I pit Kris Kobach

[Bricker]

@Richard_Parker

:smack: Good point, of course. I hadn’t bothered to see whether Kansas follows these federal agency concepts.

Still, I wonder how such deference plays out in the absence of public, pre-litigation reasoning. AFAIK, Kobach never justified his reading of the statute, did he?

He certainly published his interpretation pre-litigation and, indeed, pre-events-leading-thereto. So far as I know, he did not publish his reasoning.

[Little_Nemo]

@Terr

Bryant probably had the opinion that it didn’t. But as I said, it is above his pay grade to decide it or advice candidates on this, so he was noncommittal in his response to Taylor. As he said in his affidavit.

Which is it? Is the requirement for an explicit declaration an opinion or is it a fact?

[Little_Nemo]

@Bricker

Once again speaking only from speculation: Bryant didn’t know if his boss would say, “Yes, it doesn’t meet requirements, but accept it anyway.”

Really? You’re suggesting this as a possibility?

So you’re saying that Bryant was aware that Taylor’s letter didn’t meet the legal requirements - but he accepted it because he thought Kobach would allow it anyway.

So the question to Bryant now is why did he think that? Has Kobach accepted past letters that didn’t meet the legal requirements? Has Kobach said things in the past that he doesn’t feel the legal requirements are necessary? And if Kobach has allowed letters in the past that don’t meet the requirements, why didn’t he allow this one?

Obviously, I’m thinking this is not a line of reasoning that Bryant or Kobach are going to endorse. I’m willing to bet that both of them are going to say that they’ve both always enforced the full requirements and neither has any reason to suspect the other was not doing so.

Of course, this clears Kobach but it puts Bryant back in the hot seat. Bryant still has to answer why he didn’t tell Taylor his letter didn’t meet the requirements when he could see that if didn’t.

[Terr]

@Little_Nemo

Which is it? Is the requirement for an explicit declaration an opinion or is it a fact?

As I posted above, this is all irrelevant, since the Supreme Court indicated it will not be considering the estoppel argument.

[Bricker]

@Little_Nemo

Really? You’re suggesting this as a possibility?

So you’re saying that Bryant was aware that Taylor’s letter didn’t meet the legal requirements - but he accepted it because he thought Kobach would allow it anyway.

No. I’m saying – or, more accurately, speculating – that Bryant accepted it because he wasn’t sure what Kobach would want to do.

In other words, by rejecting it, he might be guaranteeing Kobach a court case. (As, indeed, has happened).

He may well have thought, “Under ordinary circumstances, I’d simply reject this, but this has the potential to become a shitstorm with national news implications, so I need to let the boss make the call.”

[Little_Nemo]

Here’s some possible scenarios:

1. Neither Bryant and Taylor were aware of the requirement when they spoke. Both though the letter was acceptable. Kobach, who was aware of the requirement, saw the letter later and he was the first person to realize it didn’t meet the requirements.

2. Taylor thought his letter met the requirements but Bryant knew that it did not. But Bryant did not tell Taylor that the letter didn’t meet the requirements and accepted the letter anyway.

3. Taylor and Bryant both knew the letter did not meet the requirements but Taylor submitted it and Bryant accepted it anyway.

Here’s the problem with these scenarios:

1. In this scenario Taylor made a good faith reasonable effort to comply with the law. The requirement he failed to follow was so obscure that even the official in charge of administrating elections wasn’t aware of it. But Bryant has stated he was aware of the requirement at the time so if this scenario is true, he subsequently made false statements in his deposition.

2. In this scenario Taylor was the innocent victim of Bryant. Bryant was deliberately sabotaging Taylor’s attempted withdrawal.

3. In this scenario Taylor and Bryant were conspiring to do something wrong. It’s not clear what they were attempting to accomplish but they were both acting in the knowledge that they were doing something wrong.

[Little_Nemo]

@Bricker

No. I’m saying – or, more accurately, speculating – that Bryant accepted it because he wasn’t sure what Kobach would want to do.

In other words, by rejecting it, he might be guaranteeing Kobach a court case. (As, indeed, has happened).

He may well have thought, “Under ordinary circumstances, I’d simply reject this, but this has the potential to become a shitstorm with national news implications, so I need to let the boss make the call.”

So Bryant thought Kobach might be willing to break the law but wasn’t sure? I’m guessing Kobach is going to strongly reject that possibility.

That still leaves open the question of why Bryant didn’t simply inform Taylor that his letter didn’t meet the legal requirement and give him an opportunity to correct it.

