Kansas Politics Ethics Sludge (Cont.): In Taylor v. Kobach, The Court Rules That The Statute Was Violated In Compliance With The Statute…

quote-i-have-seen-the-truth-and-it-makes-no-sense-anonymous

I write here often that we must distinguish between law and ethics, and as a lawyer, I am comfortable with the reality that a decision required by the law may be unethical, in that the results may harmful and undermine the broad goal of what a law or laws are supposed to accomplish: a healthy society, a functioning government, a safe and happy public and justice. Just as doctors need to develop emotional armor that allows them to go on practicing medicine when the operation is a success but the patient dies, so must judges learn to move on when interpreting a law as written has an absurd result, and they must allow that result to occur. I understand all that.

I still can’t understand the opinion in Taylor v. Kobach, however.Maybe someone can explain it to me with a straight face. The opinion itself is beyond reproach, clear and unassailable. The problem is that it ignores the Mastodon in the courtroom: the letter that the opinion deems sufficient to meet the requirements of the statute in question embodies a lie, and defeats the intent of the very statute that the court is using to declare the letter valid.

How can judges do that? How can they stand doing that?

Let’s review. GOP U.S. Senator Pat Roberts has lost his once formidable popularity in Kansas, and the Democrats see an opportunity to pick up a Senate seat in a year where they stand to lose several. Beating Roberts might just save Democratic control of the Senate. Roberts’ Democratic opposition, however, is Chad Taylor, and it was becoming rapidly apparent that he was likely to run third in a three major candidate race, with an independent candidate, Greg Orman, besting him. The political analysts in Kansas and elsewhere wrote extensively how Taylor’s prospects  had been wounded by a discrimination suit brought against him by two former female employees, and his initial refusal to prosecute sexual harassment cases as District Attorney, citing budget cuts, had made him unpopular among women voters in the state. He couldn’t raise money and was regarded as a weak campaigner. The Democratic leadership decided that he had to be persuaded to withdraw in order to give Orman a clear shot at unseating Roberts. The leadership, including Missouri Senator Claire McCaskill, pressured/persuaded/encouraged Taylor to take one for the team, and get out. He agreed.

Note that none of this, nor any news reports, nor any statement by Taylor himself, nor the evidence of any public appearance by Taylor or statements from his staff, associates, family or friends, suggests that he is ill, handicapped, disabled or dead. This is, or should be important.

K.S.A. 25 306b(b) provides that no person nominated for any national, state, county or township office may cause his or her name to be withdrawn from nomination after the primary election, except when the nominee declares that he or she is incapable of fulfilling the duties of office if elected. Such a person must request that his or her name to be withdrawn from nomination by filing with the Secretary of State a written, signed and notarized letter. Taylor did send such a letter to the Kansas secretary of state as required, and it said, simply:

“I, Chadwick J. Taylor, Democratic nominee for the United States Senate race, do hereby withdraw my nomination for election effective immediately and request my name be withdrawn from the ballot, pursuant to K.S.A. 25 306b(b).”

The official, Kris Kobach, refused to remove Taylor, arguing that he had not affirmatively represented that he met the requirements of the statute, that he was in fact unable to serve. That he was motivated to do so by the fact that he is a partisan Republican dedicated to re-electing Pat Roberts is hard to deny (though Kobach denies it), but I share his objection to the document. It’s an exercise in deceit. Taylor is a lawyer, and he can’t lie on an official document without violating his ethical obligations. Signing a false assertion on a notarized document is grounds for suspension of his legal license or disbarment, which is not a good career move for a prosecutor. As I have already noted, if Taylor is really disabled, no one, including him, has said so….because he isn’t. Kobach believes, I think correctly, that Taylor chose the weasel words “pursuant to K.S.A. 25 306b(b)” to avoid actually having to write “because I am unable to serve as U.S. Senator if elected.” That would, I believe, put him in jeopardy of bar discipline.

