Boots & Sabers

The blogging will continue until morale improves...

Category: Law

Citizens Sue City of Green Bay Over Elections

The evidence is pretty clear that city officials ceded the management of the election to a private interest group.

The complaint alleges that the Center for Tech and Civic Life illegally dictated how Green Bay ran its election when it provided the city with $1.6 million to facilitate voting during the coronavirus pandemic. Minneapolis attorney Erick Kaardal cited a grant agreement that broadly required Green Bay to use the funds for “the public purpose of planning and operationalizing safe and secure election administration.”

“We want people to accept election results, and that requires fair and transparent elections,” Kaardal said during a news conference at the Brown County Courthouse.

Evers’ abuse of power stopped by state Supreme Court

My column for the Washington County Daily News is online. Here’s a part:

The court acted with good reason, for if a governor were permitted to rule in a permanent state of emergency, then the state Constitution is meaningless, and elections no longer matter. Governor Evers disagreed with the policy decisions of the Legislature, so he resorted to continually reissuing emergency declarations to enact his policy choices. In this case, Governor Evers was acting from behind the mask of compassion and claiming that only he knows the “science” that will save us all.

 

Despots, however, never rise to power by telling the people that they will strip them of their civil liberties and crush them under the boot of oppression. Despots always rise to power with the promise to protect the people from something like a foreign aggressor, internal strife, or, in this case, a disease. Despots claim that normal government is not sufficient to respond to this unprecedented apocalyptic crisis, so normal government must be suspended in favor of the nimble and extensive power of autocratic rule.

 

[…]

 

First, the Supreme Court waited far too long to issue its ruling. The original petition happened on October 15, 2020, and oral arguments were heard on November 16, 2020. The court waited until March 31, 2021 to issue its ruling. That is almost half a year between the petition of the court and the court’s ruling. In a case in which the state Constitution has been suspended while a rogue governor issues orders from behind a permanent state of emergency, the people of Wisconsin have a right to expect more expeditious action from their elected Supreme Court justices. They are elected to make rulings on important issues facing the state and their sloth smacks of snobbery.

 

Second, the ruling was decided by a single vote with four justices voting in the majority and three in the minority. The law is crystal clear in this case and yet three of Wisconsin’s Supreme Court justices supported the governor being able to suspend normal government forever by continually issuing emergency declarations. Wisconsin is on the razor’s edge of slipping into autocracy with almost half the court cheering for it. That should keep every freedom-loving Wisconsinite up at night.

SCOTUS Considers 2nd Amendment Case

The New York law is clearly unconstitutional.

The court has largely dodged the issue since issuing two landmark opinions in 2008 and 2010, when it held for the first time that the Second Amendment protects an individual’s right to keep and bear arms at home for self- defense.

 

Gun rights advocates and even some of the justices themselves have expressed frustration that the court has declined to further define the scope of the right as lower courts across the country have upheld restrictions.

 

Three years ago, for example, Justice Clarence Thomas charged that the “Second Amendment is a disfavored right in this court.”

 

[…]

 

The new case concerns a New York law governing licenses to carry concealed handguns in public. It requires residents to show they have what the state calls an “actual and articulable” need to do so.

 

[…]

 

“The law is consistent with the historical scope of the Second Amendment and directly advances New York’s compelling interests in public safety and crime prevention,” New York Attorney General Letitia James wrote in court papers.

No other Constitutional right requires the citizen to declare an affirmative need – subject to review by a government official – in order to exercise it. Imagine if you had to declare a “need” before being allowed to speak, or practice your religion, or assemble, or get a jury trial, or petition your government, or get a lawyer… and if some government official decided that your “need” did not meet his or her ambiguous threshold, you wouldn’t be allowed to do it.

Nuts, right?

Right.

So why would that standard apply to the rights protected in the 2nd Amendment if it wouldn’t to those protected by the 1st?

SCOTUS Allows Free Speech Lawsuit to Continue

Excellent.

Washington (CNN)The Supreme Court on Monday revived a lawsuit brought by a former student seeking to hold his state university accountable for violating his First Amendment rights when it barred him from speaking about his religion and distributing religious literature.

Justice Clarence Thomas, writing for an 8-1 majority, allowed the lawsuit to continue even though the student, Chike Uzuegbunam, who has since graduated, was only asking for $1 in damages and the school’s policy has changed.
Thomas wrote that it was “undisputed” that Uzuegbunam’s rights were violated and that he could proceed with the case even though he was only seeking nominal damages.
[…]
In 2016, Uzuegbunam, an evangelical Christian who was a student at Georgia Gwinnett College, was standing on a stool in a “speech area” at his school, talking about his religion and passing out religious literature. He had followed the school’s direction and reserved a spot designated by the school as a “speech zone.”
But he was approached by campus police who said there had been complaints about his speech. The officer said the space did not allow “open air speaking” and that he had violated the school’s code of conduct because his speech constituted disorderly conduct.

