Amici Curiae: The Drug Appeal, Gay Judge, and Tortious Chicken Edition

Feds to Appeal Ruling in Vancouver Safe-Injection Site Case

Federal Attorney General Rob Nicholson announced earlier this week that the government would seek leave to appeal to the Supreme Court in PHS Community Services Society v Canada (Attorney General), 2010 BCCA 15. “This case raises important questions regarding the doctrine of interjurisdictional immunity and the division of powers between the federal and provincial governments,” Nicholson said in a statement released by DOJ. The B.C. Court of Appeals in a ruling last month allowed a Vancouver-based supervised drug injection site to stay open, notwithstanding efforts by the federal government to shut it down.

The three-judge appellate panel issued three separate opinions, with each judge coming to different conclusions on the appellant’s claims with respect to the division of powers and fundamental justice under the Charter. Some observers, including David Quayat writing this week for, have thus suggested the Supremes need to step in to clean-up an otherwise messy situation. But Mark Townsend, executive director of the organization running the injection site, takes a different view: “We wish [Prime Minister] Stephen Harper would stop wasting court time and the taxpayers’ money and start helping to solve the drug problem in our community,” Townsend told the Vancouver Sun. He added in comments to The Globe and Mail: “We see this as not a legal, jurisdiction thing, not a political thing. This is just about public health.”

Should It Matter That California Gay Marriage Trial Judge Is Gay?

“The biggest open secret in the landmark trial over same-sex marriage,” two columnists for the San Francisco Chronicle revealed this week, is that “the federal judge who will decide the case, Chief U.S. District Judge Vaughn Walker, is himself gay.” Citing several San Francisco-based gay politicians and lawyers who have had dealings with Walker, the journalists noted that Walker “has never taken pains to disguise — or advertise — his orientation” and that their sources “don’t believe it will influence how he rules on the case he’s now hearing.”

Though no mainstream conservative group sympathetic to the defendant’s position in the case, Perry v Schwarzenegger, invoked Walker’s sexual orientation as  itself evidencing bias, some argued this week that he is biased anyway. “He’s been an amazingly biased and one-sided force throughout this trial, far more akin to an activist than a neutral referee,” the National Organization for Marriage said in a statement. “From the outset, Walker’s entire course of conduct in the anti-Prop 8 case has reflected a manifest design to turn the lawsuit into a high-profile, culture-transforming, history-making, Scopes-style show trial of Prop 8’s sponsors,” echoed Ed Whelan at NRO.

Those views aside, at least one commentator has observed that Walker’s orientation is likely to have an impact on his ruling: “[W]hen Walker considers claims that the ban on same-sex marriage violates the constitutional guarantees of equal protection and due process of law, it’s hard to imagine that his sexuality, if he is gay, does not influence his decision-making — just as the experience of having gay friends or relatives would affect a straight judge,” Ruth Marcus writes in The Washington Post. That judges’ personal experiences and backgrounds impact their judging is, of course, not a new argument (see Dahlia Lithwick’s recent column in Slate about the issue in another context and recall Justice Sotomayor’s “wise Latina” remark).

But Andrew Cohen, writing in Vanity Fair, rejects the argument outright: “Prop. 8’s constitutionality will not be determined by Judge Walker’s sexual orientation. It will be determined by the words contained in Judge Walker’s ruling. It will then be determined a dozen or so men and women (who may or may not be gay) at the 9th U.S. Circuit Court of Appeals and then perhaps by the nine Justices of the United States Supreme Court.”  (Curiously, though, Cohen’s rebuttal does seem to focus on the people making that judgement.)

In the mean time, some bloggers have noted that Walker has been the subject of criticism in the gay community as well. Queerty reports that California gay rights advocates opposed his nomination (and succeeded in doing so) when President Ronald Reagan first tried to name Walker to the federal bench in 1987. “Gay rights advocates were seething about Walker’s representation of the U.S. Olympic Committee in a lawsuit that prevented a local group from calling its athletic competition the Gay Olympics,” the blog notes. (Walker was eventually renominated by President George H.W. Bush and confirmed in 1989.) And as if we hadn’t reported enough of this story, Kashmir Hill of Above the Law explains why the legal tabloid sat for months on the news concerning Walker’s sexuality, choosing not to report it.

Ronald Dworkin Blasts Citizens United Decision

Ronald Dworkin writes that the U.S. Supreme Court’s decision in Citizens United v Federal Election Commission is “appalling”. In a caustic article for the New York Review of Books, Dworkin says that the decision (recently examined here and here at “has given lobbyists, already much too powerful, a nuclear weapon,” and that the reliance of the majority on the fiction of corporate personality in according First Amendment protection is “preposterous”. Dworkin attacks the court for bypassing the narrow matter which it was asked to decide, that of the legality of Citizen United’s video-on-demand distribution; in introducing the “unnecessary issue” of the McCain-Feingold Act‘s constitutionality, the court went out of its way to “strike down the statute as quickly as possible.”

