Dissenting Opinions

Marijuana and privacy in the home 50 page dissent

2008-06-09T14:11:00.000-07:00

Justice Connor, in a separate concurring opinion,
also pointed out the nature of the problems that will undoubtedly
arise concerning the invocation of the right of
privacy and the appropriate test to apply:
"The decision today properly leaves unanswered
the question of how far the right to privacy,
in connection with the possession of marijuana,
extends outside the home. Such a determination
can be made only when we are presented with
specific facts against which the individual's
claim of privacy can be measured, as opposed
to the state's assertion of power to control
the possession of marijuana. Under the test
we have employed in determining the scope of
the right to privacy, it is necessary to balance
these conflicting claims and determine, whether
the state's prohibition bears a direct and substantial
relationship to effectuating a legitimate
state interest.
"It is certain that the right to privacy does
not vanish when one leaves the home. There
are certain aspects of personal autonomy
which one carries with him even when he
ventures out of the home, though the claim
to privacy diminishes in proportion to the
extent that one's person and one's activities
impinge upon other persons. But, in order
to trace the contours of the right to privacy,
it will be necessary to engage in a critical
analysis of the facts of each case which presents
itself for decision. Only in this fashion can
the right to privacy, outside the home, be
be determined on a reasoned, coherent
basis so as to furnish the courts and
the public with reliable rules of action.
Much definitional work, therefore, remains
to be done in the cases yet to be determined."
Ravin, 537 P.2d at 516.
Concerning the analysis and observations of Justices
Boochever and Connor, less cannot be said concerning our
duty to interpret out own constitution.
As discussed earlier in this opinion, I am sure there
is nearly universal agreement that the right of privacy
exists in the home if it exists anywhere. The difficult
question is in deciding what kind of activity should be
protected in the home from the intrusions of the State.
Agreement, on this subject seems to depend directly on
whose ox is being gored. Too often we want protection
for what "we" do in the privacy of "our" homes but not
for what "they" do in the privacy of "their" homes. Under
our constitution however, it is the function of this
Court to permit all conduct in the privacy of the home
as long as a countervailing compelling State interest does
not take a higher precedence.
Based on the available evidence as to the lack of
public harm (and, indeed, even the relative lack of harm
to the individual when, compared to the use of alcohol and
perhaps also tobacco), I find no difficulty in determining
that a compelling State interest did not exist for the
police to seize the marijuana plants in the defendant's
home.
I would accordingly, order that the marijuana plants
seized in the defendant's home, be suppressed, and order
that the cause be dismissed.

Neighbor turns evidence over to police

2008-06-09T13:25:00.000-07:00

M r . J u s t i c e John Conway Harrison dissenting:
I r e s p e c t f u l l y d i s s e n t . While I recognize t h a t both
the Coburn case and the Brecht case have been p a r t of our
case l a w f o r several years and t h a t a t least one l e g i s l a t u r e
has had the opportunity t o change the law established i n
these opinions, I f e e l now, as I did when I dissented t o
those opinions, t h a t we w e r e e s t a b l i s h i n g bad law.
Here, we have a p r i v a t e c i t i z e n , who i n no way can be
considered an agent of the S t a t e , turning over evidence t o
the S t a t e t h a t she had procured i n an assumed t r e s p a s s on
her neighbors' property. She had no other i n t e r e s t than t o
enforce the law, and her a c t of turning over the evidence t o
the s h e r i f f ' s o f f i c e is d i f f e r e n t from t h a t of H i l l i s i n the
Coburn case, where H i l l i s had a previous agreement with the
police t o g e t the evidence from h i s employee's pocket. I
believe under the f a c t s here Coburn is c l e a r l y d i s t i n g u i s h a b l e .
Prior t o Brecht and Coburn the purpose of the exclusionary
r u l e was t o guarantee t h a t the S t a t e and i t s authorized
representatives would observe an i n d i v i d u a l ' s c o n s t i t u t i o n a l
r i g h t s . The r u l e was t o p r o t e c t t h e individual from i l l e g a l
police a c t i v i t y . It did not encompass i l l e g a l searches by
p r i v a t e individuals; its basic purpose, as s t a t e d above, w a s
t o deter police a c t i v i t y and thereby guarantee the p u r i t y of
t h e j u d i c i a l process. Once we extend the exclusionary r u l e
t o p r i v a t e persons, a s we a r e doing here, said extensions
can and w i l l extend the r u l e beyond any l o g i c a l purpose.
For these reasons I would r e v e r s e t h e D i s t r i c t c o u r t ' s order
of suppression and send the case t o t r i a l .

