Category Archives: Legal

Framers, Federalists, and the Reality of the Administrative State

The Framers of the Constitution wanted to avoid the problems of the governments they were all running away from in Europe, so while they wanted a centralized government for certain functions, like taxation, printing a common currency and conducting wars, they also wanted less power in that centralized government to prevent abuses and more power vested in the individual states who theoretically would better be able to determine their specific jurisdictional policies and priorities.

They also wanted to form a Union, and concessions were required to get all of the states on board.

Of course, terminology in law is often stood on its head and “Federalism” has become one of those terms.  Federalism, generically speaks to the relationships between the federal and state governments and the original “Federalists” wanted some form of centralized government as opposed to those who did not.  But the term does not mean more “Federalization” of government, it means less.

The philosophy of the Federalist Society today advocates for a very limited federal government, for a strict constructionist view of the Constitution, and for strong adherence to the separation of powers doctrine.  That doesn’t sound so bad.

Except, “strict construction” and “strong adherence” are just as susceptible to legislative and executive manipulation and to judicial activism as is applying the “spirit” of the Constitution.  And laws and social policy are shaped and changed just the same by “textualists” as they are by “living documentalists.”

It is all a fight over words, definitions, and semantics, and it’s all highly partisan and politicized regardless of any faction claiming otherwise.

And, the reason I bring this up is because how this all intertwines with what has become the modern “Administrative State,” and the massive amount of power being wielded by federal and state agencies that weren’t created in the Constitution.  This seems not to have been contemplated by the Founders and certainly seems opposed to what modern-day Federalists all talk about.  So how did this come to be?

And again, standing language on its head we have the “Non-Delegation” doctrine flowing from Article I and the Separation of Powers doctrine.  So we have three branches of government that are supposed to stay put in their respective arenas, provide checks and balances, and not run around giving their authority away to the other branches or interfering with the authority of the other branches.

For example, Congress can’t pass a law that would allow the executive branch to pass legislation – they can’t delegate that authority away.  But the Non-Delegation doctrine has been stood on its head and has become a means of defining the opposite.  It is used to define just what authority Congress can delegate away and who gets to control that authority.

And while Congress largely gives away authority to the executive branch, it will at times, muck around with the authority of the courts by tinkering with structure and jurisdiction, and by dangling the power of the purse over the heads of the judiciary when they get upset over an unconstitutional law being struck down.

Turns out, the Constitution, over time, probably to the chagrin of the Federalists, has been interpreted to allow Congress to create executive branch level agencies.  They create agencies with what we refer to as “Organic” or “Enabling” statutes and while the agencies’ powers are limited by these statutes, Congress gave agencies a little boost by allowing them to promulgate “rules.”  And, gee whiz, rules, if properly promulgated, have the same force and effect as statutes.  Lawmaking.

When you think about it, Congress expanded the executive branch big time.  They created much more of it than the Constitution originally did and much more of it than people probably like.  And, then they delegated away some of their legislative power to the executive branch (rule-making), but we call this quasi-legislative authority.  And what the Legislature (Big “L”) giveth, it can taketh away.  Although changes may be slow.

This is true at both the Federal and State level and we have Administrative Procedures Acts at both levels to give agencies some guidance and fill in the gaps in the agency-specific Organic statutes.  And these procedures allow agencies to intrude into the Judicial branch too!  They give agencies quasi-judicial powers to hear and decide contested cases, subject to judicial review of course.

And guess what, since the executive branch enforces the law and agencies are by nature regulatory bodies, we naturally have executive prosecutorial functions as well.  So agencies can make the law, prosecute under that law, and convict you (so to speak) under that law, all under one roof.

Agencies do a little more than licensing and maintaining files of annual reports.

Of course, the legislature generally did not delegate any authority to agencies to run around imprisoning people as punishment for any types of violations, so once the agency “convicts” you, the only penalties agencies can implement have to be found in the statutes themselves or you have to go to court for yet another judicial proceeding.  The Sixth Amendment is still alive, for the moment.

