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It’s Getting So You Can’t Look To Attorneys For Moral Guidance Anymore

I would love to start to his post with a photograph of a Brother member of the California Bar, Matthew Gregory McLaughlin CBN 198329, of Huntington Beach. Unfortunately, Mr. McLaughlin is something of a cipher: he seems to have virtually no internet profile and a whole lot of people who put more than my sixty seconds’ worth of detective work into the subject have been able to find a photograph or much more than his state bar entry.

I shrink from posting a picture of someone who might turn out to be the wrong guy, because this guy has cast the Bar, the legal profession, and the State of California into substantial disrepute. To credit some different person named “Matt McLaughlin” with such an act might constitute a form of libel. You see, like any other Californian with an idea, a typewriter, and two hundred dollars but a great deal of better taste and a minimal modicum of morality, McLaughlin exercised his political right to submit an initiative to the government for circulation. In his case, McLaughlin has written a piece of proposed citizen legislation with the execrable title “Sodomite Suppression Act.”

It’s so awful that I have to wonder if it’s actually some kind meta-statement about the absurdity of California’s citizen initiative law itself. It makes the Republic of Gilead look like a progressive’s pleasant springtime daydream. As a dubious public service in pursuit of the truth, I’ll provide a link with which you can read the actual submission if your curiosity is sufficiently morbid. It more than takes your breath away; it become the Leftie Outrage Of The Week this week.

Virtually every provision of the proposed initiative legislation would be wildly unconstitutional if actually implemented.  It violates the Establishment Clause by referencing a particular interpretation of a particular religion’s teachings as its justification, and promulgating that interpretation to schoolchildren. For that matter, it also violates the Free Exercise Clause because some religions teach that same-sex relationships are morally permissible. It violates the Free Speech. Free Press, and Assembly Clauses because it punishes expression of political, social, and cultural ideas. It violates the Equal Protections Clause, obviously, because it treats gay and straight people differently for an arbitrary and capricious reason. It violates the Due Process Clause both substantively (there is no tradition of mass deputation of citizenry for vigilante justice consistent with principles of ordered liberty) and procedurally (people get shot with not even so much as a hearing to determine if they have actually ever engaged in an act of sodomy). It violates the Eligibility Clause and by extension the Guaranty Clause by disqualifying citizens for election to and discharge of public office. It violates the Judicial Power Clause by restricting the ability of courts and judges to discharge their core functions. Exile from the state violates the Interstate Travel and Privileges and Immunities Clause. Whatever might be left over after this would be morally appalling.

I don’t think I could have come up with a more densely-compact violation of the Constitutions (which both McLaughlin and I have sworn an oath to uphold and defend) than this if I had intentionally tried.

I’m horrified that this came from a lawyer: A very bigoted lawyer, a lawyer whose religiously-tinted hatred of gays is disavowed by the overwhelming majority of his co-religionists, a lawyer who in 2015 has been living so far under a rock for so long that he seems to have functionally no online existence whatsoever beyond his introduction of a failed citizen initiative in 2004 as well. But still a lawyer ostensibly equal to myself before the courts and government of this state, one whose public actions have just diluted the prestige of the profession even more.

The possibility that this is a horrific kind of performance art strikes me as a distinct possibility.

Unlike the usual Leftie Outrage Of The Week, however, this one is having some immediate political consequence. You see, similarly to 23 other states that have citizen initiatives, the process in California “…by its nature, is designed to bypass elected officials.” The brainchild and most enduring governmental innovation of California’s legendary Governor Hiram Johnson, initiatives were implemented at the statewide level to provide a way to legitimately circumvent a legislature bought and paid for by the railroads. Although there is at least minimal merit to the theory that Governor Johnson’s estrangement from his father tainted the architecture of the initiative process he fostered.

So whenever there’s a citizen proposal — good, bad, indifferent, debatable, silly, or serious — all that has to happen to start the process is one person writes a proposed law and submits it to the Attorney General along with a fee. The Attorney General doesn’t really have a whole lot of choice at that point but to make the proposal available for public inspection, comment, and proposed amendments, and then to prepare a neutral summary and description of the proposed initiative. California Elections Code §§ 9002, 9004.

Harris

Kamala Harris, California’s 32nd Attorney General and likely next United States Senator.

It is at this point where McLaughlin’s initiative stands now. Today, the Attorney General (and currently prohibitive favorite to become California’s next Senator) Kamala Harris balked at proceeding with this initiative. Rather than proceed with complying with Elections Code § 9004, she has instead sought relief from the courts to not discharge this statutory duty.

Needs must she fail, which opinion on my part should not be taken as assigning any sort of endorsement to McLaughlin or his idea. The Attorney General normally gets to exercise a lot of discretion over how she executes her job, and I share her alarm at the proposal. But the whole point of initiative process is that the Attorney General’s functions in this process be as close to clerical as possible. A clerk does not get to opine on the wisdom or desirability of a particular piece of legislation.