The Court ruled that since the statute laid out the conditions for withdrawal, “pursuant” was sufficient to constitute a valid request to be removed under the statute. This is technically true, except Taylor isn’t unable to fulfill the duties of the office he’s running for, everyone knows he withdrew because his party forced him out, and thus the law, which the Kansas Supreme Court is supposedly enforcing in this decision, is being violated by the very letter that it rules meets the requirement of that same statute. The words meet the requirement for the letter, but Taylor’s claim that the Court has ruled is being properly asserted by the letter is 100% false.

Shouldn’t a court ask for more? Shouldn’t a court be troubled by the fact that the “plain meaning” of the law is being defied even as the language required by the law has been adequately employed while defying it? Doesn’t a lawyer carefully trying to lie as subtly as possible to pull off a political switcheroo justify some expression of judicial contempt?

The court’s decision says that the law has been broken in compliance with the law. It also shows that Taylor has breached the legal ethics rules, and seriously so, by claiming on  an official, notorized document what he knows to be false, but doing it with sufficient compliance with the statute that the Kansas Supreme Court ordered the  secretary of state to remove him from the ballot for asserting that he is unable to serve to the minimum extent required by the law’s “plain meaning,”even though everyone, including the members of the court, know that he is able to serve, violating both the intent and the plain meaning of the statute’s expression of that intent.

I don’t think I’ve ever seen such a blatant judicial endorsement of a violation of law.

____________________________

Sources: The Hill, Washington Post

23 thoughts on “Kansas Politics Ethics Sludge (Cont.): In Taylor v. Kobach, The Court Rules That The Statute Was Violated In Compliance With The Statute…

  1. A paradox here.

    I contend that such a dishonest and ethically bereft individual is both unsuitable and in fact incapable of adequately performing the duties required of third assistant dog-catcher let alone Senator, due to being dishonest and ethically bereft.

    Which is not new. There are many Senators like that, I’d even say the vast majority of them. But the statute requires that those who admit it, if they request withdrawal of their name from the ballot, be allowed to do so.

    So strictly, by the letter of the law, which doesn’t say anything about physical disability,, the court got it right. In terms of the meta-law, the spirit, they got it badly wrong as it was intended that something more than “I say so” is needed. In terms of the meta-meta law, yes, he’s incapable of performing the duties adequately, as was the incumbent and quite possibly all those on the ballot, so once again they got it right.

    I know the statute says nothing about “adequacy” in performing the duties just that they be performed. I think the court is not exceeding its powers in “reading in” an implied standard of required adequacy though. They are not prohibited from doing so, though it may not be mandatory (I think it should be).

    Ask yourself – do you think this guy is capable of doing the job?

    • I feel 100% confident that Jack wasnt saying he is capable of doing the job. Only the he failed to demonstrate that he wasnt capable.

      As has been pointed out here many times, liers and ethics-less sociopaths can be (and often are) capable of fulfilling the responsibilities of an elected office. At best all it shows is that he would be an undesirable leader, not an incapable one. The fact that Taylor lies (apparently successfully too) and has a low regard for ethics, hardly demonstrates an inability to fulfill the duties of office. It likewise hardly excuses the court from refusing to enforce the law, even on twice-removed meta reasoning,

  2. The statute reads: (b) Any person who has been nominated by any means for any national, state, county or township office who declares that they are incapable of fulfilling the duties of office if elected may cause such person’s name to be withdrawn from nomination by a request in writing, signed by the person and acknowledged before an officer qualified to take acknowledgments of deeds.

    Apparently I’m “incapable” of seeing this the same way as Mr. Marshall.
    Mr. Taylor has done nothing illegal nor unethical. And I say that as a conservative.

    Legally, the term “incapable” in the statute is neither defined nor qualified. Accordingly, incapable can mean a simple change of heart. Absent a problem of equity, e.g. the strictest right being the greatest wrong, it is not the Court’s job to re-write legislation.

    There is no “great wrong” in allowing Taylor to withdraw per the terms of the statute; i.e. declaring himself to be “incapable” with no other explanation.

    Ethically, Taylor complied with the statute; as he was not required to state why he was incapable of fulfilling his duties. Again, something as whimsical as a change of heart would suffice to satisfy the letter of the law.

    Punishing Taylor based on what the Court believed the statute should read would have been the unethical course of action.

