Commentary on Alabama Law and Society

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Friday, June 16, 2006

This Blawg Has Moved

Visit me at my new location here.

For an explanation, see the previous post.

Then head to The Alablawg's new home.

Friday, June 09, 2006

Relationships Are Built On Trust

And Blogger, I just can't trust you anymore.

You've let me down in the past, and I've always forgiven you. If not for you, I'd never have begun blogging in the first place. You introduced me to whole new worlds. You are simple, yet offer so much. You're a good service when you want to be, I really believe that.

But I never know when you are going to work. Lord knows I've given my all to this relationship, but you show up whenever you feel like it. I've always taken you back, but this week has been the last straw. I mean, how could you screw up on election day? You knew how important all those stories were for me. You let me down, and I don't think I can let you pick me up again.

Sure you are free, but that doesn't mean I have to go to Vegas to find your replacement. The web has plenty of other choices. So I think, at the least, we need some time apart. Next week I am going to blog from here.

Now this isn't only about us, the commentators and readers are what matters. We have to think about them. And really, I'm doing this for them. They need me to have a reliable blog service. They shouldn't have to wonder where their next post is coming from.

If I like the new blog, and if the readers approve, (they can let me know in your comments, or by e-mail, or else here) I'm gone and I'm taking them with me. We'll always miss you and the good times, but you can only blame yourself for this.

Another Important Study On Education


Apple Computer Inc.'s iconic iPod music player surpassed beer drinking as the most "in" thing among undergraduate college students, according to the latest biannual market research study by Ridgewood, N.J.-based Student Monitor. . . .

The only other time beer was temporarily dethroned in the 18 years of the survey was in 1997 - by the Internet, said Eric Weil, a managing partner at Student Monitor.

That is truly disturbing on a number of levels. No mention of where "learning" ranked.

Equal Opportunity In Education

Here is an interesting new study on educational inequality. From the introduction:

Every year, a large number of children enter school substantially behind. Sometimes that’s because of poverty. Sometimes it’s because they speak a language other than English. Sometimes there are other issues. But regardless of the reason, many children – especially low-income and minority children – are entering the classroom without the knowledge and skills they need to succeed.

Unfortunately, rather than organizing our educational system to pair these children with our most expert teachers, who can help “catch them up” with their more advantaged peers, we actually do just the opposite. The very children who most need strong teachers are assigned, on average, to teachers with less experience, less education, and less skill than those who teach other children. . . .

Of course, teacher quality cannot be measured only by years of experience and knowledge of basic skills and subject matter. At some time in our lives, almost all of us have heard about a brand-new teacher who was remarkable or a veteran teacher who was ineffective. And nobody who has spent much time in higher education would argue that deep knowledge of subject matter necessarily translates into quality teaching.

But substantial bodies of research show that these proxies for teacher effectiveness, though imperfect, do matter to teachers’ ability to produce student learning. So when all of the proxies tilt one way – away from low-income and minority students – what we have is a system of distributing teacher quality that produces exactly the opposite of what fairness would dictate and what we need to close achievement gaps. This system, quite simply, enlarges achievement gaps.

In short: On average, rich white kids get good teachers, poor black kids get lousy teachers. The cause of the problem, at least around these parts, is simple economics. All the incentives draw teachers towards the rich white schools.

On the one hand, you have, oh let’s say B’ham City schools. As a teacher in one of those schools, you will teach in a building that leaks, is surrounded by weeds, has a tempermental (at best) heating and cooling system, and does not have so much as a functioning fridge in the teacher’s lounge. There are no working copiers or other office equipment. You must supply your own paper, pens, staplers, and similar products. You even have to supply your own toilet paper. The classroom in which you teach was designed for twenty students, but has thirty-five students sharing thirty desks. Computers? Ha. And even though you are a salaried professional, you must clock in on one of these every day.

On the other hand, you have, for example, Hoover High School. The building is brand new and is better equipped than some colleges. Your cavernous classroom has its own thermostat, and even empty desks. The teacher’s lounge is nicer than your first apartment. The school has an employee whose only job is making copies for the teachers. All your record keeping is done on your computer in your classroom. HHS even provides tp. Finally, far from requiring you to clock in, you are treated like the professional you are.

Now, how much more money would B’ham have to pay you to get you to teach there instead of Hoover? Probably a lot; maybe no amount would be sufficient. Unfortunately, B’ham pays less than Hoover. So, who ends up in B’ham? Teachers who can’t get a job anywhere else: The inexperienced, ill educated, and unskilled.

Fixing this problem means increasing the incentives to teach in B’ham. That may mean more pay for teachers, but it certainly means improving the environment at the schools. It is not just the pay that drives teachers away from B’ham. Who is going to teach at a school where you have to provide your own toilet paper? The entire system is broken. It needs some serious TLC.