Dane County Reduces COVID Fines Against Dance Studio

Excellent!

The News: Dane County attorneys, on behalf of Public Health Madison and Dane County, have significantly reduced the fines they are seeking from A Leap Above dance studio in Oregon, Wisconsin. WILL is representing A Leap Above after the health department fined the dance studio for what it misleadingly characterized as a “performance” of the Nutcracker on December 13, 2020. The initial complaint sought nearly $24,000 in fines.

WILL attorneys got the City of Madison to dismiss the initial enforcement action because the Dane County health department illegally enlisted City attorneys to enforce a county ordinance. WILL attorneys also noted that the initial filing’s legal theory—one count per person allegedly at the studio—was inconsistent with both the order and ordinance. Dane County attorneys refiled the action on Friday, but dropped most of the counts.

Judge Denies New Warrant for Rittenhouse

Testy

Schroeder refused both of Binger’s requests. During a testy hearing the judge said people out on bail often fail to update their addresses and aren’t arrested. He ordered Rittenhouse attorney Mark Richards to turn over Rittenhouse’s current physical address but said it would be sealed to the public and only he and the Kenosha County Sheriff’s Department would have access to it.

 

The judge refused to give Binger the address, saying he didn’t want more violence in Kenosha. The move — and the comment — left Binger flabbergasted.

 

“I hope you’re not suggesting sharing this with our office would lead to further violence,” Binger said. “We are not the public. We are the prosecuting agency. I have never heard of a situation where the information has been withheld from my office.”

There’s a back story here…

DOJ Investigates SpaceX for Hiring Too Many Americans

Ridiculous.

The U.S. Department of Justice is investigating SpaceX over whether the company discriminates against non-U.S. citizens in its hiring practices and said Elon Musk’s company is stonewalling a subpoena for information, court documents revealed Thursday.

 

The DOJ’s Immigrant and Employee Rights Section received a complaint of employment discrimination from a non-U.S. citizen claiming that the company discriminated against him based on his citizenship status.

 

“The charge alleges that on or about March 10, 2020, during the Charging Party’s interview for the position of Technology Strategy Associate, SpaceX made inquiries about his citizenship status and ultimately failed to hire him for the position because he is not a U.S. citizen or lawful permanent resident,” DOJ attorney Lisa Sandoval wrote in a complaint filed Thursday.

Even if the allegation is true, citizenship (or not) is not a protected class. Discriminating on the basis of citizenship is not illegal. Why is the DOJ even investigating? And didn’t the President just photo copy and reissue a Buy American executive order? I thought we liked discriminating on behalf of America.

Federal Judge Temporarily Halts Biden’s Deportation Pause

Interesting.

(CNN)A federal judge in Texas temporarily blocked the Biden administration’s pause on deportations Tuesday, delivering a blow to one of the administration’s first immigration actions.

The court order stems from a lawsuit filed by Texas Attorney General Ken Paxton challenging the 100-day pause on deportations, which took effect Friday. The complaint cited in part an agreement signed between the Department of Homeland Security and Texas in the waning days of the Trump presidency that required the department to consult the state before changing or modifying policies.

Judge Drew Tipton of the Southern District of Texas, however, said the temporary restraining order was appropriate under the Administrative Procedure Act. Tipton blocked the Biden administration from executing its deportation pause for 14 days.
If the DHS signed an agreement with Texas, then it does seem like Biden’s action violates a contract.

Indiana County Repeals Anti-Hippie Law

Heh.

LaGrange County, Indiana, has repealed a 1971 law that was intended to block huge gatherings like the 1969 Woodstock music festival in New York state.

“I called it our anti-hippie ordinance,” county commissioner Dennis Kratz said with a smile.

 

The ordinance regulated large gatherings that lasted more than 12 hours and involved more than 500 people, The News Sun reported.

 

The law was recently dropped as part of an effort to repeal ordinances that have no practical use but have been on the books for as long as 100 years, especially certain traffic restrictions. County attorney Kurt Bachman’s research lasted three years.

Small Businessman Sues Twitter for Labeling Him a “Hacker”

This will be an interesting case.

A computer repair shop owner who Hunter Biden handed his laptops over to in April 2019 is suing Twitter for defamation, claiming moderators labeled him a hacker.

John Paul Mac Isaac is seeking $500 million in damages from Twitter after The New York Post’s story about Biden, obtained from the 50-year-old’s laptop, was labeled as potentially coming from hacked material.

Facebook and Twitter both restricted viewing of the Post’s story, and Twitter pointed to its ban on posting ‘hacked materials’ as an explanation.

