Feeling the Heat

The "other" Marcus in for the King.  I'll try not to pull a James Jones this week.  Let's Go Heat! 

I SPY

DOM asked us to help out this week and we've put together a little Supreme Court update. The Supreme Court agreed to return to the arena of terrorism Monday when they granted cert in 
Clapper v. Amnesty International  which challenged the constitutionality of  the Foreign Service Intelligence Surveillance Act. 
The second circuit found that the plaintiffs- a collection of lawyers, journalists and the odd activist- had standing to challenge the Foreign Intelligence Surveillance Act, and it is this point only that is on appeal. The second circuit then  refused to re-hear the case en banc, prompting Chief Judge Jacobs to issue a rare dissent on the denial to re-hear the case en banc.
The CJ's attack on the veracity of the  plaintiffs/lawyers is startling, and the CJ's comparison of the plaintiffs to a disturbed pro se plaintiff suing the CIA for thought control is downright amusing. From the CJ's dissent (you can read it all here): 


      An assortment of lawyers, journalists and activists, 
and organizations representing such people, facially  challenge the constitutionality of § 702 of the Foreign Intelligence Surveillance Act of 1978 (“FISA”... Their claim is that the FAA lowers the standards for obtaining warrants to surveil foreign persons abroad, which has caused the plaintiffs, who are not foreigners, to develop a reasonable fear of being surveilled when communicating with foreigners around the world who are their journalistic sources, clients, human rights victims, witnesses and so on--all of whom are, in plaintiffs’ estimation, potential objects of surveillance. The plaintiffs contend that this fear compels them to communicate with their clients or foreign contacts only in  person, at such trouble and expense as to constitute injury that supports standing. ..
To support the otherwise-mysterious idea of injury to these plaintiffs (and causation), the panel opinion relies entirely (even credulously) on affidavits submitted by the plaintiffs, describing their supposed anxieties. But these affidavits employ all the lawyer’s arts to convey a devious impression...
At the risk of being obvious, the purpose of this lawsuit is litigation for its own sake--for these lawyers to claim a role in policy-making for which they were not appointed or elected, for which they are not fitted by experience, and for which they are not accountable. As best I can see, the only purpose of this litigation is for counsel and plaintiffs to act out their fantasy of persecution, to validate their pretensions to policy expertise, to make themselves consequential rather than marginal, and to raise funds for self-sustaining litigation. In short, counsel’s and plaintiffs’ only perceptible interest is to carve out for themselves an influence over  government policy--an interest that the law of standing  forecloses. For the foregoing reasons, I conclude that the plaintiffs suffered no injury, and certainly none that can  be redressed by this Court. In part, that is a function of the frivolous nature of the claim. In that respect, it bears similarity to a pro se plaintiff’s allegation that the CIA is controlling him through a radio embedded in his molar. But, as to the standing analysis, there is this difference: The pro se plaintiff is actually suffering, is truly hoping for redress, and is not bringing suit as a  pretext to weigh in on government policy. 
Rumpole says: Wow. It's not often the Chief Judge of the Second Circuit Court of Appeals writes with  sympathy for pro se plaintiffs suing the CIA for thought control. "Politics and standing make strange bedfellows, eh?" 

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Lawyers behaving badly

Everyone's all aflutter about the depo drawings leading to sanctions against lawyers.  Here's the order by Judge Altonaga. 

South Florida Lawyers and ATL cover the story. 

Civil lawyers are so funny.  All this fighting about discovery.  Try coming to criminal land -- no depos, no witness statements, no nothing.  And when something does get buried, no sanctions are allowed. 

Anyway, I'm taking the week off from blogging next week, and leave you in the capable hands of Rumpole, SFL, Jeff Marcus, and a potential mystery blogger.  If something really exciting does come up, I'll pop my head in.

For now, I'm going to go and try to get in on some of this Facebook action.

Have a nice weekend.

"There are consequences for disobeying the word of God."

That was Christian school administrator John Ellis when he fired a teacher for conceiving a child three weeks before marriage. Oy vey.

 The 11th Circuit explained that there are also consequences for violating the law.  From Thomson Reuters:

Hamilton sued the school in 2010 under a federal law that bars discrimination based on pregnancy, seeking compensation for lost wages and emotional distress. A federal district court ruled in the school's favor before a trial, finding that Hamilton failed to establish that she was fired for her pregnancy rather than moral concerns over her premarital sex. But a three-judge panel of the 11th Circuit disagreed on Wednesday.
The court pointed to evidence that the school was more concerned about Hamilton's request for maternity leave than her admission to having premarital sex. Ennis expressed concern over finding a replacement teacher, Hamilton testified.
"Hamilton has established a genuine issue of material fact about the reason that Southland fired her. The ultimate issue is one for a jury to decide," Judge Edward Carnes wrote for the unanimous panel, sending the case back to the lower court for a trial.
At a late stage in the appeal, Southland had tried to argue that the separation between church and state prevents courts from applying discrimination laws to churches' employment decisions. The school pointed to a recent Supreme Court ruling in Hosanna-Tabor Evangelical Lutheran Church and School v. Equal Employment Opportunity Commission, which upheld religious groups' right to choose their ministerial employees without government interference.
But the 11th Circuit found that the school had waited too long to raise that argument and even admitted in a court filing that it did not consider Hamilton a "minister" with religious duties.
David Gibbs, a lawyer for Southland Christian School, said in a statement that he would defend the school's religious rights before the district court. The school "is protected under the First Amendment to hire and fire its ministerial employees according to its sincerely-held religious beliefs," he said.