But, of course, that requires money. I certainly do not want to pay any more taxes for education in B’ham. Mostly because our local officials will fritter it away long before it does any actual good. So, maybe we ought to consider structural changes, like this suggestion in the study:

take a cue from professional sports and start using a “draft strategy.” That is, put high-poverty, struggling schools at the head of the hiring line, allowing them to have the first pick of teaching talent. If we can give struggling sports teams first dibs on talented new players, can’t we do the same for low-performing schools and provide these schools a decent shot at giving good teachers to the students who need the most help?

That would be a radical change, but if we want to call this society a meritocracy, something needs to be done.

Thursday, June 08, 2006

More On Larry Darby

Jeff at the original Politics in Alabama is asking how Darby got 160,000 votes. Thus far, the apparent consensus, and certainly the charitable view, is that there were a bunch of uninformed voters on Tuesday.

Twinkle Andress Cavanaugh, head of the Alabama Republican Party, however, has her own ideas:

“I really think it's the fact that the Democratic Party has gone out of the mainstream,” Cavanaugh said. "As an Alabamian I truly was shocked that that so many people would vote for someone that completely denies that there is a God and there was a Holocaust."

There are two issues here.

First, notice how Twinkle is shocked not just that people would vote for a Holocaust denier, but that they would vote for someone who denies there is a God. So, for her, an innocuous philosophical belief is the equivalent of denying the clear teaching of history out of a deep-seated hatred for a large part of society. Disagreeing with Twinkle about God disqualifies you for public office just as does disagreement with the rest of the intelligent world about the purposeful slaughter of the Jewish people. I think Twinkle needs to adjust her moral astrolabe.

Second, if we want to impute bad motives to voters, Twinkle ought to consider her own people first. Be honest: Which party’s followers are more likely to vote for a candidate who says stuff like this:

Darby attributed his "strong showing" to people who identified with his message and platform of "dealing with the Mexican invasion" and fighting "for equal rights for European-Americans."

"This multi-culturalism is destroying not just the United States but the Southern culture," Darby said Wednesday. "It's part of the global war on whites to replace the whites of the world with brown-skinned people. We're becoming a third-world country."

I think we all know the answer. I’m not saying all, or even most, or even a significant amount of Republicans would approve of Darby. I am saying that whatever the amount, it is exponentially greater than the number of Democrats who would. You can vote in the other party’s primary in Alabama. So, if we want to get nasty, my theory will be that a lot of Republicans hate immigrants so much that they would vote for Darby even though he is an atheist and a Democrat.

But I am going to think more highly of my fellow Alabamians. I am just going to assume they acted in ignorance. The same story also provides some good evidence for this theory:

In most counties, Darby gained from about 30 percent to half of the votes cast in the Democratic attorney general contest, including in heavily black counties such as Greene, Sumter, Macon and Wilcox. He fared worst in some of the counties nearest Mobile County, where Tyson has been a political fixture

Action by the state's most powerful black Democratic voters' group could also have been a factor in the final tally. Two days before the primary, Joe Reed, the chairman for the Alabama Democratic Conference, said that the caucus was not endorsing Tyson because of how he prosecuted David Thomas Jr., a black former Mobile County school board member.

So what happened was a lot of black voters saw Tyson’s name and thought “oh, that’s who we are not supposed to support” and then, not knowing any better, voted for Darby.

I will say one more thing. Individual voters may be guilty of no more than ignorance, but the ignorance is the Democratic Party’s fault. Even if they can be excused for letting Darby on the ballot in the first place, and even if they could not kick him off the ballot, they could at least have spent the time and energy necessary to ensure everyone knew the facts about Darby. No doubt the Dems opposed Darby, but that just makes their response more unacceptable.

Straining Out Gnats, Or, Why You Should Vote Republican

Molly Ivins in today’s Anniston Star:

I believe what we have here is a difference over moral values.

The Republicans are worried about the flag, gay marriage and the terrible burden of the estate tax on the rich. The rest of us are obviously unnecessarily worried about war, peace, the economy, the environment and civilization. Another reason to vote Republican — they have a shorter list.

Yep, Sen. Sessions, Sen. Shelby, your courageous support for the anti-gay marriage amendment has convinced me your party is the one with the rational, achievable plan for solving this country’s problems. Clearly, anyone who opposes you wants to destroy America.

Sure you guys fell miserably short of the goal in this case, but if you keep up the good fight you will eventually get your deserts. If you and your kind stay the course, no doubt you’ll see the country rush to join you - as they did your ideological anscestors - the next time you toss the gauntlet before the feet of tyranny and say Republicans now, Republicans tomorrow, Republicans forever!

