Ciceronian Review

Discomforting

The US Supreme Court denied certiorari in Republican Party of Pennsylvania v. Degraffenreid yesterday.  The case was a challenge to the procedures used in the last election in Pennsylvania.  It was, more recently, a vehicle to test the latest Republican theory on how to constraint voting, a sort of state legislative supremacy view of election rules.  With the election over and no likelihood that a decision in the case would have any effect on the electoral outcome, there was a genuine question of mootness, and that is the basis for denial.  There were dissents by Thomas and Alito.  The key point in Thomas' dissent was that the problem raised by the case is not going away, and that it will return at a point hen the briefing and consideration will be quite compressed.  It makes sense for all to address the question about regulation of election now when there is time and quiet to do so. 

I think Thomas and his co-dissenters are more interested in getting a case that will enable them to restrict voting, and see this as a respectable means to achieve that end (because it sounds like a neutral judicial effort), whatever the outcome.  Take away a potential shadow on a next election.  In other words, the dissents seem to me disingenuous.  But, the dissenters have a good point.  It does make more sense to solve the problem now rather than wait for the contested election that makes resolution crucial, and highly political.  It leaves me in the unexpected and somewhat uncomfortable position of reluctantly agreeing with Thomas -- the only reason I see for denial is the thin hope that several justices on the way out right side of the bench will retire or die or be disabled in the next couple of years.  In addition to very poor odds, there is something at best unseemly and perhaps worse, in having such a hope.

Well, then, fall back to the mantra - the Supreme Court is a super legislature, and all courts are reduced politics.  The oath is a lie or we give allegiance to an unjust state. 

No Burden Too Small

Ted Cruz is in a bunch of trouble because he and his family went to Cancun while Texas froze.  Outrage in the state, which is understandable, particularly given the somewhat disingenuous explanation Cruz gave - his children made him do it.  But also outrage elsewhere, some of which seems a might myopic.  See the comments to this story.  What his adventure reminded me of was the many friendly, pleasant stories of New York's wealthy leaving Manhattan for their various country homes so as not to be overly inconvenienced by Covid.  Which seemed to elicit nothing but praise from the same sources. 

I am not a Cruz supporter -- I think he lacks any moral compass and we would be better off without him -- but it is what the rich and, well, the rich, do all the time.  The Governor of California has to have a birthday party at the French Laundry.  Does anyone think Elon Musk or Peter Thiel is waiting on line for a vaccine? 

There is no election looming for Cruz.  Will this end his political career?  I do not think so. 

 

False Report

Some months ago there was a good deal of news coverage of a white woman, Amy Cooper, whose dog was off leash and annoying a Black man, also named Cooper, engaged in bird watching in Central Park.  She was later arrested and charged with filing a false report.  (She reported the man had threatened her while the video of interchange precludes that claim.)  Now the charges have been dropped.  The NYT has a longish story about it, including comments from the prosecutors, her counsel, and Mr. Cooper.  The overall story is interesting, and seems to be accurate and to see the important points.  Ms. Cooper was involved in a diversionary program built on notions of restorative justice.  She did service and, more importantly, took part in education programs that led her to a better understanding of the things she did.  It is, in fact, a kind of success story.  The comments from Mr. Cooper, the victim, are particularly interesting and I will return them in a moment.

The story describes a success because, first, someone did not serve time in circumstances when a jail sentence would not serve any purpose.  Non-violent crime, one which the perpetrator can be educated out of repeating and, in the course, develop a better understanding of the social context and effects of her conduct.  That the second point: Amy Cooper came out a person.  And it cost a lot less than prison.

Mr. Cooper's comments are the most interesting piece:

"Asked about the dismissal of the charge, Mr. Cooper said there were more important issues for people fighting for racial justice to worry about, such as the political battle to make Washington, D.C., a state.

“I am far more outraged by the U.S. Congress, which continues to deny the mostly Black and brown people of the District of Columbia statehood, and the representation every American deserves, than by anything Amy Cooper did,” he said. “That gross racial injustice could be fixed by Congress now, today, and that is what people should be focused on, not last year’s events in Central Park.”"

There was one point in the story that was in a different key.  One of the candidates for Mayor of NYC:

"Eliza Orlins, a candidate for Manhattan district attorney, said in a tweet that the dismissal “isn’t surprising.”

“This is how the system was designed to function — to protect the privileged from accountability.”  Because Amy Cooper would be accountable only if she went to jail? 

What was most interesting int he story, to my mind, was this statement about the charge filed against Ms. Cooper: "one of the first charges a white person in the United States had faced for filing a false report involving a Black person."  There is a link to a prior NYT article about her arrest, where the reporter states "The pending criminal charge against Ms. Cooper appears to be among the first that a white person in the United States has faced for wrongfully calling the police to make a complaint about a Black person."  Could be.  But it is a claim that in the old days would have been called an empirical claim.  I wonder about it because it suggests that there is a database somewhere that includes a category for false reports, and that does surprise me a little bit.  Or maybe there isn't and the reporter is just saying, indirectly, that they have not heard of other such cases.  Or is it that there were no others in the search of news reports the reporter did but neglected to tell us about).  To be clear, I do not exactly doubt the reporter - I am not in a position to offer anything more than groundless speculation on the question.  But if Amy Cooper's charge was unique, or close to unique, that would be interesting empirical information.

