states rights

Great Debates
61

Late supper, eh? Let me save you some time:

Yes. They do. SCOTUS outlined the requirements for standing when there is non-economic harm, as “a personal injury suffered by them as a consequence of the alleged constitutional error, other than the psychological consequence presumbably produced by observation of conduct with which one disagrees.” In a separate case, they found standing where a plaintiff is forced to assume special burdens to avoid unwelcome religious exercises.

The plaintiff’s in this case were three attorneys whose professional duties require them to be in the building and, by necessity, pass the monument. They all consider the monument offensive, and it makes them feel like outsiders. Two of the plaintiffs have altered their behavior because of the monument and one has incurred additional expenses to avoid having to have contact with the monument. The precedent allowing students to sue for prayer in school, people who use public parks with christian crosses, and who get mail from the a city with Christianity on it’s seal all had decided this issue years before this case ever came up.

62

Ok Hamlet thanks for the summary, however matters of law require close examination so I’ll proceed with deliberation.

**On the 11th US District Court’s decision regarding
Glassroth et al. V. Alabama Chief Justice Roy H. Moore.

Did the Plaintiffs have the Proper Standing to Petition the Courts?**

(In 1995, when Judge Roy Moore was sued to remove a plaque of the ten commandments hanging on the wall of his courtroom,(Alabama Freethought Assn v. Moore) the court found that the plaintiffs lacked standing. In that case the court found that the plaintiff were not in imminent threat of being harmed by the display.)

The Supreme Court has held that “at a irreducible minimum”, a person seeking to invoke a court’s authority must have standing, that is, he must be able to "show that has personally suffered some actual or threatened injury as a result of the putatively illegal conduct of the defendant and that injury can fairly be traced to the challanged action and is likely to be redressed by a favorable decision. Valley Forge Christian Coll. v. United for Seperation of Church and State.

In the case of the ten commandants monument in the rotunda the ability of the plaintiffs to be approved to stand as representives of the suffering party is of extraordinary importance. An inert hunk of rock must be proved by its mere presence to be capable of injury to three thick skinned attorneys with an axe to grind when it comes to Judge Roy Moore. If this absurdity is allowed, the outcome of the court’s decision is a foregone conclusion.

The device dug up to insure the standings of the plainiffs was an earlier decision by the selfsame 11th court, (ACLU of Georgia v. Rabun County Chamber of Commerce) which reads …

An " effect on an individual’s enjoyment of public land is a sufficient noneconomic injury to confer standing to challenge governmental actions."

Unbelievable. Then the Court writes these “snippits” about the plaintiffs…

  • All the plaintiffs are attorneys in Alabama.
  • Each has come into direct contact with the moument many times and expects to do so in the future.
  • Each is offended by the monument.
  • Each said the monument makes them feel like an “outsider”.
  • Futhermore, the two broads, Howard and Maddox, have changed their behaivior because of the monument: each visits the rotunda less frequently and enjoys the rotunda less because of the monument’s presence.

So in granting “standing” to the plainiffs , the court ruled…
The momument, therefore, has a direct negative effect on each plaintiffs “use and enjoyment” of the rotunda.

And so, that’s it. The 11th court has so ruled that if someone or some government thing gives you “bad vibes” you can stand in court and address your displeasure. Cool. New age justice.

But no, Roy Moore’s attorney’s protested and the court replied with a mishmash of convoluted words guranteed make you go “Huh?”

63

It seems to me that Milum’s views on legal standing would reduce the entire Establishment Clause to an unenforceable dead letter. After all, if the U.S. Congress were to pass a law recognizing Sun Myung Moon as the Messiah, proclaiming Moonie-ism to be the national official religion and the Unification Church to be the State Church of the United States, and ordaining that portraits of the Rev. Moon and copies of his speeches be posted in prominent places in all buildings owned by the federal government, who exactly would have “standing” to file suit to get the new law overturned?

64

You should read your own cases a little more closely.

