Order in the Court

 

Welcome back to the scuttlebutt, Have a shot and a seat.

While you do, let’s talk law, because some judges are having a shot too.

 

It seems like lately, I find myself doing the court beat rather more than I ever expected to when I started this show, but that’s probably because we live in very interesting times.  (In the Chinese curse version) 

 

So let’s talk about a couple of news items from the court beat that came across the transom recently, and what they mean to you, your neighbors, and the ass-hat in your governor’s office. (If you have the luck to have a governor that is not an asshat, well, you’re lucky, and you suck.)

 

First there was an opinion written by four justices (of the eight existent, one of which is in quarantine) in the Texas Supreme court. They turned down a case by the salon owner who was arrested for opening her salon… BUT they did NOT turn it down “with prejudice” (meaning take this away and don’t ever darken our door again with it!) But instead sent it to “lower courts” with a “hey turkeys this should never have gotten to us, FIX IT.”  Using words that made it clear that they were sympathetic, but are the ”court of last resort” and not the guys to hear it first: “saying their claims, “raised in an original action in this Court, should first be presented to the appropriate district court.”

 

Justice James Blacklock, joined by three of his colleagues, concurred in that decision but noted that the issues raised by the plaintiffs cannot be lightly dismissed.” They went further, reminding everyone that the “Constitution is not suspended when the government declares a state of disaster.”

 

“As more becomes known about the threat and about the less restrictive, more targeted ways to respond to it, burdens on constitutional liberties may not survive judicial scrutiny.” the opinion continued.”  All of this and a lot more can be found at:

https://www.law.com/texaslawyer/2020/05/20/texas-supreme-court-reminds-cities-there-is-no-pandemic-exception-to-the-constitution/?cmp_share=share_facebook&fbclid=IwAR1oApr-SRiPB9v559T2S004XiZorTT92fQSBZ8N-ckbIy7kZGHI_R5aQu4&slreturn=20200426201558# 

 

which is a blog site for lawyers in the state of Texas.  The final zinger in the decision was: “Any government that has made the grave decision to suspend the liberties of a free people during a health emergency should welcome the opportunity to demonstrate—both to its citizens and to the courts—that its chosen measures are absolutely necessary to combat a threat of overwhelming severity” and that “less restrictive measures cannot adequately address the threat.”

 

Then we come to the 6th Circuit court: Tony Ramsek; Frank Harris; Theodore Joseph Roberts; Tony Wheatly, ,v. Andrew G. Beshear, Governor of KY; Eric Friedlander; DR. Steven Stack, M.D.

https://www.scribd.com/document/462730897/Ramsek-Opinion-6th-Circuit?fbclid=IwAR1qM0kW7UUYQuDi9dldEv9_K3bCHjMKa20rpolM9nvghSEM8FPYdW9rqBw

 

The link will take you to the actual court finding, but the short form (the ruling is 16 pages) is the Gov prohibited all mass gatherings, and while there are exceptions, none of them cover political speech. The judges go on to discuss the fact that the governor’s order had criminal penalties, and that he had set up reporting hotlines.  The plaintiffs were asking for relief in the form of a stay or injunction that would both allow them to gather and protest, and stop the defendants from prosecuting or quarantining the protestors.

In normal times this would have been a slam dunk, but these are not normal times.  The state thought they could get away with “you can’t gather, and you can’t protest, you have no standing and you have no choice but to obey or be imprisoned. In 15 pages, the court said “fuck you, governor.”  They listed 4 considerations, in summation, 1) is it likely that the plaintiffs will win? 2) is it likely that the plaintiffs will suffer irreparable harm if we don’t act? 3) is it likely that others will be harmed if the court grants the stay? and 4) is there a public interest in granting the stay?

 

They quote a lot of case study, and then said the district court didn’t look at the question, because they found that the plaintiffs were “without standing” meaning “they haven’t been injured, nor are they likely to be.”

 

The court of appeals then basically said that the district court was an idiot.  “There appears to be a history of previous enforcement of the Order against the plaintiffs and other citizens…”

 

The defendants claim that the state had promised not to do so because the state police commissioner said so.  The court responded, first, you didn’t do that until you were staring at our gavel, and what you did, didn’t remove the fact that you made protesting a crime. (with quoted case law.) Second, the state police commissioner doesn’t have the authority to make that promise.  Based on all of that, they found that the plaintiffs did INDEED have standing, and reason to fear the governor’s actions. 

 

They then spend over two pages explaining why the state’s chances of winning this fight rank right up there with the chances of me being elected Dictator of the world.  They explain in great detail how this is going to play out, and basically make the plaintiff’s future case for them.

 

Now it’s worth noting that this was a 2 to 1 decision.  But wait, that doesn’t mean that the “dissenting” vote disagrees with finding against the state… Oh no, in this case it’s because the dissenting vote said that the two other judges didn’t GO FAR ENOUGH! And implies that the defendants should be tarred and feathered.

 

Now these two are only a couple of the decisions handed out in the last couple of days, overwhelmingly against the state’s various lockdown orders.

 

No matter where you stand on quarantine or any of the other ramifications of these current events, you should be cheering this… Here’s why: What one party can do, the other one WILL do too, and laws that will not allow you to protest at all this week because of Corona, will be used next week to keep you from protesting something else because it’s cold and flu season.  ANY diminishment of the recognition of your rights diminishes them all, and you will NEVER get them back once you lose them.

 

The damn is beginning to crack, and with the USDOJ also saying that they’re looking for scalps from overreaching state lawmakers, I see hope in the future that this will all be settled by judges bitch-slapping the two-bit dictator wannabes that have been using the excuse of “ ’Rona” as their justification for tearing up the Constitution.  

 

I’ve said all along that I really wanted to see some of this shit tested in the Jury box, and it looks like I’m going to get my wish… This is a good thing because, after the jury box, there’s only one left. The cartridge box.  With judges and an election coming up, there is hope that we’ll be able to keep the natural progression of government toward totalitarian ends at bay for a little bit longer.  

Never the less, keep a weather eye out. We aren’t out of this shit yet.

 

Until next time I remain,

Yours in service.

William Lehman.

 

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