this is not a public blog, just a place hwere i can leave myself notes. nothing to see here folks, move along.
Courts have declared some of these laws unconstitutional in recent years, relying upon our decision in Talley V. California, 362 U. S. 60 (1960). See, e. g., State V. Burgess, 543 So. 2d 1332 (La. 1989); State V. North Dakota Ed. Assn., 262 N. W. 2d 731 (N. D. 1978); People V. Duryea, 76 Misc. 2d 948, 351 N. Y. S. 2d 978 (Sup.), aff'd, 44 App. Div. 2d 663, 354 N. Y. S. 2d 129 (1974).
helzer was decided a month ago. i just found it.
it's dead wrong. reading it now. except chome stopped working right and i cant find my open tabs.
In the First Amendment context, a facial challenge is colorable if plaintiffs show that “a substantial number of [the regulations’] applications are unconstitutional, judged in relation to [their] plainly legitimate sweep.” Ams. for Prosperity Found. v. Bonta, 141 S. Ct. 2373, 2387 (2021) (quoting United States v. Stevens, 559 U.S. 460, 473 (2010)). that's helzer, but it's the anti salerno quote i was looking for for rust. i left something on the stove, uh oh.
lie list
Because both the contribution-reporting and donor disclaimer requirements are “regulations directed only at disclosure of political speech,” they are subject to exacting scrutiny, which is a “somewhat less rigorous judicial review” than strict scrutiny. Nat’l Ass’n for Gun Rts., Inc. v. Mangan, 933 F.3d 1102, 1112 (9th Cir. 2019) (emphasis omitted); No on E, 85 F.4th at 503 (collecting cases in which we and the Supreme Court have applied exacting scrutiny to disclaimer and disclosure requirements).
true list
This appeal presents questions central to our rights as American citizens. But because of its interlocutory nature, we are restricted in our ability to “assist in the final resolution of the critical issues before the district court.” Zepeda v. U.S. I.N.S., 753 F.2d 719, 723 (9th Cir. 1983). Our review at this stage is “much more limited than review of an order granting or denying a permanent injunction.” Id. at 724. When all evidence is taken and considered, the district court’s findings and conclusions may differ from its preliminary order—as may our view of them. Because our analysis is confined and the factual record yet to be fully developed, “our disposition of appeals from most preliminary injunctions provides little guidance on the appropriate resolution of the merits.” Id. And once we have disposed of this appeal, the district court will render a final judgment on the merits, after which the losing party may appeal again. Id.
Ams. for Prosperity Found., 141 S
In sum, to succeed on appeal, plaintiffs must show that the district court abused its discretion when it concluded that the contribution-reporting and donor-disclaimer requirements were each substantially related and narrowly tailored to the government’s asserted interest.
lie list: the disclosure/disclaimer swap.
Defendants assert, and plaintiffs concede, that the government’s interest in an informed electorate is “sufficiently important” in the campaign finance context to warrant disclosure requirements and satisfy the first prong of the exacting scrutiny test. I
But as the district court correctly noted, McIntyre arose in a materially different factual context, one involving private individuals’ independent and self-funded pamphleteering for ballot measures. We have previously distinguished disclaimer requirements in political advertisements from “McIntyre-type communications.” Yamada v. Snipes, 786 F.3d 1182, 1203 n.14 (9th Cir. 2015) (quoting Alaska Right to Life, 441 F.3d at 793).
That made no sense then, and makes no sense now. Disclaimer requirements on political literature are "McIntyre-type communications."
Hansen v Westerville gives the facts. Concerned Parents and Taxpayers involved at least 5 people. Margaret McIntyre was part of a mob of 60 people when her fliers were seized. She was no "lone pamphleteer". She had been a school board candidate and was a leader of the anti-tax faction. The Ohio statute found unconstitutional in McIntyre required disclaimers on candidate literature. see stewart v taylor, anonymous v delaware.
In McIntyre, the Ohio Supreme Court had erred in using exacting scrutiny as in Buckley, and reversed, as it will in this case.
The McIntyre opinion retains the phrase "exacting scrutiny", but does not use it as a euphemism as Buckley does. Exacting scrutiny under McIntyre requires overriding state interests as well as narrow tailoring.
That "exacting scrutiny" is a contronym, meaning one thing in one context and the opposite thing in another context, is what set up the bait and switch in dicta in citizens united. [list other contronyms from wikipedia]
For 6 reasons spelled out below, CU is not a controlling case here.
The controlling cases are Reed v Village of Gilbert, establishing or re-establishing strict scrutiny, Janus, NIFLA, finding California disclaimer rules unconstitutional under either level of scrutiny, and most recently 303 LLC (2023).
