On Thursday 10/30 at noon I will be speaking to the Indiana University at Bloomington Federalist Society Chapter about Hobby Lobby. Professor Dan Conkle will be providing commentary. Later that day at 4:30 I will be speaking about executive power at the Indiana University at Indianapolis Federalist Society Chapter. On Friday at noon, I will be speaking to the Indianapolis Federalist Society Lawyers Chapter about executive power. I hope to see you there!
This was a wise move. Here is the Mayor’s statement.
With local pastors standing with her, Mayor Annise Parker has told the City Legal Department to withdraw the subpoenas filed against five local pastors who have identified themselves as the leaders of the petition drive to repeal the Houston Equal Rights Ordinance (HERO).
“This is an issue that has weighed heavily on my mind for the last two weeks,” said Mayor Parker. “Protecting the HERO from being repealed is important to Houston, but I also understand the concerns of the religious community regarding the subpoenas. After two meetings yesterday, I decided that withdrawing the subpoenas is the right thing to do. It addresses the concerns of ministers across the country who viewed the move as overreaching. It is also the right move for our city.
In a breakfast meeting yesterday, Mayor Parker met with local Pastors Rudy Rasmus, Jim Herrington and Chris Seay. She had a second meeting later in the day with National Clergy Council President Rob Schenck, Reverend Pat Mahoney of the Reformed Presbyterian Church, Pastor Myle Crowder from Utah, Pastor David Anderson from Florida, Pastor Sean Sloan from Arkansas and two others.
“These pastors came to me for civil discussions about the issues,” said Parker. They came without political agendas, without hate in their hearts and without any desire to debate the merits of the HERO. They simply wanted to express their passionate and very sincere concerns about the subpoenas. The second meeting group wasn’t from Houston, but they took the Houston approach of civil discourse in presenting their case. We gained an understanding of each other’s positions.”
ADF will probably get attorney’s fees though.
In 1969, four lectures were published in honor of Mr. Justice Jackson by Charles Desmond, Paul Freund, Potter Stewart, and Lord Shawcross. Towards the end of Stewart’s lecture, he quotes Justice Jackson’s remarks from the “last of the Godkin Lectures.” Jackson died in 1954 before he was able to deliver these lectures, but they were published in his book, “The Supreme Court in the American System of Government.” Justice Jackson wrote of a “cult of libertarian judicial activists,” who:
believe that the Court can find in a 4,000-word eighteenth-century document or its nineteenth-century Amendments, or can plausibly supply, some clear bulwark against all dangers and evils that today best us internally. This assumes that the Court will be the dominant factor in shaping the constitutional practice of the future and can and will maintain, not only equality with the elective branches, but a large measure of supremacy and control over them. I may be biased against this attitude because it is so contrary to the doctrines of the critics of the Court, of whom I am one, at the time of the Roosevelt proposal to reorganize the judiciary. But it seems to be a doctrine wholly incompatible with faith in democracy, and in so far as it encourages a belief that the judges may be left to correct the result of public indifference to issues of liberty in choosing Presidents, Senators, and Representatives, it is a vicious teaching.
Stewart adds in closing:
That is forceful language. But the key word, I think, is “faith.” Justice Jackson knew that the Framers had put their ultimate faith in the people, and there, for better or worse, he put his faiht too. He firmly believed that only so long as we remain a free and responsible people can there endure a society to be truly served by the profession he loved so much and the Court he served so well.
Once (and only once) Chief Justice Rehnquist sat by designation on a federal district court. The Fourth Circuit unanimously reversed him. And that was the end of that failed experiment.
One of the greatest attributes Justice Sotomayor brings to the bench is her time at the District Court. During her remarks at Yale Law School, she explained that when retires, she will not ride Circuit, but go back to the District Court. She relayed a conversation she had while at lunch with Chief Justice Roberts and Justice Kagan.
Last year I was having lunch with the Chief and Justice Kagan, and we started talking about how hard our senior justices work in the federal circuits [JB: She couldn’t possibly be talking about Justice Stevens who has not heard a single case since he stepped down]. Without thinking about it, when and if I retire, I want to go back to the district court. When asked why, I said why would I go and do what I was doing for however many years it has been. I want to go back to my first love. The district court is a very different and exciting place. For me, it was the formative experience for preparing me for the court.
I spent two years clerking in the district court, and one year on the court of appeals. I can’t stress how valuable my two years in the district court were. In addition to preparing me to handle an appellate court docket, I had a feel for how all aspects of the lower court worked. For reviewing a sentencing appeal, I had sat in on countless sentencings. For dealing with an appeal over an evidentiary issue, I was in court countless times when objections were made and resolved in a manner of seconds. For reviewing a complicated case, I was sure to limit my review to the record, and nothing more–even if the lawyers were not so constrained. This is a skill that some fresh law clerks aren’t so diligent about.
Then, Justice Sotomayor explained why a wise district court judge with the richness of her experiences would more often than not, reach a better conclusion than a circuit judge, or something like that.
I still look at cases a lot like district court judges do. I look at the facts and try to apply the facts to the law. And my colleagues only look at the law, and that is all they–sometimes they are looking at. it is a very different perspective. It is one I will never disavow because it has value. For me, my greatest time was on the district court in terms of preparing me for the Court.