[Bricker]

@Terr

As I posted above, this is all irrelevant, since the Supreme Court indicated it will not be considering the estoppel argument.

I feel this is a slightly stronger indication that Taylor was going to lose.

The Supreme Court’s statement is that the two pieces of evidence relevant to the controlling legal issue of interpretation and application of KSA 25-306b(b) are petitioner’s A and B.

Petitioner’s A is Taylor’s non-conforming (according to Kobach) letter attempting to withdraw and providing the “declaration by reference” that is the subject of the debate.

Petitioner’s B is Kobach’s letter to Taylor, rejecting the attempt to withdraw and laying out Kobach’s rationale.

Here’s my reasoning: if the Supreme Court took the view that KSA 25-306b(b) could be interpreted de novo, then it’s unclear to me what relevance Exhibit B has.

In other words, why mention B if you’re going to disregard it as evidence?

So B has some evidentiary value.This suggests that whatever they do, it won’t be a de novo review of the law.

[elucidator]

Oh, OK, OK, I give up, I’ll google “de novo”! Fuckin’ lawyers!

[elucidator]

Kobach Deputy: I Never Told Dem Senate Nominee He Would Be Off Ballot

From our good friends at Talking Points Memo, without which no citizen can hope to be well-informed…

…Bryant said that he “did not recall” Taylor asking him if the letter would be sufficient to withdraw his name from the ballot at the specific moment that Taylor described above, which Taylor had said happened before he signed the letter in front of a notary…

(emphasis added)

Now, tell me that isn’t just the cutest thing you ever did see!

From the affidavit:

…I am aware of the allegations made by Mr. Taylor … that Mr. Taylor asked me, prior to having the letter notarized, if the letter “contained all the necessary information.” While I recall Mr. Taylor asking me a question of that nature later in our encounter, as described below, I do not recall him specifically asking me this question at this time and, in any event, I did not affirm to Mr. Taylor, at this or any other point during this encounter or otherwise, that his letter contained all of the necessary information to effectuate his withdrawal from the election…

Back to TPM:

…Bryant said that Taylor did ask him later if the letter would suffice. Taylor said that Bryant responded “Yes” again, but Bryant disputed this in his affidavit. He said he “gestured that the answer was uncertain.” At another point, Bryant said he “shrugg(ed) my shoulders as to indicate ‘we’ll see’” when Taylor asked if his name would be removed from the ballot…

Well, at least that is cleared up, I had worried about the uncertain nature of the use of gestures to communicate points of law, but it appears the the “shoulder shrug” gesture was deployed, which has a solid and universal understanding of ambivalence and uncertainty! I am confident that the forthcoming citations of caselaw as regards gestures will solidly support this, as soon as friend Bricker gets around to it!

But note: this would indicate that Taylor asked Bryant three times if his submission was adequate to the purpose. And each time what he got was less an answer than an evasion of an answer. Now, this is just according to Bryant, according to Taylor, he said “Yes” one time.

Mr Taylor, with all due respect, you are in fact not qualified to serve. If you ask somebody somebody something very important three times and you don’t get a straight answer…well, c’mon now! And if you had gotten a “yes”, why in Ogs name didn’t you get that witnessed?

Good God, man, these are Republicans you are dealing with!!

[Bricker]

@elucidator

Oh, OK, OK, I give up, I’ll google “de novo”! Fuckin’ lawyers!

You might refresh your recollection by reading this thread from 2008.

You had a similar reaction at the time:

@elucidator

Boy, sure is exciting watching lawyers argue. If I kept on like that for more than about four hours, I might need a doctor.

And these posts discussed the meaning of de novo:

@Oy

Also, Bricker, why do you believe the case will be reviewed *de novo * and could you explain exactly what that means to those of us who are not lawyers and haven’t encountered the term before? I mean, going back to my high school Latin, it looks like of or from new, but I don’t quite know how that applies here.

@Bricker

Sure.

An appellate court has several different “modes” of review.

When a trial court has made a finding of fact, the appellate court is pretty much bound to accept it. The only way a finding of fact may be disturbed on appeal is if the appellate court determines that it’s without any support in the record.

But a conclusion of law is different. When a trial court reaches a conclusion about what the law is, the appellate court has no particular deference for that conclusion. They don’t give it any weight at all; they consider the question afresh, anew, from the beginning – “de novo”.

