Had enough of Warren Jeffs, yet?
If you answered ‘no,’ you’re in luck. He’s doing his darnedest to stay in court, filing a pro se motion for a new trial in Texas.
Written in his own hand. [Read more...]
May 22, 2013
Had enough of Warren Jeffs, yet?
If you answered ‘no,’ you’re in luck. He’s doing his darnedest to stay in court, filing a pro se motion for a new trial in Texas.
Written in his own hand. [Read more...]
Jeffs’ attorneys had fought the extradition, arguing that sending Jeffs to Texas would violate his right to a speedy re-trial on accomplice to rape charges in Utah.
But 3rd District Judge Terry Christiansen sided with prosecutors who argued once a governor signs an extradition orders, courts can only decide whether the papers are in order.
“I don’t believe it’s proper for this court to substitute its judgment for that of the governor,” said Christiansen in making his ruling Monday.
This blog has looked at the Warren Jeffs’ case a few times. To review, check out posts about his conviction being over turned here, The resulting hubbub when it was overturned here, victims speaking out against Warren Jeffs here, other polygamists in Utah here (including a few that ran for public office), and coverage of Jeffs’ attorneys’ objections to extradition here.
(h/t to the Salt Lake Tribune’s Lindsay Whitehurst)
Warren Jeffs is fighting extradition.
Whatever the reason, Warren Jeffs refused to sign the extradition order that would send him to Texas for criminal trial for bigamy and sexual assault.
In a petition and a supplemental memorandum filed in 3rd District Court to quash the extradition warrant, Jeffs’ attorneys noted that based on the Supreme Court’s ruling, he was now entitled to a speedy trial, bail and a host of other protections that were being violated and “ignored” by Utah and Texas.
“They have shrouded their ungodly alliance in the semantics of extradition law, hoping to conceal the otherwise obvious effects of their conspiracy against Mr. Jeffs’ basic civil rights by inviting this court to ignore them,” the defense wrote.
With the Utah Supreme Court overturning Jeffs’ original conviction on the grounds that the jury received erroneous jury instructions (here for previous post on this), Utah retains the option to retry the polygamist religious leader or send him to Texas. However, argue his defense attorneys,sending him to Texas would be unfair.
Rather than attempting to immediately retry Jeffs, defense attorneys say prosecutors are “punting” by “using (the warrant) as an offensive line to protect its weakened prosecution, buying time until it can figure out what to do next in its now frantic effort to defeat Mr. Jeffs and the unpopular religion he represents,” the motion states.
Because of the wording in the Supreme Court decision, Jeffs’ attorneys said it was “unlikely Utah could obtain another conviction.” Furthermore, any conclusion to a trial in Texas could potentially be years away, defense attorneys say, further delaying legal action in Utah.
By delaying the case longer, witnesses will be more difficult to locate, memories will fade and documents may be lost, defense attorneys argued.
“Utah and Texas don’t care about that, though. They seek to procrastinate the prosecution of Mr. Jeffs’ long-standing Utah case indefinitely, while Texas, which has not even begun its prosecution, can start from scratch in yet another governmental attempt to remove the FLDS prophet from the public sphere,” court records state.
Because Utah still retains the right to retry Jeffs, despite being set back by the Utah Supreme Court, Jeffs is arguing that Utah should either let him off the hook and dismiss the charges against him before sending him to Texas, or try him and get it over with here. The last thing he wants is to go to trial in Texas only to face return to Utah later for retrial.
Which raises the question: should Utah’s 3rd District Court, where Jeffs filed is motion, allow Utah to extradite Jeffs or should it force Utah to prosecute Jeffs first?
Utah statute states that it’s the governor’s call. “If a criminal prosecution has been instituted against such person under the laws of this state and is still pending the governor, in his discretion, may either surrender him on demand of the executive authority of another state or hold him until he has been tried and discharged or convicted and punished in this state.” Utah Code Ann. § 77-30-19. (italics added for emphasis)
Under this statute, then, the Governor retains authority “in his discretion” to send Jeffs to Texas or keep him here, in so far as Jeffs has neither been “tried and discharge or convicted and punished.” While Jeffs’ has been tried, he has not yet been discharged of the criminal allegations against him, not has he been convicted and punished. On its face, it appears that Jeffs’ case against extradition is weak. The Governor has the discretion to choose to send him or not, and apparently has already signed the extradition order.
