-I believe that Marty has stated the situation correctly. Normally, the government does have a choice. What is troubling here is the desire to have one's cake and eat it to: deny the prisoner evidence to exculpatory information, but prosecute him anyway (having created for the purpose a tribunal under the control of the executive and declared that this right won't exist there). It seems to me that we should hope for the sake of each of us that this attempt fails. -E.
**************************** Prof. Eric M. Freedman Hofstra Law School Hempstead, NY 11550 [EMAIL PROTECTED] Tel. 516-463-5167 Fax 516-463-5129 Home Office: Tel. 212-665-2713 Fax 212-665-2714 *************************** >>> [EMAIL PROTECTED] 07/15/03 04:50PM >>> 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 > A propos of the discussion over the judiciary's power to interpret the > 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 > > > professorstigher > > education budget stu > > > <[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) >