Federal and State legislatures can’t be experts in everything and there is so, so much to regulate that we have evolved into a “Administrative State” that has multiple layers of regulation that come from authority delegated out to the Executive Branch by Congress or by State Legislatures.  And the executive agencies’ regulations and decisions are given considerable deference by the Courts because the agencies are the “experts” in their respective fields.

So while many people focus on the acts of the legislature, which is a good thing to do, they should also pay close attention to what’s happening at the state and federal agencies, because there is much more law and social policy setting going on there that has a much more immediate impact on the populous.  You can look at current environmental policies for example.

There, I just kind of laid out the framework for how agencies evolved.  I’m not trying to address how different administrations have used the agencies to implement particular agendas or the merits of specific agendas.  At least not today 🙂

***

Photo:  My pocket Constitution.  These things are good little tools to have and it might be wise to read the Document once and a while.  The Constitution is actually pretty short.  And pretty amazingly well done.  The development of the Administrative State has shifted major powers to the executive branch, and that is partly why administrations do receive so much attention – because of the dramatic effect they can have on people’s day-to-day lives.

BTW: On a personal note.  Federal and state agencies have administrative law judges to preside over the quasi-judicial functions and trials at the agencies.  For part of my legal career I was a state Regulatory Law Judge.

About a year and a half ago, I applied to make the registry of qualified applicants for Federal Administrative Law Judges.  My understanding is they get 12,000 applicants when they open the registry, which is only opened about once every five years.  And they whittle that number down to 200 with an objective examination process.

They have been doing this since 1920 to ensure they get qualified applicants and to minimize the politicization of the process.

The competitive application process consisted of a series of examinations conducted by the Office of Personnel Management (OPM).  I made the list, scoring in that top 1.67% of the applicants 🙂 !! This didn’t guarantee me a position, but I could have been selected when there was a vacancy, subject to another interview process.

I recently received an email from the OPM informing me that our president, by executive order, terminated the competitive application process and eliminated the list of qualified applicants, thus doing what no other president has done since the registry’s creation and injecting politics into the selection process.  Selection by one, with no standard for qualifications.

Kind of sad, because the checks and balances set up by the Framers, and even those originally put in place by the independent branches, have been slowly getting whittled away, bit by bit . . .

 

 

Your Castle, Your Bubble, and What You Can’t Do to Protect Them

This is not an article about gun control, it’s about controlling yourself with guns.  For as a Louisiana man just found out the hard way, you may think you have the right to fire a weapon at a someone, especially a criminal, but it all depends on the situation . . .

Disclaimer: The information in this article does not, in any way, constitute legal advice.  Everyone should consult their own states’ laws and/or an attorney of their choosing if they wish to obtain an expert legal opinion of the laws in their jurisdiction and how they apply to them.

When I was clerking for a State Supreme Court Justice, in addition to drafting legal memorandum and court opinions, I gave tours of the courthouse along with historical lectures.  Invariably, people on the tours would ask questions about the laws and how they worked, especially the most controversial ones.  Like how judges get elected or appointed, abortion, or guns laws.

As I learned quickly in law school, the law generally does not work the way it is commonly perceived or displayed on TV.  I’m sorry, but you can’t get a legal education by watching Judge Judy.

So, explaining the law is sometimes tricky.  A case in point.  On one of my tours, a man asked a question, or rather he made a statement, that I tried to assist him with.  Basically, he said that since the state was going to allow its citizens to carry concealed weapons that this would immunize anyone with a legal weapon from any form of liability.  And, of course, he was wrong.

But despite my explanation of what the law stated and what it didn’t state, he refused to accept the facts that even if you are justified with using a firearm, that does not give you a license to shoot innocent bystanders if you are negligent or even shoot at criminals if the tables have been turned and you have become the aggressor and not the defender.  There are good reasons for this, because if you own one of these tools you have to use it responsibly.

I will try to summarize these legal precepts based upon my state’s laws as they are written.

