Boots & Sabers

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Category: Law

Court Orders Evers to Surrender Emails

by | 0705, 18 Nov 20 | , | 4 Comments

Governor Evers has been flagrantly violating the Open Records Laws. This is not the first example. It won’t be the last. He shuns oversight by the people.

MILWAUKEE – After a year-long battle over Governor Tony Evers’ emails, a Dane County Circuit Court judge ruled this week in FOX6’s favor.

In September 2019, FOX6 requested just over four weeks of emails to and from Governor Tony Evers and his chief of staff, Maggie Gau. FOX6 regularly conducts open records spot checks on public employees’ emails. A recent spot check on two weeks of state lawmakers’ emails uncovered the practice of using personal email addresses to communicate about sensitive government information.

The governor’s assistant legal counsel Erin Deeley denied the request and FOX6’s subsequent attempt to narrow the request to emails from one week.

Finally, FOX6 asked for just Governor Evers’ emails from just one day – June 14, 2019. The request was denied. Governor Evers’ attorney said all email requests will be denied if they do not contain search terms or wording she can turn into search terms. That is, requests for emails about the budget or containing the word “agriculture,” for example, may be processed; requests for all emails over a specific time frame, no matter how short, will be denied. In other words, the requesters need to know what’s in the public records before they can see the public records.

Obama Says Social Media Companies are Acting Like Publishers and Not Platforms

by | 1015, 16 Nov 20 | , , | 7 Comments

I agree!

Former U.S. President Barack Obama said that the extent to which social media companies claim they “are more like a phone company than they are like The Atlantic” is not “tenable,” he told the publication in an interview published Monday.

“They are making editorial choices, whether they’ve buried them in algorithms or not,” the former president said in the interview. “The First Amendment doesn’t require private companies to provide a platform for any view that is out there. At the end of the day, we’re going to have to find a combination of government regulations and corporate practices that address this, because it’s going to get worse. If you can perpetrate crazy lies and conspiracy theories just with texts, imagine what you can do when you can make it look like you or me saying anything on video. We’re pretty close to that now.”

Obama’s statement that social media platforms should be considered more like publishers than public utilities would have significant implications on how the companies are regulated.

[…]

President-elect Joe Biden has harshly criticized Section 230 and Facebook itself in an interview with The New York Times editorial board published earlier this year.

“Section 230 should be revoked, immediately should be revoked, number one. For Zuckerberg and other platforms,” Biden said at the time, referring to Facebook CEO Mark Zuckerberg, taking a more extreme position than many of the Democrats and Republicans currently seeking to tweak the laws’ protections.

In October, I said:

In purposefully, actively, and personally deciding to stomp on a negative story about Joe Biden that was published by a reputable newspaper in the midst of a political campaign, Facebook and Twitter have definitively and unmistakably crossed the line from being internet platforms to publishers. As such, the legal protections granted to them under Section 230 must be withdrawn so that they can be regulated like The New York Times, Fox News, MSNBC, and all of the other publishers that filter, edit, and curate the information they provide to their subscribers.

Facebook and Twitter can’t have it both ways. If they want the legal protections provided under Section 230, then they must allow all information to flow freely. If they want to be information gatekeepers, then those protections must be withdrawn so that people have legal remedies against abuse.

Should Insurance Cover COVID Business Losses?

by | 0841, 16 Nov 20 | , | 7 Comments

Interesting case in the UK.

A hotly-contested case about insurance payouts for small businesses who were unable to trade owing to lockdown heads to the Supreme Court on Monday.

A host of businesses closed or faced significant losses, so made claims on their business interruption insurance.

But many insurers disputed the claims, arguing policies were never meant to cover such unprecedented restrictions.

Supreme Court judges will make a final judgement after the hearing, which is expected to last four days.

The issue will have had implications for 370,000 – mostly small – businesses, and involves potential payouts of £1.2bn.

High Court judges earlier found mostly in favour of insurers having to pay out to policyholders regarding a selection of policy types. Some of these decisions are now being appealed against at the Supreme Court.

This should be a relatively simple case. The contract is the contract and it says what it says. If there is language in the contract that excludes something like a government shutdown due to pandemic, or if there is language that says that “everything not covered is considered NOT covered” then the insurers are off the hook. It would be inappropriate to hold insurers to cover losses for a circumstance that they didn’t agree to cover and for an action that they didn’t cause.

