Ciceronian Review

First and Second Equal Jail

The First and Second Amendments lead to jail in Utah when you are not part of the local cults. The law in Utah is pretty clear – carrying guns, loaded or unloaded, onto school property is permissible. Any adult otherwise permitted to be on school property may carry a weapon. Indeed, the Legislature is hoping to extend the right to carry to private property as well. Currently, weapons are permitted in any public place. If a church does not want to hold services with armaments, then it must either post a notice at the door or get itself listed with the State as barring weapons. Next session, there may be an effort to deny employers and property owners of the ability to bar weapons from their premises. The Second Amendment has its defenders here. The First Amendment, however, is les loved in Utah. The combination makes for selective enforcement and incoherence, as the following illustrates.

Last week, Sandra Wariner was arrested on felony charges for making a joke. Ms. Wariner is a teacher in Bountiful, Utah. (In Bountiful, your child will be enrolled in kindergarten automatically if listed with the Ward House, i.e., local LDS church.) Ms. Wariner said within hearing of the principal that she had a shotgun and would bring it to school with her.

"She turned to him and basically [said], if she doesn't get what she wants, she has a shotgun, it's loaded and she would bring it to school." Williams said he didn't know "whether she made any threats regarding other people." As far as threats involving students, "we don't find any evidence of that at all."

It is not a crime to bring a gun, loaded or unloaded, to a public school in Utah. Doesn't matter if it is a pistol or a shotgun. That it is perfectly legal to do so is a point the Legislature has been adamant about the last several years. Ms. Wariner would have been within her rights to bring the shotgun to school. Her crime then lies entirely in saying she might do what she has a right to do under Utah law. I do not see how that can be a crime.
To give some benefit to the local authorities, Ms. Wariner may have made statements to others about bringing a gun to school and shooting people. Those statements, however, were not what got her arrested (and, to be frank, I doubt the other statements occurred - the local authorities like to make things up). What got her arrested was telling the principal that she might do what she has a right to do - bring the shotgun to school.
Mr. Wariner is neither LDS nor a Republican, which are matters which matter in Bountiful.

Update

An email from JA Quilter:

First of all what you printed is not what I said! I never said anything about bringing a gun to school! Second you are absolutely right I'm definitely not a Republican you are also absolutely wrong I am LDS

Utah's New Confusion on Preclusion

The Utah Supreme Court today issued a decision, Centro de la Familia de Utah v. Carter, which appears to hold that Utah does not adhere to the “law of the case” doctrine, or, at the least, casts doubt on whether there is ‘law of the case” in Utah courts. Centro de la Familia actually concerns an application for a preliminary injunction to prevent the eviction of the plaintiff. Defendant has stated that it has no immediate plans to evict the plaintiff, and the plaintiff apparently has not been evicted. Here is the first of the relevant paragraphs of the decision:

4 Despite the lack of any immediate plans to evict CDLF, the parties suggested at oral argument that resolution of this appeal is nevertheless necessary because the findings of fact and conclusions of law entered by the district court in denying the preliminary injunction will have a binding, preclusive effect in any forthcoming trial on the merits. Indeed, counsel for both parties represented that proceedings in the district court have been delayed pending this interlocutory appeal based on an assumption that our disposition of the preliminary injunction issue will bear on the final outcome of CDLF's claims against Carter. The parties base this assumption on an erroneous interpretation of rule 65A of the Utah Rules of Civil Procedure.
(Emphasis added.)

So the parties claim that the findings of fact will be binding later in the case. It may be that the briefing and oral argument claimed that the preclusive effect was peculiar to decisions under Rule 65A of the Rules of Civil Procedure. Nothing in the opinion, however, suggests that. Nevertheless, here is how the issue is decided:

6 In this case, the district court's ruling on CDLF's motion for preliminary injunction was based entirely on documentary evidence and testimony presented through affidavit. Because much of this evidence, such as the affidavit testimony, was not in a form "which would be admissible at the trial on the merits," it could not become a part of the trial record. Moreover, the district court's findings and conclusions based on such evidence cannot provide a basis for disposing of the case on the merits. This is particularly true where CDLF's claims, or at least a portion of them, may be appropriate for trial by jury. See Utah Code Ann. § 78-21-1 (2003) (recognizing right to jury trial on issues of fact presented by certain types of actions); Corbet v. Cox, 517 P.2d 1318, 1319-20 (Utah 1974) (holding that plaintiff was entitled to jury trial on disputed factual issues presented in context of claim seeking specific performance of contract for sale of land); Utah R. Civ. P. 42(b) (allowing for a separate trial of claims or issues "in furtherance of convenience or to avoid prejudice").
(Emphasis added.)

