CRUEL AND UNUSUAL PUNISHMENT - INVALIDATING GAY MARRAIGES

The New York Times published the following letter from me on Dec. 26, 2008:

While the California Supreme Court is considering whether Proposition 8 violates the state constitution, it might also consider whether the effort to invalidate 18,000 gay marriages violates the Eighth Amendment of the U.S. Constitution as well. The Eighth Amendment prohibits "cruel and unusual punishment". If it serves to protect convicted criminals, it certainly should extend to persons who are guilty of nothing other than engaging in a marriage ceremony at a time when it was legal to do so. Could there be anything crueler to those couples than to now invalidate their marriages? I have read all of the moral and biblical justifications for Proposition 8, as well as the arguments for and against sustaining it, but I find it incredible that the "victors" should want to inflict such further hurt on a group which has injured no one by their marriages. The Constitution prohibits invidiously discriminatory punishment. The invalidation of these marriages solely based upon the fact that the participants are gay clearly would be an act of invidious discrimination.

SOWELL v SAROKIN, AS POSTER BOY

The National Review has published a syndicated article by Thomas Sowell which adds a new fear to the Republican list which grows daily if Barack Obama is elected, but this one is personal. He predicts that Barack Obama is likely to select a Supreme Court Justice just like me. Run for the hills! Out of my 2200 written opinions, he selects as evidence a decision that I rendered in the infamous Morristown library case. No matter how many times the conservatives claim that I ruled that a smelly, homeless man could annoy and drive patrons out of the library and harass women, it won't be true.

I declared a library regulation invalid on the grounds that it was too vague and broad in giving librarians the unfettered discretion to oust or forever bar a patron. The Court of Appeals disagreed, but I never made any ruling about the individual or his conduct. It was a decision based strictly on the law and not the facts. I never awarded him any damages, and I certainly said nothing in my ruling which "threatened the town with heavy damage awards" as Dr. Sowell claims . Why the case was settled for such a huge amount is a question that should be addressed to the city (or the insurance carriers) who paid it. I cannot conceive of a jury award in such an amount, even if the matter had gone to trial as a result of my decision. The idea that my decision declaring a library regulation invalid could have bankrupted the city is absurd. But I suppose that Dr. Sowell likewise believes that I should have continued the wrongful incarceration of Rubin "Hurricane" Carter, since by protecting his constitutional rights, I may have exposed the county that prosecuted him to a suit for damages and possible bankruptcy. In essence, Dr. Sowell apparently suggests that rulings on constitutional questions should somehow take into consideration the financial consequences that may befall the losing party. Now that's a criterion worthy of conservative support.

Finally, Dr. Sowell adds to the fear factor by trotting out the old "soft-on-crime" saw. He claims that Obama judges will "be siding with criminals and terrorists during the lifetime of your children and grandchildren". By siding with criminals and terrorists, I assume he means enforcing the rights and liberties guaranteed by the Constitution----what a bummer. We don't want any of those kind of people sitting on our courts.

As for my being the poster boy for Obama appointments to the Supreme Court, I have dedicated my entire professional life to the rule of law, in my view, not a bad criterion for a supreme court justice; nor do I think that "empathy" for the "poor, the African-American, the gay, the disabled or the old" is a disqualifier as Dr. Sowell contends; rather it should be a requirement.

P.S. Even after the reversal by the Court of Appeals, the American Library Association invited me to speak at their annual convention to discuss the case and offer guidance to avoid similar occurrences in the future.

JUSTICE SCALIA AND THE PRESUMPTION OF GUILT

In his dissent in the Boumedienne case Justice Scalia argues against the granting of habeas corpus relief on the grounds that 30 of those who have been voluntarily released from Guantanamo returned to the battlefield, and thus he claims, more Americans will almost certainly be killed if such relief is granted. Initially, there is substantial debate as to whether his factual predicate is accurate, but even assuming that it is, his logic is chilling.

The logic: If detainees receive a hearing, they will be released. Those that are released will return to the battlefield and kill more Americans. Therefore, detainees should not receive a hearing. There are many meritorious arguments against granting habeas relief to detainees in these unique circumstances, but the danger that they might be released after a hearing is not one of them. The argument certainly presupposes that the detainees are guilty, and that the hearings, rather than resulting in freeing the innocent, will be freeing the guilty. It assumes inexplicably that those against whom there is evidence of criminal conduct and/or terrorism, nonetheless will be released.

