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When School Board Members Violate the Law

What happens when members of a school board refuse to follow their legal duties?  Can one member of the school board, after being outvoted by the lawless members, sue in federal court? 

In general, one school board member should not be allowed to bring a political squabble into federal court.  But when the other members of the school board use their power to create lawlessness, then courts should recognized an exception to this rule.  Sadly, in Nelson v. Jamestown Board of Education (here) (see also Giacalone), the federal district court refused to recognize such an exception. (Disclosure: I reviewed the pleadings and motions in this case but received no compensation.)  Here's some background.

Under federal law, local schools must provide an individualized plan (called IEPs) for children with special needs.  Local schools that do not comply with the law are subject to suit.  Several members of the Jamestown School Board decided that reviewing IEPs was too much work. They therefore quite reviewing the reports. 

Dr. Dorothy Nelson felt this was wrong, and ran on a platform of reform: She would ensure that children with special needs were not ignored.  After Dr. Nelson was elected, she reviewed the reports, which she often found failed to meet minimum federal guidelines.

How did the other members of the school board react?  They passed a resolution reading that "no board member is authorized to act on behalf of the Board to read and review individual Individualized Education Programs (IEPs) of District students."  Yes, you read that correctly: A majority of the school board passed a regulation preventing other members of the school board from doing their job.

Dr. Nelson sued under Section 1983 arguing that the other members of the school board enacted the resolution to punish her for engaging in protected speech.  In sum, the school board literally prevented Dr. Nelson from serving in her representative capacity, since it's not possible to do one's job without access to information.

The district court denied her relief, writing that "the facts [Nelson] has alleged them do not support" her claim that "she has been prevented from representing the interests of her constituents."  This is pretty weak reasoning.

Dr. Nelson is literally prevented from "representing the interests of her constituents" since she doesn't have access to the IEPs.  How can she know whether children with special needs are having those needs met?  How can she lobby represent parents whose children are developmentally disabled?  It's impossible for her to serve such constituents, because she doesn't know what the IEPs require.

I recognize that federal courts are (and should be!) reluctant to interject themselves into intra-governmental arguments.  But when a majority of a political body literally prevents another elected member from doing her job, courts should not refuse to step in.  There is a difference between judicial restraint and judicial abdication.  Here, the judge, failing to heed Edmund Burke's call, decided that in the presence of evil, he would do nothing.

Scheidler v. NOW

Today the Supreme Court narrowed the Hobbs Act's scope in a very important way in Scheidler v. NOW (here).  Justice Bryer, writing for a unanimous Court (sans Alito) wrote: "We hold that physical violence unrelated to robbery or extortion falls outside the scope of the Hobbs Act."  Slip op. at 4.  The practical effect of the Court's ruling is that the Hobbs Act (and thus RICO) will not be used to prevent anti- abortion and other protests.

The Hobbs Act makes it a crime to "obstruct, delay, or affect commerce" by "committing or threatening physical violence to any person or property in furtherance of a plan or purpose to do anything in violation of this section."  As regular readers well know, everything affects commerce, and so the Hobbs Act would seem to cover all acts of "physical violence" that "affect commerce."

Thus, the National Organization of Women sued several abortion protestors for blocking access to abortion clinics.  After all, touching someone is an act of physical violate, and touching the person to keep her from getting into an abortion clinic affects commerce, since abortion is a commercial activity.

Although this might seem to expand the Hobbs Act beyond Congress' intent, courts do this daily.  Garden-variety grand theft, in the hands of a creative federal prosecutor, is a violation of the Hobbs Act. 

But NOW properly lost today with the Supreme Court handing down a lawyerlike opinion that, while having all the sex appeal of any abortion-related case, involved a single issue of statutory interpreation. The full text of the Hobbs Act reads:

Whoever in any way or degree obstructs, delays, or affects commerce or the movement of any article or commodity in commerce, by robbery or extortion or attempts or conspires so to do, or commits or threatens physical violence to any person or property in furtherance of a plan or purpose to do anything in violation of this section [has violated the Hobbs Act].

This is a clumsy way of wording things, and I had to re-read the statute six or seven times to fully realize why Justice Breyer's opinion was accurate.  To illustrate why the Court is spot-on, the Hobbs Act should properly be read as having two separate offense components, and thus should read:

Whoever in any way or degree obstructs, delays, or affects commerce or the movement of any article or commodity in commerce, by robbery or extortion or attempts or conspires so to do [has violated the Hobbs Act].

[Whoever in any way or degree] commits or threatens physical violence to any person or property in furtherance of a plan or purpose to do anything in violation of this section [i.e., obstructing commerce through robbery or extortion, has violated the Hobbs Act].

