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Reading is difficult. As a writer, I help the reader every way I can think of. As a reader, I work hard not to miss the big things in the middle of the road.

Friday, April 19, 2013

Peace Officers Can’t Bring a Drug-Sniffing Dog on Your Porch

The United States Supreme Court held in Florida v. Jardines, (No. 11–564, Mar. 26, 2013) held that allowing a drug sniffing dog to come on to a person’s front porch was itself a prohibited search illegal without a warrant under the fourth amendment. Justice Scalia wrote the main opinion which Justices Thomas, Ginsburg, Sotomayor, and Kagan joined. That opinion held that the kind of permission that people ordinarily give for people to come on their front porch does not include super-human smell-testing. The opinion emphasized that the police’s action violated the homeowner’s property rights. Justice Kagan wrote a concurring opinion in which she said that she would also have ruled that what the police did violated the defendant’s privacy rights. She was joined in that opinion by Justices Ginsburg and Sotomayor. Both of these opinions implied that bringing a drug-sniffing dog on a porch was like using a thermal imaging device on a house from the outside looking for grow lamps like they rejected in Kyllo v. United States in 2001 Justice Alito filed a dissenting opinion which was joined by Chief Justice Roberts and Justices Kennedy and Breyer. They held that when Jardines implicitly gave permission for people to come up on his porch, which included permission that someone might bring a dog on the porch for a short time.
Florida v. Jardines, No. 11–564, (U.S., Mar. 26, 2013)

Monday, April 15, 2013

No Springtime in Race Relations in Jefferson County This Year: a Tale of the Ninth Court of Appeals

No blog that purports to keep up with the Ninth Court of Appeals can fail to discuss the biggest publicity case of the spring: l'affaire Beaumont Independent School District. The reporting of Dan Wallach of the Beaumont Enterprise has been insightful and enlightening. The School District is governed by a board elected from seven single-member districts. The history of the present Beaumont ISD reflects tension between blacks and whites over more than a century. My high school girlfriend was a white West Brook High School student, like most of the students then, but West Brook is a grittier, majority-black school now. Like every U.S. governmental entity governed by representatives from geographical districts, BISD had to realign its districts to comport with the results of the 2010 census. Like every governmental entity redistricting where the rights of minorities have been abrogated in the past, the federal justice department must approve proposed changes before they are implemented to make sure they are not racist. This is called preclearance. The new districts were submitted for preclearance so that the regular election could take place on May 11. The terms are for four years and are staggered. Three trustees, each black-- Zenobia Bush, Woodrow Reece, and Terry Williams-- won their seats in 2011. Lawyers Michael Getz, Michael J. Truncale, and David Vann de Cordova, Jr. reviewed Texas Education Code sec. 11.052. It appeared to require all trustees to run for reelection after redistricting. They advised their client sitting white trustee Michael Scott Neil-- who also had been elected in 2011-- and their other clients, nontrustees Marcelino Rodriguez, Donna Jean Forgas, and Linda Marie Wiltz Gilmore-- one black, one white and one Hispanic-- to quietly file for election by March 1. They did. Bush, Reece, and Williams did not. That's when the lawyers, along with lawyer Hubert Oxford IV, and the nontrustee candidates sprung the trap by seeking and gaining a mandamus order from the Beaumont Court of Appeals requiring BISD to hold an election without Bush, Reece and Williams's being candidates on March 18, 2013. BISD tried to stay the order but the appeals court justices held firm on March 27, 2013. Neil got an order from the Beaumont Court of Appeals forcing BISD to put him on the ballot for May 11. The federal department of justice got a federal district court to issue a temporary restraining order abeying the election until a three-judge panel can consider a temporary injunction there, and possibly abeying the election until the DOJ can finish its preclearing decision. This means there'll be no election May 11 unless the DOJ makes its decision much faster than observers would expect. BISD has cancelled the May 11 election.
No springtime for race relations in Jefferson County this year.
In re Marcelino Rodriguez, Donna Jean Forgas, and Linda Marie Wiltz Gilmore, No. 09-13-00115-CV, (Tex. App.--Beaumont, Mar. 18, 2013) (orig. proceeding).
In re Michael Scott Neil, No. 09-13-00144-CV, (Tex. App.--Beaumont, March 28, 2013) (orig. proceeding).

Monday, April 8, 2013

What Are Extraordinary Writs?

Practicing law was more difficult about 70 years ago than it is now. Before the Federal Rules of Civil Procedure, which arose in the 1930s, there wasn't just one form of "civil action". To get any kind of relief in a court, you had to apply under the form of one of the medieval common-law writs. The forms of these writs were complicated and exacting. Their forms and regulations had been established by common-law judges who basically made stuff up as they felt they needed it. To a great extent, when the feds got rid of the ordinary writs,  the states followed suit and got rid of most of their writs. Even these days, lawyers who must work with old precedents have to have some understanding of the ordinary common law writs, and nearly every state has a few of them hanging around.

The writs that remain today are generally called extraordinary writs. The main ones in Texas are:

  • certiorari,
  • habeas corpus,
  • mandamus,
  • procedendo,
  • prohibition, and
  • quo warranto.

The most important ones for our purposes are habeas corpus and  mandamus. Let's get through the others briefly. Generally, certiorari is a writ by which a superior court takes a matter from an inferior court. This is the manner in which the vast majority of cases get to the United States Supreme Court. Texas county courts can also do it to justice courts in the county. In certain circumstances, especially probate matters, district courts can take cases from the county courts provided over by the county judge, who may not be a lawyer. Procedendo is the writ by which a higher court can force a  lower court to proceed to judgment, etc.  in a matter. Prohibition keeps a court, usually a lower court, writ considering a matter being considered by another court. Quo warranto allows acts of a corporation or public official to be attacked as being beyond that entity or person's powers.

By far, the most important extraordinary writs are mandamus and habeas corpus. We party had some discussion of habeas corpus in this blog, and will have some discussion of mandamus a little later

Friday, April 5, 2013

What Do Appellate Judges Think of "May It Please the Court?"

Bryan A. Garner reports on what judges say about how to start talking to them.