Thursday, July 17, 2014

The Wichita "Summer of Mercy" in 1991

In cleaning out some old files recently, I came across a file of newspaper clippings I saved from the summer of 1991, in which Operation Rescue invaded Wichita and subjected us to daily and never-ending protests against a local abortion clinic.

What jumps out at me now, 23 years later, is the story of three judges who became involved in this mess, one judge from each of the three levels of the judiciary. The first is Pat Kelly, a federal judge who was a robust, activist judge who cared deeply about the law. He issued an injunction regulating what the protesters could and couldn't do, and then it was his thankless task to try to enforce the injunction. The task was thankless because the demonstrators would be released and go right back and break the law again, and Judge Kelly became totally frustrated, as you might expect in this situation.

A Municipal Court judge, Harold Flaigle, was equally frustrated, as the run-of-the-mill city trespassing cases wound up in his court. He had hundreds of such cases every day during the height of the protests, and, by his own admission, was completely depressed at the futility of it all. He would release people, who would then be right back in his court within days.

The oddest example is state district court judge Paul Clark, who up until this point had been a highly respected judge with a distinguished record. But for some reason he completely fell of the deep end on the abortion protest issue. Twice Judge Clark was reversed by the Supreme Court when he made rulings that just totally ignored the law. Once he ruled that life begins at conception and that a protester was therefore legally justified in breaking the law. In another case, an appeal from Municipal Court in which the defendant was a repeat offender and therefore subject to enhanced penalties, Judge Clark inexplicably ruled that the city ordinance mandating enhanced penalties was unconstitutional, without giving any reasons explaining how he reached this conclusion.

In 1993 a protester named Shelley Shannon shot the abortion doctor, and she was charged with attempted murder. Judge Clark, as head of the Criminal Department, assigned himself the case, as had been his pattern with cases involving abortion. When his rulings in the pre-trial phase of the case became so bizarre and indefensible as to make the court system a laughingstock, the overall head judge, Michael Corrigan, took the case away from him and handled the trial himself. It took the jury only an hour to convict the defendant.

Actually the reason for Clark's aberrant behavior can be guessed at. It was well known that Clark was angling for a position on the Court of Appeals or the Supreme Court during the early '90's. It so happened that at the time we had a Democratic Governor, and one who was pro-life. It seems clear that Clark, a Democrat, felt he could finagle the appointment he desired with his bizarre rulings.

Also found in my files was a letter I had published in the December, 1992, issue of the ABA Journal, expressing strong support for a recent action by the ABA House of Delegates in taking a stand in favor of abortion rights. A fellow Kansas attorney, Philip Ridenour, weighed in on the other side of the issue in the February, 1993, issue of the ABA Journal. Mr. Ridenour's position was that abortion, like capital punishment and the decriminalization of marijuana, is not a legal issue, but rather a "moral, religious, and cultural issue", and the ABA therefore had no business commenting on it.

Since Mr. Ridenour was kind enough to send me a copy of his letter, I am moved to offer this belated response:

It is obvious from the discussion of the three judges above that abortion is very much a legal issue. Legalities were involved here, in that the law of the land was being blatantly disregarded and women's constitutional rights were not being adequately protected from the harassment of these out-of-state protesters. Lawyers have special insights into this sort of situation.

The same holds for the marijuana issue. We lawyers have seen what our stupid drug laws are doing to the judicial system, flooding it with cases which do not belong in the court system, and flooding our prisons with people who don't belong there.

The same holds for the capital punishment issue. We lawyers have special insight into what these cases do to the legal system. We know why it is that it costs more to execute someone than it does to hold that person in prison for the rest of his life. We lawyers have special insight into all the vagaries of capital punishment: the disparate treatment of minorities, the differences in how cases are prosecuted from one jurisdiction to the next, the problem with publicity-seeking DA's trying to make a name for themselves, etc.

So, while I understand Mr. Ridenour's point, his point is not well-taken because it does not stand up to scrutiny.

Wednesday, July 9, 2014

Yankee Fan Andrew Robert Rector files Ten Million Dollar Lawsuit?

What in the world has this country come to? This clown is caught on camera in a very public event, a Major League baseball game, sleeping in the stands. And he claims he has somehow been damaged by this?

This ridiculous lawsuit will be thrown out of court faster than you can say "Jack Robinson". What it says about our litigious culture speaks volumes. We have become a society obsessed with rights, and with no sense of responsibilities. Our descent into the ash heap of history remains intact.

Wednesday, July 2, 2014

The Supreme Court Decision on Recess Appointments

The media has reported this decision as a loss for Obama, in a 9-0 vote. However, when one looks at the actual decision, it is apparent that it was a split decision, 5-4, with the liberals prevailing. At issue is a poorly-written and ambiguous provision of the constitution which gives the president the power “to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session.”

