Sunday, September 27, 2015

My Sunday Feeling

Once more into the breach dear friends, once more.

The great line from Henry the V as he leads the troops into battle against the 
French comes to my mind as we approach September 30.  As it stands right now, that is the last day that the United States Government is fully funded.  This is because there are a small number of Republican legislators that would rather "defund" the government than to allow an appropriations bill to fund the next fiscal year that begins on October 1 if said bill contains funding for Planned Parenthood.  

Regardless of your opinion of PP, is this anyway to run a government?  If you call this a government.

I went through 3-4 of these when I worked for Uncle.  Talk about a pain in the ass.  That's one of the reasons I left when I had the chance.  I didn't want to go through another one. You have to make sure that your cases got covered as well as could be expected.  You had to secure the office.  You were given a script for your voive mail and "out of the office" email message.  Boy, talk about "out of the office."  Technically the office no longer freaking existed.

And even though you aren't allowed to volunteer your services to Uncle, neither are you allowed to work elsewhere either.  A rule which I fully intended to violate if the last shutdown turned into some protracted affair.  And while I wasn't sweating it too much financially, I worried about some of the folks in the clerical or entry level ranks.  Missing a paycheck was a problem for them.  Or at least some of them.  

I'm supposed to get on a plane Friday.  So I got on the Internet to see how a shutdown would affect that.  It won't.  TSA workers are "essential personnel." Folks on pensions wonder if they will get their check Oct 1.  (They will.)  But why should we even have to ask these questions?  What is this?  Greece? Or some other less stable banana republic?

I mean, give me a break.  

Not everybody at the VA hospital is "essential personnel." But the vets will still show up for services.  Not everybody in law enforcement is "essential personnel."  You think the crooks will lay down their weapons until it is once again a fair fight?  

You get my point.  The fact is that most folks expect services from a government that will be there when they pick up the phone to call.  They don't expect to get a recording with some disembodied voice on the other end saying, "I'm sorry.  Your call is important to us.  But we are shut down.  Please leave us a message.  We will get back to you, well, we don't know when.  In case of an emergency...well...we don't have an answer for that either.  Have a good day."

I read somewhere that the last shutdown cost the taxpayers 25 billion before the catfight in the House got resolved.  And all because about 20 Tea Party types there can't get to yes on practically anything that might resemble compromise.  Otherwise known as "governance."

Think this will get better? You must be on drugs.  Speaker of the House John Boehner just announced he is retiring effective the last day of October.  As one of the local political writers said on Facebook that the manure was about "to hit a bigger and faster fan." Or, as I said, the inmates are gonna get their shot at running the asylum.

Once more into the breach indeed.  

Is this anyway to run a damn government?

Sunday, September 20, 2015

My Sunday Feeling

I attended the annual session of the United Methodist Lawyer's Conference last Thursday at my church.  These sessions are usually pretty interesting.  Or as interesting as any Continuing Legal Education session is I should say.  But it was just down the street, it was free and they served lunch.  Besides I needed the CLE hours.  

Generally speaking, these conferences center around such issues as copyright, taxation (or how to lose the tax exemption), protection of children, and the like. The United Methodist Church got serious about a lot of these issues in light of all of the troubles that beset our Catholic brethren 10 years or so ago.  So we tend to talk about them a lot in these meetings.

The last speaker for the day was a lawyer who formally represented businesses and financial institutions.  His topic concerned Arkansas' new "Open Carry" law concerning firearms.  Arkansas, like some other states, has gone completely mad and passed legislation that allows folks to pack a weapon on them open and notoriously (to borrow language from the law of real property).  Our Attorney General has opined that this applies to handguns as well as AK 47s.  Perfect.

Not that I am an expert in this area of the law but it is my understanding that you are not supposed to bring the damned things to into churches.  And I'm sure my church bans firearms on the premises.  But human nature being what it is and this being Arkansas, Baker felt compelled to ask the group the formerly preposterous question of "Does your church have a policy concerning folks that show up packing?"

