Law And Ethics Notes

ethics and law

I’m desperately trying to meet a course materials deadline so my brain is stuck on law right now. Here are are few items of general interest:

1. As expected, the Supreme Court passed on the various cases involving the election, ruling them moot, which indeed they are. Thomas and Alito dissented, with Gorsuch joining with Alito, on the grounds that it would be prudent to take up the issues involved in those cases now, to avoid a repeat in the next election.

Justice Thomas wrote:

“The Constitution gives to each state legislature authority to determine the ‘Manner’ of federal elections,” Yet both before and after the 2020 election, nonlegislative officials in various States took it upon themselves to set the rules instead. As a result, we received an unusually high number of petitions and emergency applications contesting those changes.”

Thomas argued that the cases Republican Party of Pennsylvania v. Veronica DeGraffenreid (2021) and Jake Corman v. Pennsylvania Democratic Party (2021) presented “a clear example” of election law issues that the Supreme Court should settle, writing

“The Pennsylvania Legislature established an unambiguous deadline for receiving mail-in ballots: 8 p.m. on election day. Dissatisfied, the Pennsylvania Supreme Court extended that deadline by three days. That decision to rewrite the rules seems to have affected too few ballots to change the outcome of any federal election. But that may not be the case in the future. These cases provide us with an ideal opportunity to address just what authority nonlegislative officials have to set election rules, and to do so well before the next election cycle. The refusal to do so is inexplicable.”

Oh, I can explain it. The Court doesn’t want to inject a destabilizing element into what is already dangerously widespread suspicion about the election. An opinion that said, in essence, “This was illegal, and some illicit votes were allowed to count that shouldn’t, probably not enough to change the results, but at this point, who knows?” would not be helpful or wise.

2. If you think a lawyer looking like a cat at a hearing is bad, or appearing before a judge on Zoom in pajamas, or a professor being on mute for two hours while lecturing remotely, consider this: Peruvian defense lawyer Héctor Cipriano Paredes Robles was taking part in a virtual hearing when his video feed began to show him stripping naked, and engaging in enthusiastic sex with a naked woman.The judge, John Chahua Torres, tried to alert Robles that the hearing participants could see him and his partner’s multiple positions on the live feed, but the lawyer was, uh, busy.

“We are witnessing obscene acts which represent a violation of public decency and are aggravated by the fact they are being recorded nationally!” Judge Torres said.

Good point.

3. Believe It or Not! The Tennessee Supreme Court suspended lawyer Winston Bradshaw Sitton for four years, with one year to be served on active suspension and the remainder on probation. The lawyer advised a friend on Facebook how she could use the “Castle Doctrine” to justify shooting a former boyfriend she had accused of abuse. The panel recommended a 60-day suspension, but the Tennessee Supreme Court determined that the penalty was too light. Ya think? Giving legal advice on social media is so stupid that it alone justifies a long suspension, never mind advice on how to get away with murder.

Sitton defended himself by claiming that his Facebook post was “dark humor” and “sarcastic,” and that his intent was to dissuade the woman from carrying a gun in her car. Lame excuses are not a good idea in an ethics hearing. A panel concluded a reasonable person would not perceive the comments that way.

That the advice was posted on social media was considered an aggravating factor.

22 thoughts on “Law And Ethics Notes

  1. 1. The only way that a case on election law will be heard is if Republicans start changing the laws in their favor while bypassing the legislature. Otherwise, no one will ever do anything. The left is allowed to do whatever they want.

    2. Gross.

  2. “An opinion that said, in essence, “This was illegal, and some illicit votes were allowed to count that shouldn’t, probably not enough to change the results, but at this point, who knows?” would not be helpful or wise.”

    I suppose it depends on what your goal is. What Thomas said is undeniably true. All of those things happened, it was almost certainly illegal, there were votes counted that shouldn’t have been, it almost certainly wasn’t enough to change the result, and in my opinion it would be helpful for SCOTUS to rule on this to prevent a repeat for 2022 or 2024.