Self Defense

With a few exceptions, you are allowed to use physical force against another to the extent reasonably necessary to defend yourself or others from an aggressor if you reasonably believe the aggressor is using, or will imminently use, unlawful force against yourself or those others.  But you can’t use deadly force unless, you believe it is necessary to protect yourself or others from death, serious injury or a forcible felony.

Castle Doctrine

You can use deadly force if it is used against a person who unlawfully enters, or remains after unlawfully entering, or attempts to unlawfully enter a dwelling or residence that you lawfully occupy; provided that it is necessary for self defense as stated above.  “A [person’s] home is their castle.”

Extension of the Castle Doctrine

The Castle Doctrine was extended to vehicles you lawfully occupy.  And extended further to where you can use deadly force in the same circumstances above if you occupy private property where you’ve been given authority to occupy that property.

Stand Your Ground

There used to be a duty to retreat from a situation if you could without engaging in a confrontation, even to protect yourself.  But that duty was eliminated in the following circumstances.  There is no longer a duty to retreat from a dwelling or residence or vehicle or private property or any location where you have a lawful right to be.

Keep in mind, if you are standing your ground, to engage in self-defense using deadly force you must still face an imminent threat of death, serious injury, or be the victim of a forcible felony.

To sum it up, there is a bubble around you and you have the right to protect yourself within that lawfully-occupied bubble without running away, but only if you face an imminent threat.

So back to Louisiana and what you can’t do.  A home invader entered the residence with a gun, stole cell phones and fired the gun at the feet of one of the occupants.  The occupants gained the upper hand, took the gun, and one occupant pistol-whipped the intruder.  The invader broke away and ran to his vehicle.  Note, he is no longer the aggressor and no longer unlawfully inside the home.  One of the occupants then opened fire on the fleeing vehicle striking the would-be robber twice.

That’s where things went awry.  The occupant of the home was not under any imminent threat of physical force being used against him at the time he opened fire.  There was no one else that needed protecting.  The invader had fled and was no longer remaining in the residence after having unlawfully entered it.  There was no longer a forcible felony occurring.

The lawful occupant that wanted to play cowboy ended up being convicted of attempted manslaughter.  Understand, that doesn’t let the invader off the hook.  He will still be tried for his crimes.  But no one is given the license to become a criminal because of another person’s criminal acts.  None of these legal doctrines offer protection from criminal or civil liability unless your situation matches the specific instances where you are legally allowed to use force or deadly force.

If the occupant firing the weapon at the fleeing criminal had negligently hit an innocent bystander, then he would also be subject to a personal injury lawsuit by that bystander.  That would be a civil matter separate and distinct from the criminal matter for which he was tried and convicted.

Yes, we have a right to own firearms and, yes, we have a right to defend ourselves when we are within our lawful bubbles, but those rights are not unlimited and we are not allowed to play cop or vigilante.

I know a lot of people who own guns.  Sometimes that ownership becomes incorporated in their ego.  They imagine themselves to be bigger than they are, stronger, more in control, and powerful.  God-like in their ability to take a life.  And therein lies the problem, it’s not that they have more control over the circumstances surrounding them, they have a greater responsibility to control themselves.

***

Post Script:  I will be writing a piece on the 2nd Amendment before too long.  I had hoped to wait until the frenzy surrounding mass shootings and gun control had subsided, but it appears that, with the continual onslaught of gun violence, waiting for emotions to die down may not be possible.

Post Script # 2: After my post went up yesterday, a friend mentioned to be me she didn’t believe ego was always an issue with gun ownership.  And I agree.  Sometimes people find themselves in situations where they may be caught up in the moment or acting out of passion and not rationally thinking.  Other times a person may be confronted with a would-be perpetrator and that person has to hope they are making the best judgment call in the way they defend themselves because, while they have no desire to hurt another, they do not wish to become a victim either.  Who would?  The possible scenarios are limitless.  This all points to the need for good training and practice.  And the need to learn and understand the lawful uses of such weapons.