Valley Forge College v. Americans United, 454 US 464 (1982) involved a challenge to the conveyance of a former military hospital to a Christian college. Americans United for Separation of Church and State (AUSCA) challenged the conveyance on grounds that each of their members “would be deprived of the fair and constitutional use of his (her) tax dollars.” In short, they alleged injury as taxpayers.

The key case for taxpayer standing is Flast v. Cohen, 392 US 83 (1968), which established a two-part test for taxpayer standing. That test is as follows:[ul][li]The challenged act involves the use of congressional power under the taxing and spending clause of Art. I, s. 8, cl. 1 of the Constitution.[/li]
[li]The challenged act exceeds specific constitutional limitations upon the exercise of the taxing and spending power and not simply that the enactment is generally beyond the powers delegated to Congress by Art. I, 8.[/ul]The plaintiffs in Valley Forge failed the first prong of this test; the disposition of property did not involve a “congressional act,” but that of an executive branch department (specifically, the old Department of Health, Education and Welfare), and the challenged act was not made under the powers found in Art. I, s. 8, cl. 1 but rather under the property power found in Art. IV, s. 3, cl. 2. Thus, taxpayer standing was inappropriate.[/li]
The plaintiffs did not allege any meaningful other type of injury. The court considered this in Part IV of their opinion. They noted that the plaintiffs’ could not allege any other type of harm, other than a vague, generalized discomfort that the government was doing something with which they disagreed, and that this was insufficient to confer standing on the plaintiffs. However, the court was very careful to point out that they “do not retreat from our earlier holdings that standing may be predicated on noneconomic injury,” noting that:

In short, the Valley Forge plaintiffs were nowhere near the property transferred, would have no way of knowing of the transfer but for a news release, and thus lack standing.

That is not the situation in the Moore case. The Moore plaintiffs allege that they walk by the monument every day, that they have altered their behavior to avoid the monument, and that they cannot avoid doing so. That is a legitimate noneconomic injury which is sufficient to confer standing on the plaintiffs.

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Not so MEBuckner. The kicker is your term “… if the U.S. Congress were to >>pass<< a law recognizing Sun Myung Moon as the Messiah…”

If Congress passes a law then any citizen can rightfully stand to challange it constituionally in court.
(In theory anyway. In reality only those with 100,000 bucks to spend can challenge the government in courts.)

Ah, such is the sad state of justice today compliments of your friendly, caring, lawyer/judge consortum where every lawsuit in a chance to buy a new boat.


Hey** Dewey Cheatem Undhow** ! You'll have to kick my dog if you want me to fight. 

Not yes but Hell Yes.  

The sins of our judicial  system revolve around inappropriate cites of "precedents" that are used most times to ingratiate the sitting judges and to flatter the higher courts . This practice is deplorable. It is an  cheap bypass of original thought  and denies  exacting justice by the impersonal address of   the particulars of the case at hand by the practitioner of the law . 

Also it is cowardly.
66

You are the one that cited to Valley Forge in the first place. You are the one that grossly misread the holding of that opinion. If you think reference to precedent is so goddamned useless, why did you bother to refer to the court’s decision in that case?

More to the point, the principle of stare decisis is one of the fundamental pillars of the American legal system, and it isn’t a new invention – it’s also one of the pillars of the British common law that the founding fathers imported into the new government they were establishing. It’s hard to see how our system of government could operate any differently: higher courts can overrule lower courts; lower courts thus look to earlier opinions of higher courts to try to ensure their decisions will not be overturned.

Reference to precedent is neither a bypass of original thought nor a cowardly act. It is a fundamental part of the lawyer’s art. If you really think it so craven and unoriginal, I suggest you pick up virtually any major law review, read it, and reconsider your position.

67

Dunno why, but my last post failed to register on the GD main page. So here’s another try.

68

Hey, lawyers, is this true: If I’m challenging the constitutionality of an Act of Congress, I don’t have to establish “standing”, but if I’m challenging anything else (an administrative action, say), I do have to establish standing?

