Asked Neil Gorsuch, at oral argument yesterday, quoted in "Supreme Court debates whether Texas councilwoman who says her arrest was politically motivated can sue the mayor" (CNN).
March 21, 2024
"How many statutes on the books these days, many of which are hardly ever enforced. You’re saying they can all sit there unused except for one person..."
".... who alleges that ‘I was the only person in America who’s ever been prosecuted for this because I dared express a view protected by the First Amendment’ and that’s not actionable?"
Asked Neil Gorsuch, at oral argument yesterday, quoted in "Supreme Court debates whether Texas councilwoman who says her arrest was politically motivated can sue the mayor" (CNN).
Asked Neil Gorsuch, at oral argument yesterday, quoted in "Supreme Court debates whether Texas councilwoman who says her arrest was politically motivated can sue the mayor" (CNN).
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'Three Felonies a Day', by Harvey Silvergate (2009). Prosecutorial discretion is the overlooked area of public policy that really needs reform.
Hint, hint...
If we fully enforced the laws there wouldn't be many laws left on the books.
And much less opportunity for the misuse of government power.
‘I was the only person in America who’s ever been prosecuted for this because I dared express a view protected by the First Amendment’ and that’s not actionable?"
No, she was the FIRST... not 'only'... see different viewpoint. Someone has got to break the law first!
Off the cuff, seems to me the judicial answer is that "selective enforcement" should be an element in these kinds of "retaliation" claims, which Gorsuch alludes to in the quote.
Gorsuch asks a damned good question.
If that standard is embraced by the high court, her attorneys say, it would greenlight government officials to arrest their critics under suspect circumstances...“Political retaliation is dangerous. The First Amendment has to mean something,” said Anya Bidwell, an attorney at the Institute for Justice who argued on behalf of Gonzalez. “Mayors should not be allowed to launder animus through warrants.”
Article doesn't really say what conflict existed between this woman and the mayor. But obviously this type of retaliation is happening to Trump. Others as well, especially in the Fani Willis case.
Seems like these days you can get a corrupt liberal judge to go along with anything.
Never underestimate the vindictiveness of small town politicians.
This is a kind of bill of attainder, though it doesn't meet the specific definition (the law that Gonzalez was arrested under was already on the books, though unused, apparently, for decades. The key event was the very fact that Trevino specifically set up the arrest by asking Gonzalez where the petition was. The arrest was retaliation pure and simple.
It will be interesting to see how the court rules on this one. The politics are particularly important in this case as Trump has been specifically targeted in a similar manner and with actions that do meet the specific definition of bills of attainder. Normally, you would expect the 3 progressives on the court to support Gonzalez's petition, but the politics here might force them the other direction simply because they might foresee a future Trump case coming their way.
I've read and re-read Gorsuch's question, along with underlying story that you linked to. Either I'm not getting his drift (which is certainly a possibility) or he hasn't phrased his question very clearly. Maybe hearing him ask it would have made a difference. At any rate, I have great respect for appellate lawyers who have to respond respectfully and meaningfully in the midst of oral argument.
Well. I waded through that steaming pile. More names than a Russian novel.
My admiration for you, Althouse, has increased immeasurably.
Just reading through it once it does not read as if Bliss is making her case. "moving a government document" ,in Texas no less, does not seem to meet the criteria for arrest. The American Embassy in Moscow, yes. But not a city council meeting in bumfuck Texas.
I came across this substack article yesterday. It is about Hur's interview with Biden, but it particularly discusses the finer points of how law schools expect students to approach discussions about cases. It seems pertinent when trying to address this topic. Key paragraph:
"It is a very rigorous, analytical approach that requires students to prepare diligently by reading, and analyzing the cases assigned for the day. They must be able to discuss them, the scope of the precedent they set, and how to distinguish the case in order to argue that its holding is inapplicable to a situation involving slightly different facts."
Best I can do is note the precedent here seems to be Gonzalez's speech wasn't interrupted and she was allowed to make it, but she suggests she was later retaliated against due to the speech by being arrested using a rarely used statute. At that point, my laymen view is she is probably right about why she was arrested, but I disagree with her opinion about the statute, which I wish was used more often. For instance, if you are upset by the Jan. 6th committees destruction of evidence, you might like this Texas statute.
Normally, you would expect the 3 progressives on the court to support Gonzalez's petition, but the politics here might force them the other direction simply because they might foresee a future Trump case coming their way.
Can't be! I have been repeatedly told by all the best and brightest that the high court is NOT political! That there are no Democrat or Republican justices, just justices that view the law in the clear light of reason.