Photo: This photo was found on the Internet in the public domain.  A link to it traces back to the Virgin Island Free Press.

Link: Louisiana man convicted of attempted manslaughter for shooting at fleeing home invader.

Note: All links are subject to link rot.

The Objective Reasonable Person

Justice Antonin Scalia, noted for his scathing dissents, once opined, “If, even as the price to be paid for a fifth vote, I ever joined an opinion for the Court that began: ‘The Constitution promises liberty to all within its reach, a liberty that includes certain specific rights that allow persons, within a lawful realm, to define and express their identity,’ I would hide my head in a bag. The Supreme Court of the United States has descended from the disciplined legal reasoning of John Marshall and Joseph Story to the mystical aphorisms of the fortune cookie.”

While I did not often agree with Scalia, and didn’t in that particular opinion, the “fortune cookie” analogy is not always far off the mark considering the wishy-washy standards applied by judicial decision makers. Yes, “The fortune you seek is in another cookie.”

In the law, one will invariably encounter standards that judges or juries are required to apply in order to reach “just” decisions. There are basic standards for applying the law to the facts of the case in the trial courts and then standards of review applied in the appellate courts when examining what happened in those trial courts. But there are so, so, many gray areas in the law that don’t conform themselves to a nice A + B = C result that require a judgment call. An educated guess, perhaps. Or sometimes little more than a blind stab in the dark in hopes of hitting some target, but a fair and proper target, right? (That’s a rhetorical “right?’)

Then again, there is also that phenomenon known as outcome bias, where decisionmakers decide and then conform the evidence to fit their decision – sounds a tad bit unfair or “unreasonable.” And yet, the concept of “reasonableness” is said to be the mainstay of our law and many of these legal standards incorporate that very word yielding such terms as the “reasonable person,” “reasonable-speaker,” reasonable-listener,” “reasonable aid,” “reasonable effort,” “reasonable anticipation,” “reasonable care,” and “reasonable doubt.” And conduct is deemed “reasonable” if it is “consistent with that of the prudent person in like circumstances.” But with that standard, we not only have to debate what is “reasonable,” we now have to debate what is “prudent,” or what would be “reasonably prudent?”

Such standards are supposed to accommodate all circumstances and uniformly fix any legal ailment, whether it is determining if someone reasonably thought their life was threatened to have exercised self-defense, or what constitutes extraordinary and unusual stress to a “reasonable highway worker” to be compensable under workers’ compensation. All similar puzzles should be solved the same way. What is equitable for one is equitable for all similarly situated. The law should be the same for everyone.

Standards supposedly allow stability and predictability for potential litigants so they can evaluate whether any potential legal controversy is a worthwhile endeavor. Will it result in the desired outcome or be a frivolous, and expensive, chase through the scared halls of justice? Or in criminal law, uniform application of the standards resulting in uniform penalties not only serve to treat everyone that is prosecuted equally, but the predictability of the outcome supposedly serves as a deterrent to criminal behavior. Nice to have a good idea of the result of your conduct ahead of time. You would hope that your attorney could accurately advise you of such, instead of finding yourself engaged in a giant crapshoot. And since we’re into definitions, “crapshoot” = “a risky and uncertain venture.”

Yet ask anyone, yes absolutely anyone, except perhaps a judge, and I think they will tell you that the law is not equal for everyone. It favors the rich over the poor, the majority over the minority, non-sentient corporations over living, breathing individuals, and people over all other life forms. And criminal legal procedure favors the prosecution over the defendant. You have to be a pretty lousy prosecutor to lose a case, especially since you get to pick which cases you’ll prosecute to begin with.

And these multitudinous standards are magically said to be “objective.” But how is that really possible, and just what do these terms really mean? Could the so-called reasonableness standards be just archaic, mythical devices entrenched by thousands of legal precedents? “Legal fictions,” if you will, to achieve and support virtually any decision a jury, a judge or panel of judges makes, “reasonable” or not? Reasonable in whose eyes? Your eyes? Mine? Reasonable is such a weasel-word.