In seeking relief from the courts for the odious duty of assigning even a shred of legitimacy to McLaughlin’s deranged-if-not-outright-evil proposal, Harris is demonstrating a skill that may serve her well in the Senate (and beyond?): the ability to find someone disposable and throw them under the bus. Instead of issuing a press release condemning the initiative and indicating that she is discharging her duty to the state notwithstanding her own preferences — a needle she was somehow able to thread with respect to capital punishment — instead she is going to go to a Superior Court judge in Sacramento and ask that judge to excuse her from doing what the Legislature long ago said she “shall” do, without exception. Then, she’ll comply with § 9004, as she and the judge and anyone else paying attention will have known all along that she must, and issue another press release saying “I asked Judge So-and-So to not let this awful thing go forward, but he said no, so I don’t have any choice and this isn’t my fault.”

Which provides a measure of political cover for Attorney General and would-be-Senator Harris, but is going to make Sacramento County Superior Court Judge So-and-So, whoever that is, have to deal with this absolute turd of a claim, and make an enormously unpopular (and likely personally unpleasant) ruling. I suppose that it works for her, but the move doesn’t strike me as really all that classy.

But it reveals something else about Harris — at least at this point, the Leftie Outrage Of The Week is sufficiently powerful to command her attention and response. If she’s going to Washington, she’s going to have to learn how to sluff things like this off as the trivialities they are.

This could be circumvented if there was some sort of means by which initiatives could be screened for at least plausible Constitutionality before they were actually passed into law. As I understand it, some states have ways by which courts can issue advisory opinions before an initiative is put to the voters. But that’s not how it works here in the Golden State. Any yahoo can propose literally anything, and now some yahoo has done exactly that.

So there really isn’t any choice here but to trust the voters. California has one of the lower proportional requirements to put an initiative on the ballot: 5% of the number of people who voted for Governor in the previous election. Now, it turns out that 7,317,581 people voted for Governor in 2014 (60% for the incumbent, Jerry Brown, FWIW) which means that as soon as the Superior Court does what it inevitably and unpalatably must, McLaughlin will have 130 days to gather 365,879 signatures of actual California voters who want to see this on the ballot in order for the process to move forward.

Which is why I’m a bit stymied to find no information available about McLaughlin. Signatures of this nature are usually gathered by paid “bounty hunters” who are paid a commission for every signature on a petition that they gather while standing in front of supermarkets and in public places. And the good news is, when the Court orders Attorney General Harris to fairly and neutrally title and describe the initiative in 100 words or less, it’ll come out looking something like this:

Authorizes state law enforcement and private citizens to shoot certain Californians to death on sight without trial or evidence of threat or commission of any crime. Criminalizes certain statements concerning moral permissibility of homosexuality with ten-year prison sentence and one million dollar fine per offense. Authorizes multiple private lawsuits against state for failure to vigorously enforce terms of initiative, among other enforcement provisions.

And from there, we must simply trust there are fewer than 365,879 Californians who won’t be sufficiently repelled by this that they would actually affix their signatures to a public document saying “Yeah, if that became a law I would be okay with it.” Indeed, it would be nice to see the already-questionable bounty hunter firms turn their backs on McLaughlin when he approaches them to retain their services. Most initiative proposals fail at this stage. The right thing to do, under our laws and Constitution, is to let this one die where hundreds of other less-offensive ideas have also died.

If by some strange chance it goes further than that, then we have much bigger problems in California than I have ever imagined, and using the courts to tinker with the democratic process aren’t going to help solve them. The judicial process will serve as an ultimate backstop here, and is almost certain not to be necessary. I would like it better if Harris were handling it better.

 

Image credits: wikimedia commons.

 

Burt LikkoBurt Likko is the pseudonym of an attorney in Southern California and the managing editor of Ordinary Times. His interests include Constitutional law with a special interest in law relating to the concept of separation of church and state, cooking, good wine, and bad science fiction movies. Follow his sporadic Tweets at @burtlikko, and his Flipboard at Burt Likko.

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90 thoughts on “It’s Getting So You Can’t Look To Attorneys For Moral Guidance Anymore

  1. I provided a link about this in the last wiki Friday. I think the whole ballot initiative system is nuts! I get that it started with noble intentions but it has become a mess of crackpots and being taken over by the corporate interests that it was meant to stymie and hinder.

    I’ve seen people make similar suggestions. This is performance art/satire, why don’t we know much about the guy, etc. I have also seen petitions calling for the author’s disbarment over the petition.

    All of this is very strange.

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  2. Burt,

    Full disclosure, I support AG Harris’ Senate Campaign. That being said, I actually wonder if you’re overstating your indignation with her actions here. While I understand that she’s obligated to follow the initiative rules, as you state the proposed initiative is itself patently unconstitutional. She’s just as obligated to uphold the constitution. Having conflicting obligations — one statutory the other constitutional — it’s not both a principled AND political stand she’s taking.

