I know that this decision is widely being
characterized as DOJ refusing to abide by the court's "order," but I'm not sure
that's quite right. If I understand the statute and ruling correctly, the
requirement is that DOJ must either permit the interview
or drop the criminal charges. In other words, the
interview requirement is a condition of going forward with the prosecution, not
a stand-alone injunction. DOJ has chosen the option of dropping the
criminal charges, which is not a "refusal" to abide by the court
order.
The more interesting, and troubling, substantive
question is whether the defendant would have a constitutional right to conduct
the witness interview -- to have access to potentially exculpatory evidence --
in a military tribunal proceeding. Obviously, the Executive
branch thinks not -- and it may well be that that the courts will not be willing
to second-guess that decision.
Marty Lederman
----- Original Message -----
From: "Mark S Kende" <[EMAIL PROTECTED]>
To: <[EMAIL PROTECTED]>
Sent: Tuesday, July 15, 2003 4:32 PM
Subject: Re: Nevada Supreme Court & federal
action & war on terror
> Constitution, how about DOJ's decision today apparently not to comply with
> the district judge's ruling that Massaoui should be able to interview an
> alleged Al Quaeda terrorist to help in his criminal defense. Presumably
> if the district judge dismisses, the government will happily go to a
> military tribunal but what about the constitutionality of DOJ's refusal?
> Mark
>
>
> On Tue, 15 Jul 2003, Lynne Henderson wrote:
>
> > How is the Nev S Ct different in its assumption that it is the only
> > remaining branch to deal with the crisis different from the Supreme Court
> > majority's actions in *Bush v. Gore* and more particularly the issuance of
> > the stay and Scalia's opinion there? Of course, *Bush v Gore's* extension
> > of EP may play a role here in the claims of the plaintiffs, too?
> > I'm not saying I think this is a great decision or that the opinion is
> > great by any means, but when the US S Court claims it is the sole
> > interpreter of the US Constitution in a number of cases (see Larry Kramer's
> > Harv. L rev article for example) and decides presidential elections, I don't
> > know that it is so bizarre for a *state* S Ct to assume the same role as
> > interpreter of the state constitution. And courts sometimes do have to make
> > law, create doctrine, out of political messes--at least I agree with HLA
> > Hart that courts do exercise discretion and engage in acts of power.
> > (Others of course have good reasons to say otherwise)
> > And no, I am not affected by the decision at this point, since the higher
> > education budget stuff was passed and this involves K-12, though I suppose
> > one could say as a Nevada state public education employee, I should just not
> > say anything.
> > best
> > Lynne
> >
> > ----- Original Message -----
> > From: "Edward A Hartnett" <[EMAIL PROTECTED]>
> > To: <[EMAIL PROTECTED]>
> > Sent: Tuesday, July 15, 2003 8:18 AM
> > Subject: Nevada Supreme Court & federal action
> >
> >
> > > I've read the Nevada Supreme Court opinion granting mandamus against the
> > > state legislature, the federal complaint challenging the Nevada House's
> > > obedience to this writ, and the brief in support of the TRO.
> > >
> > > I've never heard of a court issuing mandamus to a legislature before and
> > > the majority cites none. Has anyone else ever heard of mandamus to a
> > > legislature?
> > >
> > > The majority invokes Marbury, not for the power to issue mandamus to a
> > > cabinet official, nor for the power of judicial review, or even for
> > > judicial supremacy, but for judicial exclusivity: "As constitutional
> > > construction is purely a province of the judiciary . . . " Opinion at
> > > 10-11. For a perhaps even more grandiose claim, see id. at 10 (noting
> > the
> > > states budget crisis and stating, "This court has been petitioned to
> > > resolve the crisis.").
> > >
> > > As for the federal lawsuit: How do the plaintiffs deal with res judicata
> > > and the Rooker-Feldman doctrine? (I don't see any mention of either in the
> > > brief.) Under 28 USC 1738, federal courts must give the same preclusive
> > > effect to state court judgments that the state court would give, and
> > > Rooker-Feldman reminds us that Congress has not granted the inferior
> > > federal courts appellate jurisdiction over state court judgments. Perhaps
> > > those who were not parties to the state proceeding are not bound by it,
> > but
> > > aren't the best plaintiffs in the federal case the legislators, and
> > weren't
> > > they defendants in the state proceeding?
> > >
> > > Worse, a number of lower federal courts have used the Rooker-Feldman
> > > doctrine to bar claims in federal court that would _not_ have been barred
> > > by state preclusion law. (This development is discussed, I believe, in an
> > > issue of the Notre Dame law review a few years addressed to
> > > Rooker-Feldman.)
