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

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Burt Likko

Pseudonymous Portlander. Homebrewer. Atheist. Recovering Republican. Recovering Catholic. Recovering divorcé. Editor-in-Chief Emeritus of Ordinary Times. Relapsed Lawyer, admitted to practice law (under his real name) in California and Oregon. On Twitter, to his frequent regret, at @burtlikko. House Likko's Words: Scite Verum. Colite Iusticia. Vivere Con Gaudium.

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90 Responses

  1. Avatar Saul Degraw
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    says:

    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.Report

  2. Avatar Matt Parker
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    says:

    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.Report

    • Avatar Matt Parker in reply to Matt Parker
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      says:

      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.Report

    • Avatar Burt Likko in reply to Matt Parker
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      says:

      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.Report

      • Avatar Matt Parker in reply to Burt Likko
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        says:

        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.Report

      • Avatar Kolohe in reply to Burt Likko
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        says:

        “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)Report

    • Avatar Burt Likko in reply to Matt Parker
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      says:

      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.Report

      • Avatar Matt Parker in reply to Burt Likko
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        says:

        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.Report

  3. Avatar Alan Scott
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    says:

    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”.Report

    • Avatar Saul Degraw in reply to Alan Scott
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      says:

      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.Report

      • Avatar Michael Cain in reply to Saul Degraw
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        says:

        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.Report

      • Avatar Burt Likko in reply to Saul Degraw
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        says:

        My bet is with @michael-cain . I believe that most of the time, the voters are generally smart enough to see a turd when it’s served up to them. It’ll take more mayonnaise than is possible to serve up here before this sandwich can be made palatable.Report

      • Avatar Alan Scott in reply to Saul Degraw
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        says:

        @burt-likko , If voters were really smart enough to avoid the turds, the initiative section of the ballot would be blank most years.Report

    • Avatar Michael Cain in reply to Alan Scott
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      says:

      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.Report

      • Avatar Mike Schilling in reply to Michael Cain
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        says:

        This would be an amendment to the state constitution. As was Prop 8, which made SSM illegal, as it overturned a decision of the state Supreme Court.Report

      • Avatar Burt Likko in reply to Michael Cain
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        says:

        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.Report

      • Avatar Jaybird in reply to Michael Cain
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        says:

        (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.)Report

      • Avatar Mike Schilling in reply to Michael Cain
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        says:

        I stand corrected.Report

  4. Avatar Troublesome Frog
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    says:

    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.Report

    • Avatar LeeEsq in reply to Troublesome Frog
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      says:

      Combining direct democracy with representative democracy strikes me as a remarkably bad idea.Report

      • Avatar Troublesome Frog in reply to LeeEsq
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        says:

        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.”Report

        • Avatar Burt Likko in reply to Troublesome Frog
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          says:

          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.Report

      • Avatar Michael Cain in reply to LeeEsq
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        says:

        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.Report

      • Avatar Troublesome Frog in reply to LeeEsq
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        says:

        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.Report

      • Avatar Burt Likko in reply to LeeEsq
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        says:

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

        Bill Starbuck for Governor.Report

      • Avatar Kim in reply to LeeEsq
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        says:

        Burt,
        Why do you think we give so much money to Israel?
        We’re hoping they can solve the California Issue.
        (Phoenix is hopeless, alas… as is Miami, but for different reasons).Report

      • Avatar Will Truman in reply to LeeEsq
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        says:

        Kim, what’s your over/under for the population of Phoenix metro area in 2030?Report

      • Avatar Burt Likko in reply to LeeEsq
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        says:

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

        ????

        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.Report

      • Avatar morat20 in reply to LeeEsq
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        says:

        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.Report

      • Avatar Michael Cain in reply to LeeEsq
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        says:

        @will-truman , 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.Report

      • Avatar Troublesome Frog in reply to LeeEsq
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        says:

        @morat20

        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.Report

      • Avatar Oscar Gordon in reply to LeeEsq
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        says:

        How we think about Ag is going to have to change in some areas. Aggressive Ag water recycling is going to become a thing in some areas.Report

      • Avatar Jaybird in reply to LeeEsq
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        says:

        Maybe we can finally get rid of lawns. We need to institute lawn-shaming. Or get the people who actually go to the suburbs to institute it.