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    • Last sentence poorly typed. Should read:

      She’s just as obligated to uphold the constitution. Having conflicting obligations — one statutory the other constitutional — I wonder if it’s not both a principled AND political stand she’s taking.

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    • I thought she was right to decline to defend Proposition 8 as unconstitutional, and still do. But her objection here (quoted in the Sac Bee article I linked to) isn’t that the initiative would be unconstitutional, it’s that it would foster vigilantism and violence. Vigilantism is bad public policy — very bad. But is it unconstitutional? I don’t think so. So her objection here is that she really, really doesn’t like this law. (Neither does pretty much anyone else.) Not that the law is unconstitutional, as it was her objection to Prop. 8.

      We want to be very cautious about letting a state official decide on her own and without judicial guidance what state law does or does not violate the constitution. She may be called upon to defend that law one day.

      If the objection is, on the other hand, I think this law is a very bad, terrible, awful, destructive, counterproductive, harmful, deplorable idea, that can’t be an excuse to eschew discharging a ministerial duty. Election Code 9004 demands a ministerial act of her, not an exercise of discretion. She has to do it. Otherwise, elected officials can interpose their political will to obstruct the initiative process, and that defeats the purpose of having initiatives in the first place.

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      • Sure, but that’s somewhat semantical. If she said, “I’m not going to discharge my ministerial duties b/c it’s unconstitutional” you’d be ok. If she said, “I’m not going to discharge my ministerial duties b/c I don’t agree with it” you’re saying is a bridge too far. You’re accepting the premise that there is *some* discretion in discharging the duties.

        Also, we haven’t seen her brief to the judge yet. A quote in the sac bee is not the official filing. And saying homophobia is evil is a better political statement than homophobia might run afoul of the the constitution.

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      • “isn’t that the initiative would be unconstitutional, it’s that it would foster vigilantism and violence. ”

        Isn’t something that promotes vigilantism (and by it’s own words, promotes enforcement ‘extra-judicially’) violate the Constitution, not only because of all matter of due process, but also because of the federal guarantee of a republican form of government to each state?

        As an aside, I find it interesting that Mr. McLaughlin’s mailing address is not an office, but a Mail Boxes Etc type store (and one that is kinda shady)

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    • Let me try expressing my thought on this point a different way, then.

      If a public official reasonably believes that discharging a statutory duty will necessarily involve a violation of the Constitution (whether state or Federal), that’s a good reason not to discharge the duty. If it’s a discretionary duty, the official can simply decline to do it. If it’s a ministerial duty, seeking declaratory relief from a court to excuse performing it seems like an acceptable move. The imperative to obey the Constitution trumps the imperative to obey statutory law.

      The Attorney General’s duties under Elections Code § 9004 are to prepare a neutral summary of the proposed law. Discharge of that duty does not represent a violation of the Constitution. Consequently, the duty should be discharged, despite the distastefulness of doing so under these circumstances.

      Former Attorney General Jerry Brown discharged his ministerial duties under Elections Code § 9004 with respect to what became Proposition 8 and subsequently declined to defend Proposition 8 in court when it was subject to a Constitutional challenge, both as Attorney General and thereafter as Governor. That was the right way under existing law to handle an initiative that on its face violates the Constitution.

      This series of events makes me wish there was a way that an official could refer the initiative to a court for an advisory opinion. But there isn’t. If this initiative submission is really a stunt intended to demonstrate that the initiative process could benefit from reform, I see reason enough in these facts to render substantial consideration to the notion of permitting preliminary advisory opinions. But that’s a political reform and I’m not so sanguine as several of the other commenters here are that this is in fact a stunt aimed at that sort of reform.

      Until such time as such a reform is actually implemented, the law compels Attorney General Harris to discharge her statutory duty; were I in her position, I would follow the legally correct example set by her predecessor instead of going to court at a stage of the proceedings when the constitutional issue raised by the initiative is not yet ripe.

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      • Totally understand your perspective. The Prop 8 decision by Jerry Brown surely wasn’t as clear b/c the constitutionality of Prop 8 was not a resolved question at the time. Whereas this prop is patently unconstitutional.

        I hope this is the question raised to the district judge — can a public official seek judicial review to use discretion when the proper disposition of a ministerial duty would result in a significant expenditure of state funds toward an unconstitutional goal.

        I have no doubt this proposition would fail if on the ballot. I also strongly doubt this proposition would even make it to the ballot. That being said, it’s not 0 cost to get to either of those points. The result of the ministerial duty in this case would be either a) no prop on ballot, b) prop fails, c) prop passes but is immediately invalidated due to unconstitutionality.