    Maxims adopted as universal law here:

    Courts do not write legislation

    and citizens should not be penalized for following and relying on the letter of the law.

    • But Bob, don’t you find it disingenuous for an opinion resting on “plain meaning” of words to deny the plain meaning of “incapable” which, I’m sure you know, does not mean “I changed my mind.”

      I read the statute as relying on good faith and honesty—I guess that was the mistake? If Taylor was asked, under oath, “if elected, would you be capable of serving?” how would be be compelled to answer, as a lawyer and a citizen?

      INCAPABLE:

      1. lacking capacity, ability, or qualification for the purpose or end in view

      2. not being in a state or of a kind to admit : insusceptible

      3. not able or fit for the doing or performance : incompetent

      4. lacking legal qualification or power (as by reason of mental incompetence)

      The legislature may not have made it clear which of these it meant–let’s say it meant all of them or any.
      The plain meaning suggests that none apply to Taylor, based on his real reasons for withdrawing.

      Meanwhile, I’m going to hold you to this comment when SCOTUS rules that only the state exchanges can offer Obamacare subsidies, as the plain language of the statute states.

      • Jack,

        Take a look at the legislative history at the bottom of 25-306b

        History: L. 1970, ch. 135, § 2; L. 1973, ch. 150, § 1; L. 1991, ch. 99, § 1; L. 1995, ch. 192, § 4; L. 1997, ch. 124, § 10; July 1.

        1997 Jack. That’s ten years before those folks in the state capitol figured out that the Flintstones wasn’t a documentary.

        Incapable also has hyperbolic meanings; e.g. I’m “incapable” of thinking of a better example right now.

        Jack: I read the statute as relying on good faith and honesty—I guess that was the mistake?

        Absolutely. The legislature may have intended to handcuff candidates to the bench after the primaries, but due to poor drafting, they never locked the cuffs. They just told the candidates to sit on the bench and to leave a note declaring they’re “incapable of fulfilling the duties of office if elected” should they decide to get up and leave. The requirements are just as whimsical as the initial decision to run in the first place.

        Furthermore, what if you found out that Svitlana Sangary drafted the statute in question? Now apply the categorical imperative. The result you’re asking for is tantamount to rewarding acts of stupidity.

        Bringing it back to Darwin, your desired outcome, i.e. of reading good faith into a poorly drafted statute, would amount to legal dysgenics. Looking years into the future, Svitlana Sangarys on both sides of the aisle would fill the state legislature; convinced by the Court that they draft laws goodly.

      • In Re: SCOTUS, Obamacare and Halbig, etc.,

        I’m rooting for that outcome.

        Obamacare is an affront to federalism. The folks who drafted, and those who defended it, actually believed that the commerce clause gave the Fed the power to draft the law.

        Apply the categorical imperative to that one Jack.

        Specifically enumerated powers? Gone! Like Spock’s brain.

        Kara: Brain and brain! What is BRAIN? It is Controller, is it not?

        Dr. McCoy: Yes. Yes, in a way, it is. The [specifically enumerated powers] controls the [government’s] functions.

        (I blame that Star Trek rant on your reference to Edith Keeler Must Die somewhere on your site — on your list of ethical argument no-no’s I believe)

      • My approach to ethics normally takes the route of “what would Kant think.” Kant of course would say that lying is never acceptable; even in the most extreme circumstances. While I don’t agree with Kant in the extreme, e.g. refusing to lie to save a life, I think it’s a generally good rule. But Kant would also say follow the categorical imperative.

        Since we came to different conclusions I couldn’t help but think about this problem throughout the day. And I think it comes down to the fact that I fail to see the lie or lack of good faith and honesty here. Just like you can’t bind a man to a contract he never entered, you can’t hold the candidate to a standard that was never set by the legislature. Creating the standard where it didn’t properly exist previously and holding the candidate to that standard would be the greater lie. That’s pretty much the same reason we have the ex post facto clause.

        • Yikes! He withdrew because he was pressured and his party wants to win. How in the world can that possibly be twisted into “I’m incapable of serving? The law is vague, but not so vague as to include THAT.