And to whatever extent McIntyre’s reasoning applies here, it is undermined by the Supreme Court’s subsequent decisions in McConnell, 540 U.S. at 196– 97, and Citizens United, 558 U.S. at 369, in which the Court found the informational interest sufficient to uphold disclosure and disclaimer requirements. Indeed, in both cases, the Court did so over partial dissents that raised this very issue. See Citizens United, 558 U.S. at 480 (Thomas, J., concurring in part and dissenting in part); McConnell, 540 U.S. at 275–77 (Thomas, J., concurring in part and dissenting in part).
For 6 reasons spelled out below, CU is not a controlling case here.
An organization that calls itself campaign legal center has been promoting a certain version of citizens united, affecting this case, the no on e case, mederos, and others.
To perhaps oversimplify their argument, there is a sentence in Citizens United which loosely equates disclaimer and disclosure requirements as both involving exacting scrutiny, which is true enough. The very next sentence then uses exacting scrutiny in the Buckley v Valeo way, a kind of bait and switch. A careless reader could misconstrue what they said there.
From that, cases like Mederos seem to assume that CU repealed cases such as Talley, McIntyre, Riley, Wooley, Tornillo v Miami Herald, Barnette, Janus, NIFLA, etc. It was a trap, and the first circuit fell into it, and the 9th circuit fell into it. This court should be more careful.
1. The cited passage from CU is dicta and is not controlling.
In CU, the Court rejected an argument that the movie and ads were not the functional equivalent of express advocacy. Plaintiffs had only made an as-applied express advocacy argument, rather than squarely addressing the constitutionality of the underlying statute.
2. The overall CU case expands rather than contracts first amendment protection of political speech, and uses strict scrutiny. That part of the case is not dicta. CU's use of strict scrutiny is not controlling in this case, but neither is its use of exacting scrutiny. Both aspects of the case address different issues than whether disclaimer rules violate the constitution, under the controlling precedents of Talley, McIntyre, NIFLA, and 303.
3. "Exacting scrutiny" is a contronym. it means different things in different contexts. you wouldn't know it from the passing mention in CU, but disclaimers and disclosures have always been governed by different standards. The most common mistake courts make in these cases is confusing the two categories, as all the parties and some amici seem to be doing.
4. In CU, the disclaimer issue was a side issue to a side issue. Cases in which the disclaimer issue is front and center, such as Talley, McIntyre, and Buckley v ACLF, make it clear that the constitution protects us from compelled speech.
5. CU began as a Jim Bopp express advocacy case. Mr. Bopp does not try to strike down unconstitutional disclaimer rules, but only seeks to limit them to express advocacy, an aspect of litigation under Valeo, which did not work in McConnell v FEC or CU, but has done well for Mr. Bopp in lower courts. Once cert was granted, Citizens chose different counsel, (paul clement, right?), and the disclosure issue was put on a back burner, not fully waived, but not pursued. The word "disclaimer" does not appear in the oral argument transcripts.
6. If CU had ever meant what Mederos said it did, it would have been long since overruled by the Court's more recent cases, 303, NIFLA, Janus, Reed v Village of Gilbert.
7. CU, in reversing Austin v Michigan Chamber, carefully explained why it was doing so. See also the concurrence by the chief justice. There was no similar discussion of why the court was reversing barnette, talley, bates v little rock, naacp v alabama, watchtower v stratton, etc. The reasonable implication is that it did not do so.
8.
Even if the court persists in its error of using the Bonta standard instead of the correct McIntyre standard, Alaska lacks legitimate state interests once the state constitution is factored in.
9. CU is a case about corporate speech. It has little bearing on speech by natural persons. The Alaska statute is not limited to corporations.
10.
[needs longer explanation, but i've had two coffees and two edibles and i'm done for the moment. 1 hr at brad's 6:13 to 7:15. pm thursday 4/18, paul revere's ride.]
at home 8:00 pm same day. ]
The people of Alaska have spoken by referendum, adopting @ whatever it was. They were probably not told that the proposal was unconstitutional. It is possible that one can graduate high school and become a registered voter in Alaska without being intimately familiar with the court's first amendment jurisprudence. Most Alaskans can not name a single justice, much less all 9.
The referendum enacted a statute, rather than modifying the Alaska constitution. To be a legitimate state interest under the statute, it must satisfy the requirements of the Alaska Bill of Rights, even if plaintiffs have not set out such claims as distinct counts.
The Alaska constitution explicitly protects speech, press, and privacy.
15 states have found a right to anonymous politicql speech under their state constitutions. See Table 2.
One of those is California, in Schuster v Court (1980), so this court's the 9th circuit's panel's reliance on No on E is problematic.
Schuster was decided on both federal and state grounds, has not been overruled, and is controlling as to San Francisco's ordinance. That case is not yet final, and is currently pending at the Supreme Court on an interlocutory appeal. The Court may be unaware of Schuster, as the 9th circuit was, although Justice Scalia helpfully mentions it in McIntyre,
" ".
