Is the 3rd Court of Appeals bound by the First Amendment?
Is a 10th decision considered persuasive?
Is there some other decision from another circuit that runs counter to the logic in Hanson?
Different districts means they can come to a different decision.
Same way two court cases from two different states might get bumped to the US Supreme Court to review together.
They can. But it’s pretty unlikely that they will. When an appellate court sees a matter of first impression in its jurisdiction the first thing it will look at is the decisions of sister courts on similar topics. I’m not entirely convinced that Hanson is exactly on point, because the powers of the officials involved are very different. However, assuming the reasoning in Hanson applies here, it’s very unlikely that the new appellate court will go another way.
To echo Really Not All That Bright, I am not sure that anyone is questioning that a Texas District Court has the power, subject to appeal, to issue a decision allowing the indictment to proceed.
The question is: What is the theory that supports the indictment? Can Hanson be distinguished? Why are Perry’s speech and action not protected by the First Amendment, the political question doctrine, separation of powers? Why is the conduct criminal, rather than punishable by the ballot box and the legislature’s impeachment power?
I looked again for online legal commentary providing a legal basis for the prosecution. I won’t pretend that my search was exhaustive, but nonetheless I found no detailed pro-indictment commentary other than the preliminary Dorfonlaw blog post cited upthread. In fact, a quick google search gave me only one recent article supporting the indictment, the following from Salon just this week:
The Salon piece is perfectly fine political commentary, and it serves its purpose of stirring the Perry pot post-McConnell. But analysis it is not - there is no discussion of the constitutional limitations on the prosecution’s theory and no attempt at all to address the legal issues (as opposed to the atmospheric, political ones).
Couldn’t the court just say “This case is exactly like Hanson, but the other court decided incorrectly in that case, so we’re going to ignore it”?
Note, I’m not saying anything about the likelihood that they will say this, but they could, right?
Sure they could. The court can do anything it wishes.
Absolutely.
But you’ve left out the hard part:
“The Hanson court decided incorrectly in that case because . . . .”
What goes in the “. . . .”?
Am I wrong to infer a hopeful tone in the asking of that question?
The answer is: yes. The court could order Perry jailed immediately, in fact.
It’s very unlikely that they would, because a higher court would immediately reverse such a decision.
That’s vanishingly unlikely, in other words, but still possible.
So it seems to me that perhaps focusing on what the court is reasonably likely to do is of more value than listing the unlikely things that they could do.
Do we know the prosecution’s theory?
I mean, they may have made a major blunder and/or had political blinders on, but I find it almost impossible to believe that they were unaware of Hanson. They must have had a theory (however tenuous) why it doesn’t apply. Do any news sources report on their argument?
I am unaware of any.
To be clear, I don’t think it’s likely that the court will simply overturn Hanson. I think that if they do find against Perry, they’ll find some detail which differs between Perry’s case and Hanson, and cite that as the reason. And even that, I don’t know how likely it is. I just wanted to clarify, because it sounded like, from what some folks here were saying, that they were required to consider Hanson binding.
Gee, one wonders why the prosecutors are even bothering with this, huh?
To clarify, I was simply trying to answer elucidator’s question. I certainly don’t have any knowledge of the prosecution’s strategy or reasons for thinking Hanson doesn’t apply or should be overturned. I remain as curious as everyone else if there is a gnat’s ass worth of validity behind this attempt. Is there something we haven’t been shown yet that makes a difference? Some different way to spell out what happened that changes it’s meaning?
Well, it’s still going forward
http://www.mysanantonio.com/news/local/article/Perry-indictment-ruling-5901826.php
That’s only the first objection. Perry’s lawyers objected on technicalities about how McCrum was sworn in as special prosecutor, saying the errors invalidated the whole process. Judge Richardson said the appointment was valid, and essentially any missteps in the process were insignificant and did not violate the intent of the process.
There are still more objections from Perry’s camp to be addressed.
A court has dismissed the remaining charge, on the grounds that “public servants have a First Amendment right to engage in expression, even threats, regarding their official duties.”
The court was the Texas Court of Criminal Appeals, the highest court in Texas for criminal issues. There is no further Texas appeal.
The CCA also decided that Perry’s claim is addressable pre-trial, via habeas and interlocutory appeal.
The case is Ex Parte James Richard “Rick” Perry, NO. PD-1067-15, , Texas CCA, Feb 2016.
This makes clear that Hanson’s reasoning is correct, and this sets a binding, state-wide precedent.
Anyone from the discussions two years ago have anything to say?
I’m glad. I certainly have no love for Perry but this appeared to be a bit of a politically motivated prosecution to me. And doorhinge’s hasn’t changed at all in two years.
I appreciate the update. I can’t say I’m surprised by the outcome. Your predictive powers certainly held true.