Phil Hart reports:

The current attempt by today’s White House Administration to impose more big government on the American People by way of the “single payer option” for healthcare is as unconstitutional as gun confiscation or the elimination of free speech. Obamacare will be funded with a health care surcharge on the today’s income tax, which constitutes an unapportioned direct tax on the wages and salaries of the American People, not allowed by our Constitution…

“The Sixteenth Amendment authorizes direct taxes upon ‘incomes,’ but not upon capital or property. Income taxes may now be imposed without regard to apportionment among the States, according to their population.

All forms of direct taxation other than taxes on ‘incomes,’ clearly remain subject to the same constitutional limits as formerly.” Brief for Appellant at pg. 24, Stanton v. Baltic Mining Co., 240 U.S. 103 (1916).

Continue reading for more information on what the constitution really means.

Obamacare is a total fascist takeover of healthcare that forces American’s at gun point to hand over money to private insurance companies.

Total tyranny.

Best wishes to everyone celebrating Christmas and Hanukkah. To paraphrase Tiny Tim, “And God bless us, everyone . . . even Legal Satyrican.”

Here are a few of the holiday offerings from our denizens.

From CCD:

From Mespo:

From Mike Spindell:

From Bob:

From Nal:

From Pardon Me:

From Lottakatz (2):

From You Know Who:

From Former Federal LEO (4):

From Gyges (2):

From Elaine M (3):

From Xmas Past:

From Buddha is Laughing:

From Anonymously Yours:

“I’ll chop you so low, you’ll have to look up to look down!” This was one of the lowest “chops” of all, that art of crafting an insult which was quite an intellectual skill amongst the wolfcubs when Silverwolf was in the fifth grade, at the Collectivist brainwashing center. The above “chop” was Silverwolf’s favorite, and would endlessly puzzle his mind, as he tried to imagine looking up to indeed look down. It seemed a daunting task, intellectually, to grasp this notion, just as it was equally to grasp the idea of “what is on the edge of the universe” or “is there anything beyond the universe?”

Fast forward a few score years to December 24, 2009, a day that will live in Libertarian infamy, as Silverwolf finally discovered what the meaning of “I’ll chop you so low, you’ll have to look up to look down!”

It’s the Healthcare Bill, for it is this piece of legislation that has extinguished the last spark of Libertarian Freedom residing on the face of the earth. Singapore may have lower income tax rates, but that is one of the few positives to say about that sewer of Human Values, a “country” that has executed a young Australian man by hanging for possessing a few pounds of cannabis. But from the standpoint of Freedom, it was almost certainly in America that there was still some glimmer of Libertarian Freedom, some still-flaming embers, as the income tax rate was lowered a score of years back from the usuriously immoral rates perpetrated by the Democrats during the dark days from Truman up to Kennedy (including Eisenhower, who, like Churchill, became a milktoast Socialist after defeating the National Socialism of Hitler and his numerous German fans).

But these embers of a dying Capitalism and Human Freedom have been extinguished by this immoral Health Care Bill, which gives the corporate Socialists everything they want, and destroys the last vestige of that Bill of Rights which Jefferson and the Founding Fathers so passionately saw the necessity of. America has been castrated by the feminized Socialism of Roosevelt through Clinton-Bush, and this Bill is the last nail in the coffin, for now, no longer is a Man Free in America, but he must now pay a corporate tithe every month just to exist as a Man, thus overthrowing the Creator-given Rights of Life, Liberty, and the Pursuit of Happiness, which the Men who wrote the Constitution had the vast intelligence to appreciate. Mental pygmies like Pelosi and Senator Reid have not one iota of that hyper-intelligence which reeks through the writings of Jefferson, Madison, and Paine, or the slightest love of Human Freedom. They are working for that Corporate-Socialist agenda which completely subjugates the Individual to the Collective, just as was done by the Criminals, Hitler, Stalin, and Mao, and they have virtually succeeded. The “reconciliation” of the Senate and House versions will be used to imply that real debate and give and take have gone on, but the real damage, the destruction of the Individual’s Self-Ownership, one of the axiomatic foundations of Libertarian insight, has already been achieved by the Moral Castrates of the Democratic Majority in the Senate.

However, Goliath was sure that he would slay David, and the punters of the day were laying the odds that way, but things didn’t turn out as expected. Judging from the anger of callers to Liberal- and Moderate-Democratic talk-show hosts last week in San Francisco, a very Liberal town, Silverwolf would say that the Democrats, in their self-righteous blindness which they invariably display towards the morality of what they are doing, especially when it is deeply immoral (witness Sen. Feinstein’s staunch support for Legalized Murder — oh, I mean, Capital Punishment),  — these Democrats have finally slit their own wrists, metaphorically speaking, for they have not awoken to the fact that they are going to drive millions of Americans who either did not vote, or voted for them, believing the propaganda machine of Herr Obama, into a state of utter destitution when they suddenly have to use their food money to send off hundreds of dollars a month to a corporation that makes billions of dollars a year. This was the Clinton  plan; this was the plan that Obama said he staunchly opposed when he lied during his campaign against Her Highness in Iowa, as he let go another trial-balloon lie. By now a dozen have rolled off his back, as effortlessly as they rolled off a teflon Reagan-duck. Birds of a feather study evasion together.