While Dworkin expresses anger, but little surprise, at the outcome, he is excited to contempt by the “poor quality of the arguments…offered to defend it.” He says, for instance, that Kennedy cited only a single case in support of the notion of unfettered corporate political speech — First National Bank of Boston v Bellotti — and mistakenly discounted a footnote in that decision that clearly distinguished between the general right of corporate speech and the right of corporate speech in the context of an election. Where Kennedy dismisses this in the judgment as “a single footnote”, Dworkin ripostes that “Kennedy’s distinction between text and note is entirely novel,” that “some of the Court’s footnotes have proved much more important than the decisions to which they were attached.”

Who, in Law, is a Fried Chicken Sandwich’s Neighbour?

Anyone, it turns out, if that chicken is not properly drained. Kevin Couch at Abnormal Use writes entertainingly of a recent U.S. circuit court decision in favour of Frank Sutton, whose mouth was tortiously scalded when he tried to eat a McDonald’s sandwich. In 2005, Sutton entered a truck stop McDonald’s at 1:30 a.m. and scolded its employees into making him the sandwich. He bit the sandwich, whose component chicken then released a torrent of hot grease into his mouth and over his lips and chin, causing much blistering.

A legally unadvised McDonald’s employee told Sutton “this is what happens to the sandwiches when they aren’t drained completely,” and Sutton then sued for USD 2 million. In his analysis, Couch sides with the sandwich, taking a contextual approach “looking to the surrounding circumstances of voluntarily eating an early morning meal at a gas station as assumption of a known risk.” As for the broader question of the never-closed categories of negligence, Couch lauds the societal acceptance of “the Goldilocks theory of liability, where all food must be served at precisely the ‘right’ temperature.”

Who Can the U.S. Assassinate?

One doubts that anyone is letting Barack Obama off lightly about anything these days. And progressives, disdaining overt war, have before argued their preference for darker methods of black ops, assassination, etc. According to Julian Ku at Opinio Juris, though, Obama’s administration is being kid-gloved by the left about policy allowing the “assassination” of American citizens on the wrong side of the War on Terror. Ku’s ire is piqued by recent Salon and NYT Opinionator pieces about a senior official’s implication – “it doesn’t really change anything from the standpoint of whether we can target them” – that American citizens who are members of al-Qaeda are afforded no constitutional protections.

“If the U.S. cannot designate a U.S. citizen as an enemy combatant without a hearing,” says Ku, “then I can’t quite see how the U.S. can at the same time deliberately assassinate that same U.S. citizen without a hearing.” “From a legal perspective,” says Ku, the relative lack of outrage among the lefty-blogs/Obama supporters really does open the door to charges of hypocrisy.” While the Opininator’s survey of online opinion reveals a tendency to dump on the Bush “Imperial Presidency”, as well as wax abstractly about traditional Congressional cession of power to the executive, Ku may have overwarmed to his thesis. The clearest “liberal” voice in the debate is that of Salon’s Glenn Greenwald, who asks that “how could anyone possibly object to imprisoning foreign nationals without charges or due process at Guantanamo while approving of the assassination of U.S. citizens without any charges or due process?”

Accomplished Supreme Court Practioner, Erstwhile Bank Robber

Shon Hopwood had a tried and tested method for robbing banks: “We would walk into a bank with firearms, tell people to get down, take the money and run,” he told The New York Times‘ Adam Liptak, recalling five robberies in 1997 and 1998 that yielded some $200,000 and more than a decade in prison. But, as Liptak narrates, Hopwood eventually made something of himself during what were many long hours in the prison law library: “He transformed himself into something rare at the top levels of the American bar, and unheard of behind bars: an accomplished Supreme Court practitioner.” Using a prison typewriter and working pro bono for a fellow inmate, in 2002 he prepared his first petition for certiorari to the U.S. Supreme Court.

Of the 7,209 petitions that year from prisoners and others too poor to pay the filing fee, Hopwood’s was one of just eight petitions granted leave to appeal. Seth Waxman, a former solicitor general in the Clinton administration who would go on to work with Hopwood on the case, remarked that it was “probably one of the best cert. petitions I have ever read … It was just terrific.” They won 9-0. “I didn’t want prison to be my destiny,” Hopwood, who is now out of prison and applying to law school, told Liptak. “When your life gets tipped over and spilled out, you have to make some changes.”

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