It's not been a good week for those who are trying to build opposition to the tax fairness bills passed in the Leg last year and now referred to January's ballot. In two separate rulings at both the lowest and highest levels of Oregon's court system, teabagging plaintiffs who had sued for a change in the ballot titles were dealt strong rebukes--all but ensuring that the original (or even improved) titles will remain intact.
Our friends at Yes For Oregon have the details on both. First, their statement on last week's OR Supremes ruling {google doc}, which not only rejected plaintiffs' arguments about the titles, but to my mind actually improved them in a way that is not only more accurate but a boon for M66/67 proponents:
In short, the Court ruled today that the opponents challenge was without merit. The core of the argument made by the opponents -- -- Oregonians against job killing taxes -- -- was that voters should be made aware that the revenue from measures 66 and 67 will be spent to protect education, healthcare, and public safety.
The Court rejected that argument for both measures, changing only the phrase "maintains funds currently budgeted for education, healthcare, public safety, other services" to "provides funds currently budgeted for education, healthcare, public safety, other services."
The court also ordered a modification in the "Result of a No" statement on both measures. "Reduces funding currently budgeted for education, healthcare, public safety, other services by estimated $472 million" is now "leaves amount currently budgeted for education healthcare, public safety, other services underfunded by estimated $472 million."
The Vote Yes for Oregon coalition agrees that this language is a more clear and accurate way of describing to voters what's at stake in January. [emph orig]
As it appears the coalition believes, the change from "reduces funding" to "leaves underfunded" is not only closer to the real truth of the matter, it better highlights the consequence--UNDERFUNDING. Reducing funding is one thing, and can sound like a prudent savings, but nobody should think leaving something "underfunded" is a good thing. To put it another way, would you like your caloric intake reduced, or would you prefer to take in fewer calories than you need?
And yesterday, a circuit court judge in Marion County refused to place an injunction on the ballot title process, essentially clearing the decks for moving forward on the matter. In the aftermath the coalition's Scott Moore had some snark to throw down:
"The corporate lobbyists had spent weeks misrepresenting the ballot titles in the process, and the courts have now thrown out all of their arguments" says Scott Moore, spokesperson for the Vote Yes for Oregon Coalition. "It's too bad there isn't a process that also allows the Supreme Court to throw out their committee name -- -- Oregonians Against Job-Killing Taxes -- -- for misrepresenting the impact of the measures."
Moore has a valid point of course, but it's hard to avoid the sense that they're gloating a little bit over the epic fail of the plaintiffs. That's usually how these kinds of things go when one side really doesn't have much of a leg to stand on, but throws whatever it can at the wall anyway. So I don't blame 'em for letting a little giddiness slip.
Feeling legalo-wonky? The two OSC decisions are readable in their entirety here {pdf}, and also here {pdf}(there were two rulings, one for each Measure.) The Marion County decision can be found in this Google Doc.
I got the same emailed press release from state Senator Rod Monroe as did Carla at Blue Oregon, and I'll link to her piece so that you can read the meat of the release. The upshot is pretty simple: in order to reverse, get around and/or otherwise weasel past the existing state Constitution, Monroe has proposed Senate Joint Resolution 7, which would put the question of reinstating police DWI roadblocks on next May's ballot. I will reprint that text; it's pretty short (I believe to its detriment; more on that in a minute):
Be It Resolved by the Legislative Assembly of the State of Oregon: PARAGRAPH 1. Section 9, Article I of the Constitution of the State of Oregon, is amended to read:
{ + Sec. 9. + } { + (1) + } No law shall violate the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable search, or seizure; and no warrant shall issue but upon probable cause, supported by oath, or affirmation, and particularly describing the place to be searched, and the person or thing to be seized. { - - - } { + (2) This section does not prohibit the use of sobriety checkpoints by law enforcement officials. + }
PARAGRAPH 2. { + The amendment proposed by this resolution shall be submitted to the people for their approval or rejection at a special election held throughout this state on the same date as the next primary election. + }
Begging the question of whether Oregonians support changing the OC to allow a return to random, suspicionless sobriety checkpoints, is one that's been bothering me since I read about it: why? What's the reason for it? Why now? Since the Oregon Supreme Court's ruling in 1987 in Oregon v Boyanovsky, which rather flatly banned the practice in these terms:
Defendant was seized when his vehicle was stopped. His vehicle is, like other possessions, an "effect" in which he is entitled to be "secure * * * against unreasonable search, or seizure." Or Const, Art I, § 9. His person and documents were searched and the evidence obtained was used to convict him of a crime. These acts occurred in the absence of any belief that he had committed an offense. The officers did not comply with the constitutional standards for searches and seizures. Or Const, Art I, §9. The evidence must be suppressed.
