Well, although I always cringe when a news article identifies me as an “expert” (lawyers are to refrain from any such classifications, except under unique circumstances), I suppose that I have been contacted in the past to issue expert opinions on matters involving Constitutional Law (also, I spent a decade teaching the subject).

In the current matter, I was contacted by a reporter with Halifax’s Chronicle-Herald newspaper, to comment on the legitimacy of fees by the Province’s liquor corporation, NSLC.  My brief comment is included at the following link:  http://thechronicleherald.ca/metro/1389054-halifax-microbrewery-unfiltered-brewing-battles-nslc-in-court.

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The post Constitutional Law/Land Use Law: U.S. Supreme Court Case Update appeared first on Halifax Law.

http://www.huffingtonpost.ca/2015/09/21/watch-out-for-dirty-voter-suppression-tricks-elections-canada-warns-staff_n_8168806.html

In the above, linked article, Elections Canada is warning of voter suppression tactics being used against Canadians on the upcoming federal election day, October 19.  This brings back lessons learned in Florida, from 2004-2012, while I served as co-lead regional elections  counsel for the Presidential nominees, as well as other Democratic Party candidates.

In Florida, especially during the Presidential election periods, we had a few thousand lawyers working on behalf of the Democratic candidates to ensure that no one was deterred from voting, regardless of their possible political affiliation. There was a reasonable concern that such would occur, especially based upon voter suppression tactics being implemented through GOP-controlled legislatures, as well as past efforts on or before Election Day. Sadly, I am now witnessing such methods being deployed in Canada. C-23, passed by the current Federal Government, despite a public outcry, yet another example of methods that have become all-too-common in the U.S. following Bush v. Gore and the 2000 Presidential Election. Again, this is another reason why election protection legal teams are an absolute necessity. In Central Florida, Richard Siwica and I saw great, long-term success in assembling, training, and deploying these — to great degree — volunteer legal teams to stem voter suppression efforts.  (Continued below illustration ….)

So, what have we learned about efforts to suppress voter turnout in the United States.   It is unilaterally used by one particular political party to suppress core voter constituencies of the other major political party.  It is also multi-faceted; it is not limited to one single approach — rather, there are layers of methods utilized to suppress voter turnout on Election Day, to deter voters from being able to cast ballots, and there are serious questions regarding the security of voting technology to accurately count ballots.

Again, addressing C-23, it was passed under the auspices of attempting to stem vote fraud. Unfortunately, as both Canadian and U.S.-based elections experts recognize, that is a virtual, non-existent threat.  In the meantime, such legislation undermines the ability of visible minorities, seniors, students and those with physical handicaps from being able to cast their votes.  Here is an illustration created by the venerable Brennan Center, reflecting U.S.-based misrepresentations on the effect of voter fraud versus the reality:

So, the message I started with stands:  in the absence of effective public representation designed to prevent such tactics from being deployed, non-governmental organizations and legal advocacy groups need to be vigilant in standing together as a deterrent to such pernicious methods of suppressing the vote.

Now, such coordinated effort to fight back did not arise immediately in the United States.  The lessons of Election 2000 were only internalized by the Democratic Party — in part — starting in 2004.  Some of those lessons are still being learned, although dedicated non-governmental organizations are doing their best to continue organized resistance to voter suppression efforts, especially with coordinated voter registration drives.  Hopefully, in Canada, political parties will not abdicate their responsibility for organizing and publicizing such organizational efforts to stem the tide of voter suppression.  After all, October 19, is just around the corner ….

The post Elections Law: Comment on Revelations of Possible Voter Suppression on October 19 appeared first on Halifax Law.

I will not dedicate time to partisanship.  Certain, there are enough individuals well-engaged — and, in many cases, well-paid, to issue comment.  Rather, as a former co-lead regional election protection counsel over the past couple of U.S. Presidential elections, I will be watching with great interest the efforts of the parties to ensure fair elections — elections free of intimidation, voter deterrence, or other form of chicanery.  Indeed, the hallmark for deterring such bad-faith conduct — long on my mind since the fiasco of Election 2000 — is the diligence and dedication of the political parties, the citizens and a strong group of lawyers to prevent vote suppression and the accuracy of voting hardware and software.  Over the past fourteen years, I have vigilantly advocated for better controls on the latter, and done my part in minimizing the former.