69

Standing is a constitutional requirement, part of the “case or controversy” requirement of Article III. You gotta have it. Congress can pass the most blatantly unconstitutional act imaginable, but if you can’t show the actual or imminent harm it causes you and establish standing, you can’t get into court to do anything about it. If any citizen could challenge any legislation for any reason it would make us a “nation of Attorneys General.”

70

Thanks, pravnik. That’s pretty much what I thought.

So, Milum, what legal standing would a citizen have to contest the Recognition of Sun Myung Moon as the Messiah and Establishment of the Unification Church as the State Church of the United States Act* that the citizens in the Alabama Ten Commandments case didn’t have?

*Of course these days they’d give the law some silly “catchy” title that spelled out something like “USA FAMILY Act”, but my mind isn’t that twisted.

71

You do realize that the suit isn’t for monetary damages, and that it involves many public interest law groups rather than private attorneys trying to make money. You know that right?

I can see now why you are on Roy Moore’s side. You too wish courts to ignore precedent and the rule of law so that you can do whatever you wish. I am amazed that you think that precedent should be ignored and at any given time no court is bound to follow the rulings of higher courts. Well, amazed, but not surprised, because that’s the kind of thinking that got Roy Moore suspended.

And, once again, you do know the appellate court, while using precedent to establish the law, took a majority of the opinion to discuss the individual factors in this case. You are, I’m sure, completely aware that the court stated: “Establishment Clause challenges are not decided by bright line rules, but on a case-by-case basis with the result turning on the specific facts.” You also know that the court went on to discuss, at length, the particular facts in this case, and did not simply rely on precedent? You knew that too right?

After standing, what is your next issue you have with the decision?

72

pravnik:

"Standing is a constitutional requirement, part of the “case or controversy” requirement of Article III. You gotta have it. Congress can pass the most blatantly unconstitutional act imaginable, but if you can’t show the actual or imminent harm it causes you and establish standing, you can’t get into court to do anything about it. If any citizen could challenge any legislation for
any reason it would make us a "nation of Attorneys General.

pravnik, Come. Let us read together…

US Constitution Article III sec.1

…Judges of these courts, shall hold their offices during good behaviour, and shall, at stated times, receive for their services, a compensation, which shall not be diminished during their continuance in office.

Now. The Judges have be guranteed their wages so let’s move on to…

Section 2.

The judicial power shall extend to all cases, in law and equity, arising under this Constitution, the laws of the United States, and treaties made, or which shall be made, under their authority;–to all cases affecting ambassadors, other public ministers and consuls;–to all cases of admiralty and maritime jurisdiction;–to controversies to which the United States shall be a party;–to controversies between two or more states;–between a state and citizens of another state;–between citizens of different states;–between citizens of the same state claiming lands under grants of different states, and between a state, or the citizens thereof, and foreign states, citizens or subjects.

Gee pravnik, did you see anything in the “third” that could be extrapolated to “standing” ? Of course not. The concept of ‘standing" grew out of the court’s ol’ boy mutual fee- protection system. (as in below)

CHICAGO LAWERS IN A SCRAMBLE LOOKING FOR STANDING

The ink was hardly dry on the July 18 press release disclosing accounting irregularities at Nicor Inc. when class-action securities lawyers around the country began to swarm all over the muddled financial statements. As the Naperville energy company’s stock swooned 40% in a single day, New York heavyweight Milberg Weiss Bershad Hynes & Lerach LLP was filing a class-action lawsuit on behalf of unhappy investors. A few days later, a Chicago plaintiff securities specialist, Much Shelist Freed Denenberg Ament & Rubenstein, weighed in with its own Nicor suit. In most of the celebrated corporate meltdowns involving such names as Enron Corp., WorldCom Inc. and Global Crossing Ltd., large East and West coast firms have garnered the most lucrative assignments as lead plaintiffs’ attorneys. But now, Chicago players are looking for a piece of the action. Besides Much Shelist, they include boutiques specializing in plaintiff class actions such as Susman & Watkins, Sutterman & Howard, Freeman Freeman & Salzman and Lawrence Walner & Associates Ltd.