Lots of court rulings have obfuscatory language and are hard to read for their specific intent, but this one is pretty clear: if you're going to search a person or his effects, you'd better have a pre-existing reason for making the stop--otherwise your evidence is useless.
So why make a specific exemption for suspicionless searches, in order to catch some drunk drivers (an admittedly compelling goal?) In the federal case (Michigan v Sitz, 1990), the majority ruled that while there was no getting around the fact that searches were being conducted without probable cause, the goal of reducing drunk driving was a compelling state interest that overrode the presumption of freedom from unreasonable search.
Oregon's Constitution, along with that of 11 other states including Washington and Idaho, is stricter than the federal version as you can see above "no warrant shall issue but on probable cause." So surely, Sen. Monroe must have some indication of the compelling need to reinstate the process...right? Like say, some kind of increase in alcohol-related fatalities in Oregon since the ban was placed?
In a ruling released without comment or dissent, the US Supreme Court today finally dispensed with the question of whether Oregon jurors were within their purview to award $79.5 million in punitive damages to the widow of a longtime Oregon smoker:
The high court dismissed the Philip Morris appeal without issuing an opinion, ending the third appeal the company had secured before the Supreme Court in its fight to reign in an award by an Oregon jury.
The Supreme Court's dismissal also means no new legal precedent was set on punitive damages, a development that is likely to disappoint business groups that have continued to press for additional punitive damages guidance from the high court.
The dismissal came in a short court order that offered no details on why the appeal was dismissed. No justices dissented from the dismissal.
Philip Morris, in a statement, said legal proceedings will continue in Oregon on distribution of the financial damages. Oregon law requires that 60% of the award go to the state - leaving the plaintiff with 40% - and the tobacco company said it believes the nationwide tobacco settlement bars Oregon from receiving any more tobacco money.
This was a long, drawn out case. (Aren't they all?) Jesse Williams, a janitor from Portland, began smoking in 1950 and was diagnosed in 1996, dying just a year later. By 1999, an Oregon jury had awarded $821,000 in actual damages (medical care, etc.), but 97 times that in punitive damages. According to court records, part of the jury's intent was to hold Phillip Morris liable for the harm it had caused other Oregon smokers as well.
PM didn't like that, and argued that it violated their 14th Amendment rights of due process, since the punitive award was so disproportionate to actual damages--and PM was punished for perceived injuries to people not specifically party to the case.
The Oregon Supreme Court upheld the verdict, but in 2003 the federal version deemed punitive awards more than 10x the actual damages to be excessive. The verdict was remanded back to Oregon twice for consideration of the new damages limit, but our courts declined--according to WSJ, on the grounds that Phillip Morris forfeited their right to challenge the verdict by not properly following state jury instruction rules.
So once again the case came before the federales, and this time it appears the thinking on damage awards has come full circle--let the states decide, or at least in this case, accept that the state's handling of the case had not been untoward.
Williams' widow Mayola, who in this fine piece by the Guardian UK is credited heavily with the victory through her testimony and persistence against the tobacco giant, will reportedly see $58 million, her share of the now-$145 million judgement with interest. The remainder will go to Oregon's crime victims fund--something that has to put a little hop into AG Kroger's step this afternoon, as with any advocate of state-based, jury-led determinations of corporate liability, or victims' rights. As the Guardian piece suggests, they're probably a bit baffled at the turnaround--especially without dissent or further guidance on liability caps--but definitely delighted.
Let the hate mail flow--the more to make the point that it's the most hateful and ignorant speech such as in my title, that requires the most ardent defense. Your informal sanctions via comment and email--some of which will surely still come even knowing I'm trying to make a point--are the proper vangaurd against the coarsening of civil society, however...not the government.
So said the Oregon Supreme Court in a decision reported on last Friday over at the Seattle Times. (I'm sure The O had it too, but good luck finding it on their nightmare of a web page). They didn't perhaps say the above in so many words, but the unanimous finding of the Court was that merely insulting speech was not by itself a provocation to violence, and thus protected. As in my title, racist and homophobic speech were the tools of choice for the clearly ignorant victor in the case:
William Johnson had appealed his conviction for shouting names at two women — one black and one white — whom he presumed were lesbians.
They moved in front of his pickup when a country road narrowed from two lanes to one in heavy traffic, and Johnson responded by calling them insulting names using amplified sound equipment.
As the rush-hour traffic slowed to stop-and-go, one woman got out of the car to confront Johnson, who used a string of homophobic and racist names to insult her.