Read in this way, the Court's opinion makes perfect sense.  Of course, you are encouraged to read Justice Breyer's full opinion, which can be found here.

Lame Second Circuit Punitive Damages Decision

Usually, when I a read a case that was wrongly decided, my blood pressure goes up.  It probably goes back to my younger days.  I hated - and still hate - bullies.  Judges who disobey the laws they are sworn to uphold are no better than schoolyard thugs. 

Sometimes, though, I read a case that was wrongly decided and just roll my eyes.  Today the Second Circuit issued one such case.  Patterson v. Balsamico (here).

William Balsamico, with two other white officers, maced and pinned down a black prison guard, put shaving cream all over him and said: "Now you are a white man with an Afro."  When the black prison guard sued, a jury unsurprisingly awarded punitive damages.  Balsamico was on the hook for $20,000 in punitive damages.

On appeal, the Second Circuit held that $20,000 was an excessive punitive damage award was excessive and must be reduced to... $10,000!

Putting aside the elephant in the room, namely that the prison has almost certainly agreed to indemnify the prison guard, this is a pretty lame case of appellate court micromanagement.  Really now... $20,000 is excessive (as is an appellate-court-must-remand excessive) but $10,000 is not?  This is just a silly opinion. 

(Hat tip: Decision of the Day)

What is "Scholarship"?

This recent article that Doug Berman and Dan Solove comment on asks whether blogging is a form of scholarship.  My question is: What is "scholarship"?  Is something "scholarship" just because it appears in a law review article or other journal?  What if the law review article is riddled with thinking errors and is poorly written?  Is it still scholarly? 

My view is what constitutes legal scholarship is pretty basic: Legal scholarship is any legal commentary that increases the legal and non-legal public's understanding of the law.  Scholarship is something that moves our legal knowledge forward.  If x-article or blog post helps us understand something we hadn't understood, then it's scholarly.  Thus, scholarship would include the mundane task of crunching cases and putting cases within its proper doctrinal frame. 

Anyhow, I'd love to hear those who disapprove of blogs to explain what separates Doug Berman's blog from his casebook or a sentencing treatise.  If Orin Kerr writes a lengthy entry about the PATRIOT Act, is it not scholarly because he publishes it online?  I've seen numerous blog posts that would make the cut in most legal encyclopedias.  Indeed, I wrote a half-dozen or so encyclopedia entries that (because of word limits) were less nuanced and detailed than some of my blog posts.  Do I get to say that I produced some scholarship because my words are found between the covers of a book, but that better work appearing here is chit-chat?

Causation and Danger Creation

Government officials, at least so far as the federal Constitution is concerned, are under no duty to protect you unless you've been detained, or unless they've placed you in danger.  A police officer could, with impunity, watch someone beat you to death.  The thinking is that the police officer did not place you in danger of death, and therefore he didn't cause your death. 

If, however, the police officer pulled over a car you were a passenger in, arrested the driver of the car, and had the car impounded, the police officer would be responsible for helping you arrive home safely.  After all, you were safe while in the car, but you are not safe now that the car had been impounded.  There are actual cases where police officers impounded cars and left passengers stranded in high-crime neighborhoods.

Today a 2-1 panel of the Sixth Circuit Court of Appeals, applying the above principles, reached a result that it took numerous pages to explain and defend.  Jones v. Reynolds (here).  The flaws of Jones v. Reynolds can be demonstrated with less than four sentences.  First, here's are the legally-operative facts.

A bunch of people went to watch an illegal drag race.  Police arrived. The drag race was cancelled.  The police officers told the promoters to go ahead and uncanel the drag race.  They even played some music to set the mood.  The drag race went forward as planned.  The driver of one car lost control of his car and killed a spectator.

Apply the danger-creation doctrine summarized above, two judges held that the police officers weren't liable because the police officers didn't cause the spectator to be in any more danger than she was initially in.  This is illogical, once you trace the causal chain of the spectator's death:

1.  The spectator was in the audience to watch a drag race. 
2.  The drag race was cancelled.  Therefore, at the point of cancellation, it would have been impossible for the spectator to die from the drag race because there was no longer a drag race.
3.  The police officers uncancelled the event.
4.  The woman died.

Does anyone have difficulty seeing that the police officers were part of the causal chain leading to the woman's death.  I didn't think so. This was an easy case.

Of course, it's true that the spectator has only herself to blame for dying.  She should have stayed home.  It's also surely the case that the drivers were also to blame for her death.  But it's also undeniable that the police officers, by telling the promoters to start a race that had been cancelled, also placed a role in the spectator's death.

