Category Archives: legal news

GOP gangs up on Ted Cruz … good deal!

Ted Cruz keeps trying to rouse the U.S. Senate rabbles with his obstructionism.

But now the freshman Texas Republican lawmaker is finding trouble in a most unlikely place: within his own GOP Senate caucus.

The fiery loudmouth wants to employ procedural trickery to delay the Senate Judiciary Committee vote on attorney general-designate Loretta Lynch’s nomination to take over the Justice Department. Why? Because he just cannot stand the fact that she supports the president’s executive actions on immigration reform. Who knew?

That she would endorse President Obama’s executive authority just isn’t possible, right?

Oh, wait! Lynch is Barack Obama’s choice to be attorney general. Gosh, do you think she’s on the same page as the president of the United States on this contentious issue?

None of that matters, of course, to the Cruz Missile.

He’s going to do whatever he can to disrupt, dismiss and just plain dis the president whenever possible.

Fellow Texas Republican Sen. John Cornyn also opposes Lynch’s nomination, but he doesn’t want to block her confirmation vote from proceeding. Indeed, Lynch already has gathered considerable Republican support for her nomination, including from serious conservatives such as Orrin Hatch of Utah, Lindsey Graham of South Carolina and Jeff Flake of Arizona.

Cruz should look at it this way, as well. Every day that Lynch is denied the nomination on the basis of some specious procedural chicanery is a day longer that Eric Holder remains as attorney general. After all, Senate Republicans are known to detest Holder more than they oppose Lynch.

Eric Holder did a good job as attorney general — and Loretta Lynch deserves confirmation and she needs to get to work.


'Bama gay marriage ban struck down

An interesting back story may be developing with the latest federal judicial order striking down same-sex marriage in yet another of our 50 states.

Alabama’s same-sex marriage ban has been ruled unconstitutional by U.S. District Judge Callie V.S. Granade, who ruled in favor of a lesbian couple that had married in California, moved to Alabama and sought to have the state recognize the adoption of their son.

Where’s the back story?

Judge Granade was appointed to the federal bench by Republican President George W. Bush, a noted opponent of same-sex marriage.

Here lies the beauty, in my view, of the federal judicial system. Judges get lifetime appointments and that frees many of them from the raw political pressure that often mounts against, say, judges who are elected on partisan ballots.

The federal judge who ruled the Texas same-sex marriage ban unconstitutional is a Barack Obama appointee and some on the right have dismissed her ruling as the work of a partisan hack.

What about Judge Granade’s ruling, which like the rest of the state laws that have been struck down, was based on the U.S. Constitution’s 14th Amendment provision that guarantees “equal protection” under the law for all U.S. citizens? The couple in question here, Cari Searcy and Kimberly McKeand, fit the bill as true-blue, red-blooded American citizens.

Alabama Gov. Robert Bentley, also a Republican, is going to determine whether to appeal the ruling.

Well, he ought to wait on another court — the U.S. Supreme Court — which will hear arguments in a few weeks on another case involving this issue. It will determine before the term ends this summer on whether state bans violate that pesky 14th Amendment.

Let’s not bemoan, meanwhile, these rulings by “unelected judges.” They’re unelected for a good reason.


Where to put Public Integrity Unit

This one has tied me up in knots.

State Rep. Debbie Riddle, R-Spring, has pitched a proposed constitutional amendment that would remove the state’s Public Integrity Unit from the Travis County District Attorney’s Office and place it in the Texas Attorney General’s Office.

It’s a no-brainer, yes?

Not exactly.

This has “political payback” written all over it.

The Public Integrity Unit became the source of intense controversy this past summer when a grand jury indicted former Texas Gov. Rick Perry on charges of abuse of power and coercion of a public official, DA Rosemary Lehmberg.

OK. Hang with me. Lehmberg is a Democrat. Perry is a Republican. Lehmberg pleaded guilty to drunken driving and should have quit her office; she didn’t. Perry then issued a public threat to veto money for the Public Integrity Unit if Lehmberg didn’t resign. She stayed in office and Perry made good on his threat.

The grand jury — guided by a special prosecutor — returned the indictment and Perry accused the panel of playing raw politics.

Now comes the Legislature controlled by Republicans, saying that the attorney general, Republican Ken Paxton, should manage the Public Integrity Unit.