If anything, it delays the final order of extradition, but only for so long. If Utah wants Jeffs to face a court in Texas, there’s a good chance that he will–if not now, at least before his legal battle’s are over.
My good friend Ben Lusty published a piece on Congressional use of it’s funding power to influence education policy in the states. Because I feel like the tension between the states and federal government merits scrutiny, especially when money is at issue, I have reprinted Ben’s piece here with his permission.
By Ben Lusty
Deseret News Published: Friday, Aug. 20, 2010 12:03 a.m. MDT
Congress last week passed the Education Jobs and Medicaid Assistance Act. The act is a $26.1 billion bailout for states. But there is a catch: States must not cut education spending and must
pay each federal dollar to a teacher (the vast majority of whom are dues-paying union members). The bill intrudes into state sovereignty by dictating the way state legislatures spend their residents’ tax dollars, and nowhere is this more evident than Texas.
Congress singled Texas out for special treatment. To qualify for $820 million in aid, Texas must maintain its current level of educational spending until 2013. This command is retribution for Texas using some $3 billion in stimulus funds to plug a budget gap last year, rather than hiring more teachers as Congress wished. The governor of Texas must commit to maintain spending levels, even if that means raising taxes on Texans. The problem is that the state constitution prohibits the governor from promising to maintain funding levels. Only the Texas Legislature can direct state spending. Texas is thus on the very long horns of a dilemma: Forgo needed money, or violate its constitution.
Congress has some power to direct state action. There is no doubt that under the taxation and spending clause of the Constitution, Congress can require a state to do certain things in exchange for federal money. Congress used to require each state to keep a 55 mph speed limit as a condition for federal funds. Because states are free to choose whether they participate in these programs, these conditional grants are legitimate.
But congressional power over the states is not unlimited. The Supreme Court has ruled Congress may not “commandeer” a state government. Congress may not, for example, require states to pass taxation laws. Neither may Congress require state police agencies to enforce federal handgun laws. In South Dakota v. Dole, the Supreme Court even held that in some circumstances, “the financial inducement offered by Congress might be so coercive as to pass the point at which pressure turns into compulsion.” That is, at some point, the amount of money at stake is too much that a state simply cannot turn the money away and must, as a matter of reality, concede to federal power.
The education bailout is troublesome to state sovereignty. In exchange for money, Congress requires states, particularly Texas, to surrender discretion regarding education funding. True, the states could decline the funds, but that is not realistic considering the fiscal desperation many states are enduring. Whether the financial inducement offered by Congress is compulsive under the Constitution is difficult to say because the Supreme Court has never said at what point the “financial inducement” becomes compulsive. And in any event, Congress is not threatening to withdraw existing funding to states.
At its heart, though, the education bailout is a mutual taxation and spending covenant between the states and the federal government, foisted upon the states by Congress’ superior power position. And it is bad policy. State legislatures are better placed to understand and respond to their own fiscal needs. Perhaps states have overspent on education and should be spending less, not more, as their legislatures judge best. Why should a senator from Virginia direct Texas educational spending? Congressional funding is a blunt instrument for delicate state finances. The Constitution envisions the federal government abstaining from meddling with state treasuries. The education bailout, however, pushes the federal government even deeper into each state’s treasury and in some cases between a state and its own constitution.
Yesterday, Warren Jeffs‘ conviction was overturned and the Utah Supreme Court ordered a retrial, and today the world is all a-twitter with the case. It turns out that polygamy is just as interesting to news readers today as it was in the 1890s.
…and that’s just a few perspectives, today. If that’s not enough on marriage, there’s always the Defense of Marriage Act for you to think about. (Constitutional or unconstitutional? Discuss.) (Townhall.com)
(Oh, and don’t miss all these other stories on the case here below)
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This just in: a Texas lawmaker wants to repeal the law in Texas that levies a the fine for DUIs because it costs too much. That’s right–it costs too much for people who get caught drinking and driving to pay the fine, so we should just remove the fine altogether.