          Taylor’s lying. If I didn’t think the bar is as corrupt as the rest of the state, I’d file an ethics complaint against him. He lied on a notarized document, and isn’t fit to practice law.

          • “Taylor’s lying. If I didn’t think the bar is as corrupt as the rest of the state, I’d file an ethics complaint against him. He lied on a notarized document, and isn’t fit to practice law.”

            Having only discovered your blog a few days ago, I’ve come to the conclusion that your sixth sense for all things unethical is truly remarkable. In this case, however, while I agree with your sense that Taylor was less then forthcoming, I cannot accuse him of lying.

            Let’s say I worked for you in the Character & Fitness department of the Bar that licensed Taylor. If you demanded that I sign my name to a notarized document swearing out a complaint that Taylor lied, I would be constrained to disobey your order because my swearing to that document would be a lie.

            “What is truth? The nominal definition of truth, that it is the agreement of knowledge with its object, is assumed as granted; the question asked is as to what is the general and sure criterion of the truth of any and every knowledge.” …. “[K]nowledge is false, if it does not agree with the object to which it is related” Immanuel Kant,Critique of Pure Reason, pg. 97

            I cannot accuse Taylor of lying unless I can establish the existence of a clear lack of agreement between his statement and the requirements of the statute. If I did accuse him of lying, while knowing that I could not establish that clear lack of agreement, then I would lying about Taylor’s “questionable” statement.

            As I stated above, there is absolutely nothing for me to hang my hat on in accusing Taylor of lying under the statute. While I completely agree with your sense of what he did, I cannot accuse him of lying without being a liar myself.

            • Huh? He has stated in a notorized and official document that he is incapable. We know from multiple sources that he is withdrawing for tactical reasons, dictated by his party, based on matters wholly unrelated to his capability. He knows that. He is asserting otherwise. That’s a lie, and it can be easily proved.

              What do you MEAN you just learned of this blog recently?

              • Jack,

                You said: “We know from multiple sources that he is withdrawing for tactical reasons, dictated by his party, based on matters wholly unrelated to his capability. He knows that. He is asserting otherwise. That’s a lie, and it can be easily proved.”

                That’s based purely on your chosen definition of the word “incapable;” not the definition he’s obviously relying on and which the poorly drafted statute allows.

                It’s as if you think the Court, in ignoring your particular chosen definition of “incapable,” is acting like SCOTUS did in Kelo v. City of New London. Kelo , if you recall, was the case where the liberals on the Court, joined by Kennedy, effectively deleted the words “for public use” from the takings clause of the Fifth Amendment by holding that the government may take private property from one owner and give it to another and call it “public use.” Pure horseshit.

                Unlike the phrase “public use,” the word “incapable” has many meanings.

                Look at the first example given in the definition provided by Google:

                1. unable to do or achieve (something).
                “Wilson blushed and was incapable of speech”

                By your definition of incapable, Wilson would need to be a mute or be physically incapacitated in some other way. However, to say someone is incapable of speech while blushing can simply mean the person is UNWILLING to speak because doing so risks further embarrassment.

                That’s what I was trying to get across earlier when I said “I’m “incapable” of thinking of a better example right now.”

                The world incapable alone, without the statute providing any focus on a particular definition, such as the one you (and I) would prefer, leaves Taylor ethically and legally entitled to read it as synonymous with “unwilling for personal reasons;” such as when someone is “incapable of speech.”

                Like I said, your sixth sense for the unethical is truly amazing. But “a man’s got to know his limitations.”

                Anyway, on another note, I was going to do a blog post of my own on an incredibly unethical 1 credit law school course offered by a lawyer who considers herself a “social engineer.”

                I was going to title it what I deem her course to be: “A Truth Pimp’s Guide to Media Manipulation of The Legal Process.”

                As I said, “a man’s got to know his limitations.” Accordingly, I think you’re far better suited than I to give this attorney the …how shall we say, … ethical thrashing she truly deserves. You’ll love it since she’s a race-huckster; just like her two bosses that you’ve already laced into in some of your other posts.

                I’ll forward you the details via your email address that you provide on this site. Look for the subject line beginning “A Truth Pimp’s Guide…”

                • OK, now I know you are definitely not “Ethics Bob” Stone, who has my e-mail address, and speaks English, but some doppleganger.