I’m all for brevity in decisions, but this is a bit too brief. It appears that the Justices are holding that there is preclusive effect within the case from the findings of fact and conclusions of law because (1) the parties are entitled to a jury trial on at least some issues, and (2) the evidence was presented to the court in a form not admissible before a jury. That reasoning is wrong. Summary judgment can be granted on the basis of affidavits and documents, and there is no doubt at all that summary judgment, partial or complete, does have preclusive effect, whether the claims are triable to the bench or a jury. There is nothing about evidence via documents or affidavits that has any obvious relevance to the question of preclusion. Preclusion based on judgment does not depend at all on the evidentiary basis for the judgment. Some jurisdictions, including, I believe Utah, accord preclusive effect to default judgments, which largely obviates evidentiary concerns. It might be that the Court thinks there is a different standard while the case remains pending. But, absent a successful motion for reconsideration, the decisions of a court are binding. That is a part of the basis for contempt and sanctions, etc. This suggests that either the Court intends something limited to Rule 65A proceedings, or the Court thinks that findings of fact and conclusions of law are not orders (or are not orders of the right kind?). If the findings of fact and conclusions of law are not binding, then the parties are free to re-fight the entire set of issues again at trial. Will that mean that partial summary judgment also can be re-litigated at trial on the remaining issues? I would hope not, but the conclusion does seem to follow.

Maybe I’ve mis-read the whole case. I would be glad to be corrected.

Stewart and Curtis

In yesterday’s NY Times, there were several notable pieces. (I usually read the paper when I get home. It arrives after I leave for work, which really just means that I live in a lower-middle class neighborhood, so we are near the end of the delivery route.) Scott Turow on Martha Stewart is worth reading. He makes a couple of points, but the one I care about is the most basic – Ms. Stewart did not get mistreated by the prosecution or the court. She did not mind stealing and, to her misfortune, was caught. Class does make a difference. That she stole from others in the stock market seems to mask the nature of her conduct. It does not matter that she did not violate insider trading laws. Those laws are narrowly drawn but hardly the end of constraints on conduct affecting stock transactions. As Turow notes, all that is different here is her class and the abstract nature of the theft. Neither should matter. There is no doubt that she traded on non-public information. There is no doubt that she had information she should not have had, and that she was happy to make use of it. There is also little doubt (but at least a little) that she did and was prepared to lie about her conduct. In other circumstances, that is enough for conviction, and, more to my point, enough to satisfy commentators of the propriety of conviction. When the defendant is found with a stolen watch, there is no particular problem with conviction.

Another instance of the same (indefensible) attitude: Here in Zion there is a scandal over transportation allowances and government provided cars and credit cards. A number of officials of Salt Lake County have made private use of County provided vehicles and credit cards. (It is no surprise that the favorite vehicle of County officials are oversized SUVs, in particular Eddie Bauer Edition Expeditions.) The County Auditor admitted to theft, others are dithering. The House Majority leader Republican Rep. Greg Curtis has been found to have filed for and received travel reimbursements over the last eight years or so for attendance at the annual Legislative Sessions despite the fact that during the period he used either a vehicle provided by the County of Salt Lake or was receiving an allowance for his car use from the City of West Jordan (depending on his job). You might think that getting paid for use of a government vehicle and use of the vehicle would be double dipping, or, even a little more sharply, would be fraud. And you might think the same about being reimbursed for travel expenses for which you have already been reimbursed. Not so. No, you see, the Representative did nothing wrong because, although he filled out and signed the requests for reimbursements for his travel costs, he did not do so with the explicit intent of committing fraud. (Which appears to mean he did not set out to defraud the state, but had something else in mind.) See, if you fill out the form, that is just sort of a habit or unconscious activity. He didn’t really mean it. “As for Curtis, taking reimbursement for mileage while also receiving a city care allowance is not the same has having the sate pay for an expense he is not incurring, as was the case with the county-provided SUV.” The key being that he received an allowance and not the car itself?
This is nonsense. What Curtis did is straightforward, and it is fraud. He collected reimbursements for travel for which he incurred no cost; either it had already been paid for or it was free ab initio.