In Stewart v Taylor, 1997, the court held "Stewart contends that McIntyre controls this case. Stewart is correct." I continue to assert that McIntyre is the controlling precedent. This next section is a discussion of McIntyre.
The question presented is whether an Ohio statute that prohibits the distribution of anonymous campaign literature is a "law ... abridging the freedom of speech" within the meaning of the First Amendment.1
1 The term "liberty" in the Fourteenth Amendment to the Constitution makes the First Amendment applicable to the States. The Fourteenth Amendment reads, in relevant part: "No State shall ... deprive any person of life, liberty, or property, without due process of law .... " u. S. Const., Arndt. 14, § 1. Referring to that Clause in his separate opinion in Whitney v. California, 274 U. S. 357 (1927), Justice Brandeis stated that "all fundamental rights comprised within the term liberty are protected by the Federal Constitution from invasion by the States. The right of free speech, the right to teach and the right of assembly are, of course, fundamental rights." Id., at 373 (concurring opinion).
note to self read ohio court of appeals dissent in mcintyre 1994.
Whatever the motivation may be, at least in the field of literary endeavor, the interest in having anonymous works enter the marketplace of ideas unquestionably outweighs any public interest in requiring disclosure as a condition of entry. 5 Accordingly, an author's decision to remain anonymous, like other decisions concerning omissions or additions to the content of a publication, is an aspect of the freedom of speech protected by the First Amendment.
The freedom to publish anonymously extends beyond the literary realm. In Talley, the Court held that the First Amendment protects the distribution of unsigned handbills urging readers to boycott certain Los Angeles merchants who were allegedly engaging in discriminatory employment practices. 362 U. S. 60. Writing for the Court, Justice Black noted that "[p]ersecuted groups and sects from time to time throughout history have been able to criticize oppressive practices and laws either anonymously or not at all." Id., at 64. Justice Black recalled England's abusive press licensing laws and seditious libel prosecutions, and he reminded us that even the arguments favoring the ratification of the Constitution advanced in the Federalist Papers were published under fictitious names.
justice thomas's concurrence is important as well, discussing the text and history of the first amendment, preferring not to use a tiers of scrutiny approach. see bruen.
The specific holding in Talley related to advocacy of an economic boycott, but the Court's reasoning embraced a respected tradition of anonymity in the advocacy of political causes.6 This tradition is perhaps best exemplified by the secret ballot, the hard-won right to vote one's conscience without fear of retaliation.
oh this bit's good:
this case "involves a limitation on political expression subject to exacting scrutiny." Meyer v. Grant, 486 U. S. 414, 420 (1988).10
Indeed, as we have explained on many prior occasions, the category of speech regulated by the Ohio statute occupies the core of the protection afforded by the First Amendment:
what's good about this is the link to meyer v grant, because there's a great quote from that case about actual exacting scrutiny.
"Discussion of public issues and debate on the qualifications of candidates are integral to the operation of the system of government established by our Constitution. The First Amendment affords the broadest protection to such political expression in order 'to assure [the] unfettered interchange of ideas for the bringing about of political and social changes desired by the people.' Roth v. United States, 354 U. S. 476, 484 (1957). Although First Amendment protections are not confined to 'the exposition of ideas,' Winters v. New York, 333 U. S. 507, 510 (1948), 'there is practically universal agreement that a major purpose of that Amendment was to protect the free discussion of governmental affairs, ... of course includ[ing] discussions of candidates ... .' Mills v. Alabama, 384 U. S. 214, 218 (1966). This no more than reflects our 'profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open,' New York Times Co. v. Sullivan, 376 U. S. 254, 270 (1964). In a republic where the people are sovereign, the ability of the citi-
10 In Meyer, we unanimously applied strict scrutiny to invalidate an election-related law making it illegal to pay petition circulators for obtaining signatures to place an initiative on the state ballot. Similarly, in Burson v. Freeman, 504 U. S. 191 (1992), although the law at issueforbidding campaign-related speech within 100 feet of the entrance to a polling place-was an election-related restriction, both the plurality and dissent applied strict scrutiny because the law was "a facially contentbased restriction on political speech in a public forum." Id., at 198; see also id., at 212-213 (KENNEDY, J., concurring); id., at 217 (STEVENS, J., dissenting).
here the court uses "exacting scrutiny" and strict scrutiny as synonyms. this is not the buckley v valeo euphemism usage.
'it can hardly be doubted that the constitutional guarantee has its fullest and most urgent application precisely to the conduct of campaigns for political office.'" Buckley v. Valeo, 424 U. S. 1, 14-15 (1976) (per curiam).