"I mean," he said. "What are you supposed to do?  Ask one of the ushers to have a word with him?  Go get the security guard?  You do have a guard don't you? And what if it is generally known in the congregation that the guy with the gun has it in for another church member who is present that day because he felt that the other guy beat him out of some money on a business deal? Do you-you being the church- have a duty to warn the other guy?"

Most of my fellow lawyers in the room looked at each other with "hell if I know" looks.

"Well, you need a policy," he said. "And here's another question.  Does your church have a policy regarding active shooters on the premises? 30% of all mass shootings occur in churches you know. Do you fling open the doors and let people escape?  Do you lock it down? What if somebody who would have preferred to escape gets shot during the lockdown? Has the church increased its exposure to liability under those facts?"

There was more.  

"Is the church locked during the day?  If it is, who makes the decisions on who gains entrance?  Is there a policy on that or does dear old Mrs. Johnson who volunteers during the week make that decision?  What if you take the view that the church should remain open to all?  Eventually, somebody armed and crazy may come in.  What are the ramifications to either scenario from a liability perspective? We have to start thinking about these things."

I guess so.  We're lawyers.  We're the ones that think about this stuff.

As an aside, I asked a police officer acquaintance of mine what he thought about the new law the other day.  He chuckled ruefully and shook his head.

"It wasn't exactly Mayberry out there before they allowed open carry.  This just makes law enforcement harder and more dangerous.  I mean, what are the rules?  What if I confront somebody?  All I can do is ask him what his intent (for being armed) is.  Do you think a criminal is going to tell me the truth?"

Nope.  It ain't exactly Mayberry out there.  And the church house is no longer a safe haven.

But we Methodist lawyers were sent back to our respective communities to discuss formulating policy for responses to the unthinkable in a world gone completely mad.  

I guess somebody has to do it.

Sunday, September 13, 2015

My Feeling Worthless On Sunday Feeling

Too much tennis, music, golf and football going on to string two sentences together. Perhaps I won't be on sensory overload starting tomorrow.

Talk amongst yourselves. 

Sunday, September 06, 2015

My Sunday Feeling

I wasn't going to write about the Kim Davis case.  I tend not to go out of my way to borrow trouble at this stage of my life, although I sometimes don't do a very good job of it.  And actually, I'm not writing about Kim Davis as such.  Rather, I'm going to write about what happened here within the framework of what has been venerable precedent in the courts of law.  And I'm going to address what I perceive to be certain irresponsible comments by people that should, and probably do, know better.

When I was a law student, I was taught the basic principals of criminal and constitutional law in my first year.  I'm pretty sure the following case popped up in both classes.  But I remember it with clarity in light of recent events.  

There were some defendants who had gotten indicted on drug charges.  I somehow remember them as Native Americans.  But they could have been anybody.  They were indicted for the illegal possession and use of peyote.  Their defense was that their use of peyote was part of closely held religious beliefs and that their prosecution was a violation of their right to free exercise of their religion as guaranteed by the First Amendment.  

Does this sound familiar?

Anyway, they Defendants lost. The ruling of the Court was to the effect that while one is free to believe whatever one wants, one is not allowed to act on those beliefs to the extent that it violates the civil or criminal law.  That has been the law of the land for a hundred years.

When I was a young lawyer, I assisted another lawyer with a Tax Court case.  The clients were Christian pacifists.  That was not the name of their denomination.  That what they were. They opposed war in any shape, form or fashion.  And they were opposed to any portion of their federal taxes going for military purposes.  They believed that forcing them to pay taxes for military purposes violated their First Amendment rights.  They weren't opposed to paying taxes.  They just wanted whatever portion of their tax dollars that went to the Marine Corps to be appropriated to the Department of the Interior.  Or something.