2007-11-02T11:38:00.000-07:00

No. DA 06-0271
2007 MT 40
STATE OF MONTANA,
v.
GARY GENE FRAZIER, JR.,
ustice John Warner dissents.
¶23 I dissent. The Court’s decision is neither fair to the Justice Court nor justified on
its merits.
¶24 The text of Frazier’s motion to withdraw his guilty plea in the Justice Court is set
out in full at ¶ 15. This Court acknowledges that Frazier did not claim the plea colloquy
was inadequate in this motion.
¶25 Montana law is well established that “it is fundamentally unfair to fault the trial court for
failing to rule on an issue it was never given the opportunity to consider.” State v. J.C., 2004
MT 75, ¶ 45, 320 Mont. 411, ¶ 45, 87 P.3d 501, ¶ 45; State v. Martinez, 2003 MT 65, ¶ 17,
314 Mont. 434, ¶ 17, 67 P.3d 207, ¶ 17. The Court, in ¶ 16, justifies ignoring the law in this
instance by saying: (a) the motion was summarily denied; (b) Frazier’s motion is as descriptive
as the motion in State v. Boucher, 2002 MT 114, 309 Mont. 514, 48 P.3d 21; and (c) when
there is some doubt whether a plea is voluntary the doubt should be resolved in favor of
the defendant, citing Boucher. In my view, none of these reasons are sufficient to justify
the unfair treatment of the Justice of the Peace, nor are they sufficient to reverse the
District Court.
¶26 Neither the Court nor the parties cite any authority which says that it is error to
summarily deny a motion which does not state grounds for relief, based on speculation
that a lawyer may have been able to raise a legitimate issue.2 The motion itself does not
state any legitimate grounds for withdrawal of a guilty plea. Judge Herman was justified
2 Frazier makes no argument that he did not validly waive his right to have counsel at the time
he entered his plea. He makes no argument that he had requested counsel before he made his
motion to dismiss.
9
in denying the motion when he received it two days after the plea was entered. He had
no idea that counsel would later allege in District Court that the guilty plea was
involuntary because he did not ask Frazier to explain what he had done that constituted
the offense. This Court now faults Judge Herman for not ruling on an issue he was never
given the opportunity to consider.
¶27 What the defendant’s motion may have said in Boucher is of no relevance
whatever in this case. In Boucher, this Court did not discuss whether the Justice Court
should have been given the opportunity to consider the true grounds for the motion to
withdraw the guilty plea. Nor do the briefs filed in Boucher even mention, much less
argue, that the established rule of law stated in State v. J.C. should or should not be
applied. Of course, if an issue is not raised this Court will not consider it. State v.
Rodarte, 2002 MT 317, ¶ 15, 313 Mont. 131, ¶ 15, 60 P.3d 983, ¶ 15. It is inappropriate in
this case to cite Boucher as authority for ignoring the rule that the Justice Court should have had
the opportunity to consider the true grounds for Frazier’s motion.
¶28 I have no disagreement with the proposition that when there is some doubt whether a
plea is voluntary, the doubt should be resolved in favor of the defendant. However, I am
of the opinion that it is necessary to raise that doubt initially in the trial court, whether it
is a court of limited jurisdiction or a district court. If it is no longer the rule that an issue
must be presented to the trial court before it is brought to this Court, which is what the
Court seems to say in ¶ 16, the Court should so announce and advise the bar that the
legion of cases to the contrary are overruled.
¶29 Another reason why the Court’s conclusion in this case is unfair to Judge Herman
bears mentioning. There are two justice courts in Yellowstone County and they are not
courts of record. From the transcript of this case we know that these two courts handle
about 15,000 cases a year. Judge Herman candidly admitted that he cannot remember
each case he handles, which is no surprise. Frazier entered his guilty plea on June 27,
2005. Judge Herman was presented with Frazier’s motion to withdraw his plea two days
later on June 29, 2005. The motion was admittedly defective and it was denied that same
day. Judge Herman was called to testify about this case on October 26, 2005, some four
months and hundreds, maybe thousands, of cases later. He could not be expected to and
did not remember this particular case. He was justifiably unable to specifically recall his consideration of this particular motion. He was thus unable to fairly defend this particular decision. Under these circumstances, I do not think Judge Herman should be faulted for denying a motion which does not even state the real grounds upon which it is based.
¶30 The Court’s conclusion that the plea colloquy was inadequate is also flawed. The
record shows that Frazier knew exactly what he was alleged to have done to constitute
the offense when he entered his guilty plea.
¶31 Frazier admitted that he had been in an altercation with his wife the evening before he appeared before the justice court. He knew that he was arrested because she allegedhe assaulted her. He admitted that he received a copy of the notice to appear and the complaint. Frazier also acknowledged that the copy of the complaint contained a 11 description of what he is alicged to have dune to commit the offcnsc of paimer or family niembrr assault.
¶32 Frazier’s counsel stipulated in the District Court that his client can read. Also, any argument that a medical condition caused an involuntary guilty plea was withdrawn in District Court.
¶33 The practice of Judge Herman is to ask each defendant, before a plea of guilty is
accepted, whether they understand that by pleading guilty they admit the facts alleged in the complaint. He also informs each defendant that by pleading guilty they are telling the judge that they are conceding the facts that are in the complaint. Not only did Frazier admit that he had a copy of the complaint set forth above, he did not deny that this procedure was followed when he entered his guilty plea.
¶34 Judge Herman made notes at the time that Frazier pled guilty. These notes, in
pertinent part, state that in this instance Judge Herman went over the charges twice with Frazier. Again, Frazier did not deny that the judge went over the charges, twice, with him.
¶35 I conclude that the record clearly shows that Judge Herman did determine that
there was a factual basis for Frazier’s guilty plea before he accepted it, as required by §
46-12-212(1), MCA.
¶36 I dissent.
/S/ JOHN WARNER

I despair about the future of our constitutional rights

2007-05-30T11:49:00.000-07:00

US v. Black, 482 F,3d 1044 (9th Cir. 2007)

KOZINSKI, Circuit Judge, with whom Judges REINHARDT,
KLEINFELD and BERZON join, dissenting from the order
denying the petition for rehearing en banc:

Once upon a time in the West there was a special place called
home. Solemn pronouncements from our nation’s highest
court, and our own court, protected it from warrantless police
intrusions. “With few exceptions,” the Supreme Court held,
“the question whether a warrantless search of a home is reasonable
and hence constitutional must be answered no.” Kyllov. United States, 533 U.S. 27, 31 (2001). Such searches weredeemed “presumptively unreasonable.” Payton v. New York,
445 U.S. 573, 586 (1980). We held that the “governmentbears a heavy burden of demonstrating that exceptional circumstancesjustified departure from the warrant requirement.
The burden [could not] be satisfied by speculation about what
may or might have happened.” United States v. Howard, 828
F.2d 552, 555 (9th Cir. 1987) (emphasis added) (quoting
United States v. Licata, 761 F.2d 537, 543 (9th Cir. 1985)).
Police who entered the home without a valid warrant could be
held personally liable. Groh v. Ramirez, 540 U.S. 551, 563-65
(2004).
That special place is no more. The rules haven’t changed,
at least not on paper. But legal rules are only as good as their
last application. The panel majority dutifully recites the right
standard, but guts it of all meaning by approving an intrusion
into the home that does not remotely satisfy it. If the justification
here satisfies the government’s “heavy burden” to show
non-speculative “exceptional circumstances,” it’s hard to
imagine how we can keep the police from barging into any
home anytime they please.
The majority gives the government a pass because “the exigencies
of domestic abuse cases present dangers that, in an
appropriate case, may override considerations of privacy.”
Maj. op. at 3969 (quoting United States v. Brooks, 367 F.3d
1128, 1136 (9th Cir. 2004)). The problem with this approach
is that the government has any number of such crises-du-jour:
terrorism, child pornography, child abuse, drugs, hate crimes
—the list is endless. When confronted with such serious
crimes, it is the job of the police to be suspicious; the job of
the courts is to insist that police develop evidence supporting
these suspicions before they defile the sanctity of the home.
In a particularly disturbing passage, the panel majority
opines that “[e]rring on the side of caution is exactly what we
expect of conscientious police officers.” Maj. op. at 3969.
This is entirely backwards when the cautious error involves
invasion of the home. In such circumstances, we expect police
to err on the other side of caution by staying out unless and
until they obtain a warrant or satisfy the demanding constitutional
standard for a warrantless search. The majority’s unfortunate
phrase will be widely seen as a green light for the
police to “err on the side of caution” by breaking into people’s
homes based on half-baked suspicions.
When a panel of our court can find that the facts here satisfy
the government’s “heavy burden” for invading the home
without a warrant, I despair about the future of our constitutional
rights. If the right accorded the greatest protection by
the Fourth Amendment—the right to privacy of the home—
can be so casually brushed aside, no right is safe. Because my
colleagues do not similarly view this issue as one of exceptional
importance, I sorrowfully dissent.

dangerous high-speed car chase that threatens the lives of innocent bystanders does not violate the Fourth Amendment, even when it places the fleeing

2007-05-07T09:32:00.000-07:00

The Court today sets forth a per se rule that presumes its own version of the facts: "A police officer's attempt to terminate a dangerous high-speed car chase that threatens the lives of innocent bystanders does not violate the Fourth Amendment, even when it places the fleeing motorist at risk of serious injury or death." Ante, at 13 (emphasis added). Not only does that rule fly in the face of the flexible and case-by-case "reasonableness" approach applied in Garner and Graham v. Connor, 490 U. S. 386 (1989), but it is also arguably inapplicable to the case at hand, given that it is not clear that this chase threatened the life of any "innocent bystande[r]."8 In my view, the risks inherent in justifying unwarranted police conduct on the basis of unfounded assumptions are unacceptable, particularly when less drastic measures--in this case, the use of stop sticks9 or a simple warning issued from a loudspeaker--could have avoided such a tragic result. In my judgment, jurors in Georgia should be allowed to evaluate the reasonableness of the decision to ram respondent's speeding vehicle in a manner that created an obvious risk of death and has in fact made him a quadriplegic at the age of 19.
I respectfully dissent.