In the context of this blog, I speak only in generalities.  Notwithstanding, there is a defined legal strategy for democratic success — one designed to ensure that the highest vote-getter, whether in a parliamentary riding, congressional district, etc., captures the race.  It has proven successful in various, past elections — although hardly ‘across the board.’  Can and will those same lessons be applied in Canada’s October election, or in November 2016?  What is more, is there present sufficient political courage to challenge official actions (such as Bill C-23 in Canada’s Parliament) or unofficial ones to (1) inform and energize the public; and (2) deter those who seek to deter democratic processes?

It will be interesting to see, in both countries, whether there will be significant attention provided by the various candidates to the importance of voter/election protection.  In the past, I believe the teams we constructed in Florida — literally constituted from a few thousand attorneys with various discrete functions — made a real difference in delivering the State to our candidate.  We adopted a coordinated strategy, topped off by the training of our teams and the willingness to engage in court action.  Our design was not, and could not be limited to, protecting our Party’s voters.  Rather, it was to protecting everyone’s vote, and to ensuring that it was properly counted.

The post Election Law: Quick Comment of U.S. & Canadian Elections appeared first on Halifax Law.

Well, at present, the historic Black-Canadian communities of Lake Loon and Cherry Brook will remain cautiously optimistic that a settlement can be brokered with the City of Halifax.  At present, I do not feel at liberty to discuss in detail the scope of preexisting discussions.  The fact that the sides continue to talk is good — however, the cynical lawyer in me also believes that talk is cheap, and that action will prove necessary, whether toward binding, lasting resolution of issues, or litigation.

Part of my cynical side was renewed today, with the following article regarding the never-ending battle by former Africville residents to establish real compensation following the unlawful expropriation of their homes.  This battle appears to have been going for twenty years.  Kudos to Rob Pineo for continuing the fight, and to recognizing the significance of the expropriation issue.  http://www.cbc.ca/news/canada/nova-scotia/africville-lawsuit-seeks-to-add-evidence-to-case-against-halifax-1.2969701.

Well, I am in my early forties — at this rate, an Africville-like battle in Lake Loon-Cherry Brook should resolve before I hit CPP eligibility.  😉

The post Update on Lake Loon-Cherry Brook Community Centre Matter appeared first on Halifax Law.

Today, there was a great turnout for the protest rally — with dozens of members of the community showing up, and wielding protest signs.  I was also pleased by the appearance of both television and print media.  Onward ….

The post Media: Protest Rally at Lake Loon Community Centre appeared first on Halifax Law.

So, to start, an Argentinian court has granted a petition for a writ of habeas corpus to a 29-year old Sumatran orangutan, named Sandra.  No, this is not a funny event, but rather one of significant interest into the sentient rights of other creatures. Recently, a New York court rejected a similar bid involving a chimpanzee.  The Argentinian Court, in Sandra’s case, noted her significant level of cognitive functioning, and ordered a publicly-run zoo to release her.  A link to The Guardian news article on the former is here: http://www.theguardian.com/world/2014/dec/21/orangutan-argentina-zoo-recognised-court-non-human-person.

So, amidst the chuckles of some, is this opinion something of greater note — something that should be accorded greater consideration?  Perhaps.  Let’s start with Justice Douglas, and his dissent in Morton, where he argued for the legal standing of trees and inanimate objects:

I must confess that I have always been fascinated the Justice Douglas’ unique perspective, one that has not been seized in the 42 years since Morton was issued.