Of course, core political speech need not center on a candidate for office. The principles enunciated in Buckley extend equally to issue-based elections
Of course, core political speech need not center on a candidate for office. The principles enunciated in Buckley extend equally to issue-based elections such as the school tax referendum that Mrs. McIntyre sought to influence through her handbills. See First Nat. Bank of Boston v. Bellotti, 435 U. S. 765, 776-777 (1978) (speech on income tax referendum "is at the heart of the First Amendment's protection"). Indeed, the speech in which Mrs. McIntyre engaged-handing out leaflets in the advocacy of a politically controversial viewpoint-is the essence of First Amendment expression. See International Soc. for Krishna Consciousness, Inc. v. Lee, 505 U. S. 672 (1992); Lovell v. City of Griffin, 303 U. S. 444 (1938). That this advocacy occurred in the heat of a controversial referendum vote only strengthens the protection afforded to Mrs. McIntyre's expression:
No form of speech is entitled to greater constitutional protection than Mrs. McIntyre~.
When a law burdens core political speech, we apply "exacting scrutiny," and we uphold the restriction only if it is narrowly tailored to serve an overriding state interest. See, e. g., Bellotti, 435 U. S., at 786. Our precedents thus make abundantly clear that the Ohio Supreme Court applied a significantly more lenient standard than is appropriate in a case of this kind.
we think the identity of the speaker is no different from other components of the document's content that the author is free to include or exclude. We have already held that the State may not compel a newspaper that prints editorials critical of a particular candidate to provide space for a reply by the candidate. Miami Herald Publishing Co. v. Tornillo, 418 U. S. 241 (1974)
"Of course, the identity of the source is helpful in evaluating ideas.
But 'the best test of truth is the power of the thought to get itself accepted in the competition of the market' (Abrams v. United States, [250 U. S. 616, 630 (1919) (Holmes, J., dissenting)]). Don't underestimate the common man. People are intelligent enough to evaluate the source of an anonymous writing. They can see it is anonymous. They know it is anonymous. They can evaluate its anonymity along with its message, as long as they are permitted, as they must be, to read that message. citing Duryea, a New York state constitutional case.
The opinion next cites White, an Illinois state constitutional case.
As the Illinois Supreme Court explained in People v. White, 116 Ill. 2d 171, 180,506 N. E. 2d 1284, 1288 (Ill. 1987), which struck down a similar statute:
"Implicit in the State's ... justification is the concern that the public could be misinformed and an election swayed on the strength of an eleventh hour anonymous smear campaign to which the candidate could not meaningfully respond. The statute cannot be upheld on this ground, however, because it sweeps within its net a great deal of anonymous speech completely unrelated to this concern.
McIntyre builds on the state constitutional cases, while meanwhile the state constitutional cases can now build on McIntyre as persuasive precedent.
Though such mandatory reporting undeniably impedes protected First Amendment activity, the intrusion is a far cry from compelled self-identification on all election-related writings. A written election-related document-particularly a leaflet-is often a personally crafted statement of a political viewpoint. Mrs. McIntyre's handbills surely fit that description. As such, identification of the author against her will is particularly intrusive; it reveals unmistakably the content of her thoughts on a controversial issue. Disclosure of an expenditure and its use, without more, reveals far less information. It may be information that a person prefers to keep secret, and undoubtedly it often gives away something about the spender's political views. Nonetheless, even though money may "talk," its speech is less specific, less personal, and less provocative than a handbill-and as a result, when money supports an unpopular viewpoint it is less likely to precipitate retaliation.
Not only is the Ohio statute's infringement on speech more intrusive than the Buckley disclosure requirement, but it rests on different and less powerful state interests.
In short, although Buckley may permit a more narrowly drawn statute, it surely is not authority for upholding Ohio's open-ended provision.
In short, while Citizens United may permit a more narrowly drawn ordinance, it surely is not authority for upholding San Francisco's even more burdensome provisions.
Under our Constitution, anonymous pamphleteering is not a pernicious, fraudulent practice, but an honorable tradition of advocacy and of dissent. Anonymity is a shield from the tyranny of the majority. See generally J. Mill, On Liberty and Considerations on Representative Government 1, 3-4 (R. McCallum ed. 1947). It thus exemplifies the purpose behind the Bill of Rights, and of the First Amendment in particular: to protect unpopular individuals from retaliation-and their ideas from suppression-at the hand of an intolerant society.
The State may, and does, punish fraud directly. But it cannot seek to punish fraud indirectly by indiscriminately outlawing a category of speech, based on its content, with no necessary relationship to the danger sought to be prevented. One would be hard pressed to think of a better example of the pitfalls of Ohio's blunderbuss approach than the facts of the case before us.
scalia note 3
California, although it had enacted an election disclosure requirement as early as 1901, see Act of Mar. 15, 1901, ch. 138, § 1, 1901 Cal. Stats. 297, abandoned its law (then similar to Ohio's) in 1983, see Act of Sept. 11, 1983, ch. 668, 1983 Cal. Stats. 2621, after a California Court of Appeal, relying primarily on our decision in Talley, had declared the provision unconstitutional, see Schuster V. Imperial County Municipal Court, 109 Cal. App. 3d 887, 167 Cal. Rptr. 447 (1980), cert. denied, 450 U. S. 1042 (1981).