Miranda v. az dissent

2007-03-11T08:47:00.000-07:00

HARLAN, J., Dissenting Opinion

SUPREME COURT OF THE UNITED STATES

384 U.S. 436
Miranda v. Arizona
CERTIORARI TO THE SUPREME COURT OF ARIZONA
No. 759 Argued: February 28-March 1, 1966 --- Decided: June 13, 1966 [*]

MR. JUSTICE HARLAN, whom MR. JUSTICE STEWART and MR. JUSTICE WHITE join, dissenting.

I believe the decision of the Court represents poor constitutional law and entails harmful consequences for the country at large. How serious these consequences may prove to be, only time can tell. But the basic flaws in the Court's justification seem to me readily apparent now, once all sides of the problem are considered.

By giving literally unprecedented meaning to the words in two relevant statutes, and overruling the premise of Congress’s enactment, the Court adds ne

2007-03-11T08:21:00.000-07:00

Scalia, J., dissenting

SUPREME COURT OF THE UNITED STATES

No. 96—8986

ARNOLD F. HOHN, PETITIONER v. UNITED STATES

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT

[June 15, 1998]

Justice Scalia, with whom The Chief Justice, Justice O’Connor, and Justice Thomas join, dissenting.

Today’s opinion permits review where Congress, with unmistakable clarity, has denied it. To reach this result, the Court ignores the obvious intent of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), Pub. L. 104—132, 110 Stat. 1214, distorts the meaning of our own jurisdictional statute, 28 U.S.C. § 1254(1), and overrules a 53-year-old precedent, House v. Mayo, 324 U.S. 42 (1945) (per curiam). I respectfully dissent.

This Court’s jurisdiction under 28 U.S.C. § 1254(1) is limited to “[c]ases in the courts of appeals.” Section 102 of AEDPA provides that “[u]nless a circuit justice or judge issues a certificate of appealability, an appeal may not be taken to the court of appeals from . . . the final order in a habeas corpus proceeding under section 2255,” that is, a district court habeas proceeding challenging federal custody. Petitioner, who is challenging federal custody under 28 U.S.C. § 2255 did not obtain a certificate of appealability (COA). By the plain language of AEDPA, his appeal “from” the district court’s “final order” “may not be taken to the court of appeals.” Because it could not be taken to the Court of Appeals, it quite obviously was never in the Court of Appeals; and because it was never in the Court of Appeals, we lack jurisdiction under §1254(1) to entertain it.

The purpose of AEDPA is not obscure. It was to eliminate the interminable delays in the execution of state and federal criminal sentences, and the shameful overloading of our federal criminal justice system, produced by various aspects of this Court’s habeas corpus jurisprudence. And the purpose of the specific provision of AEDPA at issue here is also not obscure: It was designed, in intelligent reliance upon a holding of this Court, to end §2255 litigation in the district court unless a court of appeals judge or the circuit justice finds reasonable basis to appeal. By giving literally unprecedented meaning to the words in two relevant statutes, and overruling the premise of Congress’s enactment, the Court adds new, Byzantine detail to a habeas corpus scheme Congress meant to streamline and simplify. I respectfully dissent.

I turn now to the Court's asserted reliance on the Fifth Amendment, an approach which I frankly regard as a tromp l'oeil. The Court's opinion, in my v

2007-03-10T07:30:00.000-08:00

HARLAN, J., Dissenting Opinion

SUPREME COURT OF THE UNITED STATES

384 U.S. 436

Miranda v. Arizona

CERTIORARI TO THE SUPREME COURT OF ARIZONA

No. 759 Argued: February 28-March 1, 1966 --- Decided: June 13, 1966 [*]

MR. JUSTICE HARLAN, whom MR. JUSTICE STEWART and MR. JUSTICE WHITE join, dissenting.

I believe the decision of the Court represents poor constitutional law and entails harmful consequences for the country at large. How serious these consequences may prove to be, only time can tell. But the basic flaws in the Court's justification seem to me readily apparent now, once all sides of the problem are considered.

I turn now to the Court's asserted reliance on the Fifth Amendment, an approach which I frankly regard as a tromp l'oeil. The Court's opinion, in my view, reveals no adequate basis for extending the Fifth Amendment's privilege against self-incrimination to the police station.

The foray which the Court makes today brings to mind the wise and farsighted words of Mr. Justice Jackson in Douglas v. Jeannette, 319 U.S. 157, 181 (separate opinion):

This Court is forever adding new stories to the temples of constitutional law, and the temples have a way of collapsing when one story too many is added.

1. My discussion in this opinion is directed to the main questions decided by the Court and necessary to its decision; in ignoring some of the collateral points, I do not mean to imply agreement.

A rule that allows the State to foist a murder victim’s lawyer onto his accused is not only capricious; it poisons the integrity of our adversary syst

2007-03-06T07:48:00.000-08:00

Stevens, J., dissenting

SUPREME COURT OF THE UNITED STATES

No. 00—9285

WALTER MICKENS, Jr., PETITIONER v.
JOHN TAYLOR, WARDEN

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE FOURTH CIRCUIT [March 27, 2002 Justice Stevens, dissenting.

This case raises three uniquely important questions about a fundamental component of our criminal justice system–the constitutional right of a person accused of a capital offense to have the effective assistance of counsel for his defense.1 The first is whether a capital defendant’s attorney has a duty to disclose that he was representing the defendant’s alleged victim at the time of the murder. Second, is whether, assuming disclosure of the prior representation, the capital defendant has a right to refuse the appointment of the conflicted attorney. Third, is whether the trial judge, who knows or should know of such prior representation, has a duty to obtain the defendant’s consent before appointing that lawyer to represent him.Finally, “justice must satisfy the appearance of justice.” Offutt v. United States, 348 U.S. 11, 14 (1954). Setting aside Mickens’ conviction is the only remedy that can maintain public confidence in the fairness of the procedures employed in capital cases. Death is a different kind of punishment from any other that may be imposed in this country. “From the point of view of the defendant, it is different in both its severity and its finality. From the point of view of society, the action of the sovereign in taking the life of one of its citizens also differs dramatically from any other legitimate state action. It is of vital importance to the defendant and to the community that any decision to impose the death sentence be, and appear to be, based on reason rather than caprice or emotion.” Gardner v. Florida, 430 U.S. 349, 357—358 (1977). A rule that allows the State to foist a murder victim’s lawyer onto his accused is not only capricious; it poisons the integrity of our adversary system of justice.