The woman testified she believed Johnson was trying to incite her to violence.
But she returned to her car when her companion intervened and told her a teenager in the bed of Johnson's pickup was swinging a skateboard in a menacing way.
In the opinion by Justice W. Michael Gillette, the court noted that, despite the epithets, Johnson "did not verbally threaten the woman with violence and no actual violence took place."
I find myself in agreement with a lot of initiatives considered "PC." For the most part, if all it takes is a little extra courtesy and promotes mutual public respect, who is rationally against that? But like everything its practice in extreme or by rote can have the touch of the absurd, and I think criminalizing hateful speech that does not accompany any actual crimes is PC gone absurd. There is no protection in either the federal or Oregon constitutions from being offended. One's sensibilities may be rightly assaulted, but it's just a shame, not a crime.
A unanimous slap in the face to a do-gooder elected Legislature! Gotta love it. Nobody deserves to be verbally assaulted like that obviously, but there are already laws that cover things like menacing someone, without specifying the fact that they called you names. If someone is truly being threatening (like swinging a skateboard in an aggressive manner, for instance), you can go on that. The content of the speech as a prelude to violence would certainly be an acceptable consideration, but without violence all you've got is an ugly bless-out.
There's a certain paternalism afoot as well, as if (say) protecting black people from being called nigger is a productive engagement on the part of the Legislature--as opposed to safe low-cost loans or proper local ed funding. I'm sure it make the legislators feel good about encouraging civil response between publics, and certainly their hearts were in the right place. But as they were warned at the time, Oregon's constitution follows the federal version as a strong model, and puts an exclamation point on all the sections having to do with free speech. Repugnant as it may be, the hallmark of a free society in which one has the legal right to be a choad. Using speakers on your car to yell shit at two chicks on a highway? Classayy! But necessarily legal.
[update: The court says that what he wants must be determined! He remains protected from his father's will to circumcise him. Ruling here.:
"we think that no decision should be made without some assessment of M's true state of mind. That conclusion dictates the outcome here.
We remand the case to the trial court with instructions to resolve the factual issue whether M agrees or objects to the circumcision."
The decision of the Court of Appeals is reversed. The supplemental judgment of the circuit court is reversed. The case is remanded to the circuit court for further proceedings.
The Oregonianreports that the case of Mikhail James Boldt, aka Jimmy / James / Mischa / Misha Boldt, or the oft-used "12 year-old boy" will be decided Friday. Today, he's a 12 year-old whose sexual anatomy is protected from cutting. Tomorrow, he could be a boy vulnerable to his father's stated intent to have him circumcised. His expiring lower court order of protection could allow his circumcision against his will. Unless, that is, the court extends it until the law recognizes his right to decide the fate of his own body.
You don't need to be a legal scholar to know... [continue reading]
In 2006, a Cook County Circuit Court ruled that a 9-year old Chicago area boy's body shall be protected from the circumcision he didn't want. "The injury to the child as a result of an unnecessary circumcision would be irreversible," said the Judge in his decision. Fast forward nearly one year: Using similar language, an appeals court in Frankfurt, Germany has ruled that a father inflicted "unlawful personal injury" when he forced his 11-year old son to be circumcised, as a Muslim ritual but by a physician, against his will.
Thankfully, the movement towards greater bodily integrity rights for minors is not limited...
TJ's note--this story was at our old place, and while that makes it "old news," the comments are still going strong--and they're coming from people within the LDS church. I know that the story has been linked from multiple Mormon-themed sites, and I'd like to give the story more opportunity for discussion. Also, I am doing a little research on the case and will be following up at the new site, so the background may be helpful. But if you've read the piece already, skip to the comments.
The Oregon Supreme Court rejected an effort by the LDS Church to withhold financial information from the lawyers for a man who claims a home teacher frequently molested him about 20 years ago.
Despite the legal defeat, The Church of Jesus Christ of Latter-day Saints did not immediately release the detailed financial information about its net worth, The Oregonian newspaper reported.
Kelly Clark, an attorney for the Oregon man suing the church, said it would be good for a jury to have the information before considering his request for $45 million in punitive damages. A trial is scheduled for Aug. 6.
"A jury needs to know the entire financial context to know whether a punitive award is too much or sufficient or not enough," Clark said.
The LDS church sought emergency relief from a trial court order to turn over the financial information, but the Oregon Supreme Court late Monday rejected the appeal. The pretrial decision was reached on narrow pretrial grounds and doesn't mean the court would not ultimately side with the church's position that the Constitution protects its right to keep financial information private.
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