Mac Isaac claims, according to The Verge, that Twitter specifically made this decision to ‘communicate to the world that [Mac Isaac] is a hacker.’

He says that his business began to receive threats and negative reviews after Twitter’s moderation decision, and that he is ‘now widely considered a hacker’ because of Twitter.

Ignore the Hunter Biden connection and the ridiculous dollar amount. This is a case where Twitter employees – not Twitter users – specifically labeled this guy a hacker and damaged his reputation and livelihood. The facts of the case are self-evident. So the court will have to decide if a company like Twitter can be held liable for the defamatory actions of its employees. In a normal world, this seems like it would be a slam dunk. After all, if a company like Microsoft or General Mills had their employees defame someone in public, they could be held accountable. But in today’s hyper-charged environment, who knows?

Judge Reverses Demotion of Milwaukee Police Chief

Good.

MILWAUKEE — MILWAUKEE — A judge has reversed the Fire and Police Commission’s decision to demote former Milwaukee Police Chief Alfonso Morales.

Milwaukee County Circuit Court Judge Christopher Foley said the decision of the Milwaukee Fire and Police Commission to demote Morales from police chief to captain was not proper.

In a seven page ruling, Milwaukee County Judge Christopher Foley condemns the Milwaukee Fire and Police Commission. Foley writes the Commission failed to follow basic requirements for ousting the city’s top cop, writing in part, “It is clear this entire process was flawed.”

Barr Resigns

Harrumph

Donald Trump ousted Bill Barr as attorney general Monday after a face-to-face White House meeting – having raged at the chief law enforcement officer keeping the Hunter Biden probe secret.

Trump announced the departure in a tweet which presented Barr’s decision to go as his own.

‘Our relationship has been a very good one, he has done an outstanding job!’ Trump said, then said Barr would ‘spend the holidays with his family.’

[…]

The departure came the afternoon after it emerged Barr used the force of his office to instruct prosecutors investigating Hunter Biden not to take any steps that might cause the probe to be publicly revealed in the run-up to the election.

Trump publicly complained about Barr over the weekend. He told Fox News Barr ‘should have stepped up.’

‘All he had to do is say an investigation’s going on,” Trump said. ‘When you affect an election, Bill Barr, frankly, did the wrong thing.’

Barr did a disservice for the American people in keeping the investigation of Hunter Biden a secret. I don’t know if Hunter is guilty, but the fact that someone so close to a presidential candidate is being seriously investigated for illegal dealings with foreigners and corruption is something that the American people should have been able to weigh in the balance when making their choice.

By and large, Barr did a decent job as AG, but in the end, he is, has been, and always will be, a creature of Washington.

States and Fed Sue to Break Up Facebook

Excellent.

The US government and a coalition of 48 states and districts have filed parallel lawsuits against Facebook in a major antitrust offensive that accused the social media behemoth of anticompetitive behavior and could ultimately force its breakup.

At the heart of both antitrust actions, announced on Wednesday, is Facebook’s dominance of the social media landscape, and whether the company gobbled up potential competitors and blocked market access to others that could have eaten into its staggering market share.

One lawsuit brings together nearly every state in the US, a coalition led by New York’s attorney general, Letitia James. The suit accuses Facebook abusing its market power to quash smaller competitors.

SCOTUS Rules in Favor of 1st Amendment

This should not have been a 5-4 ruling. But thank goodness Barrett is on the court.

(CNN)In a 5-4 ruling, the US Supreme Court sided with religious organizations in a dispute over Covid-19 restrictions put in place by New York Gov. Andrew Cuomo limiting the number of people attending religious services.

The case is the latest pitting religious groups against city and state officials seeking to stop the spread of Covid-19, and it highlights the impact of Justice Amy Coney Barrett on the court. The decision comes as coronavirus cases surge across the country.
In the late-night decision, Barrett sided with her conservative colleagues in the dispute, while Chief Justice John Roberts joined the three liberal justices in dissent.

Evers Administration Sues

The liberals won the Supreme Court election and the election is over. Time for them to launch a barrage of lawsuits in the hope that the Wisconsin Supreme Court has shifted Left.

MADISON – Gov. Tony Evers and Attorney General Josh Kaul sued state lawmakers Monday, bringing a new challenge to a set of lame-duck laws Republicans passed two years ago to curb their powers.

The latest case focuses on a requirement that the Legislature’s budget committee sign off on some court settlements negotiated by Kaul.

Evers and Kaul argue that the policy violates the state constitution’s separation-of-powers doctrine, which spells out what authorities belong to the executive and legislative branches of government.

With the lawsuit, the state’s top two Democrats are trying to resolve an issue that has remained elusive during the first half of their terms in office.