I respectfully dissent.

Miranda v. Arizona DISSENT

2007-03-06T07:40:00.000-08:00

SUPREME COURT OF THE UNITED STATES

384 U.S. 436

Miranda v. Arizona

CERTIORARI TO THE SUPREME COURT OF ARIZONA

No. 759 Argued: February 28-March 1, 1966 --- Decided: June 13, 1966 [*]

MR. JUSTICE HARLAN, whom MR. JUSTICE STEWART and MR. JUSTICE WHITE join, dissenting.

Power, not reason, is the new currency of this Court's deci- sionmaking

2007-03-06T07:37:00.000-08:00

TYRONE PAYNE, PETITIONER v.TENNESSEE

[June 27, 1991]

Justice Marshall, with whom Justice Blackmun joins, dissenting.

Power, not reason, is the new currency of this Court's deci- sionmaking. Four Terms ago, a five-Justice majority of this Court held that "victim impact" evidence of the type at issue in this case could not constitutionally be introduced during the penalty phase of a capital trial. Booth v. Maryland, 482 U.S. 496 (1987). By another 5-4 vote, a majority of this Court rebuffed an attack upon this ruling just two Terms ago. South Carolina v. Gathers, 490 U.S. 805 (1989). Nevertheless, having expressly invited respondent to renew the attack, 498 U. S. --- (1991), today's majority overrules Booth and Gathers and credits the dissenting views ex- pressed in those cases. Neither the law nor the facts sup- porting Booth and Gathers underwent any change in the last four years. Only the personnel of this Court did.

Doctrine of stare decisis

2007-02-04T08:29:00.000-08:00

No. 05-178 State v. RAMON KOTWICKI,2007 MT 17 Justice James C. Nelson, concurring in part and dissenting in part I agree with the Court that the threshold question before us is whether Kotwicki has raised “a plausible allegation that his sentence is illegal” under State v. Lenihan, 184 Mont. 338, 602 P.2d 997 (1979). See Opinion, ¶ 18. However, I disagree with the Court’s ultimate answer to this question. If we were to adhere to the doctrine of stare decisis and to our recent decision in State v. Garrymore, 2006 MT 245, 334 Mont. 1, 145 P.3d 946, we would reach the merits of Kotwicki’s sentencing claim. Unfortunately, the Court embarks on a new course that rests on erroneous interpretations of our Lenihan cases and conflicts with our decision in Garrymore, thereby creating further confusion and unpredictability in our Lenihan jurisprudence. I therefore dissent from the Court’s decision. Because Kotwicki alleges that the District Court lacked statutory authority to impose the $25,000 fine because it failed to make the ability-to-pay determination required by § 46-18-231(3), MCA, he has raised a plausible allegation that his sentence is illegal and he may obtain review of his sentencing claim on appeal.Justice James C. Nelson, concurring in part and dissenting in part.

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2006-09-25T11:38:00.000-07:00

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Sounds like a dissent to me...

2006-09-20T12:16:00.000-07:00

BARKETT, J., specially concurring
No. 05-11329 D. C. Docket No. 03-80094-CR-DTKH UNITED STATES OF AMERICA, NATHAN DESHAWN FAUST, “There is always in litigation a margin of error, representing error in factfinding, which both parties must take into account,” especially in the formulation of trial strategy. Winship, 397 U.S. at 364 (citing Speiser v. Randall, 357 U.S. 513, 525 (1958). Our Circuit’s Duncan rule severely compromises defendants’ ability to properly account for this margin of error, tailor an optimal trial strategy, or indeed formulate any minimally satisfying strategy whatsoever. Faced with multiple allegations supported by evidence of varying persuasiveness, Faust’s largely successful effort to escape guilt beyond a reasonable doubt could not preclude, and, in its successs, actually might have contributed to, his punishment for those acquitted offenses under a lesser standard of proof. I do not believe the Constitution permits this cruel and perverse result.

“[T]he government's ability to make its case vastly exceeds a defendant's ability to rebut
it. The financial resources of the prosecution and the ability of prosecutors to access police, informants, and experts usually are much greater than those of defendants' counsel. . . . [P]resentence reports often rely excessively on the prosecutor's files for their information . . . and hearsay evidence [there]in . . . or from confidential informants is difficult and costly to rebut. The absence of equal litigation resources thus makes the preponderance of evidence standard generate even more errors – errors that fall primarily on the side of deprivations of liberty for
individuals.” Restrepo, 946 F.2d at 675 (Norris, J., dissenting).

death penalty is fairly and rationally imposed in this country is a farce.

2006-09-12T11:04:00.000-07:00

Moore v. Parker, 425 F.3d 250 (6th Cir. 2005)(MARTIN, J delivered a separate dissenting opinion.
I have been a judge on this Court for more than twenty-five years. In that time I have seen many death penalty cases and I have applied the law as instructed by the Supreme Court and I will continue to do so for as long as I remain on this Court. This my oath requires. After all these years, however, only one conclusion is possible: the death penalty in this country is arbitrary, biased, and so fundamentally flawed at its very core that it is beyond repair. I have no delusions of grandeur and I know my place in the judiciary. My oath requires me to apply the law as interpreted by the Supreme Court of the United States. I will continue to do as I am told until the Supreme Court concludes that the death penalty cannot be administered in a constitutional manner or our legislatures abolish the penalty. But lest there be any doubt, the idea that the death penalty is fairly and rationally imposed in this country is a farce.

Public Defender’s Office were leaking information

2006-09-12T11:00:00.000-07:00

Plumlee v. Sue Del Papa, 426 F.3d 1095 (9th Cir. 2005)(state supreme court unreasonably applied clearly established federal law when it determined petitioner was not deprived of his Sixth Amendmentright to counsel).(Plumlee had reasonable and in good faith believed that members of the Washoe County Public Defender’s Office were leaking information about his case to another suspect in the case and to the District Attorney). Of course, under the majority’s decision, the Nevada courts may retry Plumlee and seek a new conviction. Yet after thirteen years, memories fade, evidence grows cold, and witnesses disappear. The majority releases Plumlee—thirteen years into his two life sentences without possibility of parole —by refusing to follow congressional command and by fashioning a new, unworkable rule which raises to constitutional dimensions a defendant’s unfounded suspicions and refusal to cooperate with his appointed attorneys. I cannot agree with such an unsupported decision. Accordingly, with respect to my colleagues, but with the utmost regret for their misguided opinion, I dissent. BEA, Circuit Judge, dissenting

Summary judgment should be the exception, not the rule.