The only question should be, “what is the language of the contract?” If the language is ambiguous and the business owners had a reasonable expectation of the insurers covering their losses, then perhaps the court will rule in the business owner’s favor.

It’s an important case because some judges in the U.S. have shown that they will look to foreign rulings to inform their decisions. Our judges shouldn’t do that, but they do. Watch this case in the U.K. If the High Court forces insurers to pay, there will be a slew of additional lawsuits in the U.S.

Mailed Ballots Must Be in Officials’ Hands by 8 PM on Election Day

by | 2005, 26 Oct 20 | , | 45 Comments

Court upholds clear language of the law.

The United States Supreme Court on Monday upheld Wisconsin’s voting laws requiring absentee ballots be in election officials’ hands by the time polls close at 8 p.m. on Election Day, Nov. 3, the Milwaukee Journal Sentinel reported. The Supreme Court’s decision was decided 5 to 3.

Democrats challenged the law, saying the Election Day deadline should be extended because of the Wuhan coronavirus pandemic. They unsuccessfully argued that ballots should be counted as long as they are postmarked on or before Election Day.

Republicans made the argument that election rules shouldn’t change in the face of the pandemic.

The contentious decision comes after a federal court of appeals upheld a six-day extension for ballot counting.

Chief Justice John Roberts was the deciding factor in this vote, although he joined with the liberal justices to extend ballot counting in Pennsylvania. According to the chief justice, the two states are vastly different.

 

Justice Barrett

by | 1918, 26 Oct 20 | , | 31 Comments

Huzzah, huzzah.

Amy Coney Barrett was confirmed to the Supreme Court Monday evening by the Senate in a 52-48 vote – with Republican Susan Collins crossing the aisle to vote against her.

Donald Trump’s third nominee was not in the chamber to watch the roll call vote, which allows her to join the eight justices on Tuesday morning, and potentially to decide on cases about voting before the November 3 election.

Senate president pro tempore Chuck Grassley declared her confirmation at 8.06pm; outside the Supreme Court conservatives chanted Coney Barrett’s name as soon as she was confirmed.

Time to regulate Facebook, Twitter like the publishers they are

by | 1022, 21 Oct 20 | , , | 2 Comments

Here is my column that ran in the Washington County Daily News this week.

The New York Post, the newspaper founded by Alexander Hamilton, broke a story last week about Joe Biden’s family. The story was supported by credible evidence and implicated Joe Biden and his son, Hunter, in a long-term scheme to shake down foreign entities for money in exchange for favorable American government action. It is the kind of story that, if true, is the most serious kind of government corruption imaginable — the selling of American foreign policy for cash.

The bombshell story was instantly quashed and hidden by Twitter and Facebook. Both companies actively censored the story, blocked accounts that attempted to share the story, and disabled links under the faux-truistic cover that they were upholding journalistic standards by insisting on stronger sourcing. This is despite a lengthy history of allowing every conspiracy theory and liberal fake news story to propagate unmolested. In choosing to put their digital thumbs on the Biden story, both companies crossed the line from internet platforms to publishers and require a different regulatory treatment.

Twitter and Facebook both benefit from Section 230 of the Communications Decency Act of 1996, which is credited with providing the legal umbrella that allowed the internet to flourish into what it is today. Section 230 simply states, in its entirety, “No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.”

While simple, the distinction has massive implications in law. By not being deemed a publisher, internet companies are protected against liability for libel or defamation for what appears on their platforms. Section 230 is an evolution of an ancient English common law practice of “common carriage” or common carrier. The crux of common carriage is that private enterprises who are engaged in something imperative to the common good are granted some special protections by the government in exchange for certain obligations. In the case of internet companies, the free exchange of ideas these platforms facilitate is considered the lifeblood of a free, self-governing society and a common good worthy of such protections.

In the 20th century the common carrier that dominated technology for the better part of 70 years was AT&T. In exchange for a monopoly on long-distance lines and the ability to use eminent domain, AT&T agreed to let the government regulate their rates and, what was critical, to not discriminate against what was said on those lines. This was a stark contrast to the great monopoly of the telegraph, Western Union, which might have helped sway the presidential election of 1876 to Rutherford B. Hayes by secretly providing the Hayes campaign the Democrats’ telegrams and suppressing others. AT&T’s great bargain was to agree to be regulated in exchange for a monopoly.