And as for lukewarm Republicans amongst that 31 million who will now be forced under threat of robbery — I mean, tax penalty, to make their monthly contributions to the insurance mafias, well, you can be sure they will be transformed in strident Republicans. With all those millions now forced to pay monthly tribute to the insurance companies, it’s small wonder that insurance execs with tons of their own stocks made a mint the other day, when final passage was in sight.  No wonder insurance industry fan Buffett was so gungho on Barack. Qui bono? Who does it benefit? was the question that Professor Rothbard taught us to always pose when looking for the reasons for anti-Libertarian legislation. On this one, the answer is not difficult to determine.

When the half-of-Americans who are too indifferent to vote and the Obama-fans-no-longer who must now pay through the nose, without their beloved “public option”, are joined by angry Republicans, there will be a Libertarian coalition formed that will rival anything seen since the Founding Fathers wrested the Colonies from Georgy-Porgy Puddinghead-Pie the Third, or J. Bracken Lee ran for President in the 50s as a Libertarian. Impinging on the Freedom of Individuals can have a tonic effect on those who take the comparative Freedom of America and the Western European Democracies as a social given which has existed since time immemorial, instead of a brief respite in the long history of Totalitarianism, which is one group of gangsters trying to ride herd over a vast number of Human Freedoms. The requirement to pay out hundreds a month just to exist will produce a bile so galling that it will be tastable in the American political mouth, and the only way to spit that taste out will be for the public to vote out the Democrats, and vote in Libertarians and Ron Paul economic-Republicans. And they will.

“Heat not a fire for thy adversary so hot that it do singe yourself” advised Shakespeare, but that is a lesson the Democrats never learned.

Arise America, retake your Freedom at the polls, and vote the Collectivist Scoundrels out forever!

And that will be the best chop of all.

Hoooooooooooooooooooooowwwwwwwwwwww! — Silverwolf

An Egyptian court has affirmed the four-year jail sentence imposed on blogger Abdel Kareem Nabil Suleiman for posting writings critical of Islam and the government. The sentencing comes after the Obama Administration caved into pressure from Egypt to support a resolution that recognizes the basis for such blasphemy prosecutions, here.

Suleiman, then 22, was arrested in 2006 for disturbing public order, insulting the head of state and defaming Islam. He was also expelled from al-Azhar University. He has already spent three years in detention.

His arrest is part of a broader sweep of bloggers, including at least 18 members of a protest blogging group.

For the full story, click here.

There is a fair amount of buzz on right-leaning blogs suggesting that a portion of the Senate’s health care bill is unconstitutional because purports to limit the discretion of future Senates.  The Senate bill sets up a Medicare advisory committee that is basically designed to make recommendations on cost saving measures in the Medicare system.  In an attempt to keep future congresses from watering down good cost-saving ideas that may be politically unpleasant, the bill states that any recommendation from the advisory committee can only be amended in the senate by a 3/5 vote so that the proposals are essentially accepted or rejected in their entirety.

Jonathan Alder asks if the Senate is allowed to bind future Senates in this way and Eric Posner says no.  I’m no expert parliamentarian, but I would like to know one thing: if this Senate cannot constitutionally bind future Senates with a 3/5 requirement to amend a bill sent from the advisory committee, how is it that previous Senates are allowed to bind the current Senate with a 3/5 requirement for cloture?

If that provision of the health care bill doesn’t pass the constitutional smell test, shouldn’t each Senate also have to vote to establish its own filibuster rules? If so, this Senate hasn’t done so, and the Republicans are no more able to filibuster anything than the Democrats are able to restrict the amendment process of future bills. Sounds like a fair trade.

It is very disheartening to read about the latest news surrounding the Chilcot Inquiry into the UK’s involvement in the Iraq War. Apparently PM Gordon Brown will not be called to face the inquiry until after the elections in 2010 so as not to tarnish his image further in the minds of the electorate. The reason given for this decision is that the Chilcot Inquiry is non-partisan and refused to be manipulated to benefit any political parties. The correct question that should be asked is this: shouldn’t the people in UK be given an opportunity to review the PM and his ministers before the elections in order to make up their own minds whether or not to trust this government for another 5 years?

• Times Online: ‘Gordon Brown spared from testifying to Chilcot inquiry until after election’
• BBC News: ‘Gordon Brown to face Iraq inquiry – after election’

I remember my Constitutional Law lecturer saying that Lord Judge’s parents had great foresight in their choice of a surname. With the Constitutional Reform Act 2005 redefining the roles, powers and limitations of the office of Lord Chancellor, most of the original powers in that office has now been transferred effectively to the Lord Chief Justice. Lord Igor Judge, as the head of the judiciary, spoke to BBC’s Law In Action on many problems with the UK legal system.

Law in Action speaks to Lord Igor Judge, who gives his first interview since taking up the post last year.

The head of the judiciary in England and Wales has defended the right of judges to impose short-term sentences.