Wooing large pension fund shareholders and winning designation as lead plaintiff attorney is the name of the game. It’s the lead firm that typically keeps the lion’s share of legal fees in any judgment and determines how the remainder is divided up among secondary, or liaison, firms…

And Mr. Hamlet. I plan to get part II (the final episode.) of

Did the Plaintiffs have the Proper Standing to Petition the Courts? later tonight.

I keep getting interupted.

73

Some place in here there is a disconnect–a synapse is firing but there is no pick-up on the other end.

Milum, as I understand it you are saying that the plaintiffs in Judge Moore’s case, people licensed to practice law in Alabama and required and privileged to practice before the high court of that state, in a building in which Judge Moore, on his own hook and without the authorization or the knowledge of the other eight justices of that court, placed a religious shrine, lacked standing. Then you turn around and say that standing is not a constitutional requirement, that it is a fiction, a scheme or device invented by lawyers and judges to grease their own palms. Right?

Now, how can you have it both ways? Standing is either a legitimate requirement or it is not.

If standing is a legitimate requirement the question is whether these particular parties–as opposed to someone like me who may be as offended as possible over Justice Moore’s self serving defense of his own self righteous view of his own duty to his God (whether the Chief Justice has actually consulted with the Almighty and received a go ahead for this I do not know), but who has no occasion or license to appear before the Supreme Court of Alabama-- had the requisite interest in the case. They either did or they didn’t. Assuming that Justice Moore raised the issue (and you would think he did because the Circuit Court discusses the issue) that contention has been rejected by the District Court, by the Circuit Court and, by implication, by the US Supreme Court.

As others have pointed out your interpretation of the standing requirement would essentially immunize any government official from a complaint in an “establishment of religion” case.

Having seen your work I do not expect to persuade you of the error of you reasoning. Rather the point of this is to add my voice to those who have already told you, some at greater length than others, that your position is self justifying balderdash and that your position on the law is one that a reasonably prudent man would not rely on.

Incidently, Judge Moore is coming up here next month to speak to (I think it’s called) the Family Values Coalition. I will look forward to seeing if he talks to anyone except the true believers who seem to make up that fraternity-of-the-saved-by-their-own-estimation.

74

Bless your heart,** Spavined Gelding**, do you really think that I would denigrate our only system of justice if it aproximated a system that was fair? It is not. It is antithetical to the ideas of Franklin, Jefferson, and Washington.

As long as you people (meaning you people who disagree with me) cling to your need to occupy a subservient niche in society mandated by the courts we will always struggle to realize our reason to exist.

Cattle, of course, don’t care why they exist.

75

What are you smoking, and where can I get some?

Article III of the constitution mandates that the court only hear “cases or controversies.” That means that the court cannot hand down advisory opinions – the plaintiffs in any given case must have suffered an actual, redressable harm. “Standing” is the lawyer’s shorthand for saying the plaintiff has met this constitutional requirement.

I find it difficult to see how you can say “standing” is a fee-protection device. After all, without standing, it would a actually be much easier to bring suit – rather than trying to find a named plaintiff who had suffered actual harm, a class action litigator could just bring suit in his own name. I’m fairly certain that the plaintiff’s bar would much prefer to avoid the pesky step of establishing standing for their clients. **

Still waiting. Do be sure to address your gross misinterpretation of Valley Forge as outlined above.

76

Why is everyone still bothering to respond to the uneducated, illogical, poorly grammared, “arguments” being posted by milum? Even Judge Moore’s adherents do a better job of supporting him (which ain’t saying much).

Do any of you seriously believe you’re going to convince milum you are right? :rolleyes:

77

There are others who read the thread and they may think milum is right. I just wish he’d come out and say he’s advocating a position that flies in the face of precedent, rule of law, and the Constitution. Hope springs eternal and all.