His reason to get rid of the law, appropriately called the Drivers Responsibility Program, is described by El Paso law student Casey Williams:
“I think it’s a good idea,” said Casey Williams. “You have to remember when we’re thinking about those kinds of incidences, especially when you’re dealing with the first instance of DWI, you really want to lower them because you are trying to rehabilitate people.”
(Thanks to Legal Blog Watch)
Apparently, there is some question about the legality of the bill recently (as in yesterday) signed into law by President Obama. I’ve already discussed the questionable procedures used to pass it in the House. But what about
the bill itself? Is it legal? Is it constitutional?
Let me just say at the outset that rational minds can disagree, and this topic is no exception. I hope merely to provide some short review of the differing sides of this discussion, and hopefully you can come to your own conclusions without falling back on your pre-conceived partisan inclinations (yes, we all have biases, even if we don’t recognize them).
On the one side of the discussion, there are those that believe that the health care reform bill is unconstitutional. Their arguments boil down into several points and discussed in two lawsuits contesting the bill, one by the state of Virginia and the other by Florida and, in the words of Josh Blackmun, “a bunch of other states.”
Virginia and the Commerce Clause complaint
The Virginia case attacks the health care bill on “commerce clause” grounds. The commerce clause, found in Art. 1, Sec. 8, Clause 3 of the Constitution, gives Congress the power to “To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes[.]” Historically, the commerce clause has been one of the most empowering in the Constitution and the means through which Congress passes a large portion of legislation every year because it allows Congress to regulate anything that passes through the stream of commerce. However, as Randy Barnett, professor of constitutional law at Georgetown University, very aptly points out, insurance contracts have not before now been considered as affecting interstate commerce:
[...] the individual mandate extends the commerce clause’s power beyond economic activity, to economic inactivity. That is unprecedented. While Congress has used its taxing power to fund Social Security and Medicare, never before has it used its commerce power to mandate that an individual person engage in an economic transaction with a private company. Regulating the auto industry or paying “cash for clunkers” is one thing; making everyone buy a Chevy is quite another. Even during World War II, the federal government did not mandate that individual citizens purchase war bonds.
If you choose to drive a car, then maybe you can be made to buy insurance against the possibility of inflicting harm on others. But making you buy insurance merely because you are alive is a claim of power from which many Americans instinctively shrink.
Josh Blackman points this out, too, citing directly from the Virginia complaint:
Paragraph 17: ”The status of being a citizen of Virginia is not a channel of interstate commerce; nor a person or thing in interstate commerce; nor is it an activity arising out of or connected with a commercial transaction. Instead, the status arises from an absence of commerce, not from some sort of economic endeavor, and it is not even a non-economic activity affecting interstate commerce. It is entirely passive.”
Paragraph 18: The Commerce Clause authority has never been held to “require citizens to buy goods or services. To depart from that history to permit the national government to require the purchase of goods or services would deprive the Commerce Clause of any effective limits contrary to Lopez and Morrison and would create powers indistinguishable from a general police power in total derogation of our constitutional scheme of enumerated powers.”
Paragraph 19: “Requiring citizen-to-citizen subsidy or redistribution is contrary to the foundational assumptions of the constitutional compact [under the Necessary and Proper Clause].”
In closing, the Virginia complaint dismisses the bill with rhetorical flair:
“because the individual mandate exceeds the enumerated powers conferred upon Congress. Because the individual mandate is an essential, non-severable provision, the entire act is likewise invalid.”
Florida and the “bunch of other states” everything-but-the-kitchen-sink complaint
Florida is joined in its complaint by South Carolina, Nebraska, Texas, Utah, Louisiana, Alabama, Colorado, Michigan, Pennsylvania, Washington, Idaho, and South Dakota. Other than a short mention of the commerce clause
, the complaint challenges the bill through the 10th Amendment, the Capitation Clause, the Guarantee Clause , general principles of federalism (commandeering) and state sovereignty. In pertinent part, and again a nod to Blackman, some of the highlight from the complaint are these:
2. The Act represents an unprecedented encroachment on the liberty of individuals living in the Plaintiffs’ respective states, by mandating that all citizens and legal residents of the United States have qualifying healthcare coverage or pay a tax penalty. The Constitution nowhere authorizes the United States to mandate, either directly or under threat of penalty, that all citizens and legal residents have qualifying healthcare coverage. By imposing such a mandate, the Act exceeds the powers of the United States under Article I of the Constitution and violates the Tenth Amendment to the Constitution.