“The purpose of sentencing is the reduction of crime, the protection and safety of the public from the consequences of crime… My view is that a short sentence is sometimes appropriate.”

Overcrowding

And what does he say to those critics who claim such sentences do not reform inmates and contribute to the serious overcrowding in prisons?

“I do not think that we can organise sentencing policy on the basis that it is our role to reduce the prison population.”

Serious offences

Lord Judge is concerned about the growth of so-called ‘out of court disposals’.

This system deals with offences without the offender going to court and includes fixed penalty notices, on the spot fines and conditional cautions.

“I believe that there are parts of the country where really serious offences [any assault which produces any injury] are dealt with without going to court, and that should not happen.”

The jury’s out

Perhaps the most controversial of his judgements so far has been the decision to give the go-ahead to the first non-jury trial.

Lord Judge is a passionate advocate of the jury system, but is also a pragmatist.

“Those who say that no price is too much are overlooking that you have to choose between hospitals and schools and armour for our troops in Afghanistan, and all the other demands on public money.”

Justice at a price

Turning to the civil justice system, Lord Judge says there is a “very serious problem” in the way that civil justice is developing in England and Wales.

He fears denying people access to justice because of cost could lead to civil disorder and violence.

It is “not acceptable”, he says, if some people can not afford to go to court.

‘Mayhem’

“It is one of the reasons why we are part of society; that society should provide us with a place in which to resolve our disputes.”

“The alternative is mayhem. You end up with peace being broken and you end up with crime being committed, crimes of violence.”

[Original source: BBC Law In Action]

Law in Action gets a unique insight into Sir Ken Macdonald’s time as Director of Public Prosecutions for England and Wales.

His tenure was served in intense, febrile times as government policy focused on tackling terrorism.

He tells the programme how this resulted in too much legislation and on more than one occasion brought him into conflict with government.

7/7 bombings

The DPP was ultimately responsible for the prosecution of terrorism in the aftermath of the July bombings in London in 2005.

He says his reaction to the events on that day surprised him. He felt “a peculiar sense of responsibility” that he could have done something to stop the bombings.

“The guilt felt by people in the top jobs led to a danger that people will overreact, which some governments across the western world did”.

Speaking out

Sir Ken differed from his predecessors because he felt it was right as head of the Crown Prosecution Service, to speak out when he disagreed with government policy.

One of those he came into conflict with was the then Home Secretary David Blunkett.

Mr. Blunkett says “the DPP should have a voice but Sir Ken’s privileged position of being able to express himself more clearly inside the system could have been used more effectively.”

42 days

The former DPP speaks about his opposition to the government’s proposals to hold terror suspects for 42 days without charge.

This was a flagship policy for the government and was pushed hard by the Home Secretary at the time Jacqui Smith.

Sir Ken says that he couldn’t agree with the idea saying it was “undermining of civil liberties”.

Parliament should ‘back off’

He says that a need to be seen to be doing something fuelled a lot of the government’s criminal and terror legislation during his time as DPP.

He says that there has been far too much legislation and believes the next parliament could do well to “back off, calm down, and leave criminal justice alone for a while”.

‘Great tragedy’

He is unrepentant about his decisions in the case of Jean Charles de Menezes who was mistakenly shot at Stockwell tube station in the days after the July 7th bombings.

He says that there was no way he could prosecute individual police officers in that case.

“Sometimes great tragedies take place in which there is no criminal culpability and it’s not the job of prosecutors to start inventing it”.

Meeting the families

Finally he speaks about his day to day role. He tells the story of meeting families to explain his decisions in particular that of Simon Murden another man shot dead by police this time in Humberside.

He says in that case he over-ruled his CPS team and decided there was not a case for prosecuting any police officers in that case.

Yay, it’s almost Jesus’ b-day! But, in light of the Establishment Clause, how does our government get to take the day off, too?   Under 5 U.S.C. § 6103, government employees are officially entitled to stay home on December 25th and celebrate the birth of Christ by eating too much, exchanging the finest goods that Wal-Mart has to offer, and drinking enough eggnog to make the room spin.  But surely the people of the Bible Belt wouldn’t be as happy to see a similar government-sanctioned celebration of the birthday of Zarathustra.  So how do the Christians get away with it?

It turns how that courts have officially recognized the secularization of Christmas.  For a long while now, courts across the land have recognized that “the Christmas holiday in our national culture contains both secular and sectarian elements.”  Lynch v. Donnelly, 465 U.S. 668, 709 (1984) (Brennan, J., dissenting).  As the Seventh Circuit explained a while ago:

Some holidays that are religious, even sectarian, in origin, such as Christmas and Thanksgiving, have so far lost their religious connotation in the eyes of the general public … [that they] have only a trivial effect in promoting religion.

Metzl v. Leininger, 57 F.3d 618, 620 (7th Cir.1995); see also American Civil Liberties Union v. City of St. Charles, (“There is nothing distinctively Christian about reindeer, Santa Claus, gift-giving, eggnog, tinsel, toys, retail sales, roast goose, or the music (as distinct from the words) of Christmas carols.”).