2006-08-31T09:58:00.000-07:00

Melvin v. Car-Freshener Corporation, 453 F.3d 1090 (8th Cir. 2006)LAY, Circuit Judge, dissenting. I respectfully dissent. Melvin has presented sufficient evidence from which areasonable jury could infer that she was terminated because her injury qualified herfor workers’ compensation benefits. Too many courts in this circuit, both district and appellate, are utilizing summary judgment in cases where issues of fact remain. This is especially true in cases where witness credibility will be determinative. In these instances, a jury, not the courts, should ultimately decide whether the plaintiff has proven her case. Summary judgment should be the exception, not the rule. As Justice Black explained, The right to confront, cross-examine and impeach adverse witnesses isone of the most fundamental rights sought to be preserved by the Seventh Amendment provision for jury trials in civil cases. The advantages of trial before a live jury with live witnesses, and all the possibilities of considering the human factors, should not be eliminated by substituting trial by affidavit and the sterile bareness of summary judgment.Adickes v. S.H. Kress & Co., 398 U.S. 144, 176 (1970) (Black, J., concurring).

"When we permit a poor working woman with a crippled husband to be legally robbed of her savings on the most technical of technical grounds...

2006-08-30T12:10:00.000-07:00

In re Nelson, et. al, 103 Mont. 43 @ 65 (1936), 60 P.2d 365. SANDS, Chief Justice (dissenting).

"When we permit a poor working woman with a crippled husband to be legally robbed of her savings on the most technical of technical grounds, then we must expect criticism, indignation, and disrespect of our opinion."

This is an action in contempt. The Progressive Publishing Company, a corporation, and John W. Nelson, who is the president, editor, and general manager of the newspaper published by the corporation called the Western Progressive, are each charged with the contempt of this court by the publication of the article appearing in the Western Progressive published on March 13, 1936, entitled, “Four supreme justices uphold bank fraud.” The article deals with the decision of this court in the case of Doyle v. Union Bank & Trust Company, 59 P.(2d) 1171, in an action wherein the plaintiff sought to recover damages for false representations of the defendant in selling her an Insull debenture bond. The first part of the article briefly purports to state the substance of the case and the opinion of the four justices of the court. It is followed by the dissenting opinion of Chief Justice W. B. SANDS. The alleged contempt refers exclusively to the portion of the article preceding the quoted dissenting opinion of Judge SANDS, and consists of the following: “Bankers who practice fraud upon their old clients and customers cannot be reached for damages when the fraud is discovered. So ruled four justices of Montana supreme court this past week in one of the most sensational decisions subverting the rights of innocent investors ever written into the records of a Montana court. The four judges in effect said that any customer or client of the bank who relies upon the banker's statement in purchasing securities cannot come back upon that banker for damages if subsequently it is discovered that the statements were false and the deal conceived and executed in fraud. Newspapers hold a very important and fiduciary relation to the public, inasmuch as the public presumes and has a right to expect that the decision of the court has been fairly presented. Those who have followed the daily newspaper reports of Montana decisions well know how unfairly and unjustly many of the Supreme Court decisions have been presented to the public, particularly cases that involved big financial interests. The facts stated in the opinion are usually not incorrectly stated, but the facts required to fairly present the poor man's side are suppressed and the *376 substance of the poor man's side of the controversy thereby misjudged by the public.In the majority opinion in the Doyle Case, it is said: “Evidence was produced in support of these allegations [referring to the allegations of fraud practiced by the bank] on behalf of the plaintiff, and on behalf of the defendant denying the truth of the same. It is conceded that the verdict of the jury is conclusive on the question of the fraudulent representations.” In other words, the court said that while it is conceded that the fraudulent representations found by the jury to have been made by the bank to the plaintiff, were made as charged, the bank cannot be reached for damages when the fraud is discovered. If the stock had an illusory market value at the time of sale it might be and in fact was worthless as a permanent investment.In my dissenting opinion I quoted at some length the fraudulent representations made by Schuyler to Mrs. Doyle, and in commenting upon that testimony I said: “In other words, the bank got rid of a worthless bond that it owned. The jury found that Mr. Schuyler misrepresented the bond as set forth above, and Mr. Gun admits that for the purposes of this appeal misrepresentations were made by Schuyler, so that the matter needs no further discussion here.”Again in the dissenting opinion it is said that it is decisions such as the majority members of this court are rendering *377 in this action that makes the layman lose confidence in courts where the wrong done to another is so obvious, for this court to say that “there is no remedy,” brings about a miscarriage of justice. It in effect holds that regardless of the fact that false and fraudulent misrepresentations are made by a bank in the sale of bonds having only an illusory value in fact at the time of the sale on the market even though the stock is valueless as an investment at the time, still the fraud of the plaintiff is held to be remediless. How, then, in view of this language, could this layman come to any different or other conclusion than that four members of this court were upholding the fraud committed by the bank, and that “bankers who practice fraud upon their old clients and customers cannot be reached for damages when the fraud is discovered.”It was brought out at the hearing that it is not an unusual practice for newspapers to comment editorially and in news items upon the decisions of this court before the time for filing the petition for rehearing has expired. Indeed, the witness (Associate Justice) STEWART testified that in the case of Boepple v. Mohalt (Mont.) 54 P.(2d) 857, the Helena Independent published an article commending the majority opinion in that case and condemning in no uncertain terms the writer of the dissenting opinion, the Chief Justice of this court.[] but if we are going to spend our time threatening everybody that criticizes this court or its members, let us remember that wthat is sauce for the goose is sauce for the gander. Let us show no partiality and make our friends come under the same rule as our enemies.

The late President Teddy Roosevelt widely commended the practice of publishing and criticizing court decisions, but he very emphatically impressed his view that these criticisms should be fair and honest. I am opposed to make fish of one and fowl of the other. I do not believe that because the Western Progressive, an independent newspaper which publishes articles or has adopted a policy with which the members of this court do not agree, struggling to survive the opposition leveled against it by the well-known powerful corporate influences of the state, should be punished and that the Helena Independent, a newspaper adequately financed which commends the members of the court who are writing the majority opinion in this case, and which paper is supporting the said powerful interests that in a large part dictate the policy of the state, should not only go untouched but be defended by the Attorney General and the members of this court. Judges should not be too thin-skinned nor conclude that because of the high positions they occupy they are not to be criticized for their official acts. No court has ever maintained, nor will any court ever maintain, the respect to it by clubbing and browbeating and by penalizing the men who criticize them, but such respect can be established and maintained only by the soundness and fairness of decisions and the principles of justice therein enumerated. If we as judges do our duty conscientiously, do equity and justice, we do not need to fear whether or not there is adverse criticism of our actions. Time and the sober judgment of the people will eventually reach a fair analysis and conclusion by the people. When we permit a poor working woman with a crippled husband to be legally robbed of her savings on the most technical of technical grounds, then we must expect criticism, indignation, and disrespect of our opinion. Chief Justice John Marshall did not become the greatest American jurist by sending those men to jail or punishing them for contempt who did not show him the proper deference, but by his great impartiality, fairness, and courage, his fearless interpretation of the law, and the enunciation of those great principles of justice which have proven to be the foundation for our governmental structure. The strength of courts lies in the fact that the judges thereof are unmindful of public opinion, and therefore if we are so thin-skinned that we cannot “take it,” or that we are influenced by any article which may appear in the newspaper or any “puff of wind,” then we may properly be designated as the “five irascible old men,” and we should resign and permit courageous men not thus easily influenced to administer justice for this tribunal. If we are to find these defendants guilty for publishing an article such as that in question, then by these same tokens every statement made against the court on the street corner is contemptuous. Are we going to cite into court every man or woman or newspaper who criticizes the court in its decisions? Such a rule or course of conduct smacks too much of Hitler and Mussolini to meet with my sense of fairness and justice. I cannot and will not subscribe to it. I have long thought that there should be jury trials in contempt cases not committed in the immediate presence of the court, and the proceedings in this case have fortified me in that conclusion. Here two of the justices of this court saw fit to remove their judicial robes and take the witness stand as witnesses on behalf of the prosecution and tell of personal differences between them and one connected with the Western Progressive some three years prior, and then pass judgment upon the weight of their own testimony. I never liked the idea of a judge being prosecutor, judge, and jury in contempt cases, but in the case before us we have unfortunately an added element which makes the practice worse. Here two members of this court, Judges STEWART and ANDERSON, are not content with being prosecutors, judges, and jury, but in their zeal to find the defendant guilty of contempt of this court have become witnesses to personal transactions three years old with one whose connection with this paper was severed over 18 months ago and who is not a party defendant to this action. In other words, they become prosecutors, witnesses, court, and jury, all in one. It is decisions such as this rendered in the Doyle Case and this proceeding as well that are bringing the courts into disrepute and causing the layman to lose confidence in them; proceedings such as here conducted on the hearing in this cause will do more to hold this court and the members thereof up to public opprobrium, will do more to incite public contempt, will do more to create a feeling in the minds of the people of the state of Montana that the court is partisan, than all of the articles which may be published criticizing the court for decisions it may render in the next decade. In view of the dissenting opinion and the prevailing newspaper headline practices, the article published was on the whole a fair report of the proceedings of this court in the Doyle Case, even though the headline may have followed too closely the statements influenced by the dissenting opinion. The most prejudiced mind cannot say the publication is a false or grossly inaccurate report.