Then, of course, there is the famous case of Mr. Data in “The Measure of a Man” — an episode of Star Trek:  TNG which has prominently made the rounds of law school classes and lawyers circles over the past 25 years.  A pivotal 45-second spot is presently posted on YouTube:  https://www.youtube.com/watch?v=fjJN08uqt70&noredirect=1

The Star Trek case raises the same notable issues.  Is Mr. Data, the android, capable of exercising legal rights in order to resist being used for additional experimentation.  Has Data, as a machine, achieved some form of sentience so as to permit for a court’s recognition of legal identity?  Captain Picard, portrayed by the inimitable Patrick Stewart, argues “yes:”

“Your honor, the courtroom is a crucible; in it, we burn away irrelevancies until we are left with a purer product: the truth, for all time. Now sooner or later, this man [Commander Maddox] – or others like him – will succeed in replicating Commander Data. The decision you reach here today will determine how we will regard this creation of our genius. It will reveal the kind of people we are; what he is destined to be. It will reach far beyond this courtroom and this one android. It could significantly redefine the boundaries of personal liberty and freedom: expanding them for some, savagely curtailing them for others. Are you prepared to condemn him [Commander Data] – and all who will come after him – to servitude and slavery?  Your honor, Starfleet was founded to seek out new life: well, there it sits! Waiting.“

So, the question has now been presented, by the Argentinian Court in Sandra’s case, as to whether or not humans have evolved sufficiently in order to recognize the rights of non-human species.  Honestly, I do not know how far this might go, or whether the trial court’s decree will be reversed on appeal.  However, this could represent a notable, albeit ponderously slow evolution in the law.  Such developments could impact on so many levels outside of the instant of a single orangutan’s rights.  It could impact how we as human society develop, how we use natural resources, how we treat the environment and the non-human species that continue to inhabit it.  If nothing else, it gives us reason for pause — to think about whether there is more to our co-habitation of the Earth as being so much more than just about ourselves.

The post Holiday Edition of Blog: Argentinian Court Grants Habeas Corpus to Orangutan appeared first on Halifax Law.

http://www.cbc.ca/news/canada/nova-scotia/elections-nova-scotia-recommends-law-preventing-ballot-pictures-1.2807107

Over the past 24 hours, CBC News reported that Elections Nova Scotia is attempting to push recommendations for the penalization of a voter taking a photograph of his/her own ballot.  I find the justification for any such penalties to be — to say the least — unconvincing.

Voters should be able to take photos of their own ballots — at will.  I believe that such a device helps to ensure the propriety and correctness of the voting process.  Call me cynical — I only come from Florida, where I served (from 2004-2012) as chief county/regional elections counsel for scores of Democratic Party candidates — including John Kerry and Barack Obama.  Also, I cannot (and, likely, will never) get over what happened in Florida in 2000, nor the legislative and executive-based responses to the nightmare that is Bush v. Gore.  In effect, policymakers — both state and federal — made the process even less secure, especially as they resorted to mandating the use of computer-based systems, including Optical Scan devices and even touchscreen devices.  These devices are — as reflected in several studies — insecure and, potentially, easily hacked.

Elections Nova Scotia believes that taking a photo of your marked ballot will allow for voters to be coerced into voting a particular way, while presenting proof to whomever is extorting the voter.  I find such fears specious, as there is (1) no proof of such occurring, and (2) even if there were the rare case of such, Elections Nova Scotia would be unlikely to prevent a voter from presenting such proof.  Are we to now ‘pat-down’ voters for cellular devices before they enter the voting area?

Instead, the core issue should revolve around ensuring the proper counting/recounting of ballots.  If this was so, then Elections Nova Scotia would not be supporting the further penalization of voters, but instead supporting the rescinding of any law that prohibits a voter from photographing his/her own ballot card.

The post A Comment on Elections NS and Its Recommendation to Prevent Ballot Photos appeared first on Halifax Law.

Be scared … be very scared ….  Many of us worried when Janice Rogers Brown came up for nomination under GW Bush.  Our fears are being realized.  She sits on the second most powerful federal court (the Court of Appeals for the DC Circuit), and had a judicial record on the district court in Texas that could only be described as a travesty.  Yet, those Gang of Six Senators pushed through Brown and two other right-wing, reactionary nominees to occupy some of the highest judicial offices in the country.   Apparently, Brown is doing her darndest to undermine 75+ years of jurisprudence.  I do not believe that those on the Right are in any position to talk about “activist” jurists — Brown, and her like (inclusive of Scalia, Alito and Thomas) are the quintessential judicial activists, and are taking whatever logical leaps necessary to savage Our Constitution.