The majority opinion, endorsed by the court's four liberals plus the middle-of-the-road Justice Kennedy, held that the appointments at issue were illegal because they did not fall within the definition of "recess", since the Senate met for a pro forma session every three days to ostensibly stay in business, and thus thwart the president's power to make recess appointments. This seems wrong on the face of it, since it is exalting "form over substance", something we lawyers are taught not to do. The Senate was, as a practical matter, not in session during the time of the appointments, even though it claimed to be.

The real issue here is the interpretation of the word "happen". The dispute is whether the vacancy has to arise during the recess, or whether the president can fill a vacancy which arose before the recess, but continued during the recess. The four dissenters (actually concurring justices), felt that the vacancy has to arise during the recess. The majority pointed out, correctly, that this holding would contradict two centuries of actual practice, and would thus be an extreme overreaching of judicial power.

Monday, June 30, 2014

The Hobby Lobby Decision

The U.S. Supreme court issued its long-awaited decision today in the Hobby Lobby case, involving the right of a for-profit corporation to opt out of part of the mandates under Obamacare on religious grounds. This was yet another 5-4 decision, with the conservatives on one side and the liberals on the other, with Justice Kennedy siding with the conservatives.

It is the sort of decision which leads one to realize that the Supreme Court is more of a political institution than it is a legal institution. Of course, it has always been a combination of both, but in recent years it has seemed to embrace political considerations to an unprecedented extent.

The very concept that a for-profit corporation can have religious views is suspect on the face of it. People have religious views, but corporations? I think not.

On the facts, it might appear to be a narrow holding, since it involves only four out of twenty means of birth control which Hobby Lobby is now allowed to deny to its employees. But just think of the principle involved. If in fact an employer's religious views can be used to deny health care services to its employees, where does this stop? What if my employer is a Christian Scientist or a Scientologist, can that employer then deny me access to all medical services, on the ground that the employer does not believe in this approach to healing?

And what of the rights of employees. The decision focuses on employer's rights, but totally ignores the rights of employees to their religious beliefs.

The dissent is correct when it calls this decision one of "startling breadth". One shudders to think to what lengths the right wing in this country will now go in its ongoing attempts to deny universal health care to this country's citizens.

Monday, June 9, 2014

Those Arrogant Morning TV Hosts

I used to enjoy watching Chris Cuomo on CNN's morning show. But when he interviewed Dennis Rodman, he was so verbally abusive and disrespectful to his interviewee that I lost all respect for Cuomo, and I have not been able to watch him since.

A sad offshoot of this is that when I went to the CNN website to register my disgust with Cuomo's pathetic performance (and with the praise everyone else at CNN was mistakenly giving him for his performance), I was astounded to find that 99% of the comments were anti-Rodman, not anti-Cuomo. In fact, most distressing of all, many anti-Rodman comments were downright racist, when race was not an issue at all.

Rodman had gone to North Korea out of friendship with the North Korean leader. This should be considered a good thing, not a thing to condemn him for, as Cuomo did. Yet, Cuomo was relentless in his castigation of Rodman, and he therefore belongs in the Hall of Shame.

Then we have MSNBC's Joe Scarborough. Joe's rants have become increasingly obnoxious in recent months, but there are two specific examples of his arrogance and presumptuousness which pertain to the topic of this post.

After Hoboken mayor Dawn Zimmer told about her encounter with Chris Christie's office, pressuring her to approve a particular development project, Scarborough trashed her, saying that if someone tried this with him he would tell them that "you have 30 seconds to take that back, or I'm calling the United States Attorney. This is presumptuous and arrogant on so many levels one hardly knows where to start. First, none of us knows exactly what we would do in a given situation. It is sheer bluster for Scarborough to pretend otherwise. Second, why would anybody carry around the number of the U.S. Attorney with them? Third, how do you expect a lowly mayor to pick a political fight with a very popular sitting governor? And finally, why does Scarborough assume there is a criminal violation here? CNN's legal expert, Jeffrey Toobin, has pointed out that there is no criminal violation at all here. Rather, it is politics as usual. It is a political issue, not a legal issue.

More recently Scarborough did it again, saying that when Bowe Bergdahl called his father saying he was having doubts about the mission in Afghanistan, the father should have called the unit commander and insisted his son be put into a hospital for evaluation. Again, ridiculously presumptuous. Joe says that's what he would have done had his own son called him with that sort of message. The fact is, the unit commander was already aware of the problems due to Bowe's having walked away on prior occasions, and obviously he didn't feel it merited hospitalization.

This kind of arrogance and presumptuousness I can live without. Joe and Chris, bye-bye.

"Whart's Wrong with Sports," by Howard Cosell

In a postscript, Cosell writes that three days after turning in this manuscript in November of 1990, his beloved wife Emmy died suddenly of a heart attack. It is well-known that after that Cosell deteriorated rapidly, becoming a virtual recluse in his last years. This book, then, is the final account of his views on the sports world.