Schuster, decided on dual federal and state grounds, remains the law today.
"Other rights, even the most basic, are illusory if the right to vote is undermined." Wesberry v. Sanders, 376 U. S. 1, 17 (1964). scalia dissenting in mcintyre.
dissenting in mcintyre, justice scalia calls exacting scrutiny, as used by the majority, a "kiss of death" standard. And so it should be.
=
motion to intervene, preferably with local counsel.
comes now robbin stewart, esq., pro se, and for his motion to intervene states as follows.
I am an Indiana resident and voter. I support the candidates of the Libertarian party in Alaska, and occasionally some Republicans, and GOP-Libertarian fusion candidates.
I may have attended a Libertarian national convention as an Alaska delegate. I am a follower of the late Andre Marrou, and supported Dick Randolph when he was in the legislature.
I author web pages, make signs and flyers, and occasionally make small contributions. I have been active in campaigns since 1970, and expect to continue to be. I do not usually spend over $2000 in Alaska, but what with inflation something simple like renting a billboard or running radio ads could easily exceed $2000.
In Stewart v Taylor, an Indiana federal court upheld my right to have a sign that read Robbin Stewart for Township Board Vote Tuesday, citing McIntyre, which is the controlling case on this topic.
In 2024 I am once again running for township board.
I wish to be able to have signs printed and sent to Alaska that express messages such as Vote for Smith or Robbin Stewart for Township Board Vote Tuesday, (name) for (office) (when or where). The main design feature is simplicity; the fewer words or symbols the better. A disclaimer would interfere in that message.
As an out of state speaker, I object to having to change my message to include a statement about being out of state. This requirement is racist and discriminatory and interferes with national interests involving comity and federalism. It is terrible public policy, designed to punish what it cannot directly prohibit.
I suspect that it violates the privileges or immunities of the 14th Amendment, and likely the privileges and immunities clause of the original constitution (article iv?),
but primarily i will be arguing first amendment and state constitutional issues.
Currently, if I understand it, no plaintiff in the case is an individual speaker from out of state, so it is my intent that my participation would add a new perspective. That said, my interest is only in the disclaimer issue. I agree with plaintiff's position on the disclosure issues, but will not brief that issue separately; my expertise is in the disclaimer area.
How disclosure issues get resolved under Bonta has not fully been worked out. The no-disclaimer rule on the other hand was established in 1960 and is going strong, although since 1960 1/3 of the cases have refused to follow Talley, with the specifics varying.
At the moment I lack local counsel in Alaska. If that is required, this motion to intervene is unripe and should be tabled until such time as locaqqlk counsel can be located.
Alternatively this could be filed as an amicus. all for now. 10:17 pm.
tuesday plan:
x do summary of argument for rust
and sf case. started.
keep good time records.
begin: 6:10 am April 17th.
x do summary of argument for rust
rust never sleeps
currently pending before the Indiana supreme court is Rust's motion to reconsider.
Assuming that gets turned down, Rust will then move for emergency relief from the US Supreme Court, which recently voted 9-0 to reinstate Mr. Trump in Colorado, on Anderson v Celebrezze grounds.
Rust's claims lie under the 17th Amendment and section 1 of the 14th Amendment, while Trump v Anderson was a section 3 case, so they are legally distinguishable, but involve similar core constitutional values.
This amicus [letter, brief] points out two scrivener's errors in the opinion, then
shows how Rust meets parts A of the affiliation statute, under the most natural reading of the text,
while agreeing that he cannot compel the party to accept him under part B.
Reading the statute to operate retrospectively violates several constitutional norms.
It is ex post facto, violates due course of law under section 12, and is a severe burden, triggering some degree of heightened scrutiny.
At a minimum, the case requires scrutiny under the Anderson v Celebrezze balancing test. It is likely the precise holding of Anderson also applies; that the deadlines imposed by the affiliation statute are unconstitutionally long, especially when applied to Rust's votes in 2016.
The court uses the phrase Anderson-Burdick test. I had difficulty understanding whether the court used Anderson, and merely reached a different conclusion than I would have,
or whether it used Burdick, which here is an abuse of discretion and error of law.
The Court's opinion, produced on short notice, is well reasoned and cites the right cases, which include on the one hand Burdick, Timmons, Clingman v Beaver, Jenness v Fortson, permissive cases which favored the state,
and on the other hand Anderson v Celebrezze, Crawford v Marion County, using a balancing test, and
strict scrutiny cases such as Norman v Reed and Williams v Rhodes.
We do not profess to know what standard should be used under the 17th Amendment. We are dubitante that Burdick is a correct standard. The court did not really announce a standard under the 17th Amendment, merely a result. This makes its work hard to follow.
We hope to submit a brief to SCOTUS urging them to take this rare 17th A case.
Our focus here instead is on the statutory construction issue.