                  By no means does “incapable” mean “I don’t feel like it.” None of the dictionary definitions support your fantasy, nor does simple logic. I can’t and I won’t are distinct, and everyone knows it.

                  • When someone is “incapable of speech” or “incapable of expressing gratitude,” etc.,it does not mean literally lacking the ability. It simply means “lacking ordinary capability” — and that can be for any subjective reason whatsoever.

                    And everyone knows it.

                    • In a word, bullshit. Legislative language does not deal in metaphor, and that’s what that is. Your argument is completely, completely ridiculous, and intellectually dishonest. If someone is “incapable of speech” because of emotion, that lasts a few minutes at most–he would still be lying to sign an affidavit saying he was incapable of fulfilling his job as an auctioneer going forward. What you are claiming, and justifying is outright dishonesty in full public view, is a lawyer, who is required not to engage in a misstatement of material fact or law, and not to engage in dishonesty, deceit or misrepresentation. At best this is deceit. When an employee calls into work and says “I’m incapable of working today” but really means “I’ve decided to goof off,” that’s a lie, and if the boss found out, it would be regarded as a lie. If Taylor wrote “I am incapable of fulfilling the duties of the job because that’s what I have to write in order to get off the ballot so my votes don’t take away from the chances of the independent candidate of beating Pat Roberts, would that be accepted by the public or the court, but of course I could do tehe job if elected, since I am healthy and of sound mind, would it make him look ridiculous? Would the second part of his statement make the first one null and void? Hint: if the “meaning” of what you write has to be undisclosed to avoid looking like the liar you are…it’s a lie.

                      Just stop it. The court based its ruling on the “plain meaning” of the statute that a candidate had to say—under oath, now—they were incapable, and that the truth wasn’t specifically required, just the words…even though everyone, including them, knows that the statute do0esn’t mean that. The court has a legitimate argument. Taylor doesn’t, and your argument just argues for public and official deceit.

                    • One more thing..I’ve put up with this nonsense with more than my usual restraint because I was under the mistaken impression that you were the business professor, ethicist and frequent commenter here of the same name, having a rare lapse. You embarrass him, and confuse me, by making an argument like this using the same name. Pick a new one, I don’t care what, or I will do it for you. “Bob Stone the Lesser” would be fine.

  3. I need to point out that your last reply to me was “excessively severe” and unwarranted under the circumstances since you also “[Put] words in my mouth [and ascribed] opinions to me that I have not stated. I hate that.”

    Like when you said:

    “your argument just argues for public and official deceit.”

    So if you argue that a public official lied and I point out reasons why your accusation cannot stand, then it follows I’m arguing for public and official deceit?

    I see.

    you said: “The court has a legitimate argument.” “The court based its ruling on the “plain meaning” of the statute that a candidate had to say—under oath, now—they were incapable,”

    I agreed with the Court. I just further explained why the statute was poorly drafted because there’s nothing there to cause the inquiry you’re looking for.

    To wit:

    “Taylor contends his letter fully complies with the statute, even though his letter failed to include a verbatim, or otherwise explicit, statement that he is “incapable of fulfilling the duties of office if elected.” Kobach clearly disagrees, as his own letter states: “I have concluded that the written request filed by Mr. Taylor does not meet the requirements of K.S.A. 25-306b(b) because Mr. Taylor did not ‘declare[] that [he is] incapable of fulfilling the duties of office if elected.'”

    The whole case revolved around the meaning of “pursuant to” not the fact that Taylor can skate by simply stating he’s “incapable of fulfilling the duties if elected.” Kobach’s only objection available under the poorly drafted statute was to Taylor’s use of the phrase “pursuant to” in lieu of explicitly stating “[he is] incapable of fulfilling the duties of office if elected.”
    BECAUSE OF THE POORLY DRAFTED STATUTE, Kobach, i.e. the “partisan Republican dedicated to re-electing Pat Roberts” could not ALSO request the Court to disallow Taylor’s request by alleging he was lying about being “incapable” in the letter.