The Public Integrity Unit’s major responsibility is to investigate complaints against officials who’ve been accused of misusing their authority. The office has investigated Democrats as well as Republicans. Has it been an inherently partisan political office, targeting Republican officeholders unfairly? I haven’t followed the PIU’s activities closely enough over the years to draw that conclusion.

Riddle’s legislation would amend the Texas Constitution to put the PIU under the attorney general’s purview. Can an agency run by a partisan Republican do a thorough, fair, unbiased and objective job of investigation complaints leveled against public officials?

I think so, just as I believe the Travis County DA’s office can do the very same thing.

Why change? Well, it seems that Riddle and other legislative Republicans are seeking to make good on a campaign promise. As the San Antonio Express-News notes in a blog about Riddle’s proposal: “Republicans prefer that model, in part because the current set-up gives power for investigating mostly GOP state leaders in the hands of a prosecutor elected by one of the most liberal parts of the state.”


Here’s a possible third option: How about creating an independent agency led by someone approved by a bipartisan panel of legislators?

JoePa's wins restored at Penn State

How does one react to the news that the late Joe Paterno once again is the winningest coach in NCAA football history?

Man, this leaves me with incredibly mixed feelings.

The NCAA and Penn State University have reached a settlement that removes a sanction imposed on PSU because of the hideous conduct of one of its assistant football coaches and the assertion that Coach Paterno — at one time the living, breathing example of moral rectitude in college football — looked the other way while incidents of child abuse were occurring.

The Penn State board of trustees has agreed unanimously to pay $60 million toward child abuse prevention programs and to aid children who fall victims to ghastly abuse. The sanctions are lifted, Paterno’s record gets 112 wins restored, and assistant coach Jerry Sandusky — who was convicted of 45 counts of sexual abuse of children — will remain in prison, where he belongs.

Paterno’s reputation has been destroyed, even with the restoration of the victories. His standing as the football coach with more wins than anyone else will include the proverbial asterisk.

This hideous scandal really wasn’t about what happened on the football field. It was about the monstrous abuse delivered to children by a sexual predator. One has nothing to do with the other.

I guess my reaction, therefore, to this outcome is to be glad that the record has been restored. It’s not so much for “JoPa,” but for the young student-athletes who participated in attaining those victories in the first place.


10th vs. 14th amendments in gay marriage hearing

The U.S. Supreme Court is going to decide the fate of same-sex marriage in the United States.

Good luck, justices.

At issue are two questions: Whether states must allow same-sex couples to marry and whether states must recognize same-sex marriages that take place out-of-state. The case will decide the fates of same-sex marriage bans in Tennessee, Michigan, Kentucky and Ohio.

Here is where I believe the case should turn: Which amendment to the U.S. Constitution has more sway in deciding this matter, the 10th or the 14th?

The 10th is the final amendment outlining the Bill of Rights. It says: “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserves to the states respectively, or to the people.”

That’s pretty clear, yes? It means the states have power not reserved by the Constitution for the federal government.

OK, then came the 14th Amendment, ratified not long after the Civil War. It’s much lengthier and covers a lot of issues relating to rights of citizenship. But at the end of Section 1, it states that no state “shall deprive any person of life, liberty or property without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”

Granted, the nine men and women of the nation’s highest court know a lot more about the law and the Constitution than I do, but my reading of the issue at hand is pretty clear. I believe the 14th Amendment trumps the 10th.

The issue as I see it is whether gay couples have the same right to marry as heterosexual couples. The Constitution, as federal judges have been ruling already, says they do. The Constitution lays out clearly that citizens shall not be deprived of “equal protection.” If that language in the 14th Amendment didn’t exist, I suppose you could argue that states — such as Texas — have the legal standing to ban same-sex marriage.

I do believe, though, that the language contained within the 14th Amendment makes it impossible for states to enact laws that override the Constitution.

There well may be some nuance that I’m missing. If it’s buried deep inside the language of the nation’s founding document, I’m sure the justices will find it.

I just don’t see how they can look past the clear and explicit language contained in the equal protection clause.


Feds aren't seeking to create 'moral standard'

Here’s a shocker: The Texas Legislature and its Republican super-majority in the House of Representatives is likely to consider legislation that blocks any effort to lift the state’s ban on same-sex marriage.

OK, it’s not a shocker. I was kidding.

State Rep. Cecil Bell, R-Magnolia, has filed House Bill 623 that would prevent the federal courts or the Congress from legalizing same-sex marriage.