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  3. You are far more optimistic than me about people’s willingness to read the things they sign.

    I don’t think this will go anywhere because i don’t think McLaughlin has the money to hire a sufficiently large force of paid signature gatherers. However, if he did have that money, the only thing that would stop this measure from getting its signature is the sort of awareness generated by leftie outrage and splashy statements by the AG. Otherwise, you’d get to 400k signatures from paid collectors saying “sign here if you oppose gay marriage”.

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    • I have to agree with Alan here.

      Wiki says that there are nearly 38 million people in California. Surely you can find 400K or more people who think this is a good idea. There also have to be some far right-wingers out there who are willing to pitch in and help.

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      • I think you’re wrong. I live in another easy initiative state, and a majority of state-wide initiatives that get to the signature stage fail to collect enough signatures. In 2014, 40 ballot initiatives here got through the titling step, the last one before signature collection. Four related to fracking were pulled by the sponsors after the Governor agreed to appoint a panel to investigate the situation. 32 more failed to collect enough signatures, so four made the ballot. One passed.

        My standard bet on political things is a pint, so — a pint says that they can’t collect enough signatures to get it on the ballot.

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    • I’m assuming that California has some sort of “truth in advertising” rules about initiative petitions. I mean, I live in Colorado, where initiatives for amendments to the state constitution have the same low 5% hurdle that California has for statute initiatives, but we have rules about soliciting signatures. Solicitors have to be trained; they have to give a complete and accurate description of what they’re asking you to sign; getting caught cheating on that has consequences. And solicitors who are cheating get caught routinely — they’re out in a public place where opponents of the measure can easily overhear, and then turn them in.

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      • Actually, I believe that is incorrect: this would be an initiative statute, not an amendment. An initiative amendment would require signatures at the 8% level, or 585,407 signatures. And as an initiative statute, it would be subordinate to the state Constitution, so some of the state-law level problems that Prop. 8 had (remember, Prop. 8 was affirmed, reluctantly, by the state’s Supreme Court) wouldn’t be in play here.

        When Prop. 8 was on the table a couple of years ago, I mused that amendment of the state’s Constitution by initiative was too easy, and suggested that not ought there be a higher signature threshold to qualify (which there is) but the vote should have to be by two-thirds supermajority instead of the 50%+ as it currently is. I’m still inclined to think that would be a good reform, and nothing in this scenario dissuades me otherwise.

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      • (Ironically, now that marijuana has been legalized, I have not seen *ANY* petition folks at the usual places hanging out asking if we’re registered to vote in Colorado. I had heard that the old trick was to get a petition to legalize pot… “and, while you’re here, would you sign this petition to limit new house building east of Powers Avenue?” Since legalization, I’ve started wondering if that trick wasn’t described to me accurately.)

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  4. It’s so awful that I have to wonder if it’s actually some kind meta-statement about the absurdity of California’s citizen initiative law itself.

    That’s what I thought it was when I first heard about it. Honestly, I though it was pretty awesome in that context. In fact, even hearing that it’s serious, I’m still tempted to see if we can get it on the ballot just to remind people of exactly how insane our state is and why it’s basically impossible to govern.

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      • Combine it with “almost impossible to raise taxes and incredibly easy to raise spending” and you have a real winner of a system on your hands. I’m actually a little bit surprised that we’re not in worse shape than we are.

        An election or two ago, Bill Maher had it right when he said something like, “Nobody can govern California because it’s illegal to govern California.”

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        • I confess to having agreed with this proposition when it was made and having some weariness of and skepticism about the returned Governor. But he’s won me over with his actual performance. The budget is in balance and state services are being delivered. Indeed, we are investing in our infrastructure, our schools, and our future finances. I quibble with some details of how those things are getting done, but even if they aren’t done optimally (from my perspective) it’s better than not doing them at all. It can’t have been easy to do and on balance, Jerry Brown deserves praise for a job well done under difficult circumstances.

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      • So, point to a state of some size — let’s say population >5M, land area >30K square miles — that lacks both statutory and constitutional initiatives that you think is being governed better than California.

        Over the last century, looking at what was accomplished by initiative and how many people were affected, the initiative process has been a big win for progressives.

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      • I’ll start by saying that the bottom point of my pessimism about CA was around 2011 and that Jerry Brown has done a hell of a job. The passage of Prop 30 was a major win, but the fact that the governor had to make a ballot proposition to something that amounts to basic budgeting and ordinary governance tells a story. We had built a system that not only takes input from the voters but couldn’t fulfill its basic operational requirements without direct input from the voters. Prop 13 combined with Prop 98 and other budget/spending laws that get passed in a vacuum seem to work along the lines of our federal debt limit: spending and tax revenue are fixed, so let’s figure out how to make the difference between them something other than “spending – revenue” after the fact.