    Look, I understand why they didn’t want to disenfranchise voters: The voters were told how to vote by election officials, and they did what they were told. The Trump administration moved WAY too late for the 2020 election. But what possible excuse could SCOTUS give to not provide clarity for 2024? I want to stress this: What Thomas said is not a lie. This is a big issue. This is the kind of thing that only SCOTUS can deal with. Are you suggesting that it’s better for them to not fulfill their function in Democracy because the public might be angry? Why not just do away with SCOTUS and govern by poll?

    These issues need clarity. In the wake of Bush v Gore in 2000, The state was so embarrassed by the debacle that they spent the time and money necessary to develop what is now the gold standard in American election tabulation. If instead of a potpourri of quasi-functional policy coupled with crumbling infrastructure, the four “swing-ish” states has something approximating this, I do not believe the 2020 election debacle would not have happened. It certainly wouldn’t lend itself so eagerly to conspiracy theories.

    In Florida, all the mail in ballots were precounted and ready to go, so when the polls closed, it looked like Biden was ahead in a landslide. This shocked no one, because the assumption was that Demcorats would be more inclined to mail in their vote and Republicans would be more likely to in-person vote. So the narrative was: This is how far Biden is ahead, ban Trump catch up? What happened in Pennsylvania was the opposite: All the in-person votes were counted first, it looked like Trump had a solid victory, and then all the mail in ballots were *very slowly* tabulated over the course of days, and reported in the most ham-fisted of ways. This was the basic fact pattern for about a dozen states.

    Would that have been addressed by SCOTUS? No. And no one is seriously suggesting that Biden is not the president. But these systems need all the disinfecting sunlight they can get. This was bad, and if it happens again at either the midterms or the 2024 general, I don’t think people will stand for it.

    • Right on, HT. But I think there’s a legitimate, more narrow reason than Jack suggests. I’m just not sure what sort of remedy the court could have fashioned ex post facto. Pennsylvania should clean up its act, but …. Maybe the court could have sent it back to the trial court and ordered them to order some sort of supervision of Pennsylvania voting regulators and even the state legislature analogous to federal trial courts supervising prison systems that are deemed to be out of line federally. Florida cleaned up its act by adopting corrective legislation. Courts shouldn’t legislate.

      And as a side note, isn’t Justice Thomas engaging in disseminating disinformation? Should he even be allowed by Congress to publish such a dissent? (And where the hell and exactly when did the Dems come up with this whole “disinformation” concept? Who came up with that talking point? It’s the same thing with “insurrection.” Sheesh.)

  3. 1) Look, further proof, as if any reasonable person needed it, that you can almost 100% of the time predict exactly how the Progressive Justices WILL vote on SCOTUS but as normal, you can never with any consistency predict how the “Conservative” Justices will vote.

    BUT, if you DO view them as Constitutional Justices, you can with some reliability predict precisely how they will vote on any issue…while again, even in slam dunk Constitutionally obvious situations that fall towards the stereotypical “conservative” position, the Progressive Justices still dissent.

  4. 1. What seems unwise to me is taking the short term “stability” in exchange for the long term ambiguity. Also, wanna bet that if some legislature had determined the count was wrong and assigned electors for the other party we wouldn’t be seeing a hands off approach from the Supreme Court?

  5. Jack, totally don’t understand your end comment in #1.
    The integrity of the system is far more important than a few ruffled feathers, more than likely of the birds that “cheated”. My vote gets extra help if I’m in that right state or county?

    It’s the same beef I have about Hillary not being at least put on trial. Does the law matter, or political appearances? Everybody from execs to pee-ons gets the same training on classified, I was in the same room as the business unit director when we were all told it doesn’t matter what your intent is, accident or not, if you screw up, you’re getting prosecuted.

    But it would be bad for appearances of our system if that happened, yada yada yada. Apparently not when a lot of high level Nixon officials went to jail.

    What’s bad for our system is for one side to get a pass on the rules that should be consistently applied across the board.