As far as I understand the underlying story, Gonzalez ran for a city council office with the specific intention of forcing out the mayor due to reported corruption. In pursuit of that goal, she ran an official city petition, non-binding, that demanded his resignation. She brought the petition to a city council meeting and Trevino, the mayor, asked to see the petition which she removed from a personal binder- whereupon she was arrested for possessing city property and spent a night in jail. Now, there is little doubt that other city council members have had such city documents spread around their own residences for decades- who doesn't take some work home? However, Gonzalez was the first person ever arrested for this, and it isn't even clear that she broke the law under question- she was literally at the city council meeting, not at home.
"Can't be! I have been repeatedly told by all the best and brightest that the high court is NOT political!"
If you heard there was a 6-3 vote without knowing the case, do you think you could guess, just from that, how each of the judges voted?
Yancey - it was the city manager, not the mayor.
I actually live in Castle Hills, though I didn't at the time the incident occurred. Long story short, Ms. Gonzalez and another councilmember circulated the petition in the hopes of getting the city manager fired and replace him with the prior city manager. The prior city manager, with whom the two were friendly, was fired for cause in 2016. When the petition was presented, several citizens spoke in favor of the city manager and questioned Ms. Gonzalez's motives. Also, some residents whose names were on the petition claimed to have never signed it or signed it under false pretenses. The city manager they were trying to remove, Ryan Rapelye, is still the city manager and the vast majority of us who live here appreciate the job he's done and find him to be a solid individual.
Not saying that this changes the merits of the case, but just wanted to set the record straight.
President Biden, after listening to the feisty exchange between the lawyer for the City and Justices Goresuch and Kagan, was overheard to say, "I'll have what she's having."
All the crap statutes put on the books by politicians who want to appear to be of service have always been a problem. In recent years with the Merrick DOJ, DAs Bragg and Willis, and AG James selective persecution of Donald Trump, J6 defendants and others it is obvious that unethical prosecutors are becoming a bigger problem.
Selective prosecution is an anathema. When I was prosecuting I resented judges intruding on my discretion. I can concede now that these and other prosecutors are abusing that discretion both to prosecute and to decline prosecution. It is dangerous and must be stopped.
"If you heard there was a 6-3 vote without knowing the case, do you think you could guess, just from that, how each of the judges voted?"
The whole point of the concept of "a living Constitution" is to promote the leftist agenda. Have you ever heard of a judge from the left wing of the Court called "a swing vote?"
It is obvious that the arrest was politically motivated and meant as retaliation. It was absurd to bring these charges in the first place. This is the sort of thing that, at worse, would be handled by having a conversation afterwards with a warning to not to do it again.
We keep playing this game where we are supposed to assume that elected officials are acting above board until proven otherwise, which may have made sense 20 years ago but is now a sign of stupidity.
1. "...Trevino, the mayor, asked to see the petition which she removed from a personal binder- whereupon she was arrested for possessing city property and spent a night in jail."
- "But two months later she was charged with violating a state law that prohibits tampering with government records. Gonzalez, then 72 years old, was arrested and spent a day in jail, although prosecutors declined to pursue the charges against her." - per Scotusblog.
2. "Yancey - it was the city manager, not the mayor."
- Yes it was the City Manager that Gonzales wanted removed, but to be clear it was the Mayor who orchestrated the warrant and arrest in retaliation, according to her claims.
3. My reading of the argument shows a disappointing but not total degree of deferral to government authority by the conservatives. I could be wrong, it's complicated.
Mason G,
If you heard there was a 6-3 vote without knowing the case, do you think you could guess, just from that, how each of the judges voted?
No, I couldn't, and I don't think you could either. Cases have all kinds of votes, including combinations that you (and I) would likely find insane. The Volokh Conspiracy gives us periodic updates.
What you actually mean is when a major case is decided and the vote is 6 to 3, don't we all know who voted which way? Mostly, sure. But "major cases," however defined, are a smallish part of the docket.
It used to be a common practice to fire federal employees - otherwise heavily protected under Civil Service regulations - for personal use of their government computers, a regulatory no-no important back in the day when DARPA VAX machines were all the rage, but insane in the era of the internet and a PC on every desk. The firing cases were ironclad, with a personal email or a non-business-related website visit proven with the user history, and firing for this cause avoided all the issues of race, sex, gender, age, that could otherwise delay or prevent a firing. Neat, huh?
Was this non-HR-approved method abused to get rid of personnel selectively, when everyone with a PC on their government office desk violated this rule? Oh, heck yes. Was this abusive selective prosecution a reason to stop the practice? Oh, heck no. Every agency supervisor wanted this power over their underlings, and nobody was about to squawk about the injustice of it all.
So it goes today with selective prosecution for other causes. The only solution is to have decent people in positions where this is able to be done, who won't abuse the power for themselves or for others. And maybe hang a few selective prosecutors.
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