        Even our budget surplus, as impressive an accomplishment as it is, isn’t a permanent situation. We’re going to start running into our longer run liabilities eventually, and I’m skeptical that our elected officials will be able to handle it until it becomes bad enough that the voters have to directly take a hammer to the situation again. My instincts say that in terms of being “well run” the last few years have been the anomaly and the past 35 years or so are a much more accurate gauge.

        One really good aspect of our direct-ish democracy is that when we really do honest-to-god run out of water, no legacy baggage in our constitution or influence from special interests is going to prevent serious changes from being made. Whether they’ll be well thought out will be interesting to see, but I think they’ll be much better than if they had originated in the legislature.

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      • As I’ve said in response to other comments from you in the past, :

        ????

        Are you referring to desalinization plants? If so, I don’t see why you’re calling out Israel. Also if so, bear in mind that desal water is at least five times more expensive than imported water, on a very good day. Desal is much a last resort to supplementing other sources of fresh water, because it is so astonishingly cost-prohibitive. It might actually be cheaper to build a pipeline from Lake Superior to Sacramento than to try to water California with desalinated seawater.

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      • When we really do honest-to-god run out of water, we will be well and truly scrooooed.

        Well, specifically people who like almonds and out-of-season fruits are gonna be screwed.

        As best I can tell, you guys have plenty of water for drinking, bathing, and normal personal use for your population. Agriculturally, you guys are boned. (Water restrictions passed towards personal use are somewhat pointless when 90% of water use isn’t for people, but plants).

        I mean, I like my out of season fruits and my wife loves almonds, but I’m pretty sure you guys aren’t going to be supplying them for much longer.

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      • , a more interesting question is the over/under on how much of Arizona’s water consumption is still going to agriculture in 2030. Currently, it’s a hair under 70%. The Arizona initiative law requires signatures totaling 15% of the votes cast in the most recent governor’s election to put an amendment to the state constitution on the ballot (no geographic distribution requirement), and a simple majority in the election. The urban/suburban areas can increase their water supply whenever they get desperate enough.

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      • That’s where I was going with it. Trees and vegetables don’t vote, and individual voters don’t take campaign contributions or receive lobbyists in their living rooms. If it comes down to who gets our limited water supplies, I expect our ballot process to iron the issue out. It may not be pretty, but it will get done.

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      • , for all its faults I’d argue that New York is governed just as well as California. The main fault is that we really need to spend more on public transportation in the down state area.

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      • If New York can only manage “just as well as”, then I’d give it to California on degree of difficulty: from 1970, 1.5% annual growth in CA, 0.2% annual growth in NY. That kind of growth, year after year after year, is a massive problem to solve for state and local government, because you’re always playing catch-up in everything.

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      • Burt,
        Yes, right now desal is really freaking expensive (plus there are other things, like agriculture, that Israel can work on with the money we hand it). We’ve got 30-50 years before California really becomes a problem, I hope. Solar is JUST NOW hitting a damn fine tipping point, which is why China is investing heavily in it.

        That’s the thing about emerging technologies, they are prone to becoming “cost-efficient” in leaps and bounds (or fits and stats).

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  5. First off, I too think this is a joke. I think someone looked at the referendum process and crafted something so outrageous, intentionally, knowing that public officials would squirm. That’s one of the reasons they did it–monkey wrenching-for the lulz. The ensuing shitstorm is gold. I think it wildly succeeds on that basis and I wish I was following this more. I think I’d be laughing my ass off. Frankly, I’d like to see more of this type of monkey wrenching.

    Mr. McLaughlin: Well played.

    Now, as to Harris’ actions? I think she’s being a coward. She knows what she has to do. Frankly, if I was a judge, I’d be tempted to kick her out of the court room by saying, “you know the law”. Trying to pin the blame on what she’s legally bound to do on someone else is cowardice and unworthy of honest politicians, but I also realize that that is a oxymoronic phrase.. Woman up and do what you’re paid to do. Yah, I want that kind of person representing me. o.0

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    • I’m a little bit curious about this, especially as it regards attempts to have the dude disbarred.

      I get that “has vile and odious views” isn’t and shouldn’t be grounds for disbarment. But if this is a joke, does that protection still apply? If he’s doing it for kicks or to score some ironic point, is that the sort of misuse of the legal system for which disbarment is a perfectly appropriate penalty?

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  6. Well even if they managed to get the signatures it’d never pass into law. Not even the GOP or the current right is insane enough to want to attach their name to something as odious as this.

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    • To be sure. The GOP would condemn it in no uncertain terms. Even if the California GOP were made up of nothing but slobbering trigger-happy gay-bashers (which it is not), they’d still oppose it because it would create a law enforcement nightmare. This is what AG Harris has described in her media statements; I take to heart ‘s caution that we ought to look at the lawsuit too, and I haven’t found a free copy of it to link to yet; perhaps in that suit she makes a Constitutional argument closer to the one which I’ve endorsed elsewhere in this thread.