        Lord knows, you won’t catch me dead in the suburbs.Report

      • Avatar LeeEsq in reply to LeeEsq
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        says:

        @michael-cain, 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.Report

      • Avatar Michael Cain in reply to LeeEsq
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        says:

        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.Report

      • Avatar Kim in reply to LeeEsq
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        says:

        Will,
        dunno. I should put together a post, and then we can all bet on which us metro will be a ghosttown first.Report

      • Avatar Kim in reply to LeeEsq
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        says:

        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).Report

      • Avatar Kim in reply to LeeEsq
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        says:

        Michael Cain,
        Yeah, not to mention the water intensive plant that I think Intel is building in Phoenix.
        Sometimes one has to ask “what was the metro thinking?” and the response is “jobs now!”Report

  5. Avatar Damon
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    says:

    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.0Report

    • Avatar Alan Scott in reply to Damon
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      says:

      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?Report

      • Avatar Damon in reply to Alan Scott
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        says:

        @alan-scott
        Dunno. To my knowledge, and I’m not generally keeping up with this story, we don’t know who the guy actually is or if he’s a lawyer. All we have is a name and an address and a bar membership.Report

  6. Avatar North
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    says:

    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.Report

    • Avatar LeeEsq in reply to North
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      says:

      Don’t tempt fate.Report

      • Avatar North in reply to LeeEsq
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        says:

        If the GOP or far right WAS so insane as to affiliate with something this odious they’d devastate their electoral prospects for at minimum a cycle. So I am pretty sanguine at the prospect.Report

      • Avatar LeeEsq in reply to LeeEsq
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        says:

        Liberals thought that the Great Recession combined with memory of Bush’s domestic and foreign policy blunders would keep the Republicans out of power for awhile. They achieved control of the House in 2010.Report

      • Avatar North in reply to LeeEsq
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        says:

        A cycle is pretty short all things considered and Bush Minor and the great recession aren’t quite as ambigous as publicly supporting the legal equivalent of institutionalizing The Purge in America’s most populous state.Report

    • Avatar Burt Likko in reply to North
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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 @matt-parker ‘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.Report

      • Avatar Matt Parker in reply to Burt Likko
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        says:

        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.Report

  7. Avatar zic
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    says:

    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.Report

    • Avatar LeeEsq in reply to zic
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      says:

      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.Report

      • Avatar Jaybird in reply to LeeEsq
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        says:

        Better call Saul!Report

      • Avatar LeeEsq in reply to LeeEsq
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        says:

        My brother would get angry if I gave out his phone number on the blog.Report

      • Avatar zic in reply to LeeEsq
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        says:

        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.Report

        • Avatar Burt Likko in reply to zic
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          says:

          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.Report

      • Avatar Will Truman in reply to LeeEsq
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        says:

        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.Report

      • Avatar Kim in reply to LeeEsq
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        says:

        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.Report

      • Avatar Kim in reply to LeeEsq
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        says:

        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.Report

      • Avatar Saul Degraw in reply to LeeEsq
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        says:

        @zic

        Our legal system rests on the belief that everyone deserves a lawyer, even the guilty.

        I don’t get how you can consider yourself to be part of the left and dislike this idea.Report

      • Avatar Kim in reply to LeeEsq
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        says:

        Saul,
        you might try reviewing the difference between morals and ethics before continuing, as you’re dramatically misreading what zic’s saying.Report

      • Avatar Will Truman in reply to LeeEsq
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        says:

        The ethical duty has a moral foundation.Report

      • Avatar j r in reply to LeeEsq
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        says:

        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.Report

      • Avatar switters in reply to LeeEsq
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        says:

        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.Report

      • Avatar LeeEsq in reply to LeeEsq
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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.Report

      • Avatar zic in reply to LeeEsq
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        says:

        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.Report

      • Avatar Mark Thompson in reply to LeeEsq
        Ignored
        says:

        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 @j-r points out, in most instances, it’s not even about getting the client acquitted, but instead ensuring that the client is treated humanely.Report

      • Avatar Jaybird in reply to LeeEsq
        Ignored
        says:

        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.Report

      • Avatar Iron Tum in reply to LeeEsq
        Ignored
        says:

        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?Report

      • Avatar morat20 in reply to LeeEsq
        Ignored
        says:

        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.Report

      • Avatar Van_Owen in reply to LeeEsq
        Ignored
        says:

        @mark-thompson

        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.Report

  8. Avatar Tod Kelly
    Ignored
    says:

    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.Report

    • Avatar Damon in reply to Tod Kelly
      Ignored
      says:

      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?Report

      • Avatar Burt Likko in reply to Damon
        Ignored
        says:

        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.Report

      • Avatar Chris in reply to Mark Thompson
        Ignored
        says:

        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.Report

      • Avatar Mark Thompson in reply to Mark Thompson
        Ignored
        says:

        Yeah, definitely not the best written version of the story, but I couldn’t remember where I originally saw it, which did a better job. This was sort of the first link that popped up when I searched for it.Report

      • Avatar Chris in reply to Mark Thompson
        Ignored
        says:

        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.Report

      • Avatar Mark Thompson in reply to Mark Thompson
        Ignored
        says:

        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.Report

      • Avatar zic in reply to Mark Thompson
        Ignored
        says:

        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.Report

      • Avatar Chris in reply to Mark Thompson
        Ignored
        says:

        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.

        @zic 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.Report

  9. Avatar Patrick
    Ignored
    says:

    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?Report

  10. Avatar Will H.
    Ignored
    says:

    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)Report

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