Doyle v. Union Bank & Trust Co.102 Mont. 563, 59 P.2d 1171, 108 A.L.R. 1047. I dissented from the majority opinion handed down several months ago, and I see no reason to retract from my opinion in that case at this late date. The defendant's attorney concedes that the verdict of the jury is final and binding on this court and that the defendant was guilty of deceiving the plaintiff, Mrs. Doyle, into believing that she was buying a secured bond when in fact it is now conceded that the bond was not secured. The majority opinion setting aside the verdict is based upon the sole ground that the value of the bond at the time of purchase was not established by sufficient evidence. There is ample proof that the bond was issued by a holding company with only a gambler's chance on the success of the several operating companies; that this fact was concealed from Mrs. Doyle when she purchased the “safe investment,” and when the fact came to her notice the bond “was worthless.” She furnished the best proof available. She was not required to prove how many of the gambling companies were still able to deceive their stockholders and prospective stock purchasers into believing they were solvent. The sale was made by the bank as one of the members of a bankers' syndicate organized to sell these Insull securities. I liken the case to a bankers' organization to fleece purchasers into buying glass diamonds by taking advantage of the confidence imposed in them. The plaintiff here is denied redress because it is claimed she has not proved the value of the fake diamond at the exact time she purchased. She should have subpoenaed other glass diamond vendors to prove the value of this particular glass diamond at this particular time. I dissent from the opinion of the majority and hold that the proof was amply sufficient to support the verdict of the jury, and, furthermore, that the Constitution prohibits this court from setting aside the verdict of a jury on questions of fact.

increasing government surveillance

2006-08-28T13:21:00.000-07:00

United States v. Gourde, 440 F.3d 1065 (9th Cir. 2006)

REINHARDT, Circuit Judge, dissenting:

In this age of increasing government surveillance, lawful and unlawful, and of the retention of all our deeds and thoughts on computers long after we may believe they have been removed, it is important that courts not grow lax in their duty to protect our right to privacy and that they remain vigilant against efforts to weaken our Fourth Amendment protections. It is easy for courts to lose sight of these objectives when the government seeks to obtain evidence of child pornography or narcotics violations. Here, I believe, our court is making an unfortunate error.

KLEINFELD, Circuit Judge, dissenting The importance of this case is considerable because, for most people, their computers are their most private spaces. People commonly talk about the bedroom as a very private space, yet when they have parties, all the guests — including perfect strangers — are invited to toss their coats on the bed. But if one of those guests is caught exploring the host’s computer, that will be his last invitation. There are just too many secrets on people’s computers, most legal, some embarrassing, and some potentially tragic in their implications, for loose liberality in allowing search warrants. Emails and history links may show that someone is ordering medication for a disease being kept secret even from family members. Or they may show that someone’s child is being counseled by parents for a serious problem that is none of anyone else’s business. Or a married mother of three maybe carrying on a steamy email correspondence with an old high school boyfriend. Or an otherwise respectable, middleaged gentleman may be looking at dirty pictures. Just as a conscientious public official may be hounded out of office because a party guest found a homosexual magazine when she went to the bathroom at his house, people’s lives may be ruined because of legal but embarrassing materials found on their computers. And, in all but the largest metropolitan areas, it really does not matter whether any formal charges ensue —if the police or other visitors find the material, it will be all over town and hinted at in the newspaper within a few days. Nor are secrets the only problem. Warrants ordinarily direct seizure, not just search, and computers are often shared by family members. Seizure of a shared family computer may, though unrelated to the law enforcement purpose, effectively confiscate a professor’s book, a student’s almost completed Ph.D. thesis, or a business’s accounts payable and receivable. People cannot get their legitimate work done if their computeris at the police station because of someone else’s suspected child pornography downloads. Sex with children is so disgusting to most of us that we may be too liberal in allowing searches when the government investigates child pornography cases. The privacy of people’s computers is too important to let it be eroded by sexual disgust. The majority concludes that the affidavit made out probable cause by assuming that anyone who subscribes to an internet site with both legal and illegal material must collect illegal material from the site. This assumption stacks inference upon inference until the conclusion is too weak to support the invasion of privacy entailed by a search warrant. “[W]ith each succeeding inference, the last reached is less and less likelyto be true.” The privacy of a person with a sexual perversion that might make him a danger to our children seems by itself an unlikely candidate for concern. But the overwhelming importance of the privacy of people’s computers makes it essential to assure that — even in this ugly corner of human perversion — probable cause seriously interpreted remain a prerequisite for search warrants. Therefore, I respectfully dissent.

