Friday, August 26, 2005

Homeopathy no better than placebos

Duh. The Brits have confirmed the obvious. What I should do is invent a mythical health care scam - say, based on ingesting precise amounts of hot dog condiments - and then get a big, fat government grant to conduct a study debunking my scam.

Friday, August 12, 2005

Proposition 77 is back on the ballot

The California Supreme Court has stayed (scroll down) the Court of Appeal order throwing the redistricting initiative, Proposition 77, off the ballot of the upcoming California special election. Here is the text of the California Supreme Court's order:

Petition for review GRANTED. The judgment of the Superior Court of Sacramento County filed on July 22, 2005, in Lockyer v. McPherson et al. (05CS00998), directing the Secretary of State not to place any version of Proposition 77 on the November 8, 2005, special election ballot or in the voter election materials, is stayed pending this court's determination of this matter or further order of this court. In the absence of a showing that the discrepancies between (1) the version of the initiative measure that was submitted to the Attorney General and (2) the version of the initiative measure that was circulated for signature (and that was signed by the requisite number of qualified voters and has been certified for placement on the ballot) were likely to have misled the persons who signed the initiative petition, we conclude that it would not be appropriate to deny the electorate the opportunity to vote on Proposition 77 at the special election to be held on November 8, 2005, on the basis of such discrepancies. (Cf. Assembly v. Deukmejian (1982) 30 Cal.3d 638, 652-654.) Accordingly, the Secretary of State and other public officials are directed to proceed with all the required steps to place in the election pamphlet and on the ballot of the special election to be held on November 8, 2005, the version of Proposition 77 that was signed by the requisite number of qualified voters. Any public official or other person who has not had an opportunity to revise statements or ballot arguments that have already been submitted to the Secretary of State in order to reflect the version of Proposition 77 that will appear in the election pamphlet and on the ballot shall be permitted to submit a revised statement or ballot argument to the Secretary of State no later than 3 p.m. on Monday, August 15, 2005. After the election, we shall determine whether to retain jurisdiction in this matter and resolve the issues raised in the petition.

Kennard, J., and Moreno, J., voted to deny review. Werdegar, J., unavailable and did not participate.

Votes: George, C.J., Baxter, Chin, and Aldrich*
* Hon. Richard D. Aldrich, Associate Justice of the Court of Appeal, Second Appellate District, Division Three, assigned by the Chief Justice pursuant to article VI, section 6 of
the California Constitution.

Hat tip: SoCalLawBlog

Wednesday, August 10, 2005

More LaShawn Barber wordsmithery

In yet another excellent post by LaShawn Barber, this one about the hiring practices of the Denver Fire Department, she once again strings together a paragraph so utterly destroying the rational for racial spoils that one thanks God we will no longer be subject to any further nonsense from Sandra Dee - erm, Day:

"If hiring rap sheet-free intelligent people means they won’t hire a black applicant for another five years, so be it. Perhaps if mothers and fathers start teaching children that dull, crime-prone, and whiny is no way to go through life, they would learn not to use their skin color to get what they didn’t earn and don’t deserve."

Late term abortion

One wonders how this couple could be prosecuted in light of the Supreme Court's abortion jurisprudence. I thought even partial birth abortions are a constitutional right.

What's the moral difference between a newborn, partial birth murder - ahem, I mean abortion - and starving your 22 month old son to death?

Friday, August 05, 2005

Lawrence v. Texas almost certainly protects a right to consensual incest

Professor Matthew Franck, a contributor to NRO and the Bench Memos blog, and Southern Appeal have been going at it over Muth v. Frank, a recent 7th Circuit opinion by Judge Manion finding that Lawrence v. Texas - that abomination of an opinion by Justice Kennedy finding that the Bill of Rights ratified in 1791 guarantees a Constitutional right to engage in homosexual sodomy - does not similarly protect a "fundamental right" to engage in consentual incest.

The row between Prof. Franck and Southern Appeal is whether Muth v. Frank actually reached the merits of the Constitutional consensual incest issue. Prof. Frank says yes. Southern Appeal says no. Who is right? Prof. Frank. As I explained in an email to Prof. Franck, cc'd to Southern Appeal:

Professor Franck,

I read your latest entry in Bench Memos and I perused the link to Southern Appeal you provided. I write to tell you that you are right, and Feddie is quite wrong, about the procedural context of the case. Not to disparage your qualifications, as Feddie does, but I am in fact a lawyer and maybe that will help you get Feddie to fess up that he is wrong.