@Oy

OK, let’s see if I have this straight by giving a concrete example.

Someone commits a murder that is unquestionably a murder and pre-planned at that. THe appelate court is pretty much bound to accept it unless there was some kind of violation in the original trial.

But someone else kills someone, but you can’t tell if it was completely an accident, self-defense, or murder, so you don’t know if the law applies or not. That is subject to *de nova * review?

@Bricker

Eh… sorta.

Maybe a different example will help.

Jack is accused of planning to kill his neighbor Steve. He knows Steve mows the grass every Saturday morning, so he sets up his sniper rifle in his bedroom window, and when Steve’s out mowing, he shoots. But the bullet misses Steve and travels into the next yard, where it kills George.

As a matter of law, what’s the crime? The defense says, “Hey, it’s not premeditated murder. Jack planned to kill Steve. If he had, sure, it would be premeditated. But Jack killed George completely by accident. No premeditation – no intent, even! It’s an accidental death!”

The prosecution syas, “No. The rule is that the intent, and the premeditation, that Jack had for killing Steve gets transferred to George’s death.”

The jury finds Steve guilty. The trial court agrees with the prosecution’s theory, and enters a verdict of guilty for premeditated murder.

Now, the appellate court must accept that Jack planned to kill Steve, that he shot the gun, and that George died as a result. Those are facts, and the jury, as the finder of fact, can’t be questioned on those findings. (Assuming there’s support in the record for the finding. If the only evidence the jury heard was a psychic from Germany saying she dreamed the whole murder scene, then that’s not enough evidence for a reasonable jury to find those facts to be true.) But assuming there’s sufficient evidence in the record, the jury’s finding of fact is unquestioned on appeal.

But the conclusion of law – that the intent for one killing is “transferred” to another death is something the appellate court will review without particularly caring what the trial court decided. They will take the facts and figure of what the law says about them, independently of the trial court’s decision – de novo.

@Oy

Wouldn’t the Lindburgh law cover that situation? Any death that is the result of a felony’s (attempted murder) being commited is 1st degree murder? Or is that a myth from my childhood?

I’m not certain of your last sentence, so let me confirm: do you mean that the appellate court would review the evidence from the start, rather than looking at any aspect of the first trial? Just want to make sure.

@Bricker

Not review the evidence – review the conclusions of law. The evidence, the facts, they are stuck with. They may recite the facts; they don’t review them for correctness.

@Oy

OK, let me get this straight. I understand that the evidence is the evidence. Does the appellate court review the evidence to decide for themselves whether Jack was or wasn’t planning to kill Steve or do they accept the lower court’s decision and review the legal decision as to whether or not that makes him guilty of Steve’s murder or both?

I’m sorry, bricker; I’m not trying to be obtuse, really. I just achieve obtuseness naturally.

@Bricker

No. They accept that Jack was planning to kill Steve.

George is the one that died (or, in our latest modification, is injured). They review the legal decision that planning to kill Steve, actively trying to kill Steve, but actually killing or wounding George amounts to a particular crime.

[Bricker]

@Little_Nemo

So Bryant thought Kobach might be willing to break the law but wasn’t sure? I’m guessing Kobach is going to strongly reject that possibility.

That still leaves open the question of why Bryant didn’t simply inform Taylor that his letter didn’t meet the legal requirement and give him an opportunity to correct it.

More idle speculation from me: He thought Taylor was, in fact, capable, and his representations to the contrary were the result of intense pressure from the Democrats, as opposed to a legitimate belief in his inability?

This is why speculating on motives is sort of a dead-end street.

[Bricker]

@elucidator

Kobach Deputy: I Never Told Dem Senate Nominee He Would Be Off Ballot - TPM – Talking Points Memo

From our good friends at Talking Points Memo, without which no citizen can hope to be well-informed…

The Talking Points page links to this Rick Hasan page, which may have been linked to above as well.

From it, discussing the same thought I mention (Kansas Supremes using only Exhibits A & B):

It is hard to know what to make of this. Is the court saying that it is going to rule against Taylor on the question whether the government is estopped from claiming he can’t withdraw from the race, and therefore the evidence in Taylor’s affidavit is irrelevant? Or is the court going to take Taylor’s representations on face value, even though there may be contrary evidence? The former would seem more likely but I would have expected the court to want briefing on the estoppel question before making such a determination.

I cannot imagine the court taking representations from an affidavit, with no cross-examination, in order to reach a final judgement. So I don’t the path for them ruling for Taylor.