What links Stewart’s defense and Curtis’s is that both suppose that there are different rules tied to social status. Both operate on an assumption that crime is something done by the lower classes, that the position held by a person controls the analysis of their conduct. As a descriptive matter, that is plausible, and the discussion of the cases is evidence of accuracy. But as a normative claim, it fails. The law says nothing which could be read to support such a view, and there is no plausible moral or political theory which could give succor to such beliefs.

Revenant and Illusion

The current issue of the London Review of Books includes a letter concerning the Middle East that is worth considering:

Yisrael Medad asks that we call the Jewish settlers in the West Bank revenants, as befits 'persons who have returned after a long hiatus to their ancestral homes' (Letters, 6 May). I know just how he feels. My family lost everything in the North of England in 1070, when William the Conqueror ethnically cleansed the landowners, and it's been annoying us ever since. If Medad would meet me next Thursday in Barnard Castle, with a few hundred of his armed friends, we could finally see justice done. It's tough perhaps to the non-revenants, who've been there for only 934 years, but we won't charge them back rent and there are plenty of people who speak their language next door. I'm sure they'll adjust and find other places to live, among their own kind.

Nicholas Blanton
Shepherdstown, West Virginia

Can't say I am in the same shoes - on my father's side, they were the dispossessors, being Viking invaders of Russia, and passers-by, Jews. On my mother's side, there is no doubt they dispossessed and were dispossessed, Italy being a might mixed. As late-comers to the local environ, the previous inhabitants having been moved along by others, I am not sure how we fit in.

I know, calumny, and racist besides.

Which reminds that the Ninth Circuit has held that corporations sometimes have racial identity. I don't particularly care about the merits of the underlying case, Thinket Info Resources v. Sun, but the notion is difficult to understand. Grant that race is a social construct (a concession that turns out to mean little for political and social theory) and that corporations are social constructs, albeit in a rather different sense, it is still a difficult stretch to got the two to overlap. (Yogic law, perhaps.) Corporations are artificial in the straightforward sense that they do not actually exist except through legal definitions. There is no body to the corporation, and it neither has intentional states nor any of the other indicia of being a person. Bland and obvious enough. Are corproation to have race depending on the identity of the management? Or is it shareholders? Or is perception by the employees of other corporations? And if they have races, why not their own race?

Not Seals, Antelope

I have been thinking about testimony under Rule of Evidence 702, and the differences between Utah and federal practice on this topic. I know, not likely to entrance a reader, so I won’t keep to that topic for long. Two things struck me about expert testimony which I pass on. The first is that Utah manages both to follow federal practice and not to follow federal practice in a way that maximizes confusion (which sometimes seem to be the guiding principle of Utah law, at least when left to the courts). Utah has not adopted Daubert or its progeny and yet takes all of the federal post-Daubert cases as guidance, suitably modified to allow for the difference in texts. Which might work except for the fact that the Utah rule allows parties (or their counsel) to write the expert report. Experts really are talking seals (or maybe antelope as we are in a desert). One of the grounding principles of the federal rule is that a testimonial expert is independent of the party employing the expert (that, after all, is the source of the standards for testimony under 702). Of course, one can find pliable experts and one can find genuinely independent types who, as it happens, hold the view one needs for a case. But they are independent, and so do their own work. Utah says ‘no need to waste the money on someone who is not a lawyer, write the report and hand it to the expert’. An instance of false savings I would guess – what is saved in expert fees is spent in additional discovery.

Proposals for amendments to the federal rules come out on Friday.

Always Carry

According to the Boston Globe, the MBTA is set to begin passenger ID stops. I wonder how that squares with Kolander, 103 S. Ct. 1855 which I though held that one was free to walk public spaces without identification. I suppose one could claim that the subways are not public spaces, are somehow unlike sidewalks (strikes me as unpersuasive), but who knows. Maybe the MBTA is counting on the Supreme Court over-ruling Kolander this term.

(It has long seemed to me that Soros could do the country a great service by spending $30,000 to have someone put the Justices under the sort of surveillance that they are happy to put the rest of us under. Weekly search of trash, track their movements, etc. Unfortunately, I think it would be illegal to record their telephone and internet usage.)

Maybe we should save time and just implant RFIDs in everyone and have done with it. We could then proram detection of improper or unauthorized walking or riding.