A “legal fiction,” by-the-way, is defined as: “Believing or assuming something not true is true. Used in judicial reasoning for avoiding issues where a new situation comes up against the law, changing how the law is applied, but not changing the text of the law.” The “reasonable person” has been said to be a “hypothetical,” as opposed to a “fiction,” but then who gets to define the hypothetical reasonable person? It seems more to me to be a phantom assumed to actually exist.

Quoting court decisions and Black’s Law Dictionary, reasonable is said to be: “Just; proper. Ordinary or usual. Fit and appropriate to the end in view. Having the faculty of reason; rational; governed by reason; under the influence of reason; agreeable to reason. Thinking, speaking, or acting according to the dictates of reason; not immoderate or excessive, being synonymous with rational; honest; equitable; fair; suitable; moderate; tolerable.”

Wow, seems to be a wide berth between “equitable” and “tolerable,” and “appropriate to the end in view” sounds like a forced contrivance, whose view? But hey, that’s just me talking. And it is duly noted that the architects of these standards ordain that a “reasonable person” “is one who gives due regard to the presumption that judges act with honesty and integrity and will not undertake to preside in a trial in which they cannot be impartial.” Humm, so those writing the rules get to declare they are objective and impartial and demand we agree, otherwise we are unreasonable.

In addition to rambling through the gray pastures of the dictionary, stringing chains of circular non-speak together, i.e., “reasonable means governed by reason,” which means nothing at all, courts tack on that great adjective, “objective.” Reasonableness standards are supposedly objective. And my favorite definition of “objective,” and the one I believe to be the most accurate is “having reality independent of the mind.” This, of course, means not subject to personal biases or as Merriam-Webster states: “expressing or dealing with facts or conditions as perceived without distortion by personal feelings, prejudices, or interpretations.” But MW added that subjective word “perceived” spinning us down another corridor of deception, because even our minds can lie to us about what we are perceiving, or form it into the shape we desire.

Black’s Law Dictionary would say that an objective standard is a “legal standard that is based on conduct and perceptions external to a particular person,” as opposed to a subjective standard “that is peculiar to a particular person and based on the person’s individual views and experiences.” Really? Our programming starts the day of our birth, and we are constantly told how the world is, what it is we are perceiving, what to like and what to hate, what is legitimate and what is unauthentic, how one should feel or not feel, when to have empathy and when to ignore the needs or suffering of others. Our minds are filled with innumerable prejudices that become so inherently ingrained that we no longer see them as being biases.

Yet, the legal system would have us believe that all of this social programming has absolutely no effect on how a case will be judged, how a verdict or judgment might be reached, or what the assessment of remedies or penalties will be, by people magically commanded to be objective and set aside all of their life experiences when deciding the outcome of your legal entanglement. Yes, the legal system, created by humans and all of their prejudices, supposedly being the bastion of objectivity with those sitting in judgment possessing that detached, dispassionate, external “God’s eye view” or “view from nowhere,” transcending any subjective interference as Plato might pontificate, will dole out justice equally on the basis of reasonability. And basically, that’s Bullshit, with a capital B. If it wasn’t Bullshit, there would no market for attorneys that are taught how to strategize and manipulate, how to argue, how to spin, and how to select venues, judges, and jurors based upon their very subjective prejudices. Wordsmithing is a skill taught to attorneys so they may shape outcomes, not based upon what’s “reasonable,” but based upon what favors their client’s preferred outcome, the client’s subjective view of justice.

The existentialists would certainly have a great laugh over this concept of objectivity. For there really is no way for a human to exist other than through their subjective and continuing contact and experience with the world. Thoughts do not exist independently of circumstances and context. But you don’t have to be an existentialist to see how the legal system essentially pits the subjective, particular views of those sitting in judgment against the subjective, particular views of those being adjudicated – hypothetical reasonableness notwithstanding.