I will note that while Sotomayor said this, both Alito and Thomas were nodding their head in agreement. There is no doubt Sotomayor pays more attention to the facts. I’ve heard that she asks her clerks to read the *entire* record, and this preparation shows during oral arguments, and in her opinions, which are very factually-intensive.
Though, as Paul Clement noted, the Justices really don’t care about the client.
“At the end of the day, they really don’t care about your case or your client,” he said. “They are really using your case as a vehicle to develop a broader rule on an issue of importance, and I think that is something that one always has to keep in mind.”
You are just a vehicle.
The lecture notes are here. The live chat is here.
This is the section of the Texas code that governs equitable distribution of community property after a divorce:
Sec. 7.001. GENERAL RULE OF PROPERTY DIVISION. In a decree of divorce or annulment, the court shall order a division of the estate of the parties in a manner that the court deems just and right, having due regard for the rights of each party and any children of the marriage.
Added by Acts 1997, 75th Leg., ch. 7, Sec. 1, eff. April 17, 1997.
Sec. 7.002. DIVISION AND DISPOSITION OF CERTAIN PROPERTY UNDER SPECIAL CIRCUMSTANCES. (a) In addition to the division of the estate of the parties required by Section 7.001, in a decree of divorce or annulment the court shall order a division of the following real and personal property, wherever situated, in a manner that the court deems just and right, having due regard for the rights of each party and any children of the marriage:
(1) property that was acquired by either spouse while domiciled in another state and that would have been community property if the spouse who acquired the property had been domiciled in this state at the time of the acquisition; or
(2) property that was acquired by either spouse in exchange for real or personal property and that would have been community property if the spouse who acquired the property so exchanged had been domiciled in this state at the time of its acquisition.
(b) In a decree of divorce or annulment, the court shall award to a spouse the following real and personal property, wherever situated, as the separate property of the spouse:
(1) property that was acquired by the spouse while domiciled in another state and that would have been the spouse’s separate property if the spouse had been domiciled in this state at the time of acquisition; or
(2) property that was acquired by the spouse in exchange for real or personal property and that would have been the spouse’s separate property if the spouse had been domiciled in this state at the time of acquisition.
(c) In a decree of divorce or annulment, the court shall confirm the following as the separate property of a spouse if partitioned or exchanged by written agreement of the spouses:
(1) income and earnings from the spouses’ property, wages, salaries, and other forms of compensation received on or after January 1 of the year in which the suit for dissolution of marriage was filed; or
(2) income and earnings from the spouses’ property, wages, salaries, and other forms of compensation received in another year during which the spouses were married for any part of the year.
Here is a recent story, similar to the W.C. Fields case,where a mistress is ordered to pay her dead lover’s wife:
Kathie O’Keefe, a former lounge singer turned political activist, spent two “happy” decades with another woman’s husband and now she’s being ordered to pay up.
When her former lover, Jack McCarthy, died 16 months ago at age 78, O’Keefe made a claim against the estate of the wealthy real estate broker.
O’Keefe, 69, wanted a watch and ring he had given her, and the $200,000 she said he promised her.
Not only was O’Keefe turned down, but McCarthy’s wife of 30 years, Margaret, turned the tables and sued.
Now, according to a court ruling in favor of Margaret McCarthy, O’Keefe owes $200,000, to her dead lover’s family.
“I was really shocked,” O’Keefe said on ABCNEWS’ Good Morning America. “I thought of it as a nuisance suit and I didn’t think they had a chance of actually getting a judgment against me,” she said.
McCarthy’s wife relied on an obscure 90-year-old Washington law that forced O’Keefe to account for all the gifts and money he’d ever given her — and pay it all back in cash.
“It doesn’t matter to me if it’s $200,000 or $2 million,” she said. “I didn’t do anything wrong. It was Jack who broke the law and I don’t think I should be punished for the sins of a dead man,” she said.
George Smith, O’Keefe’s lawyer, said the court’s ruling now exposes every extra-marital partner in the area to serious financial risk.
“The old law says, and it’s still in effect, that one spouse cannot gift community property to an individual without the consent of the other spouse,” Smith said. “I think the girlfriend should look at the heading on the check, and if it says, ‘the account of Mr. and Mrs.,’ she’s got problems coming down the road.”
The McCarthy estate demanded $400,000, but after the court ruling, both parties reached a settlement.
The McCarthy estate’s lawyer, Kurt Olson, said things might have been different for O’Keefe if she had what she claimed McCarthy promised in writing.
“If it were a legitimate claim that she was asking for, if she had some evidence that he had intended to give her the money, then obviously that would heve been very important to the estate,” Olson said. “If there was any writing if it had been in any estate planning documents that would have been very relevant but we had nothing except for her word about what a deceased person had said according to her,” he said.
In related news, Donald Sterling’s mistress, v. Stiviano, was sued by Shelly Sterling for return of gifts:
He added Stiviano has no defense to Shelly Sterling’s lawsuit because the items Stiviano received from Donald Sterling were community property, and he had no right to give them away.
“We look forward to our March 9th trial before a Los Angeles jury where Shelly is confident that she will be prevail.”
Shelly Sterling’s lawsuit seeks the return of gifts that include a $1.8 million duplex, a Ferrari, two Bentleys and a Range Rover worth more than $500,000.