1. Under the best reading of the statutes, Rust has qualified. The affiliation statute has two versions, the old one, under which Rust qualified years ago, and the new one, which is not yet applicable to Rust. It was enacted in 2021 and can only be applied prospectively. When Rust votes for himself at the primary, that will be his second GOP primary under the new statute. Because he lives in a rural area, at his family egg farm, there was no 2023 primary for him to vote in.
The doctrine of constitutional avoidance holds that a statute should be construed so as to avoid constitutional questions when possible.
Here we need not delve into the 17th Amendment or the Anderson-Norman test as used in Crawford, if we simply read the statute prospectively. Failure to do so imposes a severe burden on Rust as applied.
While Scotus is the ultimate authority on the 14th and 17th Amendments, the Indiana Supreme Court is the ultimate authority on construction of the statute, as well as Indiana constitutional claims.
Unfortunately Rust did not cite to some of the better state constitutional clauses, such as article II section 1. As an amicus rather than intervenor I cannot make these claims for him. There's an argument that a 14th A claim incorporates state constitutional concerns, because a state interest is neither compelling nor legitimate under Burdick or Norman if it is barred by a state constitutional provision.
2. At at least 3 places in the opinion, the court used the wrong legal standard, placing its thumb on the scales of justice against Rust.
1 presumption [this section still needs quotes.]
2 burdick instead of Crawford/Anderson/
3 salerno - wrong standard for first amendment cases
4 17th? was there some other 4th one?
3. The discussion of Rust's other options, in an attempt to mirror Burdick, actually go to show the severity of the burden. Horning is already the libertarian candidate.
Collecting thousands of signatures, as Rust here has already done, is a severe burden. so the option of running as an independent is not a viable alternative per Burdick. This is the expect holding of Norman v Reed. Plus the time is now too short. The most important reason this is not an option is that Rust is not a sore loser and does not seek to run against his party's ticket. The choice is not between some mythical alternatives. It is to disenfranchise the thousands of people who signed petitions for Rust, and the million people who should be given the choice to have a contested GOP primary. These are not trivial minor burdens.
conclusion:
the court should grant Rust's motion for reconsideration, and restore him to the ballot, at least provisionally, to avoid irreparable harm. His votes can be thrown away later if he ultimately loses all appeals.
otherwise scotus will be called upon to act, and would have sold grounds to do so.
first draft knocked out 4/17/24 7:15 am.
and sf case.
This court is in an awkward position. The 9th circuit ruled erroneously in March, and then re-issued that opinion in (October.) En banc review was denied, but with two nine-judge dissents.
Meanwhile in June the Supreme Court issued 303 LLC v Elenis (2023). That opinion is incomparable with the 9th circuit's opinion. So what is this court to do? We aren't sure.
This brief is intended to address both state and federal law issues.
The San Francisco ordinance violates the state constitution, under the controlling case of Schuster (1980). Following the landmark case of Talley v California, a series of California Court's repeatedly struck down disclaimer rules as unconstitutional. The 9th circuit mentions none of these cases, which include Canon City Canon v. Justice Court (1964) 61 Cal. 2d 446 [39 Cal. Rptr. 228, 393 P.2d 428], People v Bongiorni, People v Drake [97 Cal. App. 3d Supp. 34] (1979), Grisset v Cal. Fair Political Practices Comm'n, reversed on other grounds. Huntley v. Public Util. Com., 69 Cal. 2d 67 [69 Cal. Rptr. 605, 442 P.2d 685],
We see no compelling state interest that would justify criminalizing innocent activities along with injurious activities. -drake.
The mere unsigned reference to an election of a candidate or a measure on a ballot can, without more, be a crime under the terms of this statute. We see no compelling state interest that would justify criminalizing innocent activities along with injurious activities. - Schuster, quoting Drake.
Schuster is premised on the free speech aspects of the California constitution.
Another reason the San Francisco censorship is unconstitutional is that it violates the privacy clause of the California constitution. The leading cases in this area come from civil discovery disputes. [put in name of that case.]
People v. Drake (1979) 97 Cal. App. 3d Supp. 32 [159 Cal. Rptr. 161]
§§§
Hidden agenda, secret plan:
Obtain counsel
Report inspector to federal inspectors
Astroturf letters to court via counsel. Use po box or set up new account. Involve bj.
Draft form letter to ij and that ilk………………………………………….. ……………….
Hi. I am writing to mention an Indiana case which brings up timbs v indiana issues of 8th amendment proportionality.
I own and run a tiny recycling business on the national road in indianapolis. I live above the shop.
I have gotten into a dispute with the Marion County Health & Hospital corporation which is now about two weeks away from doing a “clean and lien”.
My lawyer is preparing a motion to reconsider, pointing out that the court erred by not using a clear and convincing evidence standard.
Would you like to know more?