The reason that I find the logic so chilling is because it could be easily extended to anyone charged with a crime (although here the detainees were labelled, but not charged with anything). Justice Scalia seems to be arguing that since a hearing runs the risk of freeing someone who is guilty and likely to commit further crimes, or in this case, acts of terror, that the answer is not to grant them a hearing, but rather leave them confined indefinitely. So persons charged with murder should not receive a trial, because they might be acquitted and murder again. Furthermore, his argument completely ignores the possibility (and the evident likelihood) that many of the detainees are innocent, and at a minimum, should be granted the opportunity to establish it. His argument makes no sense unless one presumes that the detainees are guilty----and therein lies the chill.

UNELECTED, POLITICALLY UNACCOUNTABLE JUDGES

The Supreme Court's recent decision regarding the right to habeas corpus by those designated "enemy combatants" has been the subject of heated and extensive debate. I have no intention of discussing the merits, but rather wish to focus on the disappointing use of the phrase "unelected, politically unaccountable judges" by the Chief Justice in his dissent criticizing the majority opinion. That language comes right out of the conservative-Republican playbook. It is code for "liberal activist" judges.

Every decision by a federal court is rendered by "unelected, politically unaccountable judges", a principle embedded and cherished in the Constitution. There are many meritorious arguments against the extension of habeas writs to enemy combatants, but why demean the Court in the process with the use of this old saw, particularly by the Chief Justice himself. It is vital that the public respects the decisions of the Court even it it disagrees with them. The Chief Justice should engender that respect, not demean it.

RUSH TO (BAD) JUDGMENT

Rush Limbaugh has created Operation Chaos and is gleefully pronouncing its success. Its avowed purpose is to create disruption in the Democratic primaries by urging Republicans to cross-over and vote for Hillary Clinton, and thus extend the length and cost of the contest and erode Barack Obama's candidacy. The media and the pundits have focused on whether or not the tactic has been successful as its creator proclaims, but strangely, no one seems to be offended by this obvious attempt to subvert not only the Democratic elections but the democratic process as well.

What he has proposed is probably not illegal and undoubtedly constitutes protected speech, but isn't there something inherently wrong with using the airwaves to encourage millions of potential voters to engage in "dirty tricks", because that is all this really is. Republican voters are being asked to cast votes, not for the person of their choice, but merely to subvert the nominating process for the opposing party. Discussions of whether or not he has been successful are besides the point. For someone who purports to represent the conservative viewpoint and principles in this country, apparently respect for the democratic process is not on the list.

PRE-EMPTION EQUALS IMMUNITY

In its simplest terms, pre-emption means that where the federal government has acted, the states may not. The concept has a very practical basis. For instance, we could not have 50 states imposing varying regulations upon airlines. Where the federal government has declared a product safe or its warnings adequate, the states may not act to the contrary. If Congress intends to pre-empt the area, the states may not enter it. Contrary or varying state legislation is thus prohibited.


The more problematic question arises in respect to jury trials which involve the common law of a state rather than its legislation. A number of current cases are being defended on the basis that FDA approval is an absolute defense, and that permitting juries to find approved products unsafe or approved warnings inadequate violates the principle of pre-emption---the theory being that a jury verdict is a form of state law that runs counter to federal law.


The subject has more than a passing interest to me, because I was confronted with the identical issue in the Cippolone case. The tobacco companies argued that the warning labels, mandated by Congress, prohibited a plaintiff from asserting that the warnings were inadequate; that permitting a jury to conclude that different warnings were required, in effect, would be tantamount to state action requiring a revision in the warnings in order to avoid future liability.

I struggled with the issue, but ultimately concluded that plaintiff's claims would not be pre-empted, if it was demonstrated that the defendant tobacco companies knew that the warnings were inadequate---that they knew that cigarette smoking was far more dangerous than it "may be hazardous to your health." I was also influenced by proffered evidence that the companies were engaged in a concerted campaign to neutralize the warnings through their advertising and public relations. I viewed government standards as a minimum requirement. If a builder knows that a construction standard is unsafe, he should not escape liability by asserting he followed the building code. If the FDA approves a product, the manufacturer, nonetheless, should be liable for injuries sustained, if it knows that the product is unsafe or the approved warnings inadequate.


Both the United States Court of Appeals for the Third Circuit and the Supreme Court reviewed my opinion. I will not attempt to summarize what they concluded. Justice Scalia indicated that it gave the courts complicated guidance for future cases, so I will let wiser minds unravel it. When Congress immunized gun manufacturers from liability, I then asked why it would single out an industry to protect that made a product that killed people rather than the drug industry which makes products to save lives. The latter would certainly make more sense. But now that it is on the table, I am not now certain that even the most beneficial industries should receive immunity under the pre-emption doctrine.

