- Quickdraw McLaw
- 15 Comments
- 177 Views
SCOTUS has set for conference Monday, September 24, 2018, the cert petition in the suit brought by North Dakota lawyer Arnold Fleck against the North Dakota Bar challenging bar dues use and lawyer First Amendment free speech and associational infringements. The questions presented are:
1. Does it violate the First Amendment for state
law to presume that Petitioner consents to subsidizing
non-chargeable speech by the group he is compelled to
fund (an “opt-out” rule), as opposed to an “opt-in” rule
whereby Petitioner must affirmatively consent to subsidizing
such speech?
2. Should Keller v. State Bar of Cal., 496 U.S. 1
(1990), and Lathrop v. Donohue, 367 U.S. 820 (1961), be
overruled insofar as they permit the state to force Petitioner
to join a trade association he opposes as a condition
of earning a living in his chosen profession?
A copy of the cert petition is here.
SCOTUS September 24th conference cases, including Fleck v. Wetch can be accessed here.
The Pacific Legal Foundation’s Debra La Fetra has a good overview of the case and a link to the PLF amicus in support of Fleck here.
Thanks to Mauricio Hernandez for the tip.
Hi Kim F & Student Council BOG: The party is ending soon. You won't have to go home. But, you can't stay here.
Seems that at least one person posting comments doesn't like Kim Farmer or the Board of Governors. Is it because they don't publish financials for the Bar? Please explain.
Unrelated to this post, but I keep hearing radio commercials about the crime victims bill of rights. I'd like to know more about it. Can any criminal attorneys weigh in?
Civil attorney here…from my (limited) understanding is that the Bill would allow the victim to pursue civil actions against the criminals in some shape or form.
Haven't they always had that right. Most likely, even if it creates a new cause of action it won't actually change anything in reality.. the criminal still wont have a pot to piss in or a window (other than a very narrow one with bars on it) to throw it out of. An noncollectable judgment (which might be costly to obtain) does not provide much real value to a victim.
I am more interested to when a case goes up to SCOTUS regarding the violation of due process due to the Bar running sham hearings and misrepresenting facts of alleged violations.
It is a nightmare, particularly in a state with elected judges. It gives standing to victims in criminal proceedings, restricts access to victim info in discovery, and tinkers with any efforts to reduce a defendant's sentence. Victims are already provided notice and an opportunity to speak at sentencing, the so-called Marsey's law (Question 1 on ballot) will further empower prosecutors to skew the proceedings.
But isn't the victim an interested party? And I am only focusing here on your point regarding standing or efforts to reduce a defendant's sentence.
The 6th Amendment grants important rights: to "the accused." So no, not victims.
As much as it would seem the victim is an interested party, the victim really isn't. The common law regards them as just a witness–an important witness to be sure, but just a witness. The real parties are the state and the accused.
Tort law in civil court where you go to resolve personal injury. Criminal law in criminal court is where we go to seek justice for crime. One critical difference: societal interests in punishing crime and achieving justice vs. the individual interest in being compensated for harm. Blending the two, as the so-called Marsy's Law would do, is a disastrous idea. And no, I don't practice criminal law.
@ 11:16; Great answer! It succinctly differentiates the parties and goals of the criminal v. civil justice systems.
Thanks all!! I posted the initial question. For some reason, the ad didn't sit well with me. I will be voting no.
Let's be clear here. The current text of the NV Constitution allows that the Legislature can provide for certain rights for crime victims. That's not enough for Marsey's law folks. Question 1 is about enshrining specific victim's rights into the NV Constitution.
Some other issues with Marsy's Law: it would give victims a constitutional right to be in the courtroom at all times (even if they're a witness and the exclusionary rule is in effect). It would give victims a right to "timely disposition of the case" which would conflict with the defense's right to take time to build its case (and the State's, for that matter). And it would give victims a right to speak at any hearing, whether or not their input is actually relevant (imagine every pre-trial hearing on purely legal issues having an angry, emotional non-lawyer getting up and giving a speech about how they hate the defendant). There are a ton of problems here.
The other thing is, the good stuff in the measure (like having the victim's safety considered in bail decisions) is all stuff that we already do through statute. So this doesn't add anything in terms of victim protections – it just buries defendants under even more of a structural deficit compared to the State.
Actually, kind of raises some interesting issues. Defendant has the right to a fair trial (the underlying basis of the exclusionary rule) and the victim would have the right to be present prior to testifying despite the exclusionary rule. Those rights would appear to be in direct conflict yet both be rights granted within the state constitution. Does the court reconcile the conflict by finding that the state constitutional right violates the defendant's rights under the U.S. Constitution (as incorporated via the 14th Amendment), or take the narrow position that while the victim has the right to be present, unless they are the first witness (thus not tainted by hearing the other testimony) their testimony will be excluded as tainted?