boiling the shadow of a pigeon that had been starved to death

2006-08-28T10:50:00.000-07:00

State of Montana v. Peter Oliver Joseph Barnaby,a/k/a Peter Oliver Butterfly, No. 05-013. 2006 MT 203. Justice Patricia O. Cotter dissents Justice James C. Nelson respectfully, but vigorously, dissents. Tellingly, the analysis sustaining these actions by the Court is “as thin as the homeopathic soup that was made by boiling the shadow of a pigeon that had been starved to death.” Abraham Lincoln,Sixth Debate with Stephen A. Douglas, at Quincy, Illinois (Oct. 13, 1858), in The Collected Works of Abraham Lincoln vol. 3, 245, 279 (Roy P. Basler ed., Rutgers University Press 1953). @30 I do not believe that any appellate court—much less this Court, which is bound by the greater protections afforded under Article II, Sections 10 and 11, of the Montana Constitution—should enable the sort of police work evident here. The courts cannot become foot soldiers in the war on drugs at the expense of their independent role as guardians of the Constitution. “The needs of law enforcement stand in constant tension with the Constitution’s protections of the individual against certain exercises of official power. It is precisely the predictability of these pressures that counsels a resolute loyalty to constitutional safeguards.” Almeida-Sanchez v. United States (1973), 413 U.S. 266, 273, 93 S.Ct. 2535,2540. As Justice Jackson observed, soon after his return from the Nuremberg Trials (seeAlmeida-Sanchez, 413 U.S. at 274, 93 S.Ct. at 2540): These [Fourth Amendment rights], I protest, are not mere second class rights but belong in the catalog of indispensable freedoms. Among deprivations of rights, none is so effective in cowing a population, crushing the spirit of the individual and putting terror in every heart. Uncontrolled search and seizure is one of the first and most effective weapons in the arsenal of every arbitrary government. And one need only briefly to have dwelt and worked among a people possessed of many admirable qualities but deprived of these rights to know that the human personality deteriorates and dignity and self-reliance disappear where homes, persons and possessions are subject at any hour to unheralded search and seizure by the police. Brinegar, 338 U.S. at 180-81, 69 S.Ct. at 1313 (Jackson, J., joined by Frankfurter and Murphy, JJ., dissenting). This Court’s duty to enforce these rights in Montana is all the more compelling given the broader right to privacy guaranteed by Article II, Section 10. @90. The war on drugs must not become a war on the constitutional right of Montanans to be free from unreasonable searches and seizures in their homes. “The Fourth Amendment is a charter of freedom that should be protected against incremental erosion.” So much more, then, should this Court support, protect, and defend the greater protections afforded by Article II, Sections 10 and 11, of Montana’s Constitution. For all of these reasons, I vigorously dissent.

Injustice Is Corrosive

2006-08-28T08:09:00.000-07:00

United States v. Menyweather , 431 F.3d 692 (9th Cir. 2005). Dissent by Judge Kleinfeld. Defendant began working as an administrative employee atthe United States Attorney’s office in Los Angeles in 1990. In 2000, she was indicted on 10 counts of theft of government funds, mail fraud, and wire fraud. She pleaded guilty to one count of mail fraud and admitted to having used government credit cards for unauthorized personal purchases of between $350,000 and $500,000. Where is the justice in Menyweather avoiding prison and getting 40 days to serve on weekends for stealing $435,000, when others steal a VCR and face 25-years to life in prison? 18 Does drawing a district judge whose sentencing philosophy is idiosyncratic make so idiosyncratic a sentence “just”? An excessively lenient sentence like this causes cynicism, not only among people in prison, where the luck-of-the-draw sentencing interferes with rehabilitation, but among the law-abiding public. People have second thoughts about doing the right thing when those who do the wrong thing prosper and avoid punishment. Injustice is corrosive.

Corporations are Persons?

2006-08-24T13:10:00.000-07:00

Regarding the ruling that corporations are given rights as persons under the 14th Amendment, he said,“There was no history, logic or reason given to support that view nor was the result so obvious that exposition was unnecessary.”
WHEELING STEEL CORP. V. GLANDER , 337 U.S. 562 (1949) 337 U.S. 562 Mr. Justice DOUGLAS, with whom Mr. Justice BLACK concurs, dissenting. It has been implicit in all of our decisions since 1886 that a corporation is a 'person' within the meaning of the Equal Protection Clause of the Fourteenth Amendment. Santa Clara Co. v. South. Pacific R. Co., 118 U.S. 394, 396 , so held. The Court was cryptic in its decision. It was so sure of its ground that it wrote no [337 U.S. 562 , 577] opinion on the point, Chief Justice Waite announcing from the bench:
'The court does not wish to hear arrgument on the question whether the provision in the Fourteenth Amendment to the Constitution, which forbids a State to deny to any person within its jurisdiction the equal protection of the laws, applies to these corporations. We are all of opinion that it does.' There was no history, logic, or reason given to support that view. Nor was the result so obvious that exposition was unnecessary.
The Fourteenth Amendment became a part of the Constitution in 1868. In 1871 a corporation claimed that Louisiana had imposed on it a tax that violated the Equal Protection Clause of the new Amendment. Mr. Justice Woods (then Circuit Judge) held that 'person' as there used did not include a corporation and added, 'This construction of the section is strengthened by the history of the submission by congress, and the adoption by the states of the 14th amendment so fresh in all minds of as to need no rehearsal.' Insurance Co. v. New Orleans, Fed.Cas.No 7,052, 1 Woods 85, 88. What was obvious to Mr. Justice Woods in 1871 was still plain to the Court in 1873. Mr. Justice Miller in the Slaughter House Cases, 16 Wall. 36, 71, adverted to events 'almost too recent to be called history' to show that the purpose of the Amendment was to protect human rights-primarily the rights of a race which had just won its freedom. And as respects the Equal Protection Clause he stated, 'The existence of laws in the States where the newly emancipated negroes resided, which discriminated with gross injustice and hardship against them as a class, was the evil to be remedied by this clause, and by it such laws are forbidden.' 16 Wall. at page 81.
Moreover what was clear to these earlier judges was apparently plain to the people who voted to make the [337 U.S. 562 , 578] Fourteenth Amendment a part of our Constitution. For as Mr. Justice Black pointed out in his dissent in Connecticut General Co. v. Johnson, 303 U.S. 77, 87 , 441, the submission of the Amendment to the people was on the basis that it protected human beings. There was no suggestion in its submission that it was designed to put negroes and corporations into one class and so dilute the police power of the States over corporate affairs. Arthur Twining Hadley once wrote that 'The Fourteenth Amendment was framed to protect the negroes from oppression by the whites, not to protect corporations from oppression by the legislature. It is doubtful whether a single one of the members of a Congress who voted for it had any idea that it would touch the question of corporate regulation at all.'
Both Mr. Justice Woods in Insurance Co. v. New Orleans, supra, Fed. Cas.No. 7,052, 1 Woods page 88, and Mr. ustice Black in his dissent in Connecticut General Co. v. Johnson, supra, 303 U.S. at pages 88-89, 58 S. Ct. at pages 441-442, have shown how strained a construction it is of the Fourteenth Amendment so to hold. Section 1 of the Amendment provides: 'All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without [337 U.S. 562 , 579] due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.' (Italics added.) 'Persons' in the first sentence plainly include only human beings, for corporations are not 'born or naturalized.' Corporations are not 'citizens' within the meaning of the first clause of the second sentence. Western Turf Ass'n v. Greenberg, 204 U.S. 359, 363 , 385; Selover, Bates & Co. v. Walsh, 226 U.S. 112, 126 , 72.2
It has never been held that they are persons whom a State may not deprive of 'life' within the meaning of the second clause of the second sentence. 'Liberty' in that clause is 'the liberty of natural, not artificial, persons.' Western Turf Ass'n v. Greenberg, supra, 204 U.S. at page 363, 27 S.Ct. at page 385, 386. But 'property' as used in that clause has been held to include that of a corporation since 1889 when Minneapolis R. Co. v. Beckwith, 129 U.S. 26 , was decided. It requires distortion to read 'person' as meaning one thing, then another within the same clause and from clause to clause. It means, in my opinion, a substantial revision of the Fourteenth Amendment. As to the matter of construction, the sense seems to me to be with Mr. Justice Woods in Insurance Co. v. New Orleans, supra, Fed.Cas.No. 7,052, 1 Woods at page 88, where he said, 'The plain and evident meaning of the section is, that the persons to whom the equal protection of the law is secured are persons born or naturalized or endowed with life and liberty, and consequently natural and not artificial persons.'
History has gone the other way. Since 1886 the Court has repeatedly struck down state legislation as applied [337 U.S. 562 , 580] to corporations on the ground that it violated the Equal Protection Clause. 3 Every one of our decisions upholding legislation as applied to corporations over the objection that it violated the Equal Protection Clause has assumed that they are entitled to the constitutional protection. But in those cases it was not necessary to meet the issue since the state law was not found to contain the elements of discrimination which the Equal Protection Clause condemns. But now that the question is squarely presented I can only conclude that the Santa Clara case was wrong and should be overruled. One hesitates to overrule cases even in the constitutional field that are of an old vintage. But that has never been a deterrent heretofore and should not be now. [337 U.S. 562 , 581] We are dealing with a question of vital concern to the people of the nation. It may be most desirable to give corporations this protection from the operation of the legislative process. But that question is not for us. It is for the people. If they want corporations to be treated as humans are treated, if they want to grant corporations this large degree of emancipation from state regulation, they should say so. The Constitution provides a method by which they may do so. We should not do it for them through the guise of interpretation.