According to the Texas Tribune: “The federal government is trying to act to create moral standards, and that’s just not acceptable,” Bell said.

Let’s hold on for a moment.

I do not believe the feds are seeking to “create moral standards” with court rulings striking down same-sex marriage laws in several states. The impetus behind the rulings — in every instance — has been the U.S. Constitution’s 14th Amendment, which grants full rights of citizenship to every American citizen. Full rights of citizenship means that every American is guaranteed “equal protection” under the law.

That means, quite clearly, that if you love someone who happens to be of the same sex as you, the Constitution gives you the right — as a citizen — to marry that individual, just as any citizen is able to marry someone of the opposite gender.

The Tribune reports: “The bill also requires state courts to dismiss legal actions that challenge a provision of the bill and award legal costs and attorney fees to the defendants. Citing the 11th Amendment, which gives states sovereign immunity, the bill also says the state isn’t subject to a lawsuit for complying with the act — regardless of a contradictory federal ruling.”

But wait, says a gay-rights group. Again, from the Tribune: “Daniel Williams, a legislative specialist for the gay rights group Equality Texas, said the bill would go against legal precedent.

“’This bill is retreading very well-established precedent here. In 1869, the U.S. Supreme Court decided in Texas v. White that no, Texas does may not ignore federal law whenever it wants,’ Williams said. ‘Beyond it ignoring federal law, it would actually punish state employees who follow the law.’”

The setting of a “moral standard” is not at issue here. Adhering to federal law is what’s at stake.

Such wealth is mind-boggling

The late golfing great Bobby Jones once said of a young golfer who would become the greatest in his sport’s history that Jack Nicklaus “plays a game with which I am not familiar.”

Accordingly, an Oklahoma divorce settlement dispute is dealing with money with which I — nor most normal Americans — are unfamiliar.

I cannot get over what the former wife of an Oklahoma business tycoon is asking.

Harold Hamm offered to write his former wife, Sue Ann Arnall, a check worth $975 million to settle everything. It would be over. The two of them would part company and never have a word to say each other … ever again!

She refused the money.

Why? The bottom line is that it’s not enough.

Wow! And double, maybe triple, wow!

Arnall is appealing the initial divorce settlement of $1 billion. Her ex-husband has been accruing interest and penalty charges of $93,000 per bleeping day.

The guy wants out. His wife is arguing that she deserves more than the amount ordered by the court.

Now she’s refusing a one-time payment of nearly a billion bucks.

What in the name of the deepest of pockets am I missing here?

Someone help me out. Please.


Random selection for grand juries?


Grand juries have been in the news of late.

A Travis County grand jury indicted Texas Gov. Rick Perry on charges of abuse of power and coercion; another grand jury declined to indict a Ferguson, Mo., police officer in the shooting death of a young black man; and still another grand jury no-billed a Staten Island, N.Y., cop in the choking death of a black man.

All those decisions provoked controversy.

I bring this up as an introduction to a chance encounter I had Tuesday with a state district judge whom I’ve known for nearly 20 years. Judge John Board and I were visiting for a time and our discussion turned to grand jury selection in Texas. Board mentioned he’s been using a random selection method for some time, rather than relying on a jury commissioner system that remains the selection-method of choice for most trial judges in Texas.

We talked about an editorial campaign of which I was part in Beaumont many years ago. We argued vehemently at the Beaumont Enterprise for a change in the way grand jurors are selected in the two criminal courts in Jefferson County. We didn’t like the commissioner system, as it relied on jury commissioners’ discretion in picking grand jurors. Jury commissioners — who are appointed by judges — could pick friends, or friends of friends to serve on the grand jury; they could pick judges’ friends.

The theory is that the jury commissioner system enables courts to pick the “best and the brightest” of a community to decide whether criminal complaints warrant prosecution. But the system is exposed to the possibility of manipulation. It could be used to settle scores. A jury commissioner with a bone to pick with someone — for whatever reason — could find grand jurors who would side with him in getting revenge.

I’m not saying such a thing happens frequently, nor do I even have first-hand knowledge of it ever happening. But it could.

I am a strong believer in the random selection method. I was heartened to hear my friend, Judge Board, say that he uses the random system in his court, which has jurisdiction in Potter and Randall counties.

Our newspaper in Beaumont finally won out, by the way. The two courts in question in Jefferson County eventually switched to a random selection method — with grand jurors selected off the voter registration rolls — and to my knowledge it’s been working fine ever since.