They lost.  The Tax Court ruled that the Congress appropriates tax money.  Not the taxpayer.  So basically, write your Congressman.  Or a letter to the editor.  Secondly, the Court stated that if everybody could pick and choose where their tax money was to go, the result would be anarchy.

Again, you can believe whatever you want.  But neither you nor I have the unfettered ability to act on those beliefs.  And if our religious based actions run afoul of a valid and/or constitutional law, the law prevails.  Which is what happened in the Kim Davis case.

Unlike most people that have expressed an opinion in the case, I actually read the transcript of the hearing on the request for injunctive relief filed by the Plaintiffs who were denied a marriage license by Davis's office based on her faith based reason that same sex unions are contrary to God's law.  

In an apparent attempt to prove that her beliefs were genuine, her lawyer asked her a series of questions about her devotion.  I'm working on recall here, but it is my recollection that she testified that she attended services 3-4 times a week and that she was part of a prison ministry. 

Based on her own testimony about her religious practices the judge ruled that requiring Kim Davis to issue marriage license to anybody-including same sex couples-did not create a substantial impact upon her First Amendment right to freely exercise her religion as she otherwise saw fit.  And so she lost.

She appealed all the way to the US Supreme Court and lost every step of the way.  Still she refused to issue the licenses to same sex couples.  This got her hauled back in front of the judge on a contempt charge.  She lost that too and got tossed in the pokey where she will stay for up to 18 months (as I recall) or until she purges herself of contempt (as they say).  

And here's the point.  Mike Huckabee's suggestion that Davis's incarceration proves that Christianity is being "criminalized" would be laughable if weren't for the fact that a certain number of people believe such nonsense.  The reality is that there is not a power in these United States that can make you believe anything or punish you for having a religious persuasion.  

I am a Methodist.  Nobody forced me to be a Methodist.  I like being a Methodist.  However, Sunday I'm going to the Baptist church to hear my buddy preach.  Nobody can stop me.  I guess he could.  But I'm not worried about that.  Or nobody can stop me from staying home and watching the US Open tennis tournament if I so choose.  

But I don't get to pick and choose among what laws I intend to obey or ignore because I am a Methodist. Again, that would be a prescription for anarchy.     

Conversely Kim Davis isn't eating county food now because she is being persecuted as a fundamentalist Christian.  She's in jail for violating a lawful order of the Court on an issue that had been litigated fully.  That's what she's in jail for.  

Which brings us to another bit of legal analysis on the part of Governor Huckabee.  He has gone on the record as stating that the United States Supreme Court "cannot make a law." That it can "only" "make a ruling on the law." 

I actually find myself in rare agreement with Huckabee.  I just don't agree with his conclusion as to the practical effect as it applies to this case.  Or most cases for that matter.

The United States Supreme Court ruled that state statutes that prohibit same sex couples from marrying violated the United States Constitution.  Accordingly, these laws were entitled to no more effect and states are no longer legally able to prohibit same sex couples from obtaining a marriage license on that basis alone.

Which is exactly how I explained it to the 10th grader in my life over lunch one day.  It is not much more complicated than that.  

So yeah, Mike, the Supremes can't "make a law."  But they can sure as hell rule as to the constitutionality of laws passed by legislative bodies and they have done so since around 1830 when the Supreme Court ruled that it was the function of the "judicial department" to declare what the law is.  

You can believe that same-sex marriage is wrong.  You can choose to join a church that doesn't marry same-sex couples. Like the Methodist church.  You can refuse to attend same-sex weddings.  You can write letters to the newspaper or to your congressman expressing your opposition to it.  You can refuse, in your personal life, to associate with gay folks.  Nobody can stop you from doing any of these things.  

But your closely held religious beliefs doesn't mean you can pick and choose what laws you will obey and what laws you won't.  At least not without consequences.

Kim Davis's position has never been the law.  Never, ever, ever.  

And that is all there is to say about this situation.