In a ruling this summer, the state Supreme Court found the settlement provision does not violate the state constitution in all situations but left open the possibility that it might some of the time. The new, narrower lawsuit asks the high court to rule that two classes of cases should be exempt from the requirement to get approval from lawmakers.

On the merits, the law does not appear to violate the separation of powers. In fact, the law is a long-overdue legislative oversight that I hope remains in place for future Republican Attorneys General too. Some state AGs have used their power to shake down companies for settlements that can then be doled out to political favorites by the administration in power. A little oversight and discussion with the legislature is not an undue burden. It is, however, a prudent exercise of the legislative branch to oversee the collection and disbursement of settlement that often total millions of dollars.

In Madison, You Can Get High… Just Not in Groups

Heh

Under the new ordinances passed Tuesday night, people 18 and older will be allowed to use or possess up to 28 grams, or about an ounce, of marijuana on public and private property, as long as they have the permission of the property owner, landlord or tenant. Possessing paraphernalia also will not be punished.

Citation fines are being reduced from $50 plus court costs to $1 plus court costs. Heavier penalties still apply for those charged with intent to deliver cannabis.

“It’s been decriminalized even further,” Assistant City Attorney Marci Paulsen said. “You’re permitted to possess and consume marijuana in public places, which before you were not allowed to do that. You have to comply with the smoking ordinance, so it’s not like you can smoke marijuana in a restaurant or a bar, but you could walking down the street now.”

In practice, Paulsen said that could lead to some pretty significant changes.

“Before, the Madison Police Department would write citations for individuals possessing marijuana if they arrested individuals with marijuana on them or if they came across a vehicle with people smoking marijuana,” she said. “Now, they won’t be unless it rises to the level of a state statute violation where it’s a significant possession amount or significant crimes are involved in it.”

Court Orders Evers to Surrender Emails

Governor Evers has been flagrantly violating the Open Records Laws. This is not the first example. It won’t be the last. He shuns oversight by the people.

After a year-long battle over Governor Tony Evers’ emails, a Dane County Circuit Court judge ruled this week in FOX6’s favor.

In September 2019, FOX6 requested just over four weeks of emails to and from Governor Tony Evers and his chief of staff, Maggie Gau. FOX6 regularly conducts open records spot checks on public employees’ emails. A recent spot check on two weeks of state lawmakers’ emails uncovered the practice of using personal email addresses to communicate about sensitive government information.

The governor’s assistant legal counsel Erin Deeley denied the request and FOX6’s subsequent attempt to narrow the request to emails from one week.

Finally, FOX6 asked for just Governor Evers’ emails from just one day – June 14, 2019. The request was denied. Governor Evers’ attorney said all email requests will be denied if they do not contain search terms or wording she can turn into search terms. That is, requests for emails about the budget or containing the word “agriculture,” for example, may be processed; requests for all emails over a specific time frame, no matter how short, will be denied. In other words, the requesters need to know what’s in the public records before they can see the public records.

Obama Says Social Media Companies are Acting Like Publishers and Not Platforms

I agree!

Former U.S. President Barack Obama said that the extent to which social media companies claim they “are more like a phone company than they are like The Atlantic” is not “tenable,” he told the publication in an interview published Monday.

“They are making editorial choices, whether they’ve buried them in algorithms or not,” the former president said in the interview. “The First Amendment doesn’t require private companies to provide a platform for any view that is out there. At the end of the day, we’re going to have to find a combination of government regulations and corporate practices that address this, because it’s going to get worse. If you can perpetrate crazy lies and conspiracy theories just with texts, imagine what you can do when you can make it look like you or me saying anything on video. We’re pretty close to that now.”

Obama’s statement that social media platforms should be considered more like publishers than public utilities would have significant implications on how the companies are regulated.

[…]

President-elect Joe Biden has harshly criticized Section 230 and Facebook itself in an interview with The New York Times editorial board published earlier this year.

“Section 230 should be revoked, immediately should be revoked, number one. For Zuckerberg and other platforms,” Biden said at the time, referring to Facebook CEO Mark Zuckerberg, taking a more extreme position than many of the Democrats and Republicans currently seeking to tweak the laws’ protections.

In October, I said:

In purposefully, actively, and personally deciding to stomp on a negative story about Joe Biden that was published by a reputable newspaper in the midst of a political campaign, Facebook and Twitter have definitively and unmistakably crossed the line from being internet platforms to publishers. As such, the legal protections granted to them under Section 230 must be withdrawn so that they can be regulated like The New York Times, Fox News, MSNBC, and all of the other publishers that filter, edit, and curate the information they provide to their subscribers.

Facebook and Twitter can’t have it both ways. If they want the legal protections provided under Section 230, then they must allow all information to flow freely. If they want to be information gatekeepers, then those protections must be withdrawn so that people have legal remedies against abuse.

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