But at this point, I’m reading tea leaves.

[Little_Nemo]

@elucidator

Oh, OK, OK, I give up, I’ll google “de novo”! Fuckin’ lawyers!

I have to admit I’m not sure what point Bricker is making by the use of the term “de novo”. My understanding it generally refers to appeals. When an appeal is made, the appellate court can review the previous trial. Or it can review the case de novo, in which it essentially pretends the previous trial didn’t happen and treats it as if it was an original hearing.

I don’t see how it’s relevant here when there hasn’t been a hearing on this issue to be reviewed. Presumably any hearing will be the original hearing. So I’m assuming Bricker must be using the term in some other sense.

[Little_Nemo]

@Bricker

More idle speculation from me: He thought Taylor was, in fact, capable, and his representations to the contrary were the result of intense pressure from the Democrats, as opposed to a legitimate belief in his inability?

This is why speculating on motives is sort of a dead-end street.

That seems like an unreasonable belief. By Bryant’s one admission, Taylor told him he didn’t know what the requirements were and asked Bryant for help. And again, by Bryant’s own admission, Bryant saw the letter Taylor was submitting and saw that it did not meet the requirements. So why would Bryant conclude Taylor knew the requirements when he had ample evidence that this was not the case?

And let’s keep in mind that Bryant was not some random person Taylor met on the street. Bryant is a public official with the title Director of Elections. The Secretary of State’s office had identified Bryant as the public official people should go to if they needed information about election procedures. It’s Bryant’s job to explain the requirements to people when they ask.

If Bryant, for whatever improbable reason, thought that Taylor was just pretending to be unaware of the requirement then he should have told Taylor the requirement. That would have made it impossible for Taylor to maintain his pretense.

[Little_Nemo]

Here’s a scenario.

I work in the Department of Motor Vehicles. My job is to answer questions and handle paperwork.

Somebody comes in and asks me how to register a new car they just bought. I tell them they have to fill out a form and pay a fifty dollar fee.

Now the procedure says they can only pay the fifty dollars with cash, credit card, or money order. No checks are accepted. But I’m assuming the person understands that.

But when they’ve completed the form, they hand it to me with a personal check for fifty dollars.

At that point would is still be reasonable for me to believe the person knows they can’t pay by check?

Here’s the possibilities:

1. Tell the person the state won’t accept a check as payment and they have to use cash, a credit card, or a money order.
2. Figure the person knows that we won’t accept a check but take it anyway. Assume that the person doesn’t really want to register their car, despite their declared intention to do so, and they’re submitting a check as payment because they’re just going through the motions of registering their car. And I go along with this by allowing this person to submit an invalid registration.
3. Figure that while the state doesn’t allow us to accept checks, my boss might break the rules and approve the registration anyway. And I again go along with this by accepting the invalid registration.

Options 2 and 3 seem very unlikely to me. In fact, I’d expect to be subject to departmental disciplinary action for following either of those actions. But these are the options that Bricker is speculating occurred.

[Terr]

@Little_Nemo

And again, by Bryant’s own admission, Bryant saw the letter Taylor was submitting and saw that it did not meet the requirements.

You keep saying that. Can you quote the part of Bryant’s affidavit that states that he saw the letter and saw that it did not meet the requirements?

[septimus]

@Little_Nemo

Here’s a scenario.

I work in the Department of Motor Vehicles. My job is to answer questions and handle paperwork…

In your scenario you forgot to specify which participants are Democrats, which Republicans. That’s essential.

Despite his posturing, even Bricker understands the whole incident was all about public servants working for partisan advantage.

[Bricker]

@Little_Nemo

I have to admit I’m not sure what point Bricker is making by the use of the term “de novo”. My understanding it generally refers to appeals. When an appeal is made, the appellate court can review the previous trial. Or it can review the case de novo, in which it essentially pretends the previous trial didn’t happen and treats it as if it was an original hearing.

I don’t see how it’s relevant here when there hasn’t been a hearing on this issue to be reviewed. Presumably any hearing will be the original hearing. So I’m assuming Bricker must be using the term in some other sense.

Your understanding is not quite complete.

It’s true that an appellate court can (in some circumstances) treat an entire case de novo, wiping out the results of a previous trial and holding a new trial.

But far more common is using the term to discuss how an appellate court reviews a particular factual determination or legal conclusion in the context of a larger appeal.

I have spoilered the in-depth explanation:

As I reposted myself saying in 2008:

@Bricker

Sure.