Before Clicking "Send," Please Read This Post

We get a lot of e-mails from people stating that they were the victim of governmental abuse, and asking us to cover their story at Crime & Federalism.  Some e-mailers even have websites set up.  Before sending an e-mail (and, in fact, if you followed these guidelines when seeking a lawyer to take your case, your odds of obtaining representation would increase greatly) please keep these two guidelines in mind:

1.  Do NOT state that your rights were violated.  We get to decide that.  Norm and I are very well-versed in these issues.  The odds are about a million-to-one that you know something about the law that we don't.  Sending an e-mail wherein you state that your rights were violated (without telling us more) does not help us. And, quite frankly, it gives me a headache.

2.  DO explain what happened to you.  Give a short and simple statement of the facts: the who, what, where, and when (but not the why).  E.g., you might write:

Last week I went to the Chicago police station to tell them a police officer pulled me over because I was black.  When I went to complain, the officer on duty threatened to arrest me if I didn't leave.  I left.


I was pulled over a month or so ago.  When I asked the police officer why he pulled me over, he told me to get out of my car.  He then beat me with a baton and arrested me.  Since then I shake with fear every time I see a police officer.

It's as simple as that.  I know you will want to add, "Therefore my constitutional rights were violated."  Don't.  Just the facts, please.

I want to be clear that I enjoy reader mail, and it's one of the things that makes blogging worthwhile.  But I will not respond to any e-mails that purport to lecture me on the law.  I made the mistake once of replying to such an e-mail, and my inbox was sooon so flooded with e-mails and large .pdf attachments that I lost track of a couple of important e-mails.  Thanks, and please keep reading and sending those e-mails.

Laughing at Serious People

Something I've always enjoyed was getting a good laugh a people who consider themselves quite serious (and important!) but who are actually very funny.  One place with lots of ripe fruits is Craigslist, especially the legal jobs section in the SF Bay area.  (I'm serious!) 

There are two sets of comical posts.  The first set of posts come from lawyers, and they usually go something like this (emphasis and typos in original): "LOOKING FOR SUPERDUPERPERSON.  TOP CREDENTIALS ONLY NEED APPLY.  WILL PAY $5/HOUR."  Would a super-duper person work for someone who can't write a decent job description and is offering to pay $5/hr.?  Seriously, how can the person writing that description take himself seriously?  (And it's no defense that the lawyer had her secretary place the listing, as the hiring lawyer should be reading these things.)

The second set come from people who want to turn their petty legal squabbles into World War III.  Here is a recent example (formatting and typos in original):

A tenant defense attorney is needed to assista a legally educated professional in the South Bay Peninsula for representation and assist in the discovery process to defend against a very clear retaliatory eviction.
I am able to write the motions although a quick review from an attorney would be great.
My lease agreement stipulates to attorneys fees for the prevailing side and mediation prior to a UD. The property owner failed to act on mediation and has been in a constructive eviction mode since my first very reasonable complaint almost 5 months ago.

The 3 day notice to quit is riddled with legal defects for an effective set of law and motion responses.

My defense brief has extensive evidence of the Plaintiff's written documents, evidence the rental lessor's violations of my California Constitutional Rights, United States Constitutional rights, contract breachs, and retaliation after going to a government agency to report a serious health hazard. I have witnesses, former tenants, neighbors, and move-in licensed contractor to prove that her conduct was malicious, discriminatory and not credible.

It is an extreme case of sheer retaliation.

I have access to legal timeline software - Summation and can put a case together.

The counter suit will be for wrongful eviction, malicous prosecution, personal injury, defamation, and gender discrimination.

Two large government agencies are now investigating my briefs against the property owner. I have claimed there is no attorney representing me on specific constitutional rights violations regarding housing discrimination.

Rental Housing in the South Bay has just jumped about 15% my take is that the job market has improved. And it is vibrant here as opposed to the past. So I am motivated to stay and not move.

And that, dear friends, is how I get a good laugh on a Sunday night.

The Courage of Ralph Adam Fine

My post on plea bargaining below reminded me of Judge Ralph Adam Fine's (proper) approach to plea bargaining:

During my nine years as a trial judge, I had several defendants who wanted to plead guilty even though when I then asked them to tell me what they did, responded with stories of innocence. When I asked them why they were trying to plead guilty, they all told me that they had been threatened with harsher penalties if they insisted on going to trial. In rejecting their pleas, I told them that we had enough guilty persons to convict, and that we did not need to dip into the pool of the innocent.

In each of the instances, we went to trial and the defendants were acquitted.

Judge Fine proves that plea bargaining is guilty beyond a reasonable doubt in an excellent article he wrote for the Federalist Society; the article is located here (large .pdf).