Amici Curiae: The Aboriginal Shaft, Supreme Encirclement, and Pelosian Quayleness Edition
Old Legal Debts and the Indian Act
The Financial Legal Post’s Julius Melnitzer says that Borden Ladner Gervais’ [BLG] appeal in Borden & Elliot v Temagami First Nation (see  3 CNLR 30) “is shaping up as potentially embarrassing to BLG, if not downright ugly.” Others might put it more strongly, actually, in that BLG’s alleged bad faith respecting the aboriginal band’s outstanding legal fees is a nicely ironic demonstration of what was once offensively known as “Indian giving.”
The legal fees in dispute were incurred in the ’80’s and ’90’s, in land claims actions brought by Temagami First Nation (TFN) aginst the federal and provincial governments. According to Domenico Magisano, the Blaney McMurtry lawyer representing the band in the appeal, BLG’s fees were initially paid through a government fund; once the fund ran dry, BLG “asserted that it continued to to act on behalf of TFN and…amassed an outstanding account of over $1.1 million.” In 1996, BLG succeeded in an action to recover the fees from OFNGP, which is charged with distributing Casino Rama revenues among Ontario’s various aboriginal bands, including TFN. According to Magisano, BLG “advised TFN that this was merely a procedural step and that BLG had no intention of enforcing on any judgment it might obtain.” TFN thus did not defend the claim and was noted in default.
Biding its time, and early assurances notwithstanding, BLG obtained a default judgment against TFN and, in 2008, issued TFN a notice of garnishment. In defending against BLG’s appeal, TFN’s success hinges on how the monies owed BLG are characterized in light of s. 89(1) of the Indian Act, and whether or not the disputed amount is “debt” or “personal property.” If the appeals court sees the old account as debt, then BLG wins. However, if the court decides (given that Casino Rama and the OFNGP are both located on reserves) that the money is personal property, it will dismiss the appeal, as the Act provides immunity to garnishment. Curiously, the “most recent news” section of BLG’s website makes no mention of the upcoming appeal.
American Chief Justice to be Expressionless No More?
President Barack Obama and U.S. Chief Justice John Roberts perhaps demonstrated how the different branches of government are supposed to check and balance one other when they “waded again into unfamiliar and strikingly personal territory,” the Washington Post reported this week. Speaking before an audience of students, Roberts said he found comments made by Obama at the recent State of the Union address “very troubling” (see video). Obama was near the end of his speech when he made mention of Citizens United v Federal Election Commission, a controversial 5-4 ruling where the Court struck down legislative restrictions on advertising by corporations (discussed here).
“With all due deference to separation of powers, last week the Supreme Court reversed a century of law that, I believe, will open the floodgates for special interests, including foreign corporations, to spend without limit in our elections,” Obama said. Democratic lawmakers and Presidential Cabinet members, who surrounded the six justices attending the event, stood and applauded. The justices, as was expected, sat motionless and expressionless (with one crucial exception, see below).
Back before the students this week, when asked whether the State of the Union address was the “proper venue” in which to “chide” the Supreme Court, Roberts didn’t hesitate to share his thoughts. “First of all, anybody can criticize the Supreme Court without any qualm,” he said, adding that “some people, I think, have an obligation to criticize what we do, given their office, if they think we’ve done something wrong.” But he then added: “On the other hand, there is the issue of the setting, the circumstances and the decorum. The image of having the members of one branch of government standing up, literally surrounding the Supreme Court, cheering and hollering while the court — according to the requirements of protocol — has to sit there expressionless, I think is very troubling.”
It is true that all the judges were sitting expressionless when Obama made his remark, save for Justice Samuel Alito: “Not true, not true,” he appeared to say, in a now infamous head-shake and brow-furrowing. (Video here.) The White House did not respond directly to Roberts’s remarks, but did continue to criticize the holding in Citizens.
Anti-Gay Military Funeral Protesters Headed to U.S. Supreme Court
Fred Phelps, the Kansas preacher known for vehemently anti-gay views, is headed to the U.S. Supreme Court to defend his right to freedom of speech, SCOTUSblog reports. The justices this week granted certiorari in Snyder v Phelps, a case involving the father of a U.S. marine killed in Iraq whose funeral was protested by Phelps and his congregation. The group, which runs the website godhatesfags.com, carried signs including “God Hates the USA,” “America is doomed,” “Semper fi fags,” and “Thank God for dead soldiers” at the funeral protest.
The soldier’s family won an $11 million judgment (later reduced to $5 million) against Phelps for intentional infliction of emotional distress and other torts, but the Court of Appeals for the Fourth Circuit reversed the trial judge’s holding, ruling that the picket was speech protected by the First Amendment. As John W. Whitehead notes over at HuffPo, the case “is stirring up debate over whether the privacy rights of grieving families trumps [sic] the free speech rights of demonstrators.”
Whitehead observes, citing Phelps’s website, that his group since 1991 has carried out 42,840 demonstrations at gay pride parades and other events, including more than 200 military funerals of troops killed in Iraq and Afghanistan. They even picketed the funeral of the late Chief Justice William Rehnquist with signs reading “Judge in Hell,” criticizing him for not protecting America from homosexuality. Whitehead concludes, however, that the Court should affirm the Fourth Circuit’s holding: “Simply put, tolerance toward the speech of people like Phelps shows that freedom still survives in America.” Eugene Volokh would seem to generally agree, suggesting that “this tort, as applied to speech, is unconstitutionally vague and overbroad.”