    • The Court doesn’t generally make rulings that have no consequence. It is not a general justice court, declaring what is or isn’t fair or right. The GOP fucked up, and allowed the election to be manipulated out from under them. The pandemic was used to bypass law and process: the GOP should have seen it coming, and challenged it all. They didn’t. There are ways to find out how much the election results were warped, but not by SCOTUS edict. The election controversy is moot, meaning nothing SCOTUS does will change it. The Court also doesn’t examine whether already executed convicts were really innocent.

      Same thing.

      • “The election controversy is moot, meaning nothing SCOTUS does will change it. ”

        The election is, the controversy surrounding it is not.

        And how do we know the result wouldn’t, given a thorough examination?

        That the GOP screwed up is less the issue than that there is a process that that is broken. The guy isn’t dead, he’s on death row.

        I’m sure you’ll shred this, but Miranda was guilty, so once he’s convicted, why bother? The result was the same, right? Process sure changed though, to more fully follow the intent of the law.

        Are the rights of voters and the integrity of the vote any less important?

        I’m sure I am missing much, but then I couldn’t understand Roberts when he determined Congress had the power to “tax” inactivity. Regardless of what one thinks of Obamacare, that’s a bullshit move.

        If the court can pull that one off, I’m sure an election process could be reviewed for it’s impact absent “changing” the election outcome.

        • But under the system, he wasn’t finally convicted. That’s the distinction. The SC COULD do something, and did, in fact. He had an appeal. He could get a new trial. Even if the Court could order a new national election, it wouldn’t: talk about judicial activism! We don’t want a nation run by a court–it’s government of, for and by the people. The people officially elected Joe Biden under the laws and regulations that, rightly or wrongly, were in place during the voting. They have a right to expect finality.

          SCOTUS might have been inclined to wade into this IF Biden hadn’t won the popular vote decisively, IF Trumps claims of a “landslide” were not so over-the-top, IF the GOP and Trump lawyers hadn’t beclowned themselves…and yes, IF the media wasn’t clamoring for it all to be over. SCOTUS is like the British monarchy to some extent: it can’t afford to lose the trust and admiration of the people. Right now the Democrats don’t dare “pack it,” but if the Court did something reported as partisan and an abuse of its role, that would change. SCOTUS has always, always, paid attention to the context of its sensitive decisions in regard to the viability of its own institution.

          • “The people officially elected Joe Biden under the laws and regulations that, rightly or wrongly, were in place during the voting.”

            Is that true? The voting rules were changed by local elections boards and courts along partisan lines in specific areas favoring Democrats, not the state legislatures, as the Constitution requires. Doesn’t that mean we no longer have a government of, by and for the people?

            jvb

              • The Court wouldn’t hear the case before the election, because it was too close to an election (the incident occurred only 6 weeks before the election), and they won’t hear it now because it is after the election. So, as long as you cheat close enough to an election, it is OK. That is the logic of the court that Thomas addresses. I would suggest that, far from being a stabilizing ruling, this is a destabilizing one. It tells the country that the Supreme Court is afraid to deal with this, the Supreme Court will allow illegal elections to stand in the future, and will do nothing to stop them in the future. Thomas could have gone further in his dissent, but it seems like he is scared of being cancelled (impeached). The Pennsylvania Supreme Court ordered that the ‘later than 8 PM’ ballots be separated from the rest so that the number could be known and they could be ‘backed out’ of the voting totals if an appeal was successful. This order was violated. Because it was violated, the statement ‘it wasn’t enough votes to count’ cannot be known to be true or false.
                So
                (1) The Constitution was violated by the Pennsylvania Supreme Court.
                (2) The Pennsylvania Supreme Court’s unconstitutional ruling itself was violated.

                This tells me and a lot of other people that the Supreme Court is afraid of defying the Democratic Party because Biden has said he will pack the court and make them irrelevant if they do. It is likely the real reason the vote was 6-3 was because of this fear. The Supreme Court is trying to ride out the next 2 years without becoming irrelevant by court packing and hope the Democrats lose the Senate in 2022.

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