> > >
> > > Finally, a follow-up regarding the in banc process: The Circuit Court of
> > > Appeals for the Third Circuit used the process before specific statutory
> > > authorization. See
> > >
> > > Commissioner of Internal Revenue v. Textile Mills Securities Corporation,
> > > 117 F.2d 62 (3d Cir. 1940), affirmed by Textile Mills Sec. Corp. v.
> > > C.I.R., 314 U.S. 326 (1941). For civil procedure fans, note that
> > Hickman
> > > v. Taylor was decided by both the district court and the court of appeals
> > > in banc. (And despite the common practice of spelling the term with an
> > > "e," 28 USC 46 spells it with an "i" --- "in banc.")
> > >
> > >
> > > Ed Hartnett
> > > Seton Hall
> > >
> > >
> > >
> > >
> > >
> > >
> > >
> > >
> > >
> > >
> > >
> > > "Eastman, John"
> > > <[EMAIL PROTECTED] To:
> > [EMAIL PROTECTED]
> > > DU> cc:
> > > Sent by: Discussion Subject: Re: Very odd
> > development in the Nevada Supreme
> > > list for con law Court decision
> > > professors
> > > <[EMAIL PROTECTED]
> > > v.ucla.edu>
> > >
> > >
> > > 07/14/03 08:21 PM
> > > Please respond to
> > > Discussion list for
> > > con law professors
> > >
> > >
> > >
> > >
> > >
> > >
> > > The federal claims are legislative vote dilution, breach of the voters
> > > right to undiluted representation, nullification of the right to vote
> > > for a constitutional amendment, all in violation of the Equal Protection
> > > and/or Due Process clauses of the 14th Amendment; plus a Republican
> > > Guarantee clause claim.
> > >
> > > The complaint, TRO, and brief, plus the court's order, are available on
> > > the Claremont Institute's web site,
> > > http://claremont.org/projects/jurisprudence/0030714nevada.html
> > >
> > > Disclosure: I'm counsel of record for the plaintiffs in the case.
> > >
> > > A parallel suit, naming the Nevada Supreme Court and its Justices as
> > > defendants, was also filed by another attorney, on his own behalf. That
> > > complaint is available on-line as well, but I don't have the URL at the
> > > moment.
> > >
> > > John C. Eastman
> > > Professor of Law, Chapman University School of Law
> > > Director, The Claremont Institute Center for Constitutional
> > > Jurisprudence
> > >
> > >
> > > -----Original Message-----
> > > From: Volokh, Eugene [mailto:[EMAIL PROTECTED]
> > > Sent: Monday, July 14, 2003 4:48 PM
> > > To: [EMAIL PROTECTED]
> > > Subject: Very odd development in the Nevada Supreme Court decision
> > >
> > >
> > > (1) Does anyone have any idea of the specific federal change
> > > that's being made here?
> > >
> > > (2) I've never heard of any "en banc hearing with all district
> > > judges" before -- can anyone help me out on this? Thanks,
> > >
> > > Eugene
> > >
> > >
> > >
> > > http://www.reviewjournal.com/lvrj_home/2003/Jul-14-Mon-2003/news/filing.
> > > html
> > >
> > > Filing challenges high court ruling
> > >
> > >
> > > REVIEW-JOURNAL
> > >
> > >
> > >
> > > U.S. District Judge Philip Pro temporarily restrained the action by
> > > which the Nevada Assembly passed a tax bill with less than a two-thirds
> > > vote. He ordered an en banc hearing with all district judges for 9 a.m.
> > > Wednesday in Reno and Las Vegas.
> > >
> > > The Assembly voted 26-16 Sunday for a bill that would increase taxes by
> > > a record $788 million over the next two years.
> > >
> > > Today, Republican lawmakers, citizens and business groups -- upset with
> > > Thursday's decision by the state Supreme Court rejecting the two-thirds
> > > vote requirement to pass taxes -- filed an action in U.S. District Court
> > > seeking to block the court's ruling.
> > >
> > > Assembly Minority Leader Lynn Hettrick, R-Gardnerville, said the federal
> > > action is necessary because the 6-1 Supreme Court ruling allowing only a
> > > simple majority to raise taxes is unconstitutional.
> > >
> > > "We don't believe the court's decision that we can ignore the
> > > constitution is legal," he said.
> >
>
> Mark Kende
> Professor of Law
> University of Montana School of Law
> Missoula, Montana 59812
> 406-243-4317 (phone)
> 406-243-2576 (fax)
>