But Jordan Carr over at the Stanford Review blog thinks that “one could imagine that the Supreme Court would be able to reinstate the award to Snyder without setting too wide of a precedent.” That outcome would please Andrew Cohen who, writing for Vanity Fair, notes that “Phelps’s very purpose is to interject himself and his anger and ignorance into a family’s most vulnerable, tragic time. I call that the very definition of cruel and am willing to predict a majority of the Justices will say so, too, in reinstating the Snyders’ award.”
Arbitration and the Pan Am 73 Settlement
Are the non-American victims of the 1986 hijacking of Pan Am flight 73 entitled to recovery of any portion of the funds coughed up by Libya in 2008? At Opinio Juris, Roger Alford writes about the “pitched battle” being fought between two American victims and the hijacking’s non-American victims (ten at last count) and law firm Crowell and Moring, who represented all victims in their 2006 lawsuit against the Libyan government. The non-American plaintiffs base their claim on agreements in the 2008 treaty, given effect in President Bush’s Executive Order, that dictated the distribution of US1.5 billion in settlement funds. Crowell and its clients are pressuring the U.S. government to compel arbitration of the matter, “based on provisions in the agreements stating that any recovery…would be shared on a sliding scale without regard to nationality.”
The American victims, however, rely on what Alford calls one of the case’s “unusual twists”, in that “the implementing statute, the Libyan Claims Resolution Act, immunizes the assets from ‘attachment or any other judicial process’ before, during, and after the assets are held by the U.S. Department of Treasury to the American victims.” The result, according to Alford, is that the non-American victims are waylaid by a doctrine that supersedes any arbitration of contract claims and, worse, precludes “‘any judicial process’ whatsoever,” which even “includes court proceedings to compel arbitration.”
Nancy Pelosi: Health Care and Ignorance of the Law
Although she may simply have been channelling Dan Quayle (“the future will be better tomorrow”), a recent speech by U.S. House Speaker Nancy Pelosi includes this entertaining enigma: “we have to pass the bill so that you can find out what is in it.” Ms. Pelosi was likely speaking of a need to judge the complicated bill by its effects, free of the “fog of controversy”. However, her justification for the 2,074-page health care bill’s passage certainly bespeaks the Obama administration’s dubious insistence that its difficulties in reforming U.S. health care are simply the result of “communications failure”. In a more abstract vein, and were one to take Ms. Pelosi literally, her argument that a law should be passed so as to be judged after the fact arguably flouts the fundamental requirement that a just law be, inter alia, intelligible and discoverable.
UK Judiciary to Public: If We Do Such a Bad Job, Why Don’t YOU Try It?
The Times’ legal editor, Frances Gibb, writes of the British government’s launch of its interactive website, imaginatively titled You Be The Judge, where the public can be the judge. The launch’s timing is propitious, says Gibb, in light of the reincarceration of Jon Venables, who, along with Robert Thompson, was convicted of the 1993 murder of James Bulger. Venables’ case has revived the UK’s perennial controversy over perceived leniency in criminal sentencing. As well, writes Gibb, recent government studies have “found that people systematically overestimated the leniency of the courts,” and this apparent public tendency to mistrust the judiciary lay behind the staging of an unusual mock sentencing exercise held in Hendon Magistrates’ Court, “where The Times joines Claire Ward, the justice minister, and a magistrate to make up the bench of three ‘magistrates'” presiding over an assault case involving a drunk university student.
In short, the exercise was intended to demonstrate the real difficulty in arriving at a “just” sentence, one that satisifies the sense of justice of an imperfectly informed public. The exercise, that is, asked this: how does one demonstrate the integrity of judicial sentencing where a judge must synthesize a multitude of factors including (but not limited to) the accused’s past history and present actions; his/her post-arrest behaviour and expression of remorse; any mitigating circumstances; and established sentencing guidelines? While the UK government’s intent in establishing You Be The Judge doesn’t seem like an exercise in special pleading, perhaps that’s a law student’s bias at work (disclosure: we haven’t yet given it a go).
Supreme Fast-Food Preferences
Sandra Day O’Connor is happy to take a bite out of a Big Mac, and Ruth Bader Ginsburg’s secretary would like you to know that “she loves Chinese, Italian, and French cooking, but hasn’t been to McDonald’s since her son was 10. (He is now 29.)” Such are the tidbits revealed in a new book by Bill Geerhart, a prankster who posed as a 10-year-old boy to ask ridiculous questions of famous people, including the U.S. supremes, whom he quizzed about their fast-food preferences. “Dear Chief Justice Renquist [sic],” reads a Dec. 19, 1994 letter, quoted in a post on the new book over at the WSJ Law Blog. “This is a project for school. What is your favorite McDonalds food? I like the ¼ Pounder with cheese. I would also like a picture of you.”
While the late Chief Justice William Rehnquist did not reply, O’Connor, Ginsburg and a couple others did. Justice Clarence Thomas, usually reticent, offered Billy his “best wishes for a successful school year,” and, in a handwritten postscript, confessed, “I like the Egg McMuffin. Actually, I like almost everything there.” Justice Harry Blackmun, a former general counsel of the Mayo Clinic, offered the young lad some cautionary words: “A hamburger and fries or potato chips are all right in their place, but you need some fruits and vegetables, too. I suspect your mom would tell you so.”