So, for all those out there of a non-Christian bent, drink down the eggnog with the understanding that even your government thinks Christmas doesn’t have anything to do with Christ anymore. 

-Michael

Update: I forgot to include a poem from one of the judges who addressed the “constitutional Christmas” question.  It’s further evidence that judges are not the poets they sometimes fancy themselves, but it’s also pretty funny.  From Ganulin v. United States, 71 F. Supp. 2d 824 (S.D. Ohio 1999):

The Court will address Plaintiff’s confusion,
Erroneously believing Christmas is a merely a religious intrusion.
Whatever the reason, constitutional or other,
Christmas is not an act of Big Brother!
Christmas is about joy and giving and sharing,
It is about the child within us and mostly about caring!
One is never jailed for not having a tree,
For not going to church, for not spreading glee!
The Court will uphold seemingly contradictory causes,
Decreeing the “Establishment” and “Santa” both worthwhile “Clauses!”
We are all better for Santa, the Easter Bunny, too,
And maybe the Great Pumpkin to name just a few!
An extra day off is hardly high treason,
It may be spent as you wish regardless of reason!
The court having read the lessons of Lynch,
Refuses to play the role of the Grinch!
There is room in this country, and in all our hearts, too,
For different convictions and a day off, too!

I was invited to a special screening of “Sherlock Holmes” (starring Robert Downey Jr. and Jude Law) yesterday evening – courtesy of MixFM. Much to my chagrin, the villain in the Guy Ritchie directed film, Lord Blackwood (played by Mark Strong) plotted to wipe out the lords in the House of Lords in Parliament. What followed was a smashing action movie with Downey doing his tongue-in-cheek version of the brilliant Holmes and Jude Law in a very subdued role as the voice-of-reason Dr. Watson. The plot was a little too similar to Alan Moore’s “From Hell” – what with the occultic connections and serial murders culminating in a plot involving powerful people in high places. Throw in “V For Vendetta” and you even get a plot to destroy the House of Lords in Parliament as a bonus. All in all, it was a thoroughly enjoyable romp – though not quite as what Arthur Conan Doyle may have envisioned. My wife and kids absolutely loved the film and were already screaming for the BluRay DVD upon stepping out of the theatre. As for me, I’m looking forward to the inevitable sequel when Professor Moriarty finally steps out of the shadows…

Anyway, as I was saying, the villain in the film tried to destroy the House of Lords. Truth is, his elaborate plots to take over Parliament by using cyanide gas on the dissenting lords in the august house was nothing compared to what the House of Commons did over the past 100 years to diminish the House of Lords. Historically, the House of Lords was the more powerful house in Westminster Parliament. Two civil wars later, the House of Commons overtook the Lords in power and influence (or at least, we are led to believe it to be so).

The first open challenge to the powers of the Lords came with the passing of the Parliamentary Act 1911 which severely limited the veto powers (limited to only two years) of the Lords to any bill proposed by the Commons. Furthermore, they were denied any right to challenge “money bills” proposed by the Commons. With the Parliamentary Act 1949 (finally passed after the two-year veto by the Lords, obviously), their veto powers were reduced to only one year. 

Following the devastating blows dealt to the Lords in the above Parliamentary Acts, Parliament passed two more Acts that further curtailed the powers of hereditary lords who inherited their peerage from their ancestors. The Life Peerages Act 1958 allowed the appointment of a new class of peers who could sit and vote  in the House of Lords. Unlike hereditary peers, these appointed life peers could not pass on their peerages to their descendants. The Peerage Act 1963 allowed hereditary peers to relinquish their peerages and seek election in order to join the House of Commons! By this, it was doubtless which was the more powerful House in Parliament.

Further reforms were brought about by the Labour Government that came into power in 1997. This led to the passing of two more Acts of great significance.

The first of these Acts was the House of Lords Acts 1999. This Act is said to sound the death knell to the tradition of hereditary peers. The Act left only 92 hereditary peers in the House (to be removed later by further reforms). The Act decreased the membership of the House from 1,330 (October 1999) to 669 (March 2000). As another result of the Act, the majority of the Lords were now life peers.

After that, Parliament called for further reforms of the constitutional standing of the three organs of state to give effect to a clearer separation of powers. This resulted in the redefinition of the role of the Lord Chancellor as well as the abolishment of the Appellate Committee of the House of Lords from Parliament with the passing of the Constitutional Reform Act 2005. Although the Appellate Committee of the House of Lords is abolished, the currently serving Law Lords keep their judicial role in the new Supreme Court. Newly appointed members of the Court will not take the peerage and will be called Justices of the Supreme Court. The Lord Chief Justice replaces the Lord Chancellor as head of the English judiciary.

The new Supreme Court sits in a separate building from the Houses of Parliament where the House of Lords formerly performed its judicial functions. After a lengthy survey of suitable sites, including Somerset House, it was decided that the location for the new court would be Middlesex Guildhall, in Parliament Square, Westminster, which was formerly a Crown court building. Lord Foster was chosen to make the necessary alterations. The building reopened as the Supreme Court in 2009.