A Light in Oregon

Turns out the bright boys and girls of U.S. Attorneys office and our various secret police have once again gone off track. This afternoon Brandon Mayfield was released unconditionally by the U.S District Court in Oregon. The relevant information can be found here. Sorry, all a mistake I guess. From my perspective, the problem is not that Mr. Mayfield has now been imprisoned for what turns out to be no reason, and effectively branded an enemy of his own country, it is that this is not an isolated error. The FBI et al., have an unimpressive record of attending to terror or related crimes. They have failed pretty consistently on the domestic front, and, worse, have been all too happy to bark at Mr. Ashcroft's pleasure.

The guy did not even have a valid passport. Oh wait, a finger print may have matched one on a piece of paper in Spain. It seems these louts could do with a course or two in statistics and epistemology.

On the bright side, the Court did just what it is supposed to do.

Wine into Wine

The Supreme Court today granted certiorari in two cases which are extremely important to me personally. The Court will hear the appeals in Granholm v. Heald, 03-1116; Michigan Beer & Wine Wholesalers Association v. Heald, 03-1120 and Swedenburg v. Kelly, 03-1274. The issues raised concern the interaction of the Commerce Clause and state law prohibitions on wine importation from other states.

In Utah, in case you wondered, it is a crime to import wine; doesn't matter if you buy the product yourself and carry it with you when entering the state or have it shipped into the state. In fact, Senator Hatch regularly sponsors legislation aimed at barring all interstate purchases of alcoholic beverages over the internet. Aimed at ensuring teenagers aren't buying, or so the story goes.

Big and Bad

At Mirror of Justice there is an argument that religious liberty is really a federal issue, i.e., the prohibitions on religious legislation and governmental action is an issue for the federal government, but we ought not be terribly bothered about involvement of religion in legislation and governmental conduct at the local level. I suppose the idea is the result of a combination of Constitutional interpretation (the First Amendment mentions Congress and not government generally) and national government presenting a more difficult obstacle than state or local governments. Lovely theory but a hard story to sell on the facts. The history of the U.S does not really provide a great deal in the way of foundation for the second half of the argument. Aside from the limited power and strength of the federal government for most of the nation's history, the notion of local government as counterweight to religion is fanciful. In fact, it is not even on an historical record that the suggestion goes aground. Where there is a powerful church, the local government is not a bulwark against anything but dissent. Here in Zion, the local church gets what it wants from government, and without much trouble. More to the point, the government provides no insulation from exercise of religious power through governmental agencies. The reasons for this are obvious -- contested government may provide counterweight to religious authorities where there is a source of power outside and contrary to the church's. Where active LDS population is a majority, the government is going to bend to the interests of that church, just as elsewhere it is a Southern Baptist government.

More generally, the line of analysis suffers from short-sightedness. It seems constructed on the view that larger scale for a government entails greater risk of oppressive or unjust conduct, and that a key method of minimizing such risk is to push governmental functions to lower or more local levels. Such an approach certainly has an attractive logical appearance. And, to be fair, there are certainly examples to be mustered in support, e.g. the U.S.S.R. or P.R.C. So the view is not without any merit. Nevertheless, it faces a number of serious problems. One is that it is predicated on population mobility. If it is difficult to exit, it really is not going to matter if the thugs are directed by Moscow Russia or Moscow Idaho. Another is that larger populations also tend to increase competition for power and to increase the ability of groups to contest power, which is to say that it tends against consistent monolithic exercise. Obviously, a tendency is no guarantee, or the human disasters of the P.R.C., etc. would not arise. But there is no reason I can see at the moment to think that local control would be any different. Another is that there are severe problems in measurement in play. For example, counting the dead due to politics as opposed to the dead due to church (or culture).

Charlie's No Tuna

The Atlantic Magazine for May (article is not available on-line, although much of the magazine is) contains a very amuzing essay on the litigation in Massachusetts over Tobacco litigation fees. The lawyers almost all come across as both greedy and dishonest, which is hardly a surprize. It is not hard to say mean things about people who essentially fall into hundreds of millions of dollars (I think the guys in South Carolina ended up with awards totaling over 1 billion -- not that they will ever see that much.) The part which entertained me the most was the discussion of the experts, in particular Charles Silver. I don' think the article will be listed on his references, as it suggests he is something like a talking seal. On the other hand, he has lifetime employment (tenured) in a line of work that is not overly demanding (teaching law) and allows for quite lucrative consulting on the side (e.g., the instant case). Plenty of people who be happy with such an assignment.