3. In addition, the tax penalty required under the Act, which must be paid by uninsured citizens and residents, constitutes an unlawful capitation or direct tax, in violation of Article I, sections 2 and 9 of the Constitution of the United States.
4. The Act also represents an unprecedented encroachment on the sovereignty of the states.
5. Further, the Act converts what had been a voluntary federal-state partnership into a compulsory top-down federal program in which the discretion of the Plaintiffs and their sister states is removed, in derogation of the core constitutional principle of federalism upon which this Nation was founded. In so doing, the Act exceeds the powers of the United States and violates the Tenth Amendment to the Constitution.
56. The Act exceeds Congress’s powers under Article I of the Constitution of the United States, and cannot be upheld under the Commerce Clause, Const. art. I, §8; the Taxing and Spending Clause, id.; or any other provision of the Constitution.
57. By effectively co-opting the Plaintiffs’ control over their budgetary processes and legislative agendas through compelling them to assume costs they cannot afford, and by requiring them to establish health insurance exchanges, the Act deprives them of their sovereignty and their right to a republican form of government, in violation of Article IV, section 4 of the Constitution of the United States.
58. The Act violates the Tenth Amendment of the Constitution of the United States, and runs afoul of the Constitution’s principle of federalism, by commandeering the Plaintiffs and their employees as agents of the federal government’s regulatory scheme at the states’ own cost.
Are the criticisms legitimate?
Just because a lot of conservative states have filed suit does not necessarily mean that the criticisms are legitimate. Jack Balkin, a Yale constitutional professor, dismissed the legal challenges presented to the health care bill. Since the 1930s, Congress has had almost unfettered authority to regulate the economy, and as long as the individual mandate is framed as a tax, Congress may be well within its rights to require it:
“The attack on this bill,” said Jack M. Balkin,“is not merely an attack on the substance of this particular measure. It’s also a challenge to understandings that come with the New Deal.”
Replying to the proposition that people have a right not to buy health insurance, Erwin Chemerinsky, a constitutional scholar and dean of the University of California, Irvine School of Law speaking to the New York Times:
[S]aid the right not to buy health care was “rhetorically appealing” because of its paean to personal freedom. But “individual freedom not to purchase health care, I think, has no basis in Constitutional law.
In fact, Professor Chemerinsky added, “there is no case law, post 1937, that would support an individual’s right not to buy health care if the government wants to mandate it.”
Congress has often taken actions that impinge on personal freedom for a national purpose, he noted, including the Civil Rights Act of 1964, which required hotels and restaurants to serve minorities.
“If the court stays true to its Commerce Clause jurisprudence of the last 15 years,” Professor Chemerinsky said, “I think this will be upheld.”
Vote Counting on the Supreme Court
Ironically, it is this very point–that it doesn’t really matter how close the legislation adheres to the Constitution that will allow it to survive legal challenges but whether it can be upheld on judicial precedent of the last eighty years–that Bartlett notes will be the ultimate determinate of its legality. When it comes to the legal challenge, Bartlett says
Ultimately, there are three ways to think about whether a law is constitutional: Does it conflict with what the Constitution says? Does it conflict with what the Supreme Court has said? Will five justices accept a particular argument?
What the Constitution says, what the Supreme Court has said, and what will five justices accept are not necessarily the same thing, and it is this last factor that draws the ire of the political left. Regarding the lawsuits filed by Virginia and Florida (et al.), the Economist View had this to say:
From what I’ve read, there are two points to make. First, it would be crazy to rule that the individual mandate (or any other component of the legislation) is unconstitutional. Second, we have four crazy justices on the Supreme Court.