Section 230 took the grand bargain a step further by providing all of the benefits of legal absolution in exchange for nothing. Under this law, companies like Twitter and Facebook grew up into dominant natural monopolies because their users provided petabytes of content for other users to consume without having to police the content for accuracy or even sanity.

Make no mistake, if you are not paying for it, you are what is being sold. In the case of Twitter and Facebook, their business model is to collect incredible amounts of personal data about their users and sell that data for the purpose of target marketing, research, and whatever other moneymaking purpose they can divine. Their algorithms target people for specialized content and might have already broken the common carrier trust that the public bestowed on them.

In purposefully, actively, and personally deciding to stomp on a negative story about Joe Biden that was published by a reputable newspaper in the midst of a political campaign, Facebook and Twitter have definitively and unmistakably crossed the line from being internet platforms to publishers. As such, the legal protections granted to them under Section 230 must be withdrawn so that they can be regulated like The New York Times, Fox News, MSNBC, and all of the other publishers that filter, edit, and curate the information they provide to their subscribers.

Facebook and Twitter can’t have it both ways. If they want the legal protections provided under Section 230, then they must allow all information to flow freely. If they want to be information gatekeepers, then those protections must be withdrawn so that people have legal remedies against abuse.

Time to regulate Facebook, Twitter like the publishers they are

by | 0814, 20 Oct 20 | , , | 5 Comments

My column for the Washington County Daily News is online and in print. I know what you’re thinking… what the heck did President Hayes do to make the news this week? You’ll have to read and see.

In the 20th century the common carrier that dominated technology for the better part of 70 years was AT& T. In exchange for a monopoly on long-distance lines and the ability to use eminent domain, AT&T agreed to let the government regulate their rates and, what was critical, to not discriminate against what was said on those lines. This was a stark contrast to the great monopoly of the telegraph, Western Union, which might have helped sway the presidential election of 1876 to Rutherford B. Hayes by secretly providing the Hayes campaign the Democrats’ telegrams and suppressing others. AT& T’s great bargain was to agree to be regulated in exchange for a monopoly.

Judge Reinstates Evers’ Illegal Order

by | 1152, 19 Oct 20 | , | 48 Comments

Again, the legislature can act if they have the will to do so.

MADISON – A Barron County judge has revived Gov. Tony Evers’ order limiting public gatherings, including the number of customers who may visit bars and restaurants at one time.

Judge James Babler denied a motion from the Tavern League of Wisconsin and two bars to continue to block the Evers administration’s latest health emergency order after a ruling last week by a Sawyer County judge that prevented enforcement of the order temporarily.

Babler said the plaintiffs could not show they were complying with the order and therefore hadn’t proven they were harmed by it.

He also said the May state Supreme Court ruling that knocked down Evers’ stay-at-home order did not make clear what authority the administration has in placing such limits, despite the plaintiffs arguing the decision prevents Evers from issuing the latest order.

I thought this was an interesting take:

Babler said the plaintiffs could not show they were complying with the order and therefore hadn’t proven they were harmed by it.

So if the order is useless because nobody is complying with it, then why bother having it?

Biden Supports Court Packing

by | 2202, 15 Oct 20 | , | 12 Comments

After all of the blather about the integrity of the court and a return to normal, Biden is open to one of the most radical power grabs from another branch of government in the modern era.

Democratic nominee Joe Biden opened the door to expanding the number of justices on the Supreme Court, depending on how the rest of Judge Amy Coney Barrett‘s confirmation process is handled.

‘I have not been a fan of court-packing because it generates, whoever wins it just keeps moving in a way that is inconsistent with what is going to be manageable,’ Biden said Thursday night at an ABC News townhall.

But with prodding from George Stephanopoulos, Biden said it would be something he’d consider though it ‘depends on how this turns out,’ telling the ABC News anchor he would announce a clear position by the November 3 presidential election.

Judge Temporarily Blocks Evers’ Illegal Order

by | 1902, 14 Oct 20 | , | 5 Comments

Some good news. Let’s hope the ruling matches.

MADISON, Wis. (AP) — A Wisconsin judge on Wednesday temporarily blocked an order from Gov. Tony Evers’ administration limiting the number of people who can gather in bars, restaurants and other indoor places, a move that comes as the state breaks records for new coronavirus cases, deaths and hospitalizations.

[…]

A GOP-controlled legislative committee on Monday met to begin the process of creating the rule, which would then allow the Legislature to strike it down.

