Ciceronian Review

Falling Behind Jones

Some further thoughts about the Jones v. Barlow case.  Throughout the Justices talk about traditional and non-traditional families, meaning by the former one husband and one wife with their offspring.  I would expect Justices in Utah, all of whom grew up here, to be a little more broad-minded about what qualifies as a traditional and a non-traditional family.  This state has a history of odd family arrangements.  It is reasonably likely that one or more of the Justices come from a family, a generation or two back, that is not a traditional family.  The remarkably limited number of surnames in the state has a source in polygamy.  Polygamy is not under the "traditional" family label for the Court.  That odd historical blindness is wider than the local cult's history.  The history of the western US during the period of Americanization was replete with non-traditional families.  Death and population movements caused a good deal of re-allocation of child ownership and care.  Even in relatively closer history, family organization very frequently differed from the model the Court invoked.   Do the get their history from Bonanza?

One Mother is Enough

In February the Utah Supreme Court handed down a decision on whether an unmarried partner had standing to seek visitation rights.  In Jones v. Barlow, Jones and Barlow had lived as a couple and held themselves out as a family.  They planned children together (by artificial insemination) and had a child together.  Barlow and Jones obtained a civil union in Vermont.  Two years after the civil union and the first child, they split.  Barlow cut off any contact between the child and Jones, who then sued for visitation rights.  The trial court granted visitation rights under common in loco parentis doctrine.  The Utah Supreme Court, 4-1, reversed the trial court, holding that there was no common law basis for a grant of visitation rights to one who was not relative of the child.  (The holding is actually a bit narrower.)  Chief Justice Durham dissented, arguing that the common law could support a de facto parent doctrine, allowing persons who are de facto parents to assert certain rights (and be forced to assume certain burdens).  The opinions discuss at some length whether a workable standing test could be developed, and what the previous cases held.  Fairly interesting even for those not taken by family law issues.  (On the whole, Durham's dissent is more interesting and seems a more honest approach to the cases.  That said, I do not think there is a common law doctrine which could do what she says, but then she fudges a bit on whether she thinks the de facto parent idea is already in the common law or should be created.  I think one ends up with the latter.)

The decision is bad for gay parents in Utah of course.  There have been recent changes in the adoption statutes, which may ameliorate.  But I am not much for family law and can't really comment on whether and how far adoption could be used to solve some of the problems. 

Here is the thing of interest to me about the case: although Jones and Barlow obtained a civil union, that fact plays no role whatever in the majority or dissenting opinions.  Both note the fact and that the parties made no argument concerning the civil union.  The decision to ignore the civil union surprised me.  Perhaps there is a statute barring recognition?  But that would have been noted by the court, as a reason to ignore the civil union had it been raised.  Neither opinion gives any such suggestion.   In any event, such a statute would certainly raise interesting questions under the Full Faith and Credit provision of the U.S. Constitution.  I have been wondering why Jones' lawyers ignored that aspect of their case.  It seems to me at least as promising as claiming a visitation right under loco parentis -- which would have required a significant expansion and revision of the doctrine to succeed.  As long as one is asking the court to undertake a major change, why give up tools to achieve that end?  Did Jones decide to sacrifice a line of argument for some other political goal?  It is a problem that comes up on occasion even in commercial litigation - a client decides that victory has to be based on a particular analysis or that victory on a particular ground has too much long term negative risk.  Fair enough.  I suppose in criminal defense such decisions would be very rare indeed. 

Jones had first rate lawyers on her case.  I wonder if they will tell me; I'll ask.

Mitt

SALT LAKE CITY - Mitt Romney said Saturday that criticism of his Mormon religion by rival GOP presidential campaigns is happening too frequently.

"Clearly, any derogatory comments about anyone's faith - those comments are troubling. The fact they keep on coming up is even more troubling," Romney said during a fundraising trip in the home state of The Church of Jesus Christ of Latter-day Saints.

I wonder.  He has a different view about some other faiths:

According to the prepared text of of the speech he will deliver to members of the conservative American Enterprise Institute, Romney will call for a partnership that “would assemble resources from developed nations to work to assure that threatened Islamic states had public schools, not Wahhabi madrassas,

So Wahhabi is not a faith?  No that would be atheism, adherents to which are, in Mr. Romney's view unqualified to lead the country.

Romney: (Chuckling) "Let me, uh, let me offer just a thought. And that is, uh, one of the great things about this great land, is we have people of different faiths and different persuasions. And uh, I'm convinced that the nation, that the nation does need, the nation does need to have people of different faiths but we need to have a person of faith lead the country."

The Jones Choice

In a previous post I wondered about the decision in the Jones v. Barlow case not to advance an argument on the fact that Jones and Barlow had entered civil union.  The opinions noted the fact that they had, and moved on to the in loco parentis arguments.  It turns out that there were several reasons for the decision, a couple of which are particularly interesting to me.  The lawyers for Jones thought the Court was hostile to recognition of rights based on a civil union.  (There is little doubt that the Legislature would be apoplectic at recognition of rights from a civil union -- that is part of the ongoing mess created by Amendment 3 which was sold as blocking recognition of same-sex marriage and, in a surprise only to those who paid no attention or were willfully blind, is being used to block any legal recognition of same-sex relationships.  The Legislature goes into a frenzy whenever anything connected to gay or lesbian parenting is mentioned.  There was concern that positive action by the Court would result in immediate backlash from eh Legislature.) 