References:

• Full text of the House of Lords Act 1999.
• Full text of the Constitutional Reform Act 2005 as is amended and in force today in the UK.

Michael A. Cavanagh of East Carolina University School of Communication has published Until the People Spoke: The California Supreme Court’s Response to Same-Sex “Marriage” in In Re Marriages, 9 Communication Law Review no. 1, at 48 (2009). Here is the abstract:

“In this paper, I present a traditional legal analysis and a rhetorical analysis of the Supreme Court of California’s recent ruling, In re Marriages. In this case, a State of California statute defined ‘marriage’ as a legally sanctioned relationship only for opposite-sex couples. This statutory definition was successfully challenged as unconstitutional.

“The legal analysis discusses the precedents and other justifications for the Court’s ruling. The rhetorical analysis identifies central terms of meaning and value, examines the reasoning held out as valid, presents the relationships that spring up as a result of this opinion, and, finally, discusses the new legal culture thereby created.”

A California appellate court has struck down the state law barring ex-felons from possessing body armor. The law was passed in 1998 and the Congress passed a similar federal law in 2002.

The California law was passed in response to case like that of Lee Boutwell, who fatally shot San Francisco Officer James Guelff in November 1994 and wounded another officer before being killed in a shootout. Boutwell was wearing a ballistic helmet, a flack jacket, and carrying hundreds of rounds of ammunition. The law made it punishable by up to three years in prison for felons with violent offenses to possess the body armor.

The Second District Court of Appeal in Los Angeles ruled that the law was vague and people could own a vest without knowing that it qualified as body armor under the state law. In a 2-1 ruling, Presiding Justice Joan Dempsey Klein held “[w]e do not see how, without providing something like an official list of prohibited vests, the statute can be said to provide either fair notice to a defendant or meaningful guidelines to the officer on the street.”

The ruling overturned the conviction of Ethan Saleem, who was arrested in January 2007 in Los Angeles. Here is how the Court described the arrest:

On January 23, 2007, at about 3:00 a.m., Los Angeles Police Officer Jeffrey Rivera and his partner were on patrol in Wilmington. Rivera was in the passenger seat of their marked patrol car. He saw an approaching vehicle make a quick right turn and pull off to the side of the road. Because this seemed suspicious, the officers circled the block and came to a stop next to a Honda Element. The Honda’s engine was running and it was parked just about where Rivera had seen the vehicle pull over. Shining their lights on the Honda, the officers saw the driver try to hide himself by reclining his seat. Two people in the back seat suddenly popped into view and one of them started reaching underneath the car seat. This was defendant Saleem. Rivera ordered everyone to exit the Honda.

Saleem did not immediately respond and Rivera had to repeat his order four or five times. After he got out of the Honda, Saleem had to be told three or four more times to step onto the curb with his hands up. When Saleem began walking away from the officers, Rivera again ordered him to put his hands up and turn around. Saleem took five or six steps, then stopped and turned around. At that point, Rivera could see Saleem was wearing “a camouflage vest” similar to the “ballistic” or “bulletproof” vests Rivera had worn while he was deployed in Iraq with the Marines. Over the vest, Saleem was wearing an unbuttoned shirt.

As a matter of officer safety, Rivera immediately alerted his partner to Saleem’s vest. Both officers drew their guns, pointed them at Saleem, and ordered him to the ground. Saleem complied with this order only after it had been repeated two or three times. Finally, he got down on his knees and put his hands up. Rivera searched under the seat where he had seen Saleem reaching, but he did not find anything illegal. Saleem told the officers he was on parole for voluntary manslaughter.

2. Officer Rivera’s testimony about the vest.

Rivera testified Saleem’s vest weighed about 10 pounds. A label on the vest said “[b]ody armor, fragmentation protection vest for ground troops.” Behind the label was a pamphlet addressing “the use and care of body armor fragmentation protection vest, ground troops . . . .”

During his time in the military, Rivera had participated in the testing of flak jackets similar to Saleem’s body vest: “[T]he vest was placed on a dummy, and we were able to fire various types of rounds at [it], and we were also able to observe the different capabilities of the vest and what rounds it’s able to withstand.” Based on that experience, Rivera opined Saleem’s vest would protect against pistol rounds, such as .22, .38, .40 and .45 caliber, and 9-millimeter.

While the pamphlet inside the vest warned that it would not protect against small-arms fire, a police expert testified that the device would stop a .22-caliber bullet.

The court explained:

We already have concluded, ante, that neither prior certification of the body vest, nor prior testing, pursuant to the technical specifications contained in title 11 of the Code of Regulations, is an element of the criminal offense set forth in section 12370. However, as we explain, [*19] a necessary element of the offense is either actual knowledge of, or negligence with regard to, the facts making possession of a particular body vest illegal under the statute.