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As the Supreme Court’s conservative majority stands poised at the edge of a cliff — debating whether or not to strike down the Affordable Care Act and pick a very large fight with Congress and a sitting President — two conservative judges on the U.S. Court of Appeals for the D.C. Circuit sought to push them over the edge last week. Their opinion — a startling call for the abandonment of eight decades of Supreme Court case law in economic cases and a return to the pre-New Deal “Lochner Era” — is the clearest roadmap yet as to what a conservative judicial revolution looks like.

If you listened carefully to oral argument in the Supreme Court health care case, as well as the commentary that surrounded the argument, you know that the “ghost of Lochner” was ubiquitous, scaring school children and anyone who cares about the reputation and future of the Supreme Court. The Era is named after its most notorious ruling, Lochner v. New York, a 1905 case in which the Supreme Court struck down a state statute that attempted to impose a maximum-hours limitation on bakers. The Court declared this state law was an unconstitutional infringement of the “economic liberties” it found protected by the 14th Amendment. During the Lochner Era, the Supreme Court invalidated scores of federal and state statutes designed to improve working conditions and jump-start the economy out of the Great Depression, inventing new constitutional rights and giving a cramped construction to Congress’ express constitutional powers. The fear now is that a 5-4 ruling by the Court striking down all or part of the ACA will usher in a new wave of conservative judicial activism, pushing forward additional challenges to landmark federal statutes passed since the New Deal.

If that is the fear among many, it is the heartfelt desire among some — including some of the most prominent lower court judges placed on the federal bench by the last several Republican presidents. That was the message of a remarkable concurring opinion issued last Friday by D.C. Circuit Judge Janice Rogers Brown, an appointee of President George W. Bush, and Judge David Sentelle, a Reagan appointee. The opinion accuses the Supreme Court of “abdicat[ing] its constitutional responsibility to protect economic liberty completely” and suggests that economic liberties should be recognized as a fundamental constitutional right. It advocates that courts step in whenever they discover “the political temptation to exploit the public appetite for other people’s money–either by buying consent with broad-based entitlements or selling subsidies, licensing restrictions, tariffs, or price fixing regimes to benefit narrow special interests.”

That sentence reads like gibberish, perhaps to disguise just how radical it is, but let me try to translate it into English. Federal programs such as Social Security and Medicare are classic examples of “broad-based entitlements.” Much of the regulation by agencies such as the Environmental Protection Agency (EPA), the Federal Energy Regulatory Commission (FERC), the Nuclear Regulatory Commission (NRC) and the Federal Communication Commission (FCC) are carried out through “licensing” requirements. Tariffs have been a part of trade regulation since the nation’s Founding. And so on. Brown would have judges to invalidate much of the Twentieth Century and she would celebrate the return of “America’s cowboy capitalism,” that this would produce. Citing Hungarian anarchist Anthony De Jasay, Brown endorses the notion that “Civil society, ‘once it grows addicted to redistribution, changes its character and comes to require the state to ‘feed its habit.'” She accuses judges who refuse to trump the decisions of the political branches of leaving property “to the mercy of the pillagers.” Wow.

This is Lochner on steroids, and the timing of the opinion suggests it has an intended audience of five — the five conservatives on the Supreme Court. The message to the Justices, like the message of the intemperate bullying of Department of Justice lawyers by Judge Jerry Smith (also a Reagan appointee) in the Fifth Circuit two weeks ago, also seems clear: ” step into the abyss, we’re behind you all the way.”