I would be remiss if I did not mention another favorite legal standard, the abuse of discretion standard. This standard is employed by an appellate court examining if the trial court abused its considerable discretion with a ruling on a particular controversy like the admission or exclusion of evidence. An abuse of discretion by the trial court “occurs when a trial court’s ruling is clearly against the logic of the circumstances and is sufficiently arbitrary and unreasonable as to shock the sense of justice and indicate a lack of careful consideration.” That’s a mouthful. And, “If reasonable minds can differ about the propriety of the trial court’s ruling, there was no abuse of discretion.” “Reasonable minds?”

So how does this play out if several judges in an appellate court panel decide there was an abuse of discretion, and the remainder decide there was not. Well, if the judges all agree, the standard works. If the majority of the panel, the most judges, decide there was no abuse of discretion, then the standard works. But if the majority of the judges decide there was an abuse of discretion, and a minority decide there was not, the standard fails because “reasonable minds,” and surely the judges have “reasonable minds,” have, in fact, differed and there can be no abuse of discretion. Yet the appellate court decision that there was an abuse of discretion stands, so “reasonable minds differing” creates an absurd result that ignores the court’s own standard. That might seem unreasonable.

Irregardless of my pontifications, for all of these reasonableness standards, how many court decisions, in your own view, just seem to defy “reason” and exhibit great bias? Good luck if you find yourself in that objective reasonable crapshoot called a court of law, for “Person who eats fortune cookie gets lousy dessert.”

***

Photo: I found the scales on the Internet n the public domain and could find no other attribution.  I added the text – a favorite quote I came across in a case while studying property law in law school.

Time – A Wound Healer or A Defense to Wrongful Death

By Harold Stearley

Not too long ago, the Missouri Supreme Court encountered two homicide cases where family members brought actions for the wrongful death of loved ones. One case involved a woman dying from multiple gunshot wounds in her home. The other was a consolidation of five cases involving five patients in a medical center that allegedly died at the hands of a respiratory therapist. Both cases involved homicides that were not the result of negligence, recklessness or passion – they were, by definition, murders. Both cases involved civil wrongful death actions, separate from any criminal prosecutions, that were filed after the three-year statute of limitations for wrongful death actions had passed. 

In the gunshot case, the trial court denied a motion to dismiss asserting the case was time-barred, but in the medical center cases the trial courts involved granted the hospital’s motions to dismiss on this same basis. The gunshot murder and the five consolidated medical murder cases ended up in the state’s highest court to determine whether the doctrine of equitable estoppel tolled the statute of limitations because the defendants had allegedly, fraudulently concealed their wrongdoing causing the plaintiff family members to miss the statute of limitations for bringing their claims.

The high court, however, delivered two different and opposing decisions. In the gunshot case, the court held the common law (judicially-created) doctrine of equitable estoppel applied, and the court upheld the circuit court’s denial of the motion to dismiss. But where the medical center allegedly concealed the facts from the family members (the facts supporting the claim were discussed in detail in the dissenting opinion), the high court affirmed the circuit courts’ grants of the motions to dismiss stating the common law doctrine did not apply. Both decisions were handed-down on the same day – August 18, 2015.

So what’s the difference? In one case one supreme court judge did not participate and a special judge sat on the bench. Did a one judge replacement result in opposite outcomes? While this could spark a whole range of discussions regarding the judicial process, I’ll leave that to other commentators. What I think is a tragedy is that, it appears the medical center prevailed by concealing the facts surrounding the suspected murders of five of its patients by one of its employees. In this case, the statute of limitations certainly matched the slang meaning of the abbreviation “SOL.” Time does not always heal all wounds. Sometimes time allows you to escape liability. . . 

***

See: State ex rel. Beisly v. Perigo, 469 S.W.3d 434 (Mo. banc 2015) and Boland v. Saint Luke’s Health Sys., Inc., 471 S.W.3d 703, 704-07 (Mo. banc 2015).

 *Photo Credit:  I found this image on the Internet in the Public Domain.  I was unable to find an attribution to the source, but it is not my photo.