Section 12370 does not contain an explicit knowledge element. This does not mean the Legislature did not intend to require one, however. “As a general rule, no crime is committed unless there is a union of act and either wrongful intent or criminal negligence. This rule, which is ‘firmly embedded’ in ‘”the principles of Anglo-American criminal jurisprudence”‘, is so basic that wrongful intent or criminal negligence ‘is an invariable element of every crime unless excluded expressly or by necessary implication’ [citations], and ‘penal statutes will often be construed to contain such an element despite their failure expressly to state it’ [citations].” (People v. King (2006) 38 Cal.4th 617, 623-623.) Courts have been “justifiably reluctant” to construe offenses carrying substantial penalties as strict liability offenses where dispensing with mens rea would “require the defendant to have knowledge only of traditionally lawful conduct.” (In re Jorge M. (2000) 23 Cal.4th 866, 881.) “The prevailing trend in the law is against imposing criminal liability without proof of some mental state where the statute does not evidence the Legislature’s intent to impose strict liability.” (In re Jennings (2004) 34 Cal.4th 254, 267.) Indeed, “at least where the penalties imposed are substantial, section 20 4 can fairly be said to establish a presumption against criminal liability without mental fault or negligence, rebuttable only by compelling evidence of legislative intent to dispense with mens rea entirely.” (In re Jorge M., supra, at p. 879.)

Saleem has a previous manslaughter conviction and four other felonies on his record.

For the full story, click here.

We have been following the latest controversy of Maricopa County Sheriff Joe Arpaio in his support of a deputy who committed an outrageous act in rifling through the papers of a criminal defense attorney and then removing and copying notes about her client (here). Many questioned the actions of County Attorney Andrew Thomas who has supported Arpaio rather than the rule of law in the matter. Now, Thomas has joined Arpaio in charging the judge who stood up to the sheriff with three felony counts — bribery, obstructing a criminal investigation, and hindering prosecution.

While he has offered little evidence, Thomas held a press conference with Arpaio to make vague allegations of criminal acts by Donahoe regarding the county’s planned court tower, currently under construction. While he admitted that he has no evidence exists that the veteran judge personally has received personal financial benefits, Thomas insisted that Arizona has a “very broad” definition of bribery. Arpaio insists that he and county lawyers have been conspiring to block his investigation into the construction. The evidence: a series of rulings that Arpaio does not like.

The press did not seem to be buying it from Thomas, who has been criticized as a bit of a lap dog for Arpaio. Thomas finally said in frustration: “If I’m not explaining this well, I hope you’ll help me. . . In fairness,” Thomas said, after enduring increasingly pointed questions, “I admit this is a hard thing to believe.”

Notably, Thomas said that Donahoe had been obstructing justice “until about two hours ago.” The end of the obstruction appears to have been the cancellation of a hearing on matters related to the criminal investigation. Thomas explained “The hearing this afternoon was part of an ongoing criminal act,” Thomas said.

In addition, Thomas filed a “racketeering” lawsuit in FEDERAL COURT, accusing the supervisors, their lawyers, and the judges of being a criminal enterprise under RICO laws here).

None of this seems to make sense, but Thomas has brushed off accusations that he and Arpaio have made the county looked like a petty dictatorship. Instead, he found time to praise himself: “Quite candidly, you’re not going to find many prosecutors with the guts to prosecute judges.” Actually, prosecutors routinely investigate and prosecute judges. It is one of the mainstays of this blog. They usually have actual evidence to cite beyond rulings that prosecutors do not like.

The Arizona Republic has run an editorial entitled “Is there no one who will stand up to Thomas, Arpaio?, here. Veteran prosecutors have scoffed at the charges against the judge, here.

These men need to put up some real evidence when they are making charges against a judge — who just happened to send one of Arpaio’s deputies to jail. After roughly two weeks, the press has yet to be able to see any evidence except unhappiness with Donahoe’s rulings. While there may be criminality linked to the construction, the inclusion of the judge would require some clear and established link beyond the fact that he did not do what Arpaio demanded. If they have such evidence, they should produce it or at least describe it to counter the growing view that this is a retaliatory move.

Thomas and Arpaio have developed a sense of unchecked power that threaten core values of the law, where they seem to act on impulse and with utter impunity. While Arpaio may be able to garner support from voters with his theatrics, Thomas must also answer to the bar which has been strangely quiet over the course of this controversy. There actions not only degrade the state of Arizona (which is made to look like banana republic) but they are destroying integrity of the legal system itself.

For the full story, click here and here and here.

It has come to this. We are facing a 50 vote deficit with ten days left in the battle for the blogoshere. It is time to pull out the video that most captures the moment (as supplied by Mespo). You are not the first to face an overwhelming army with many assuming certain defeat.

Do you want the orcs to win? Do you want Frodo Baggins stuffed and used as a plaything for Uruk-hai children? Who among us will return to the safety of our virtual homes rather than hold the line?

We need 50 bloggers to step forward and join us at the Black Gate of the ABA competition.

Iranian president Mahmoud Ahmadinejad has sent a letter to the United Nations announcing the intention for Iran to seek compensation for World War II damages. Putting aside his country’s support of terrorism around the world and repressions at home, Ahmadinejad believes the world owes his country for invading Iran in defeating the Nazis. Iran remained neutral as the world fought fascism.