Just Say No Nuance

The NYT has an opinion column on the sorts of information consumer genetic testing provides people, focused this time on race.  The point seems to be, according to the title writer at  least, that White Americans will learn that they have African ancestry - the brutal history of racial slavery: "America's Brutal Racial History Is Written All Over Our Genes."  The essay has almost the same point.  Anecdotes about African-Americans meeting the descendants of the slave owners, and some statistics about the prevalence of African genes in White southerners: "About 12 percent of whites from Southern states like South Carolina and Louisiana had 1 percent or more of African ancestry."  And more generally, "close to 4 percent of the company’s customers who identified as white Americans had at least 1 percent African ancestry, consistent with an African ancestor within the last 11 generations or so" (of clients of 23andme).  Written all over our genes is a bit of an overstatement given the numbers provided.  The history is in some genes, but not all over our genes.  There are all those European immigrants who came in the latter 19th century and in the 20th century.  And those immigrating from Central and South America, and from China and Japan, and so on.  This story, and its like, seem framed by an assumption that all that matters involves people east of the Mississippi before the Civil War and their descendants.  To be fair, there are some glancing mentions of the degree of population movements over the centuries, and at least allusion to the shaky foundation of claims about German or Italian written in genes.  I wish there had been more on both.     

Guard Dogs Asleep

In the aftermath of the impeachment trial there are various blog discussions of the performance of Trump's lawyers, the rules of professional conduct they appear to have violated.  Similar discussions went on as the 60+ Trump lawsuits concerning the election were dismissed.  Although all of the lawsuits were frivolous, as far as I can tell just one judge has considered sanctioning the lawyers.  After those suits, a slew of complaints were filed with the relevant State Bar disciplinary agencies.  I filed a couple myself concerning the later election lawsuits.  The factual and legal claims were without foundation and no reasonable person could believe after making the required investigations.  So far as I know none of the disciplinary agencies have done anything.  Of course, it has only been a couple of months now, so it is early to see any action taken.  And, of course, the investigations are confidential.  It may be that there will be sanctions, but I am dubious.  The Utah OPC, for example, has  sought sanctions against a government attorney in the last 20 years just once, and then after the statute of limitations expired.  They do not prosecute politically connected lawyers no matter how ridiculous the legal work.  To be fair, people rarely bother to complain.  And judges seem equally loathe to uphold the standards.

It is clear that Trump's team did a properly awful job and violated plenty of rules of professional conduct.  Sanctions, even informal or private sanctions, are not likely. 

All the talk of professional standards, and rule of law, it rarely matters. 

 

Not LIke An Arbitration Subpoena

Arbitration sometimes includes subpoenas for discovery purposes.  Might that help explain the subpoena powers apparently accorded by the Utah Rules?  No. Third party discovery in an arbitration is grounded in statute, either the FAA or state equivalents.  The Federal Arbitration Act provides the arbitrator(s) the power to order witnesses and document to appear for the hearing.  9 U.S.C. §7. Some federal courts interpret that provision to allow for subpoenas in discovery, and some do not.  CVS Health Corp. v. Vividus, LLC, 878 F.3d 703, 708 (9th Cir. 2017).  The split is not important here, what is important is that the split is in interpreting the statute: discovery subpoenas are possible (to the extent they are possible) in arbitration because of a statutory provision.  There is no statutory provision for subpoenas in the lawyer disciplinary process.  

The Judiciary and Judicial Administration Act (Title 78A) provides that the Supreme Court may issue rules governing "the conduct and discipline of persons admitted to the practice of law."  But what is at issue is not conduct and discipline but discovery in an informal proceeding from a third party.  That is not a power inherent in control of the discipline of attorneys.   

There is a judicial entity outside the courts that has some subpoena powers: the Judicial Council. But the subpoena power are statutory.  So, still no grounds for the subpoena power.

No Case Law To Support

I have found one case that bears on the authority for issuing subpoenas in the Utah attorney disciplinary process (before filing a complaint in the District Court): Nemalka v. Ethics and Disciplinary Committee, 2009 UT 33.  The salient paragraphs are 16 and 17.

The screening panel found against Nemelka, he requested an exception hearing under Rule 14-510(b)(2) and 4-510(c).  (The process then was a hearing before a screening panel, a possible appeal  - the exception hearing - before the Ethics Committee chair or designee.  Litigation in the District COurt might then follow.)

14-510(c) provides that at an exception hearing “The complainant need not appear personally unless called by the respondent as an adverse witness for purposes of cross-examination.” Nemlka tried to subpoena complainant (Ms. Simmons) but did not succeed “in procuring her attendance at the hearing.” ¶16. It is not clear just what the phrasing means.  I think Nemalka served one or more subpoenas under URCP 45, i.e., filed out the subopoena and served it, but Ms. Simmons declined to appear.  However, it could be that service was not made.  The Supreme Court does not say more on what actually happened.

Ms. Simmons did not attend, Nemalka thought he had a right to have her there under subpoena, the chair and OPC disagreed.  The Supreme Court noted that all three, Nemalka, OPC, and the chair, got it wrong.  Nemalka could compel attendance by subpoena but he could not use Rule 45.  Instead, Nemalka had to follow Rule 14-503(g).  Rule 14-503(g) states: “Any party or a screening panel, for good cause shown, may petition under seal the district court for issuance of a subpoena, subpoena duces tecum or any order allowing discovery prior to the filing of the formal complaint.” ¶17.

So, under the old Rules, a subpoena was possible, but issued by a District Court, not by the Ethics Committee chair, and not under Rule 45.  Nemalka provides no basis for thinking that revising the Rules will suffice to give the Committee chair the power to issue a subpoena.  The Supreme Court directed the parties to apply to a court for a subpoena.  It did not ask an advisory committee to look at Rule 14-503(g) to simplify or alter things.  Of course, it also did not say that issuance by a court was mandatory, as the sole means to obtain a subpoena, so there is room.  

The question of the authority to issue subpoenas remains unresolved.