Last Friday’s opinion from Judge Brown should surprise no one. She was put on the D.C. Circuit to play the role of judicial provocateur. As I wrote in the Washington Post eight years ago when her nomination to the D.C. Circuit was pending in the Senate, Brown, then a Justice on the California Supreme Court, was the only judge in America at that point who openly yearned for a return to Lochner. In a series of speeches she delivered shortly before her nomination, Brown explicitly endorsed a return to Lochner in apocalyptic language that was echoed by her opinion last week.

What was remarkable then about Judge Brown’s speeches was how out of line they were even with the views of staunch conservatives such as Robert Bork and Edwin Meese. At that time, Bork and Meese were still actively condemning the Lochner era, and suggesting the activism of conservative judges of that era was just as bad as what they believed was the activism of the Warren Court.

What’s really scary is that today, voices like those of Fourth Circuit Judge J. Harvie Wilkinson, Sixth Circuit Judge Jeffrey Sutton, and Brown’s D.C. Circuit colleague Judge Laurence Silberman — voices for conservative judicial restraint — are starting to seem like the outliers. If you want to know what a conservative judicial revolution looks like, Judge Janice Rogers Brown has just published a roadmap in the federal case books.

The post Constitutional Law: Douglas Kendall Provides Insight into Potentially Catastrophic Right-Wing Judicial Takeover appeared first on Halifax Law.

So, what do we glean from Day 3 of the oral arguments over the constitutionality of the ACA?  First, Justice Scalia is a scary guy:  first, he references a non-existent provision within the legislation (right-wing fiction has officially ascended into the Inner Chambers of the SCOTUS); next, he states his disdain for actually reading the ACA, and thus striking it down outright; finally, it is apparently that his mind is made up — contrary to his previous opinion in the Raiche case from 2005, politics will trump any principle, and he will likely vote to strike the entire ACA down.  In 1991, I had argued — during a debate over the Clarence Thomas nomination — that Thomas was unqualified for a seat on the SCOTUS, but that Scalia — despite our sharp ideological differences — was highly qualified to occupy a seat on the Court.

I was wrong — neither one is qualified.  Here is why:  neither Scalia nor Thomas are capable of issuing decisions that are consistent with preexisting constitutional principles.  Rather, their ultimate decisions — especially in cases with political pedigree — will drive them to ignore principle in favor of their rabid right-wing ideology.  In my honest opinion, this complete shunning of hallowed principles makes neither one qualified for the SCOTUS.

Again, I will reiterate that we have arrived at the Second Coming of the Four Horsemen of Reaction (+ Kennedy).  However, unlike in the 1920s and the first 2/3 of the 1930s, the damage is not easily reversed by an FDR or LBJ-like figure and an amenable Congress who replaces such reactionary figures with the standouts of 20th Century jurisprudence — Black, Douglas, Murphy, Rutledge, Thurgood Marshall, Fortas, Warren and Brennan (the latter two being Eisenhower appointees).

In other words, we are going to have to live with the decimation wreaked by these five Justices.  The decimation is not only in the form of hallowed principles and the legitimacy of the SCOTUS, but — in the case of the ACA — also in the form of the human lives that will be destroyed or otherwise deeply affected by any invalidation of the ACA.  The only good that may come from this is that any SCOTUS opinion striking down even the ACA’s mandate may serve to prevent any privatization of the Medicare and Social Security, as well as serve as the ‘tried and true’ basis for a new Congress in the unforeseeable future to finally adopt what should have already been on the table — Medicare for all, a single-payer health care system.

Other than that, the rhetoric of Justice Kennedy to the Administration’s attorney once again proved troubling, in that he simply ignores decades-old constitutional analysis wherein the Court has refrained from striking down an entire piece of legislation when an unconstitutional segment can be excised, and thus leave the remainder intact.  Rather, in a manner somewhat akin to Scalia, Kennedy appeared to indicate that it would be too difficult for the SCOTUS to analyze the ACA deeply enough to actually keep it intact.  In other words, neither Kennedy nor Scalia actually want to do the work.

My god, I hope that Kennedy is bluffing and will instead prove to be the critical vote upholding the entirety of the ACA, as well as 75-years of SCOTUS jurisprudence on the broad scope of Congress’ Commerce Clause powers.

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