In addition to running the recycling company I started when I was 19, in 1979, I am a semi-retired lawyer who follows IJ’s projects closely. I can spot a constitutional issue when I see one.
What I would wish for here is for IJ to send a letter brief to the court in support of a heightened standard before the state physically invades my property.
Alternatively, I would welcome IJ’s participation in publicizing the case.
As I wrote to the H + H attorney, a man’s home is his castle.
In particular, I expect they will try to seize my 2006 dodge caliber from the driveway. While it doesn’t run right now, it is the trade-in for a cybertruck I have on order.
I will be arguing that the state constitution protects privacy and liberty interests in an automobile parked on private property. I am no Ego Brown. Neither was Timbs. I do not think my case is well suited to be taken up as one of IJ’s own projects. I’m just looking for a letter in support.
Cordially, me. To paul sherman, can you forward this?
File for disciplinary complaint. Ask jlap for the info of as disciplinary attorney.
File against county clerk
Appeal - clear and convincing
Propose consent decree.
Counterclaims
Run for office, make issue of it. Draft form letters for astroturf campaign. whoto:
Congress senate x 2 mayor board complaint line.
Involve mad men advertizing agencies.
11 challenge to the judges. Motion for change of venue.
12 prepare next 100 interrogatories
13 Proposed stipulations of law and fact.
Depose the three inspectors, with focus on their training and supervision
14 hendicks county complaint and case notebook.
15 global thermonuclear war
16 bj and adverse publicity
Propose consent decree. ............................................................. ....................... 1. people who receive tickets should informed of the process, including how to request a jury trial. 2. clear and convincing evidence standard 3. be informed of their right to ask the court for counsel if indigent, but also that they have no right to appointed counsel. 4. have access to a list of lawyers willing to take h+h cases. 5. agree not to seek equitable relief against Stewart in the future due to unclean hands. 6. agree to rights training by aclu. something like that. plus whatever Adam adds.
Counterclaims...... .......... ........... trespass. section 11 violation. 4th amendment violation. 5th amendment violation. 8th amendment violation (nominal). which section is taking under state constitution? 16, proportionality. section 12, due process, the ex parte contact. 14th a due process, the ex parte contact.
Text of Section 3:
Freedom of Religious Opinions
No law shall, in any case whatever, control the free exercise and enjoyment of religious opinions, or interfere with the rights of conscience.[1]
Section 11
Text of Section 11:
Search and Seizure
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable search or seizure, shall not be violated; 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.[1]
particularly describing the thing to be seized.
there's an argument the clean + lien doesn't adequately describe the things to be seized.
Section 12
All courts shall be open; and every person, for injury done to him in his person, property, or reputation, shall have remedy by due course of law. Justice shall be administered freely, and without purchase; completely, and without denial; speedily, and without delay.[1]
injury to his property; that's our allegation, one claim, and due course of law claim for the ex parte contact.
text of Section 13:
Rights of Accused, Rights of Victims
(a) In all criminal prosecutions, the accused shall have the right to a public trial, by an impartial jury, in the county in which the offense shall have been committed; to be heard by himself and counsel; to demand the nature and cause of the accusation against him, and to have a copy thereof; to meet the witnesses face to face, and to have compulsory process for obtaining witnesses in his favor.
while this court is nominally civil rather than criminal, we have argued it is quasi criminal in nature. therefore, we ask for a determination by the court whether any or all of the rights under section 13 apply.
Section 16
Text of Section 16:
Excessive Bail or Fines, Cruel and Unusual Punishment
Excessive bail shall not be required. Excessive fines shall not be imposed. Cruel and unusual punishments shall not be inflicted. All penalties shall be proportioned to the nature of the offense.[1]
more of a defense than a counterclaim.
Text of Section 18:
Penal Code and Reformation
The penal code shall be founded on the principles of reformation, and not of vindictive justice.
Text of Section 21:
Compensation for Services and Property
No person's particular services shall be demanded, without just compensation. No person's property shall be taken by law, without just compensation; nor, except in case of the State, without such compensation first assessed and tendered.
| Text of Section 31: (rust also) Right of Assemblage and Petition No law shall restrain any of the inhabitants of the State from assembling together in a peaceable manner, to consult for their common good; nor from instructing their representatives; nor from applying to the General Assembly for redress of grievances.[1] |
|
Involve mad men advertizing agencies.
11 challenge to the judges. Motion for change of venue.
12 prepare next 100 interrogatories
13 Proposed stipulations of law and fact.
d owns, or owned,
article 1 secttion 1 states: ,
| Text of Section 1: Inherent Rights WE DECLARE, That all people are created equal; that they are endowed by their CREATOR with certain inalienable rights; that among these are life, liberty, and the pursuit of happiness; that all power is inherent in the people; and that all free governments are, and of right ought to be, founded on their authority, and instituted for their peace, safety, and well-being. For the advancement of these ends, the people have, at all times, an indefeasible right to alter and reform their government.[1] |
the indiana supreme court recently ruled that section 1 is actionable and confers rights, while not absolute.
bingo! time to switch ownership of the property into a church,
and seek dismissal on that basis, or at least an amendment.
maybe add an rlupia claim. abd sections 2 and 3, and rfra claim.
taking stuf:
marion masten crain stewart land trust #4.