Judicial Adventurism

2006-08-24T12:53:00.000-07:00

Dissenting Opinions
RASUL V. BUSH (03-334) 542 U.S. 466 (2004) 321 F.3d 1134, reversed and remanded. Scalia, J., dissenting [June 28, 2004] Justice Scalia, with whom The Chief Justice and Justice Thomas join, dissenting. The Court today holds that the habeas statute, 28 U.S.C. § 2241 extends to aliens detained by the United States military overseas, outside the sovereign borders of the United States and beyond the territorial jurisdictions of all its courts. This is not only a novel holding; it contradicts a half-century-old precedent on which the military undoubtedly relied, Johnson v. Eisentrager, 339 U.S. 763 (1950). The Court’s contention that Eisentrager was somehow negated by Braden v. 30th Judicial Circuit Court of Ky., 410 U.S. 484 (1973)–a decision that dealt with a different issue and did not so much as mention Eisentrager–is implausible in the extreme. This is an irresponsible overturning of settled law in a matter of extreme importance to our forces currently in the field. I would leave it to Congress to change §2241, and dissent from the Court’s unprecedented holding. Departure from our rule of stare decisis in statutory cases is always extraordinary; it ought to be unthinkable when the departure has a potentially harmful effect upon the Nation’s conduct of a war. The Commander in Chief and his subordinates had every reason to expect that the internment of combatants at Guantanamo Bay would not have the consequence of bringing the cumbersome machinery of our domestic courts into military affairs. Congress is in session. If it wished to change federal judges’ habeas jurisdiction from what this Court had previously held that to be, it could have done so. And it could have done so by intelligent revision of the statute,7 instead of by today’s clumsy, countertextual reinterpretation that confers upon wartime prisoners greater habeas rights than domestic detainees. The latter must challenge their present physical confinement in the district of their confinement, see Rumsfeld v. Padilla, ante, whereas under today’s strange holding Guantanamo Bay detainees can petition in any of the 94 federal judicial districts. The fact that extraterritorially located detainees lack the district of detention that the statute requires has been converted from a factor that precludes their ability to bring a petition at all into a factor that frees them to petition wherever they wish–and, as a result, to forum shop. For this Court to create such a monstrous scheme in time of war, and in frustration of our military commanders’ reliance upon clearly stated prior law, is judicial adventurism of the worst sort. I dissent.

The Law Is An Ass

2006-08-24T11:32:00.000-07:00

Dissenting Opinions
US v Sanders, 452 F.3d 572 (6th Cir. 2006) . When I think about this case, as I have done so often as of late, it makes me sick to my stomach. To imagine the emotional and psychological turmoil Mr. Sanders has been forced to endure as a result of the government’s action and inaction in this case shocks and angers me to no end. Sanders woke up every day for six years believing that he was a free man. That’s 2,190 mornings. And, in this case, it appears that Lummie Sanders used each of those days to make something out of his life. I cannot imagine any more settled expectations than those. I would order Sanders released from prison immediately. If we as a federal court cannot remedy the truly fundamentally unfair result that exists here, I don’t know what good we are. And the law, well, if the law truly requires Lummie Sanders to go back to prison — the law is a ass

Dissenting Opinions

Marijuana and privacy in the home 50 page dissent

Neighbor turns evidence over to police

I despair about the future of our constitutional rights

dangerous high-speed car chase that threatens the lives of innocent bystanders does not violate the Fourth Amendment, even when it places the fleeing

Miranda v. az dissent

By giving literally unprecedented meaning to the words in two relevant statutes, and overruling the premise of Congress’s enactment, the Court adds ne

ARNOLD F. HOHN, PETITIONER v. UNITED STATES

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT

I turn now to the Court's asserted reliance on the Fifth Amendment, an approach which I frankly regard as a tromp l'oeil. The Court's opinion, in my v

Miranda v. Arizona

CERTIORARI TO THE SUPREME COURT OF ARIZONA

A rule that allows the State to foist a murder victim’s lawyer onto his accused is not only capricious; it poisons the integrity of our adversary syst

WALTER MICKENS, Jr., PETITIONER v.JOHN TAYLOR, WARDEN

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OFAPPEALS FOR THE FOURTH CIRCUIT [March 27, 2002 Justice Stevens, dissenting.

Miranda v. Arizona DISSENT

Miranda v. Arizona

CERTIORARI TO THE SUPREME COURT OF ARIZONA

Power, not reason, is the new currency of this Court's deci- sionmaking

Doctrine of stare decisis

All my blogs

Sounds like a dissent to me...

death penalty is fairly and rationally imposed in this country is a farce.

Public Defender’s Office were leaking information

Summary judgment should be the exception, not the rule.

"When we permit a poor working woman with a crippled husband to be legally robbed of her savings on the most technical of technical grounds...

increasing government surveillance

boiling the shadow of a pigeon that had been starved to death

Injustice Is Corrosive

Corporations are Persons?

Judicial Adventurism

The Law Is An Ass

WALTER MICKENS, Jr., PETITIONER v.
JOHN TAYLOR, WARDEN

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE FOURTH CIRCUIT [March 27, 2002 Justice Stevens, dissenting.