Sawyer County Circuit Judge John Yackel, who blocked the order a day after the Tavern League of Wisconsin sued, set a court date for Monday. He said the hearing will give attorneys for the Evers administration a chance to argue why the order should not be put on hold while the lawsuit plays out.

Judge Allows Executive Tyranny to Continue Because Legislature Fails to Act

by | 1131, 12 Oct 20 | , | 7 Comments

While I think the ruling is wrong on the law, I understand the deference to the separation of powers issue.

MADISON – A Wisconsin judge has blocked an effort by Republicans to end Democratic Gov. Tony Evers’ statewide mask mandate at a time when coronavirus cases are surging.

St. Croix County judge R. Michael Waterman on Monday denied the request by plaintiffs represented by the conservative Wisconsin Institute for Law & Liberty legal firm — an effort that was backed up in court by Republican lawmakers — and ruled the governor has the power to issue multiple health emergency orders over the same pandemic.

Attorneys for the plaintiffs said they will appeal the decision.

No Charges In Tosa Case

by | 1940, 7 Oct 20 | , , | 3 Comments

This was the correct decision.

Black Wisconsin police officer who fatally shot a Black teenager outside a suburban Milwaukee mall in February won’t be charged because he had reasonable belief that deadly force was necessary, a prosecutor said Wednesday.

Wauwatosa Officer Joseph Mensah shot 17-year-old Alvin Cole outside Mayfair Mall on Feb. 2 after police responded to a reported disturbance at the shopping center.

Milwaukee County District Attorney John Chisholm, in a 14-page letter laying out his rationale, said evidence showed Cole fled from police carrying a stolen 9 mm handgun. He cited squad car audio evidence, along with testimony from Mensah and two fellow officers, that he said showed Cole had fired a shot while fleeing and refused commands to drop the gun.

“He did not surrender the weapon and was fired upon by Officer Mensah causing his death,” Chisholm wrote. He concluded: “(T)here is sufficient evidence that Officer Mensah had an actual subjective belief that deadly force was necessary and that belief was objectively reasonable.”

Stairway to Heaven Lawsuit Ends

by | 2125, 5 Oct 20 | , | 4 Comments

Whew.

The final possible legal challenge to Led Zeppelin’s ownership of Stairway To Heaven has been defeated.

The band were sued for copyright in 2014 over claims they had stolen the song’s opening riff from Taurus, by a US band called Spirit.

Led Zeppelin won the case in 2016, but it was revived on appeal in 2018.

A court of appeals upheld the original verdict earlier this year. Now, the US Supreme Court has declined to hear the case, definitively ending it.

Barrett Opposes Abortion

by | 2134, 1 Oct 20 | , | 21 Comments

Well, duh.

Amy Coney Barrett, the supreme court nominee, signed off on an advertisement in 2006 that called for the overturning of Roe v Wade, and called the landmark abortion rights decision “barbaric” and a “raw exercise of judicial power”.

[…]

In a statement to the Guardian, the White House said: “As Judge Barrett said on the day she was nominated, ‘A judge must apply the law as written. Judges are not policymakers, and they must be resolute in setting aside any policy views they might hold.’”

The statement appears to reflect an acknowledgment that Barrett’s personal views on abortion could hurt her chances at confirmation.

I reject the judicial standard that is only held against conservatives. Namely, that any expression of an opinion on anything renders one unfit for the court. What an idiotic standard that is only selectively applied.

In this case, it is well known that Barrett opposes killing babies and thinks Roe was a bad ruling. Every Senator knows it. The fact that she said it in public 16 years ago is not disqualifying. Frankly, I’d be more concerned if she hid her views.

Court Rules that Subway’s Bread Isn’t Actually Bread

by | 1953, 1 Oct 20 | , | 3 Comments

Never get between a government and their tax.

The rolls used in Subway’s hot sandwiches contain too much sugar to be considered bread, according to Ireland’s Supreme Court.

Ireland’s highest court made the ruling in a case about how the bread is taxed.

An Irish franchisee of the US company had claimed it should not pay VAT on the rolls it uses in heated sandwiches.

But the court ruled that because of the level of sugar in the rolls they cannot be taxed as bread, which is classed as a “staple product” with zero VAT.

Under Ireland’s VAT Act of 1972, ingredients in bread such as sugar and fat should not exceed 2% of the weight of flour in the dough.