Ahmadinejad says that he has people busy trying to estimate the costs. There is no question that Iran did suffer in the war as did most nations. There is also no question that the priority given to occupying troops left Iranians with little support during those years.

Iran intends to also include demands for compensation for the coup launched with U.S. support in 1953 to “reverse a popular uprising that had led to the nationalization of oil.” In 2000, former US secretary of state Madeleine Albright acknowledged that the U.S. played a role in the coup, stating “[t]he Eisenhower administration believed its actions were justified for strategic reasons… But the coup was clearly a setback for Iran’s political development. And it is easy to see now why many Iranians continue to resent this intervention by America.”

There is no statute of limitations for such claims, though Iran may find the world a bit unmoved by claims of damage during World War II when its agents are helping terrorists blow up people around the world. Perhaps we can strike a deal. We pay reparations for World War II and Iran pays reparations for decades of terrorism.

For the full story, click here.

Rep. Alan Grayson (D-Fla.) has written Attorney General Eric Holder to ask that he investigate and prosecute Republican activist Angie Langley for her website “mycongressmanisnuts.com.” In his letter below, he claims that Langley has misrepresented the purpose of the site in raising funds against him.

The site itself certainly does appear to be solely about Grayson. It claims to be for “Floridans outraged and embarrassed by Alan Grayson’s leftist positions and childish behavior.” It does not claim to be working against any other candidates but that “MyCongressmanisNuts committee is an independent organization committed to defeating Alan Grayson in 2010.”

However, the powder might not be worth the prize here. The site boasts less than 100 donors and only $3,725 raised against him.

Grayson cites federal law with up to a five year penalty for violating election rules in the case.

In his letter, he accuses Langely of pretending to be a constituent of his district and misrepresenting the site. Conservatives have targeted Grayson for such things as telling Dick Cheney to “STFU” and calling Rush Limbaugh as a “has-been hypocrite loser” who “was more lucid when he was a drug addict.” Fox news has been flagging the site as in the segment below

While there may have been some misrepresentation in the past, I do not see the basis for criminal investigation. The site advances a political view that is protected by the first amendment. Grayson’s letter is more likely to bring attention rather than prosecution in the case.

For the letter to Holder, click here.

For the story, click here

There is a controversy brewing in Nipomo, California over the right of a resident Ron Lake to display a decoration on his lawn depicting Jesus shooting Santa Claus. Neighbors want the display removed, but Lake insists that it is a work of art.

Lake insists that it is a political statement against the commercialism of Christmas. He added “[y]ou can tell your kids and make it as if there’s a Santa Claus, and let them believe all that, but you can’t explain these things or ignore this thing. I don’t get it.”

On the law, there is a first amendment right here that must be protected. Even under common law nuisance, such aesthetic nuisances claims are heavily disfavored even without the free speech elements.

Well, there is a difference between opposing the commercialization of Christmas and forcing it on passing children. I entirely support Lake’s right to have this display but I strongly disagree with his decision. While you may disagree with the commercialization of the holiday, this is a very traumatic image for young children who pass by the house. The display shows Jesus pointing a double-barreled shotgun at Santa’s dead body as Rudolph lays sprawled across the hood of a pickup truck nearby.

Lake insists that “It’s an expression of my repressed creativity.” Some creativity, Mr. Lake, might be better left repressed. Indeed, many of us call it restraint.

For the story, click here.

At a hearing concerning domestic partner benefits, Republican Mecklenburg County Commissioner Bill James took a slightly different tact on the issue: referring to gays as if they were vermin. James spoke of the effort to “de-infest” areas where gays “congregate.”

According to witnesses, Democrat Commissioner Vilma Leake gave an impassioned account of her son’s 1993 death to AIDS. After she spoke, James reportedly leaned over to her and asked, “Your son was a homo, really?”

James later said that he would not apologize for his remarks. He said “homo” is just slang and not meant to be insulting. He added “[p]eople can believe whatever they want, they can believe in the tooth fairy and legend of Atlantis. I don’t determine what I do based on what people think. I determine it based on what I did and what I did was I asked a question and that question doesn’t deserve or require an apology.”

In an email, he told one resident that police were “de-infesting” areas of gays:

“Homosexual conduct is illegal in NC (even after Lawrence V Texas). We arrest 250 homosexuals each year in Mecklenburg alone for either a ‘crime against nature’ or ‘solicitation of a crime against nature’. Unlike prostitution (exchanging money), even suggesting homosexual sex is a criminal offense in NC. If we were all that ‘progressive’ would we be arresting 250 homosexuals a year? Setting up sting operations to de-infest areas where they congregate? Point is, if you want to delude yourself that homosexual conduct is ‘ok’ go ahead. The law, the police and the DA however have a different view.”

The breathtaking ignorance of the law by James is only matched by his equally breathtaking absence of decency. If 250 people are being arrested for being homosexual in North Carolina, they will have 250 constitutional claims filed against them. Moreover, while it may be a crime in Iran to suggest a homosexual act, it is not an enforceable crime anywhere in America. If he is referring to solicitation of a sexual act in a public area, it is not confined to homosexual acts.