That surprised me a little.  I did not think that the Court had any developed views on the subject, but I also have no connection to current clerks.  Could well be that the Justices have discussed the subject and those in the know know it will be no to civil unions.  That would be a shame. 

Another explanation for the decision is that civil union rights do not really matter to whether the in loco parentis arguments succeed.  The fact of entering into a civil union does a good deal of work (in connection with other facts) to show that there was a well-considered and deliberate effort by Jones and Barlow to create and get recognized a familial relationship which included shared parental responsibilities.  But the right to visitation -- it was only visitation that was at issue -- should flow from the course of conduct, which demonstrated that Jones and Barlow had done all they could do within the law to achieve the end of a recognized family.  That line of thought was apparent from the way the Justices dealt with arguments. 

Interesting strategic problem -- I do not know how I would have dealt with it.  Everything being vastly easier in retrospect. 

Architecture Awry

This does seem a horrible idea.  Perhaps it is just the angle.  Still it is hard to see how the addition could be thought appropriate to the pre-existing building.  Not that I care much for the first building - it is not a style that  moves me at all.  But the addition is horrible not only with the old building, but on its own.  It seems more a piece of sculpture masquerading as a building, and not interesting as sculpture. 

Pants On Fire

The absurd case of the administrative law judge seeking millions for lost pants is over, with a victory for the defense.  Somebody likely will b looking for a new job. 

Scooter Future

I wonder if Mr. Libby's bar membership has been revoked.  Having been convicted of perjury, one would expect him to lose his license to practice, perjury being the sort of crime I would expect a Bar to take a dim view of.  The answer is yes - a member of both DC bar and Pennsylvania bars.  He has been disbarred in DC, at least.  Wonder what holds up Pennsylvania?  Perhaps they wait for exhaustion of appeals? 

Marked Man

Back in 2006 Utah had its own small vote fraud story:

SALT LAKE CITY (AP) -- Voting appears to be very popular in Daggett County, Utah. 

Daggett County has registered 947 voters for Tuesday's election. According to the most recent Census figures, that's four more than the county's population in 2005.

A spokesman for Attorney General Mark Shurtleff says complaints of vote-stuffing in the county are being investigated. Democrats suspect County Clerk Vickie McKee is letting outsiders swell the Daggett County registration rolls to give Republicans an advantage. The Democrats also say the father of a Republican deputy running for sheriff has 14 adults registered at his household. McKee hasn't responded to messages from The Associated Press.

That was in the fall.  Since then, intrepid boy-lawyer Mark Shurtleff has been busy, but with other things.  Never reported to the public what he found in the investigation, or even if the investigation even was made. He got caught up in the local fracas over the school vouchers referendum.  In that, Shurtleff decided that he should provide legal advice to the State Board of Education by publishing his advice in the newspaper.  His theory seemed to be that the Board was his client, and as lawyer, her got to decide what they should do and the attorney client relationship was one he controlled.  (Turned out the Utah Supreme Court decided Shurtleff was wrong about the duties of the Board, but that is just their opinion.) 

Office of Confusion

The Vice President is part of the legislative branch, something I  only just learned.  It is therefore outside the scope of Executive Orders and so need not preserve documents or make documents available for Congressional oversight activities.  So says the Office of the Vice President.  What to say?  Points for brazenness, and some points for creativity.  Demerits for silly legal argument, and for demeaning the institutions.  If the VP is part of the legislature, then I suppose the office is bound by the rules of the Senate, and equally cannot avail itself of the claims of executive privilege.  It would be difficult to make out how communications between the President and Vice President could then be within the scope of any protection from Congressional investigation.  It would also mean that the financial rules applicable to the Senate are applicable to the Vice President.  Rule of law, hurrah.

Update:  There is a bill to pull the office of the VP from Executive Funding.  Just right.

Heading South

Over the weekend I watched Heading South (Vers le sud), starring Charlotte Rampling.  My memory is that  it was advertised as a sort of comedy, a little more than How Stella Got Her Groove Back, but only because set in Haiti.  It is something different.  The premise is that three women -- white and middle class -- interact while on holiday in Haiti.  Two compete for the attentions of a prostitute, Legba.  (Isn't Legba the name of a divinity?)  The story line is pretty clear from the outset -- women fall in love (or think they do) and prostitute will meet a bad ending.  (It is hard to imagine a happy ending for something set in Haiti.)  It all plays out that way, but with some good acting and, more important to me, with some interesting suggestions about the character.  The most apparently hard woman of course falls in love and is crushed by the murder of the prostitute.  The other woman who starts off appearing the most vulnerable and most accurately described as in love turns out to be seeking something else.  Her realization is the intriguing aspect of the film.  What she comes to understand is that what she had from Legba, and wants still, is not love but rather acceptance and desire, unjudged.  The film turns out to be rather more like The Quiet American, at least the Brendan Fazier/Michael Caine version. Because there is a less distracting background, and less of the background, Heading South more directly comments on the relationships with the prostitute.  The Quiet American has plenty of other things going on, politics and warfare, and higher production.  But for it too the heart of things is how the buyers think about the bought.