Considering that government agencies may be overworked, uninformed or even negligent, their approval should create a presumption of safety, but someone injured by the product should be permitted to rebut that presumption by establishing that the manufacturer knew the product was unsafe or its warnings inadequate. Government approval should be a factor, but not necessarily the dispositive one. A person injured by a dangerous, defective or unsafe product should not be barred from recovery merely because the product has received the government's stamp of approval. The manufacturer may have sought that approval, but it is the consumer who has relied upon it. The quest for uniformity should not supersede an individual's right to be compensated.

END PROSECUTOR PRESS CONFERENCES

It can come as no great surprise that persons engaged in adulterous relationships, deny their existence. If those denials are made under oath, they constitute perjury. Whether or not such perjury warrants prosecution is a matter of discretion for prosecutors. However, once that discretion is exercised in favor of filing charges, prosecutors, in announcing the indictment, should not render their closing argument in a press conference.

Wayne County Prosecutor in announcing the indictment against Detroit Mayor Kwame Kilpatrick said: "Our investigation has clearly shown that public dollars were used, people's lives were ruined, the justice system severely mocked and the public trust trampled on." My reaction: Save it for the courtroom!

In Denver last year, City Attorney Larry Manzanares committed suicide after being charged with stealing a state-owned computer, which the district attorney announced at a press conference contained pornographic material.

Unless prosecutors wish to ally fears by announcing the arrest of persons such as serial murderers or rapists, no legitimate purpose is served by press conferences outlining the evidence against the accused. In the Denver case, the district attorney defended himself by saying that he had treated Mr. Manzanares the same as everyone else. Therein lies the problem.

The Duke case should have taught all prosecutors the potential unfairness and dangers of such conduct. Present your evidence and summations in court, not in the media.

MANDATORY RECUSAL FOR JUDGES

Adam Liptak, once again, has pointed up one of the failings of our judicial system (N.Y. Times 1/29/08)----namely that judges preside over cases in which lawyers and litigants contributed to the judges' election campaigns. The article cites a study by Professor Vernon Valentine Palmer which indicates that those who contributed had a higher success rate from those judges to whom they had made contributions. Whatever the significance of the study, no evidence of favoritism should be necessary. As Mr. Liptak and Prof. Palmer both suggest, a judge should recuse himself from presiding over any case in which a lawyer or litigant has made a substantial contribution to the judge's election. (Of course, "substantial" needs defining.) The appearance of impropriety is there absent any proof of favoritism; the existence of such proof makes the suggestion even that more compelling.

Although Mr. Liptak indicates that "you do not have to do away with elections", it is certainly a goal worth exploring. The average voter does not have the slightest idea whether or not the person running will make a good judge or even what constitutes the necessary qualities or qualifications. Judges running for re-election are frequently judged on the popularity of their decisions or the lack thereof----hardly a criterion for continued service. The most unpopular judge can be the best. Added to all this is some of the unseemly campaigns and the issue raised by the article about the influence of contributions.

Can you imagine a lawyer or a litigant in the middle of a trial walking up to the bench and handing the presiding judge a check! It is difficult to distinguish that scenario from a contribution made at an earlier date. So long as judicial elections exist, the integrity of the system requires that Prof. Palmer's admonition be followed: Judges should recuse themselves in cases in which either a lawyer or litigant has made more than a nominal contribution to their election.

WILL THE DEMOCRATS FIND A WAY TO LOSE?

The Democrats, after receiving a clear mandate from the people, (among their priorities) chose to alienate two of our few remaining and most important allies, by condemning the Turks for their treatment of the Armenians about 100 years ago and the Japanese for their treatment of women about 50 years ago. Although the condemnations may be fully justified, the timing is mystifying. Now, following some of the most inspiring moments in our political history arising from the Iowa caucuses, Congress has decided to take up the burning issue of whether Roger Clemens or Brian McNamee is telling the truth about Clemens' steroid use.



While the candidates seeking the country's highest office are debating terrorism, health care, poverty, the environment and education, those in office are seeking to determine whether or not a baseball pitcher's earned run average should receive an asterisk! And while on the subject, although I have the greatest respect for Sen. Mitchell, should there not be greater outrage that one person has investigated, convicted, punished and destroyed the reputations of an entire group of persons without charges, a hearing or a trial? The only thing missing seems to be waterboarding.

But, in any event, certainly his report has furnished all of the information that anyone, including Congress, could possibly need or want on the subject. I suspect that if the scheduled baseball hearings were sans video, a number of committee members might find the need to attend to more pressing matters.