Yet, James believes that arrest statistics as opposed to the clear language of Lawrence v. Texas controls on the constitutional debate: “When someone trots out Lawrence v. Texas, I trot out the arrest statistics,” he said. “I say if Lawrence v. Texas is the law of the land, why are there all these arrests? And that ends the discussion usually.”

When asked about his choice of the use of the word “de-infest,” James stated:

“I think that if you’re someone who is homosexual and you believe that you are born that way and have every right to engage in that behavior, I think the offensive thing, I would surmise, is not the word ‘infest’ or ‘de-infest’ but the fact that the police are actually doing the sting operations. We can parse words — what phrase should I have used? But the central question for most people is not what particular term got used but whether the action was occurring. Was I accurate in saying there are these sting operations going on and those sting operations — whatever term you want to use — target homosexual men? That is why the county took and spent significant amounts of money to rework the park to take out certain landscaping things to prevent, once the sting operations cleared them out, prevent them from re-congregating — or re-infesting if you use my original term.”

On his website, he lists as some of his favorite quotes from Abraham Lincoln and Teddy Roosevelt:

“You cannot strengthen the weak by weakening the strong”

“You cannot help small men by tearing down big men”

The commissioners have discussed a reprimand for James but have expressed uncertainty what it might say or whether it will be proposed. In the meantime, gays and lesbians in Mecklenburg County are protesting James’ statements and views.

For the full story, here.

One of the provisions proposed for the current health care bill has received little attention in the media: mandatory coverage for faith healers. Christian Science advocates are pushing for the inclusion in the bill under a provision barring discrimination against religious based healing. They previously won support from both Republicans and Democrats for the astonishing provision that would require insurance companies to pay religious healers in the same way as radiologists.

Recently, I ran a column on how faith-healing parents are being given light sentences in the deaths of their children, here.

This provision would create a mandate that such faith-healing practices must be financially supported as part of the national health care plan.

Faith healers like Susan Breuer receive money to pray people to good health. While this is likely to come as a surprise too many, it appears that the Internal Revenue Service already allows prayer sessions to be deducted on income tax forms as medical expenses. Faith healers charge between $20 and $50 for such sessions. It is not clear if a tip gets a little more effort with the Almighty or whether this is a fixed rate.

Any tax exemption by the IRS for faith healing as a medical expense is, in my view, utter lunacy and raises serious questions of separation of church and state. (The IRS already allows deductions for Scientology “auditing” sessions in another absurd decision). This proposed provision magnifies that constitutional problem.

Yet, supporters were able to get not only Sen. Orrin Hatch to support the provision in earlier versions of the bill but they secured the support of Sen. John Kerry and the late Sen. Ted Kennedy. While it is not currently in the bill, it is simply astonishing that such members would endorse such a measure. While it was crafted as an anti-discrimination provision, it is clearly intended to force coverage for religious observances

The measure was approved by two House committees and one Senate committee.

This provision reinforces the fears of many citizens that this bill contains a host of unreviewed special provisions (including many unrelated to health care). This provision would have gutted separation principles and established a troubling endorsement of faith healing. Yet, there was virtually no discussion of the matter and Democratic leaders supported it.

For the full story, click here.

Fresh from the midterm fire!  Not sure how well I did – especially on my evidence midterm.  God, that was an evil exam.  Not even my dreaded con law midterm, which should have scared the living daylights out of me, did not make me crumble into a fine hot mess as much as evidence did.

Oh, yeah, Volokh put something up about John Yoo co-teaching a class (“Constitutional Design and the California Constitution”) at his current university (Berkeley, if you can believe it).  Of course, Berkeley students are protesting it.  Why wouldn’t they?

To hear any legal insight from this man would be an awesome opportunity, and as the blog post notes, 23 out of 24 seats have already been filled.  While I don’t agree with the conclusions Yoo reached in his infamous memo (domestic use of military for anti-terrorism purposes OK – no 4th amendment warrants or probable cause needed!), I would still take a few hours out of my day to hear the man elucidate on Constitutional Law.

Taylor Pugh, 4, (known as Tater Tot) is a bit too hairy for Floyd Elementary School’s principal. Taylor and his Dad are growing their hair to donate it for wigs for cancer patients. The suburban Dallas school district, however, insists that boys cannot have long hair and it has suspended him from classes since last month.

Remarkably, the school district is sticking to its position. Mesquite Independent School District spokesman Ian Halperin “We expect students … to adhere to the code of conduct.”

The short hair requirement always struck me as a bit sexist since girls are allowed to have longer hair than boys. So long as the hair is clean and not a danger to the child, why should a boy be required to have shorter hair than a girl? Looking at the picture with the article below, Taylor does not even appear to have particularly long hair.

Even if you agree with the requirement, it is bizarre that the school would not want to encourage such a selfless act of charity. One of my nieces at eight was part of this program and I was very proud of her. It is a wonderful message of giving that has now been replaced with a conflicting message of a senseless bureaucracy imposing arbitrary rules on children.

Not only would George Mifflin Dallas (left) not appear able to attend the school under the hair rules, but some other famous individual would find themselves suspended if they showed up for class.

For the full story, click here.