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      • Just reread here official statement:

        As Attorney General of California, it is my sworn duty to uphold the California and United States Constitutions and to protect the rights of all Californians. This proposal not only threatens public safety, it is patently unconstitutional, utterly reprehensible, and has no place in a civil society. Today, I am filing an action for declaratory relief with the Court seeking judicial authorization for relief from the duty to prepare and issue the title and summary for the “Sodomite Suppression Act.” If the Court does not grant this relief, my office will be forced to issue a title and summary for a proposal that seeks to legalize discrimination and vigilantism.

        Looks like she might in fact be making the constitutional argument. Whew.

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  7. I never considered looking to attorneys for moral guidance.

    Legal guidance? Absolutely.

    Ethical guidance? Maybe.

    But moral guidance? Some might say that if they were moral, they wouldn’t be attorneys in the first place.

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    • I hate the idea that stereotypical lawyer is an amoral scumbag unless they work for a legal aid organization or potential the government in some way. There is an element of truth in it but many lawyers take their ethical and professioanl responsibilities as lawyers very seriously regardless of what area of law they practice in.

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      • I hate that seriously good defense attorneys accept that their duty is to defend their client, even when they know the client’s guilty; but that is their ethical duty.

        It is not a moral duty, however.

        So I think there might be some truth to the notion of amoral attorneys; but I also think that morality is subjective. An attorney’s ethical obligations are much clearer than an attorney’s moral obligations.

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        • I must disagree. The defense of a criminal defendant, even one known to the defense attorney to be actually guilty, is a moral imperative.

          If the defense attorney does not zealously defend her client, because she knows that client to be guilty of the crime for which he stands accused, then the next defendant, who may actually be innocent, will face that much steeper a challenge against the overwhelming and sometimes abused powers of the state. Not requiring the state to prove its case correctly, each and every time, substantially increases the risk that innocent people will wind up imprisoned.

          Without zealous defense attorneys, the only safeguard in the system against police or prosecutorial misconduct is an active-to-the-point-of-advocacy judiciary. It is important, however, that the judiciary be neutral. It wouldn’t be fair to the prosecution to make them litigate against a bench that felt an imperative to look at things from the defendants perspective. The defense attorneys fill a necessary position within the system that allows the people who preside over that system to make decisions neutrally and on the merits.

          It is an ethical imperative to represent the client you have today as zealously as possible. It is a moral imperative to keep the criminal justice system functioning properly because without a properly functioning criminal justice system, everyone is vulnerable to injustice. That is a much larger and more important concern than the guilt or innocence of any individual client.

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      • The Practice was an amazingly good TV program, in large part because of its relentlessness in defending the defending of the guilty as well as the innocent.

        If they hadn’t slipped into some of the ratings-driven plots that it did, it might be the best show in television history.

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      • Lee,
        their ethical and professional responsibilities often run counter to moral responsibilities. it is WELL that we remember this.

        While the lawyer may morally want to soundly thrash the child molestor, it is still HIS JOB to defend the bloke, if he accepts the payment rendered.

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      • zic,
        Yeah. We have lawyers for ethical reasons, not moral ones. It is ethics, the branch of “social justice” that revolves around having a community we can stand to be part of, that governs the need and demand for lawyers.

        Morals are for priests, if that. Even Psychologists don’t have much truck with morals (save if someone’s life is in danger), because morals spell personal judgement, and that’s not what counselors are about.

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      • Guilty people deserve a competence defense the same as the not guilty. Often, the alternative is not between a guilty or a not guilty verdict, but the difference between a humane punishment and the government squeezing you for everything they can.

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      • Defending those we THINK are guilty is the moral thing to do. The obligation is to the system, vice the individual who you THINK may be guilty, though. Because the system doesn’t work (or, it would work much worse) if both sides don’t have advocates.

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      • In a system based on rule of law, equal protections of the law, and due process; making sure that everybody has a lawyer willing to act as loyal and zealous advocate is a moral act even if that person is odious or guilty as sin. It is a moral act because our system is based on the idea that every brought in front of the law in one way should have his or her day in court.

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      • Yes. And all those supreme court opinions about the innocent who remain incarcerated are based on the process — which is ethical, not the morality of incarcerating the innocent. See justices Scalia and Thomas for examples, please.

        I am not complaining about lawyers. I am pointing out the rhetorical problems of conflating morals and ethics.

        They are not the same thing, though they are related value systems. More to the point, because we have varying moral systems (abortion, for instance; I think removing control of a woman’s body is immoral, others that aborting a fetus is immoral,) we have ethics — an agreed-upon code, often legal.