The question you two are arguing is whether the procedural status of the case – review on a habeas corpus petition – means that Judge Manion’s opinion did or did not reach the underlying constitutional merits of whether Lawrence v. Texas protects incest as well as homosexual sodomy. Feddie says no, that Judge Manion’s opinion did not reach the merits, based on this quote from Muth:

“It may well be that future litigants will insist that Lawrence has broader implications for challenges to other state laws criminalizing consensual sexual conduct. However, because this case is here on habeas review, the only question before this court is whether Lawrence announced a new rule proscribing laws prohibiting the conduct for which Muth was convicted. We have concluded that it does not. Applying this standard to the case at hand, there was no clearly established federal law in 2001 that supports Allen Muth's claim that he has a fundamental right to engage in incest free from government proscription.”

(Emphasis added by Feddie) (and eliminated by html: ed.)

The implication Feddie draws from this quote is that the holding of Muth was limited to “whether Lawrence announced a new rule . . . .” Feddie then argues that since the court found Lawrence did not announce a new rule, Mr. Muth’s habeas petition was procedurally barred, since only new substantive rules get retroactive application. Thus, Feddie concludes, Muth did not address whether Mr. Muth’s habeas petition lacked substantive merit.

His argument conveniently ignores the second part of the question, “a new rule proscribing laws prohibiting the conduct for which Muth was convicted.” For Muth did quite clearly hold that Lawrence did announce a new rule and that the rule was retroactive and would therefore apply to habeas petitioners.

Lawrence is a new substantive rule and is thus retroactive. Anderson v. Morrow, 371 F.3d 1027, 1033 (9th Cir.2004). Accordingly, an adult imprisoned for violating a state's sodomy law (provided that person's conduct took place with another consenting adult) would be eligible for a writ of habeas corpus. If it would be unconstitutional to punish a person for an act that cannot be subject to criminal penalties it is no less unconstitutional to keep a person in prison for committing the same act. See Mackey, 401 U.S. at 693, 91 S.Ct. 1160 (Harlan, J., concurring in part and dissenting in part) ("There is little societal interest in permitting the criminal process to rest at a point where it ought properly never to repose.").” Muth v. Frank, 412 F.3d 808, 817 (7th Cir. 2005) (emphasis added) (see, I know how to cite a case and everything).

The question that Muth therefore reached – sua sponte, I might add – is what exactly was the new rule that Lawrence announced? By the court’s clear reasoning in the above quote, if Lawrence protects incest as well as homosexual sodomy, Mr. Muth would have the benefit of the retroactive application of Lawrence just as much as if he were convicted of homosexual sodomy even in the context of a habeas petition. Thus, the court was called upon – and did – reach the substantive question of whether Lawrence protected consensual incest as well as homosexual sodomy. Because Judge Manion’s opinion found that Lawrence did not protect consensual incest, it obviously did not announce a new rule protecting such a non-existent right. So in the clinching phrase of the logical argument, Judge Manion states that Lawrence did not announce a new rule protecting consensual incest. But Muth clearly did adjudicate the substantive issue of whether Lawrence protects consensual incest, and that is the point you made.

Great article, and spot on, I add.

Update: Upon reading a bit more of Southern Appeal's two posts, there is one point I need to clarify. In the context of a habeas petition, the Muth court could have found that there was a fundamental right to consensual incest out of Lawrence, but then also found that the Wisconsin state courts were not "unreasonable" in their interpretation of federal precedent. As a reader email to Southern Appeal puts it:

"I think the best reading of Muth is that even if Lawrence is clearly established law that is retroactively applicable on habeas, the Wisconsin courts' resolution of Muth's claim was not an 'unreasonable' application of Lawrence. "

Yes, Muth could have so held, but it didn't. It went straight to the jugular and found that there was no such Constitutional right to consensual incest in Lawrence, and thus no need to even address whether Wisconsin state courts' application of relevant federal precedent was "unreasonable" since it was "correct." Professor Franck is still correct.

Wednesday, August 03, 2005

Roberts answers questions

Supreme Court nominee John Roberts has submitted his written answers to the Senate Judiciary Commitee questionaire. You can get links to the whole thing in this NY Times article.

I warn you, it is boring reading. The first thing to stike me as interesting is the list of unpublished per curiam cases Judge Roberts has been on the panel of while a D.C. Circuit Judge. Why, you ask? Because of this case:

Pugh v. Socialist People's Libyan Arab Jamahiriya (Nov. 22, 2004)

I wonder if this is a long-lost relative of mine (though "Pugh" is a more common name than you might think). Whatever the case was about, it sure looks like Mr. or Mrs. Pugh was opposing one vile organization. I mean, seriously, can you pack more vileness into the name of your organization than "Socialist People's Libyan Arab Jamahiriya"? Glad to see my long-lost relative was on the side of good (though, for all I know, Mr. or Mrs. Pugh might be a disgruntled former member who is upset that the group isn't radical enough).