Depose the three inspectors, with focus on their training and supervision
14 hendicks county complaint and case notebook.
15 global thermonuclear war
16 bj and adverse publicity
Section 1. Purpose. The right to vote is the foundation of American democracy. Free and fair elections that reflect the will of the American people must be protected and defended.
The Constitution and laws of the United States ... protect the right to vote.
Sec. 2. Policy. It is the policy of my Administration to promote and defend the right to vote for all Americans who are legally entitled to participate in elections.
March 7, 2021.
biden exec order. could use this in the rust case.
Sunday:
1. get the tractor
2. write the rust brief.
3. waste time in bed
When the government wants to take private property for a public purpose, the Fifth Amendment’s Takings Clause requires the government to provide the owner “just compensation.”
supreme court this week, Sheetz v Wawa.
whole.” Armstrong v. United States, 364 U. S. 40, 49. Even so, the States have substantial authority to regulate land use, see Village of Euclid v. Ambler Realty Co., 272 U. S. 365, and a State law that merely restricts land use in a way “reasonably necessary to the effectuation of a substantial government purpose” is not a taking unless it saps too much of the property’s value or frustrates the owner’s investmentbacked expectations. Penn Central Transp. Co. v. New York City, 438 U. S. 104, 123, 127.
When the government wants to take private property to build roads, courthouses, or other public projects, it must compensate the owner at fair market value. The just compensation requirement comes from the Fifth Amendment’s Takings Clause, which provides: “nor shall private property be taken for public use, without just compensation.” By requiring the government to pay for what it takes, the Takings Clause saves individual property owners from bearing “public burdens which, in all fairness and justice, should be borne by the public as a whole.” Armstrong v. United States, 364 U. S. 40, 49 (1960).
While States have substantial authority to regulate land use, see Village of Euclid v. Amber Realty Co., 272 U. S. 365 (1926), the right to compensation is triggered if they “physically appropriat[e]” property or otherwise interfere with the owner’s right to exclude others from it, Cedar Point Nursery v. Hassid, 594 U. S. 139, 149–152 (2021). That sort of intrusion on property rights is a per se taking. Loretto v. Teleprompter Manhattan CATV Corp., 458 U. S. 419, 426 (1982). Different rules apply to State laws that merely restrict how land is used.
Penn Central Transp. Co. v. New York City, 438 U. S. 104, 123, 127 (1978); see also Lucas v. South Carolina Coastal Council, 505 U. S. 1003, 1016 (1992) (“[T]he Fifth Amendment is violated when land-use regulation does not substantially advance legitimate state interests or denies an owner economically viable use of his land”
ok, so we can use this week's supreme court case to support our argument for clear and convincing.
buy house on Somerset wynkoop
more notes on clear and convincing.
when is it used?
- custody cases
- water rights cases between states
- when required by statute
- undue influence cases in wills and estates
- civil commitment proceedings
why should it be used here?
"a man's home is his castle". Indiana recognizes interests in the privacy off the home and its curtilage, and the privacy of the automobile, which exceed the federal floor as required under the 4th Amendment.
Just as custody hearings involve the right to have a home, a "clean and lien" is a physical invasion of one's homestead. The clear and convincing evidence standard is a better fit that merely preponderance. It is possible that the court will on its own fashion some form of heightened scrutiny in between the two, or in between clear and convincing and beyond reasonable doubt. We have suggested the clear and convincing standard as one which is already familiar to courts, and would be manageable under those precedents.
=
Sec. 2. (a) In enacting this section, the general assembly finds and declares that it is the policy of this state to recognize the unique character of a citizen’s home and to ensure that a citizen feels secure in his or her own home against unlawful intrusion by another individual or a public servant. By reaffirming the long standing right of a citizen to protect his or her home against unlawful intrusion, however, the general assembly does not intend to diminish in any way the other robust self-defense rights that citizens of this state have always enjoyed. Accordingly, the general assembly also finds and declares that it is the policy of this state that people have a right to defend themselves and third parties from physical harm and crime.
And the reason of all the same is, because domus sua cuique est tutissimum refugium. [everyone’s house is his safest refuge (“Every man’s home is his castle.”)]
“a person is justified in using reasonable force, including deadly force, against another person and does not have a duty to retreat…if the person reasonably believes that the force is necessary to prevent or terminate the other person’s unlawful entry of or attack on the person’s dwelling, curtilage, or occupied motor vehicle.”
Once the “unlawful entry or attack” is broken off, the use of deadly force is no longer authorized and only “reasonable force under the circumstances” would be allowed.