So, why not require it across the state?

Amarillo is represented in the Legislature by two fine lawyers — Republicans John Smithee and Four Price. Might there be an opportunity for one or both of them to pitch legislation calling for mandatory random selection of grand juries?

If a trial jury chosen at random can be charged with sentencing someone to death, surely the state can put its trust in a random selection method to pick a grand jury to decide whether to prosecute someone for a crime.



A lesson on Public Service 101, Mr. Councilor

Kirby Delauter needs to be taught a lesson.

I will try to teach him one right here.

Delauter serves on the Frederick County, Md. County Council. He’s an elected public official, whose statements made in a public forum become grist for the media at any time. He makes statements on the record, for the record. They become part of the public domain.

And yet …

This individual is threatening to sue the Frederick News-Post if it uses his name in any fashion “without permission.”

Without permission? That means, if I’ve read the news story correctly about this tidbit, that the News-Post must get his permission to quote him by name even if he says something in the course of performing his duties as an elected public official. You know, such as saying something during a public meeting.

According to a News-Post account: “In a Facebook status posted Saturday, Delauter said he was upset with reporter Bethany Rodgers for ‘an unauthorized use of my name and my reference in her article’ published Jan. 3 about his and Councilman Billy Shreve’s concerns over County Council parking spaces.”

Therefore, the councilor says, he’s going to sue if a reporter uses his name without his authorization.

Um, Kirby, that’s how it works.

I’m pretty sure no one in Frederick County elected this guy King of the World, or Commissar of Information, or Guru of Gab.

He’s elected to represent his constituents. The News-Post’s role is to report on what he says in public. The newspaper doesn’t need his permission to use his name.

I don’t know Maryland open meetings law, but it probably looks something similar to what Texas has on its books, or what other states allow to be kept from public scrutiny. The issues usually involving pending litigation, real estate transactions or personnel discussions. That’s it. The rest of it is fair game.

Here’s a bit of advice to the young man: Ask your county’s legal counsel if you have any standing to sue anyone who uses your name without “authorization.” My hunch is that your counsel will laugh in your face.

The paper’s managing editor, Terry Headlee, said it best: “Kirby Delauter can certainly decline to comment on any story. But to threaten to sue a reporter for publishing his name is so ridiculously stupid that I’m speechless. It’s just a pointless, misguided attempt to intimidate and bully the press and shows an astonishing lack of understanding of the role of a public servant.”

Ex-judge committed egregious act

This story got past me when it happened, so I’m a bit late commenting on it, but it does give the Texas legal community something to ponder — such as how severe a sanction should a judge face if he or she commits an egregious act of judicial misconduct.

Elizabeth Coker used to preside over the 258th District Court in rural East Texas. She resigned her judgeship a little more than a year ago after it was revealed that she sent text messages from the bench to a prosecutor — prompting her with questions to ask that would secure the conviction of a defendant.

The text messages were sent during a child abuse trial in August 2012 to Assistant Polk County District Attorney Kaycee Jones, who was in the middle of a criminal case in Coker’s court.

I don’t know where to begin with this.

The State Commission Judicial Conduct worked out a deal with Coker for her to quit her judgeship. All she had to do was resign from the bench and there would be no additional sanction.

I’ve always understood that judges often have expelled people from their courtrooms for using text devices while court is in session. A former Texas Supreme Court chief justice, Tom Phillips, once told me that in Texas judges can rule their courtrooms like tyrants if they choose to do so.

I suppose that Phillips also implied that judges can run courtrooms with amazing leniency if they so choose.

One of the many astonishing aspects of this case is that Coker then ran for Polk County district attorney after quitting the bench. She didn’t get the job.

This blows my mind. A judge sends a text message with instructions to a prosecutor on how to ask questions that would result in a conviction and all she had to do was quit?

She got off way too easy on this deal.

The Time magazine story goes through this case in significant detail.

What does the Commission on Judicial Conduct do about these cases? For that matter, why isn’t the Texas Bar Association pitching a serious fit to this day over Coker’s terrible judgment on the bench?

The Time article seeks to cast this case in some political context, noting that Republicans had taken over in a part of the state that once was reliably Democratic. Coker switched parties, from Democrat to Republican, and that apparently caused some ill feelings.

That has nothing to do with anything. Coker should have been punished with far more than just losing her bench seat.