Now, who would vote against that? But, more importantly, who is going to insure that the money actually goes to help anyone in particular. One of the sponsors of the measure actually works for an organization that stands to get a piece of the tax pie (if indeed it is doled out as adverstised). More likely, I think most would agree, the tax money collected will simply disappear in a maze of collection expenses, administrative expenses, and small payouts. I figure its just another example of method of getting legislation passed -- earmark the money for an indisputable need; make the tax small; tax people who are not likely to protest too much.

Don't expect a big bump in funding for women's issues. It's just another way to make money for your government. Of course, don't be surprised when your own vice gets taxed one day.

And You Thought Colorado was Laid-Back

Like quite a few folks, Edward Casey got a traffic ticket. He contested the ticket in Federal Heights, Colorado. He lost the case. The judge told him to take the "file" (which the judge then handed to him), and go to the Clerk's office and pay his fine. Casey had left his money in the truck, so he carried the file out to his truck, got his wallet and started back in. Apparently, it is a crime to remove a "file" from the Courthouse, so as Casey was walking back to the Courthouse, he was confronted by a Federal Heights policeman.

Casey admitted to the cop that he had the file, and as he was showing it to the cop, he was put into an arm-lock. Casey kept struggling to get in the courthouse and return the file. While the two were struggling (and the cop never said, "you're under arrest" or "stop resisting") a second cop arrives and fired her TASER at Casey. He got hit, but pulled the barbs out, and started for the Courthouse again. At this point, even more officers arrived. They tackled Casey, hand-cuffed him and repeatedly banged his head against the concrete. Finally, Casey was arrested, and charged with obstructing governmental operations - a crime that carries a $50 fine.

He sued for excessive force. A district judge dismissed the case - holding that the force used was not excessive. The 10th Circuit reversed and reinstated Casey's claim. The opinion is Casey v. City of Federal Heights, et al, No. 06-1426 (December 10, 2007).

There's something to be said for the the single-bullet practice in Mayberry.

Merry Government Approved Christmas

Christmas in Washington is about what you would expect if you thought about it. If you want to put up Christmas decorations at your office in the Pentagon, you have to fill out Government Form DD-2798 (Click on the link to read the 12-page form).

John Doe Wins a Case

The Texarkana Court of Appeals recently considered a case of first impression in Texas relating to the identity of bloggers.  The Essent PRMC Hospital filed suit against 10 "John Doe" bloggers who were apparently saying not so nice things about the hospital on a blog.  Claiming the comments to be libelous, the Hospital sought a court order requiring the blogger's ISP to disclose the identity of the bloggers so that they could be formally sued and could appear in the lawsuit.

The trial court essentially refused to enter the order requiring disclosure until the bloggers had an opportunity to appear and be heard.  Clever fellows hired a lawyer to show up in court, but they didn't come.  The lawyer did his best to defend the blogger's rights to freedom of speech, but the trial judge eventually ordered disclosure.

The Court of Appeals made a few important rulings.

First, the federal statute 47 U.S.C, Section 551 does not provide an independent discovery mechanism for disclosure of identity.  It merely provides a substantive basis for disclosure and provides the ISP a "safe-haven" if it discloses in response to a court order.  (Interestingly, the Court took the position that when the government requests disclosure, it must prove, by clear and convincing evidence that a crime has likely been committed).  Private parties need not meet this burden.

Second, the Court held that getting a disclosure order requires compliance with the Texas Rules of Civil Procedure.  It is effectively a discovery request to a third party (the ISP that is asked to disclose names is not part of the litigation), and it must meet the requirements of Texas Rule 202 or some other discovery device in order for the trial court to act.

Third, there are constitutional protections for all "speakers" on the internet.  In order to prove their right to get the identities of bloggers, a litigant must show enough evidence to survive a Motion for Summary Judgment.  In other words, merely claiming that the words are libelous is not enough.  The trial judge would have to be satisfied that if the words were indeed published, then the plaintiff would have a valid claim.

The opinion, No. 06-07-123-CV, styled In Re Does 1-10 (December 12, 2007) is the first effort I have seen by a Texas appellate court to determine the rights and obligations of bloggers, and it is worth a read.  Click on the Title of this post to read the opinion.

Got Milk?

A lawsuit has been filed in Seattle, Washington claiming that some of the nation's biggest grocers have been selling milk as "organic" when the milk does not meet the government standards for organiosity. If you go to Target, and buy "Archer Farms" milk, the suit says that you are not buying organic milk - despite the pretty package. The pictures on the carton should be more like the one on the right according to the plaintiffs in the case.

The beef (pardon the pun) is that large corporate players in the milk market say that thier farms are organic when they are really not. That makes it difficult for mom & pop dairies to compete.

In answer to the complaint, Target says that the lawsuit is an attempt to override the USDA definition of organic with the consumer's view of what is organic -- which is a pretty surprising statement. I guess Target thinks that we have to take the Government's word for everything, and that consumers are just too stupid to figure out if the Government's definition is anything approaching the common useage of the word "organic". If the lawsuit is right, and the big milk players are using 325 acres of land to maintain and milke 4,000 cows, most of us would have a hard time accepting a government definition of that production as "organic" because those 4,000 cows are not out in the pasture getting food.

Where did that old "customer is always right" thing go?