Appeals Court Stays Partisan Judge’s Order

by | 1615, 27 Sep 20 | , | 3 Comments

Good.

MADISON, Wis. (AP) —

A federal appeals court on Sunday temporarily halted a six-day extension for counting absentee ballots in Wisconsin’s presidential election.

[…]

Sunday’s action puts Conley’s order on hold until the 7th Circuit U.S. Court of Appeals or U.S. Supreme Court issues any further action.

No further details were immediately posted by the appeals court.

Trump Nominates Barrett for SCOTUS

by | 0912, 27 Sep 20 | , | 41 Comments

Sorry for going dark yesterday. I was in final consideration for the SCOTUS pick. As you can see, the President went another way.

US President Donald Trump has nominated Amy Coney Barrett, a favourite of social conservatives, to be the new Supreme Court justice.

Speaking by her side at the White House Rose Garden, Mr Trump described her as a “woman of unparalleled achievement”.

[…]

After graduating from Notre Dame University Law School in Indiana, she clerked for the late Justice Antonin Scalia. In 2017, she was nominated by Mr Trump to the Chicago-based 7th Circuit Court of Appeals.

She is an outstanding pick. If there is one thing that Trump has proven to be very capable of, it’s choosing Supreme Court Justices. His previous two picks have been outstanding and this one is too.

Given that the Senate confirmed her just three years ago, there shouldn’t be a need for much of a confirmation hearing. There will be, of course, but it’s just theater with Republicans trying to goad Democrats into bashing a Catholic Midwestern woman and the Democrats taking the bait.

Justice Department Builds Antitrust Case Against Google

by | 2121, 24 Sep 20 | , , | 5 Comments

This could have far-reaching implications.

WASHINGTON (AP) — The Justice Department is expected to bring an antitrust action against Google in coming weeks, focusing on its dominance in online search and whether it was used to stifle competition and hurt consumers, a person familiar with the matter told The Associated Press Thursday.

The department also is examining Google’s online advertising practices, said the person, who could not discuss an ongoing investigation publicly and spoke on condition of anonymity. Antitrust officials at the department briefed state attorneys general Thursday on the planned action against Google, seeking support from states across the country that share concerns about Google’s conduct.

The anticipated lawsuit against Google could be the government’s biggest legal offensive to protect competition since the groundbreaking case against Microsoft almost 20 years ago.

Lawmakers and consumer advocates accuse Google of abusing its dominance in online search and advertising to stifle competition and boost its profits.

Charges Announced in Breonna Taylor Killing

by | 1315, 23 Sep 20 | , , | 7 Comments

Make no mistake… Louisville was going to burn irrespective of what the charges were or were not. On the merits, the charges appear to be appropriate.

One of three Louisville police officers involved in the fatal shooting of Breonna Taylor was indicted by Kentucky  grand jury on Wednesday, following a six-month investigation into the case that sparked mass protests nationwide.

Jefferson County Circuit Judge Annie O’Connell read the grand jury’s decision in open court on Wednesday afternoon, charging fired detective Brett Hankison with three counts of wanton endangerment in connection to the police raid on the night of March 13.

Sgt Jonathan Mattingly, Detective Myles Cosgrove, who were also present at the time of Taylor’s death, were not charged.

Activist Judge Extends Wisconsin Election

by | 0818, 22 Sep 20 | , | 5 Comments

This has no basis in law. It’s just what the judge thought was “fair.” Do we really want judges just setting whatever rules they want and changing it on the fly? Our election laws have been in place for many years and have served Wisconsin well. Why change less than 6 weeks before the election?

MADISON, Wis. — A federal judge ruled Monday that absentee ballots in battleground Wisconsin can be counted up to six days after the Nov. 3 presidential election as long as they are postmarked by Election Day.

The highly anticipated ruling, unless overturned, means that the outcome of the presidential race in Wisconsin might not be known for days after polls close. Under current law, the deadline for returning an absentee ballot to have it counted is 8 p.m. on Election Day.

Democrats and their allies sued to extend the deadline in the key swing state after the April presidential primary saw long lines, fewer polling places, a shortage of workers and thousands of ballots mailed days after the election.

U.S. District Judge William Conley granted a large portion of their requests, issuing a preliminary injunction that was expected to be appealed all the way to the U.S. Supreme Court. He put the ruling on hold for seven days to give the other side a chance to seek an emergency appeal.

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