The book is as honest and hard-hitting as his other three books. Big-time college sports comes in for a lot of criticism. I am reminded of a recent quote, when the Ohio State University president was asked if he planned to fire football coach Jim Tressel. The president's response" "I just hope Jim Tressel doesn't fire me!" This, as much as anything, illustrates the "tail wagging the dog" situation which exists in big-time college sports. Cosell is right on the money on this issue.

As usual, he derides the so-called "jockocracy" in sports broadcasting. I was surprised and dismayed to see Tim McCarver come in for heavy criticism. I see Tim as an outstanding baseball broadcaster, one who always makes the game more interesting and points out intricacies which the average fan would miss. However, Cosell says that "Tim McCarver is unbearable. He's got that whiny voice. He talks incessantly about totally irrelevant things." 

One wonders if Cosell ever bothered to actually listen to a McCarver broadcast. Also, it is apparent from his prior books that Cosell doesn't really like baseball, hence his inability to appreciate a great baseball announcer. It is said that "baseball is only dull to dull minds", and when it comes to baseball, Cosell's mind was as dull as can be.

Cosell deals with drugs, sexual misconduct, gambling, and other negative aspects of modern-day sports. These are all flimsy straw men, representing actions which no reasonable person would condone.

Cosell does offer pertinent comments about the NFL, an organization which he grew to detest in his later years. He documents how the NFL has lost anti-trust cases every time it has gone to trial, beginning in the 1950's with the Bill Radovich case. Later cases lost by the NFL include suits by Joe Kapp (1974), Cullen Bryant (1975), John Mackey, Ron Alexander, and James McCoy Smith. Th fact is that the NFL has been in gross violation of anti-trust laws for decades, and nobody but Cosell has had the courage to speak out against this. For this he deserves great credit.

It is certainly well-known that in his later years Cosell soured on both of his favorite sports, boxing and football. Yet, I was surprised to see him say that the only sport he misses is horse racing. He states that "racing is an honest sport", and that the greatest athlete in his time was Secretariat. 

One wonders what Cosell's comments about horse racing would be today, following the harsh remarks made by California Chrome's owner after his horse's defeat in the Belmont. The owner called the other owners "cowards" and "cheaters" and, based on my following of the Triple Crown races for many years,I would have to say that the failure of any horse to win the Triple Crown since 1978, after twelve horses have gone into the Belmont with a chance, shows pretty clearly that the deck is stacked against any Triple Crown winner ever again appearing. For horses to run three grueling races in a five-week span can fairly be called animal abuse, in my humble opinion. And Chrome's owner is correct in saying that it is unfair for horses to sit out other races and then sabotage a potential Triple Crown winner in the last race.

There is not much really new in this book, other than comments on recent (pre-1991) events such as the Pete Rose banishment from baseball, and the Dave Winfield/George Steinbrenner fiasco. And on these issues Cosell has an obvious bias, one he really does not attempt to disguise, because of his friendships with Bart Giamatti and George Steinbrenner. Because most of this book is a rehash of his other books, I can only give it three stars out of five. However, if the reader doesn't know much about Cosell and wants to read one book to learn what he was all about, this book would not be a bad choice.

Tuesday, June 3, 2014

"Endless Summers: The Fall and Rise of the Cleveland Indians," by Jack Torry

As someone who followed the Cleveland Indians growing up in the 1950's, I found this book fascinating. The sportswriters of that era were uniform in their condemnation of GM Hank Greenberg, and now I understand why. Greenberg did not like the press, refused to socialize with them, and as a result the press disliked him as well.

Torry documents that the actual situation is that Greenberg was a great GM, someone who built up the farm system and scouting department, and therefore had the Indians well-positioned for future success. Tragically, he was fired in 1957, and what followed was a 30-year period of poor teams and poor attendance, coupled with never-ending talk of moving the franchise to greener pastures.

As attendance fell, the owners continued to cut back on player development, creating a vicious cycle in which success was impossible. Simply put, the owners couldn't or wouldn't pony up the funds to cover the losses during those years, so they engaged in a series of self-defeating cost-cutting measures.

Things didn't turn around for the Indians until Dick Jacobs bought the team in 1986. Jacobs planned for the future, brought in able people to run the front office, and by 1994 the Indians had a high-quality team playing in a wonderful new stadium. Jacobs actually planned for losses in the first few years, understanding that those losses were a necessary step toward getting the team back on a solid footing.


The lesson of this book is, don't sacrifice the long-term health of your organization for short-term considerations. As voters we should take notice of this syndrome as well; i.e., don't vote for candidates who are willing to sacrifice the long-term health of the country for short-term political gain in the next election.