I like the way Judge Carnes crisply starts the opinion (which was joined by Judges Martin and Jordan):

A woman of childbearing age was hired as a teacher at a small Christian school. Then she got pregnant, married, and fired. In that order. Then she filed a lawsuit. She lost on summary judgment. This is her appeal.

Wednesday News & Notes

1.  Is Scalia becoming too much of an advocate on the bench?  Via Bloomberg:

In January, Supreme Court Justice Antonin Scalia accused the U.S. Environmental Protection Agency of “high-handedness.” He was just getting warmed up.
Over the next 3 1/2 months, Scalia asked whether federal immigration policy was designed to “please Mexico,” fired off 12 questions and comments in 15 minutes at a government lawyer in a case involving overtime pay, and dismissed part of Solicitor General Donald Verrilli’s defense of President Barack Obama’s health-care law as “extraordinary.”


Scalia’s tone this year, particularly in cases involving the Obama administration, is raising new criticism over the temperament of a justice who has always relished the give-and- take of the Supreme Court’s public sessions. Some lawyers say Scalia, a 1986 appointee of Republican President Ronald Reagan, is crossing the line that separates tough scrutiny from advocacy.
“His questions have been increasingly confrontational,” said Charles Fried, a Harvard Law School professor who served as Reagan’s top Supreme Court advocate. While the justice has always asked “pointed” questions, in the health-care case “he came across much more like an advocate.”

2.  Rusty Hardin is crossing the Roger Clemens' snitch (via BLT):

Cross-examination began late Tuesday with Rusty Hardin, Clemens' top lawyer, noting how "subdued" and "down" McNamee has appeared on the witness stand the past couple of days.
"Do you consider yourself a victim?" Hardin asked McNamee.
"A victim of my own doing," he said.

 Meantime, the jurors are sleeping through portions of the case, and are getting booted (via the NY Times):

But it seems that for all the care and caution that went into scrutinizing the Washingtonians who would end up determining Clemens’s fate, one fundamental question was overlooked: can you stay awake during the trial?

The trial of Clemens is in its fifth week — with Brian McNamee, the government’s star witness, now on the stand — and already, two jurors have been dismissed for falling asleep.

The first juror excused by the judge, Reggie Walton of United States District Court, was a 27-year-old chronically unemployed man who was let go last week. During juror questioning, he told prosecutors that he would “rather be asleep” than serve on the jury. In the end, he tried to do both but failed.

Walton then warned the remaining 15 jurors and alternates: “Stay alert. We don’t want to lose anybody else.”

But another juror, a young woman who works as a cashier at a supermarket, failed to heed that warning. She nodded off on Monday — the day McNamee, Clemens’s former trainer, began his testimony — and was dismissed by Walton on Tuesday.

It was just last week that Walton scolded the prosecutors and the defense lawyers for asking too many unnecessary questions and boring the jurors so much that they had begun to discuss the case among themselves, which they were told not to do. He even threatened to put a time limit on the trial.

3.  Bond condition: read and write book reports.  No joke (via SF Chronicle):

One of three men indicted for allegedly trying to sell a grenade launcher during a deal that led to gunfire in Richmond was ordered released on bond Monday by a federal judge, who allowed him to remain free so long as he reads each day and completes book reports.
Over the objections of federal prosecutors, U.S. District Judge Yvonne Gonzalez Rogers granted a request by 23-year-old Otis Mobley Jr. to be released before trial. She ordered him to "read and complete book reports," spending an hour every day on books and at least a half an hour writing.
The judge said she plans to provide a reading list for Mobley as he awaits trial.

4.  Is John Edwards going to testify (via Washington Post):

Many people watching the case believed Edwards would testify so the jury could hear directly from the former U.S. senator and trial lawyer, who had a reputation for his ability to sway jurors. But putting Edwards on the stand was also a gamble: It would have exposed him to withering cross-examination about his past lies and personal failings.
Most experts were convinced calling Hunter to testify would have dredged up more negatives and lies. The defense also elected not to question Edwards’ oldest daughter, Cate, who has sat behind Edwards nearly every day of the trial and could have helped humanize him.

UPDATE -- He didn't testify.