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      • I’ll just add that many, perhaps most, private defense lawyers actually do have pretty clear moral lines that they will not cross, though those lines differ from attorney to attorney. There are cases they simply will not take because of their own moral reasoning. Additionally, it’s long been my understanding (though oddly, I’ve never actually asked about this, so maybe I’m wrong) that a good chunk of defense attorneys make a point of not seeking to know for absolute certain whether their client is guilty or not.

        But even when they do know their client is guilty, they may well see it as a moral obligation – not just an ethical obligation – to put the best defense forward they possibly can by calling into question areas where they think the prosecution has screwed up. When the government wins a case against a guilty person on questionable evidence, they are enabled to make a case against an innocent person in the future based on similarly questionable evidence.

        And all of this ignores that, as points out, in most instances, it’s not even about getting the client acquitted, but instead ensuring that the client is treated humanely.

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      • Lynchpin-event ex is a lawyer and she handles stuff like DUI and whatnot. I gave her some crap about defending the guilty and she explained it to me like this:

        She knows that a lot of the people she represents may have actually been driving under the influence when they were caught. But that doesn’t excuse cops for taking shortcuts and there is the reality that if you end up with this judge you’ll get 3 years and a yanked license and if you get that judge you’ll get 3 months suspended and probation and it ain’t right that the people most likely to be able to afford the whiteshoe lawyers can always figure out if the cops took shortcuts and end up in the latter judge’s courtroom and the public defenders don’t care if they end up in the former’s courtroom.

        So she works to make sure that everybody who comes into her office get the best legal representation. If the penalty for doing wrong can be between X and Y, it’s her job to make sure that her clients get X if they did wrong, not Y.

        If they did wrong, of course.

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      • I’m of the opinion that the most immoral scumbag lawyers work for the government, in the prosecutor’s office.

        Create a job where you have (practically) absolute immunity and the ability to screw people over, how could you not attract a bunch of power-tripping sadists?

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      • She knows that a lot of the people she represents may have actually been driving under the influence when they were caught. But that doesn’t excuse cops for taking shortcuts and there is the reality that if you end up with this judge you’ll get 3 years and a yanked license and if you get that judge you’ll get 3 months suspended and probation and it ain’t right that the people most likely to be able to afford the whiteshoe lawyers can always figure out if the cops took shortcuts and end up in the latter judge’s courtroom and the public defenders don’t care if they end up in the former’s courtroom.
        Last time I talked to a lawyer, he was mentioning something similar. (He’s in family law, so he spends a lot of time in front of judges arguing the details of a divorce or, more common, custody.).

        He was quite professional, but noted that in terms of custody certain things weren’t even worth trying in front of some judges — it was a non-starter — whereas others the judge would rule entirely based on the situation at hand.

        Said it evened out (they pretty much all had their biases) in the long run, but it seemed pretty obvious he disliked going into court knowing WHO the judge was might matter more than the case at times, even if it was in his favor.

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      • One advantage to not knowing if your client did it is that, barring willful blindness, you don’t have to worry about being put in a position to suborn perjury. But I have no idea if this is an actual preference of defense attorneys.

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  8. I have to confess, I’m a little less sure than Burt about the need to accommodate McLaughlin. So allow me to push back.

    Now off course, I recognize that we should have the Constitutional right to offend through our words, and I agree as well that Ms. Harris has professional duties that should not be waved away for the sake of political convenience. However, as with most things I am not an absolutist when it comes to our freedoms and duties, and this case strikes me as being one of those cases that might be allowed to fall through the cracks.

    My main defense of trying to quash McLaughlin’s initiative is actually one in defense of McLaughlin. Remember, this isn’t someone that’s passing a bill saying gays shouldn’t be allowed to do X, or that we should deport them. McLaughlin’s initiative says that anyone who is determined to be gay or lesbian be shot in the head should they even touch another human being in a way that might be misconstrued as non-platonic. Most sites where I have seen this story covered have been liberal ones, and McLaughlin’s initiative is portrayed on these sites as a political one. And no small wonder — for places like TPM and Media Matters, this is a horrifying example of where the slippery slopes of the Right can lead. But I submit that it’s actually far more likely that this initiative comes not from McLaughlin’s political viewpoints so much as it does some very profound mental illness.

    In Portland, there are a variety of places (like our Pioneer Square) where people of different political persuasions go to get on soapboxes and speak out for or against all sorts of things. Some are pretty mainstream; others less so. Some are downright nutty sounding. But every now and then someone starts yelling stuff and it becomes obvious that the person isn’t nutty so much as actually suffering from a very severe episode of mental illness, which might indicate a danger to themselves and others.

    In these cases, authorities and social workers are called and these people are taken to places where they can receive help of one form or another. They are not allowed to continue as long as they’d like in the public square because of “free speech,” because the prevailing wisdom is that the likelihood of danger they pose to themselves (and perhaps others) outweighs the very real notion that they have a right to stand in the square and say things.