An appellate court has several different “modes” of review.

When a trial court has made a finding of fact, the appellate court is pretty much bound to accept it. The only way a finding of fact may be disturbed on appeal is if the appellate court determines that it’s without any support in the record.

But a conclusion of law is different. When a trial court reaches a conclusion about what the law is, the appellate court has no particular deference for that conclusion. They don’t give it any weight at all; they consider the question afresh, anew, from the beginning – “de novo”.

Here’s an example. Suppose you live in a state that has the following law:

@Theft of Credit Card Law

Any person who, without authorization, takes a credit card belonging to another and uses it in any commercial transaction is guilty of a Class 6 felony.

And let’s suppose your no-good brother-in-law takes a pre-paid debit card from your kitchen table and buys himself a massage from Helga’s House of Massage Pleasures. You report the card missing; the police track it down, and the brother-in-law is charged under that statute.

The prosecutor brings in you to testify you never authorized your BiL to use the card, and Helga to testify that the card was given to her by the BiL to use to pay for a massage; she swiped the card and was paid.

At trial, his attorney says, “Yes, my client is not possibly guilty of Theft of a Credit Card, because what was stolen was a debit card, not a credit card. And in any event Helga is lying; she admitted she needs new glasses and couldn’t remember what my client was wearing that day, because my client was never there!”

The jury believes Helga, votes guilty, and the judge enters a conviction, commenting that since the debit card had a “Visa” logo, it’s a credit card too.

Your BiL appeals. He presents two questions on appeal: did the court err in finding that a debit card qualified as a credit card? And did the court err by accepting the jury’s finding of guilt when anyone could see that Helga was lying.

The appeals court does not conduct a whole new trial.

But on appeal, they treat those two questions very differently.

The jury heard Helga testify. The appeals court won’t overturn their finding that she was telling the truth. The appeals court has great deference for a jury finding of fact like that. They won’t revist it on appeal.

But how about the trial court’s decision that a debit card is a credit card because it has a Visa logo? That’s not a finding of fact. (Well, the statement that the card had a Visa logo is a finding of fact. The legal conclusion that this means it’s a credit card is a different story).

The appeals court treats the legal conclusions drawn by the trial court de novo. It doesn’t grant them any particular deference. It says, “Hey, we’re just as trained in the law as the trial judge, and we sit on a higher court. So the question of what the law MEANS is not something that judge knows any better than we do.”

The factual determinations are a different story. The judge (or jury) got to see witnesses, hear inflections in voice, and assess the credibility of the speakers. The appeals court is simply reading a sterile transcript. So they defer on factual findings.

So when I say “de novo,” here, I am discussing whether the Kansas Supreme Court will give any deference to the Kansas Secretary of State’s legal conclusion that KSA 25-306b(b) requires an explicit declaration, as opposed to a declaration by reference. While there hasn’t been a trial, there has been a legal conclusion by the official empowered to interpret that particular law.

Often, the rule is that an appeals review will give some measure of deference to the interpretation of the agency or official whose job it is to interpret the law. If they do not, then they are said to be reviewing the interpretation de novo.

[Bricker]

@Little_Nemo

That seems like an unreasonable belief. By Bryant’s one admission, Taylor told him he didn’t know what the requirements were and asked Bryant for help. And again, by Bryant’s own admission, Bryant saw the letter Taylor was submitting and saw that it did not meet the requirements. So why would Bryant conclude Taylor knew the requirements when he had ample evidence that this was not the case?

In my opinion, that question is answered by Bryant’s affidavit.

Bryant believed that Taylor was aware of the requirements because he is a practicing lawyer and the sitting District Attorney of a Kansas county. Bryant believed that Taylor wanted to submit a letter that did not make him look bad, while still withdrawing his name from the ballot. Bryant took Taylor’s questions as evidence of that goal.

And let’s keep in mind that Bryant was not some random person Taylor met on the street. Bryant is a public official with the title Director of Elections. The Secretary of State’s office had identified Bryant as the public official people should go to if they needed information about election procedures. It’s Bryant’s job to explain the requirements to people when they ask.

If Bryant, for whatever improbable reason, thought that Taylor was just pretending to be unaware of the requirement then he should have told Taylor the requirement. That would have made it impossible for Taylor to maintain his pretense.

Yes, that’s true. But Bryant would then also be making a decision that his boss might want to be the one making: are we going to hold Taylor to the law or make an unauthorized exception for him?