    The statute fails because it does not demand a particular showing of proof, further defining the word “incapable,” before allowing the candidate to withdraw. Thus Taylor is not lying by making the statement required by law.

    Kobach saw it and accepted it for what it was. You might do the same.

    Bob Stone
    (my birth name)

    • 1. Yes, because you are arguing that deceit, and this is per se deceit, is acceptable.It’s not.
      2. We agree that the law is poorly drafted. Nonetheless, it strains credulity that it would have been written to only require that someone SAY they are incapable of serving, without also requiring that the statement be true.
      3. So I guess as long as he SAID in the letter that he was dead, that would be complaint with the law too? Why not?
      4. Kobach could have and should have made a better argument. I didn’t say that he wasn’t an idiot, but the court shouldn’t need a brief to conclude on their own that a young, healthy man who intends to stay a DA is by definition able to be a Senator as well…especially since a chimp could be a Senator for most purposes.
      5. I don’t doubt it’s your real name: the other Bob Stone got here first. Actor Stewart Granger was named Sames Stewart and had to change because Jimmy Stewart (and that was his real name, too) was already a star. I’m not blaming you, but this is a forum where identities matter, especially to me. You can call yourself “Bob Stone II” or “The Great Bob Stone,” but its my blog, and I am asking that you help alleviate the confusion.

  4. 1. Your argument that full compliance with a poorly drafted law constitutes deceit is hard to accept.

    2. You agree that the statute was poorly drafted, yet you fail to appreciate the consequences; i.e. that the drafting rendered the term “incapable” effectively meaningless.

    3. If Taylor said in the letter that he was dead, then “Mr. Taylor did not meet the requirements of K.S.A. 25-306b(b) because Mr. Taylor did not ‘declare[] that [he is] incapable of fulfilling the duties of office if elected.’”
    Notwithstanding the foregoing, the dead Mr. Taylor would be excused under K.S.A. 25-306b(c).

    4. There’s a difference between sua sponte decision making and a judge ignoring the law as written.

    5. I’ll work on it.

    • 5. Thank you.

      The principles of judicial construction dictate that the court should strive to interpret a law to make sense and actually accomplish its stated goal. This is being cited, indignantly, as the criticism of the current ACA lawsuit, and I agree with the principle, except that there is strong evidence that the law was instentionally written as it was, not accidentally, to force states to have their own exchanges. But it strains credulity, and, frankly, strains my faith in your good faith, to argue that any legislature would intentionally make a law intended to make a candidate SAY he was incapable to be removed even if he was not in fact incapable by any reasonable definition of the phrase. The intent, obviously, was to avoid exactly this kind of late manipulation of the ballot to remove a weak candidate. If the law is interpreted to mean that a letter stating incapability is only effective when there is in fact lack of capability, the law makes sense. If it merely means that “I am incapable” (or the even lamer “pursuant” dodge) is some kind of a magic phrase that just as easily could be “I am Marie of Rumania,” then it is a cynical embarrassment to the state and the rule of law.

      Yes, the “plain meaning” approach is technically acceptable, if the court doesn’t care about making the state look corrupt and/or stupid, and only about helping the party most members of it belong to. Taylor knows he is being dishonest, which is why he tried the “pursuant” dodge, which is the same as saying “I am dead or incapable.” He isn’t, the court knows he isn’t, and he does. And you do. To approve the letter is to allow “plain meaning” to mean a nonsensical law that nobody would ever knowingly intend.

      Arguing that Taylor actually IS incapable is, in my view, itself dishonest.

  5. Thanks for providing that background into the Kansas senatorial race, Jack. Plain common sense supports your contention that Mr. Taylor was indeed in violation of Kansas state law in both letter and spirit… and on the instigation of his political cronies. The Kansas Supreme Court has a lot to answer for in their ruling and should be held accountable. Despite this political finagling in the courts, Senator Roberts, having survived a strong primary challenge, seems to have the edge on the pseudo-independent who’s trying to take his seat. People tend to resent being taken for suckers in this manner, once the story is made plain.

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out /  Change )

Google photo

You are commenting using your Google account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s

This site uses Akismet to reduce spam. Learn how your comment data is processed.