    I strongly suspect that McLaughlin’s case is more similar to those people I’ve described above than they are to, say, someone at the Family Research Council. And I think it’s too easy to imagine what will happen when the initiative gets passed and McLaughlin’s home address is inevitably posted online.

    I’m just not sure that’s what the Constitution — or Harris’s oath — is there to protect.

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    • How are you going to draw the line? Shall we round up by force anyone who has extreme viewpionts and is trying to use the political process to their goals? Do we scale that effort to how outraged the twitverse is? Shall we just trust our gov’t minders on when and where to draw that line?

      Forced commitment for pyche evaluations for all who disagree with the majority?

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      • This. Drawing the line is a tough thing to do. Homosexuals were once thought to be inherently mentally ill. We know better now, in our more enlightened times, but we mustn’t be so arrogant as to presume that knowing better is the same thing as knowing all.

        Add to that, the claim that “McLaughlin is not mentally well-balanced” serves as a balm to the moral shock of seeing what he advocates. Perhaps too convenient and pleasant a balm to be entirely trustworthy. We cannot simply write off people who have ideas out of the mainstream and say “They’re obviously crazy” and then act like they don’t exist or they don’t matter or they’ll be fine with a sufficient and regular dose of lithium.

        Fact is, there are really bigots out there. They aren’t bigots because they’re mentally ill — they’re just fishin’ prejudiced, and they’re willing to act on their prejudices. It’s an ugly fact but a fact nonetheless.

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      • It sounds like this woman was probably held unreasonably (and in fact I’m very wary of forced institutionalization period), but man that article was horribly and deceptively written. It starts out suggesting that she was put in there for saying Obama follows her, then in the 7th paragraph, gets to what really got her in there. It sounds like she didn’t mention Obama following her until after she was already committed, in fact.

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      • It looks like everything points back to this story, and even from that story (with its misleading headline), it’s quite clear that her being held had little, if anything, to do with the Twitter remark. The doctors didn’t believe a lot of what she said, probably because she gave them some reason not to, or something the cops said gave them reason not to (which is not to say their reasons were good ones).

        There’s much more to this story than we’re seeing.

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      • The part I find particularly chilling is this bit, which does not appear to be in dispute:

        A “master treatment plan” from Harlem Hospital backs up the Astoria Bank worker’s story.

        “Objective: Patient will verbalize the importance of education for employment and will state that Obama is not following her on Twitter,” the document reads.

        Additionally, if her attorney is correct about why she was institutionalized, then that sounds like “contempt of cop.” However, those circumstances are definitely murkier and the suit will hopefully shake out the truth on that front.

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      • There does seem to be some difference between 1) forcing someone to lie about the president following them on social media and 2) a lawyer sponsoring a referendum that calls for murdering people.

        So if we need to ask more questions about #1 — and presuppose there is some other reason she was institutionalized, then we definitely need to ask more questions about #2, which institutionalizes murder of people rooted in bigotry.

        Honestly, I’m reminded of the first episode of Dark Matter, only instead of a pig and a prime minister, we have a referendum and ballots.

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      • It’s definitely a potentially disturbing story. I say potentially because all we have at the moment is a single sensationalist, poorly-sourced story written entirely from her perspective, with huge gaps in information.

        It’s now an international story, and people ate outraged despite having no clue whatsoever about what really went down.

        to me, the dude in California, who may be mentally ill, or maybe just really religiously misguided, is the lesser story by far. His bill wasn’t going anywhere, there was never any threat of it going anywhere, it’s just a sign that real homophobia is alive and well.

        The woman’s commitment story, however, has potential very real, very impactful policy implications.

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  9. So here’s a hypothetical.

    It seems to me that willingness to submit this to the legislative process is either the result of a diseased mind or someone who has a very broken idea of satire (or rather, a nonconsequentialist view of satire, to be precise).

    But hey, this isn’t about me.

    If I am a homosexual person who has been, say, beaten before, or abused before, or threatened before, I can imagine I might be wildly discomfited by this proposed legislation. I may indeed have legitimately deeply ingrained psychological trauma exacerbated by the existence of this proposal. I may fear for my life (perhaps unreasonably so). I may, explicitly, fear the person of Mr. McLaughlin as representing, by his own words and deeds, a clear animus and danger to my person, up to the extent of advocating my murder.

    So if I know what Mr. McLaughlin looks like, and I happen to see him in the state of Florida, is it legitimate for me to pull out my pistola (which I have righteously acquired a license to carry, etcetera), espouse in a very distressed voice that I believe that he represents a danger to my person, and when he leans slightly in my direction – since I have no duty to retreat – blow his head off’n its perch?

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  10. Wish I had read this earlier.
    I just asked an attorney for advice on an ethical issue a few days ago.
    (Gulp!)

    I may well end up as Outrage of the Week . . .

    (Outrage of the Day is a status I am well accustomed to)

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