Both Our Senators Put Pandering Above Principles

And voted for the Federal kill the homos! anti-gay marriage amendment.

Shelby offered the same irrational emotional appeal as do most supporters:

For ages, in every culture, human beings have understood that marriage is critical to the well-being of families. And because families pass along values and shape character, marriage is also critical to the health of society," Shelby said. "Our policies should aim to strengthen families, not undermine them. And changing the definition of marriage would undermine the family structure."

Marriage is critical to our health and well being. So let's make sure certain people can't take part in it. Yeah, that makes sense. Notice, again, there is no attept to explain how letting a gay couple marry will undermine your marriage. He may as well have said that to protect marriage, we need an amendment prohibiting hybrid cars. In any event, I for one find it insulting that the Senator thinks my marriage is so weak that if my gay neighbors got married, my marriage would end. This whole debate is beyond stupid.

But I can't say I am surprised that these two losers voted for the amendment. What I can say is that neither of them can ever again invoke federalist/state's rights principles in favor of an argument. There is absoulutely no subject more fit for exclusive state control than marriage. So if they will let the federal government decide our marriage policies, they should have no objections to the federal government overseeing our elections. If either of these two ever again invoke federalist principles to explain their opposition to legislation, the response should be: Liar.

Wednesday, June 07, 2006

The Alabama Constitution: Home Sweet Home For Stupidity

As expected, the anti-gay people amendment passed. Supporters had plenty of compelling reasons for it.

John Giles, head of Alabama’s Christian Coalition, tells us "Marriage is a sacrament.” Of course he fails to explain why the civil law should attempt to enforce his own views of that religious doctrine.

The bill’s sponsor thinks gay people are icky: "I [introduced the amendment] after a trip to San Francisco where I saw a black man and a white woman two men on television in a public place kissing deeply.” He does not explain how this amendment will prevent public displays of affection, nor why we should codify his squeamishness.

Anyway, to put this amendment in context, let’s look at some other provisions of our state constitution.

Section 102, our first defense of marriage: “The legislature shall never pass any law to authorize or legalize any marriage between any white person and a negro, or descendant of a negro.”

All right, that was unfair. Amendment 667 (you read that right – the six hundred and sixty seventh amendment) annulled that one in the year 2000 (you read that right to - the two thousandth year of our lord).

Section 256, however, is still on the books. The original version stated: “Separate schools shall be provided for white and colored children, and no child of either race shall be permitted to attend a school of the other race.”

Amendment 111 ‘fixed’ Section 256: “To avoid confusion and disorder and to promote effective and economical planning for education, the legislature may authorize the parents or guardians of minors, who desire that such minors shall attend schools provided for their own race, to make election to that end.”

In addition to enshrining bigotry, the world’s longest constitution also addresses several other serious and weighty matters

Amendment 400: “Notwithstanding any other provision of this Constitution, the legislature may hereafter, by general law, provide for the promotion of, the production, research, distribution, marketing, use, improvement and sale of swine and swine products.” Maybe this explains the aroma wafting from Montgomery over the rest of the state?

Like the we-hate-homos amendment, Number 387 discusses licenses: In Madison County “No bingo license shall be issued to any nonprofit organization, unless such organization shall have been in existence for at least 23 months immediately prior to the issuance of the license”

Nor is this the first time we’ve amended the constitution in order to get rid of a pestilence. Number 449: “Notwithstanding any other provision of this Constitution, the legislature may hereafter, by general law, provide for the eradication or control of the boll weevil.” Maybe Tom DeLay could help with this one, he's got time on his hands.

Furthermore, we only amend our constitution when we are dead serious about an issue. Number 520: “The Madison county commission is hereby authorized with or without charge to provide for the excavating of human graves.”

And Alabamians don’t waste their constitutional resources on garbage. Number 521: “The Pickens county governing body shall levy and impose a fee of not less than sixty dollars per ton on solid waste.”

But we do dare defend our rights. Number 597: “All persons shall have the right to hunt and fish in this state in accordance with law and regulations. This amendment shall be known as the “Sportsperson's Bill of Rights.’”

On the topic of sex we also have Number 688: In Jefferson County, “It shall be unlawful for the owner or manager of any hotel, motel, inn, boardinghouse, apartment house, or any lodging place or like kind to employ a person who has been convicted of aiding or abetting prostitution.”

Finally, for now, Number 715 leaves me asking, what about bull? “The Legislature, by general law, may provide for the promotion of the production, distribution, improvement, marketing, use, and sale of sheep or goats.”

In short, I think Alabama’s constitution is the perfect home for this amendment.

Larry Darby?

Perhaps my glee over the Moore-ons defeat ought to be tempered by the fact that Larry “The Only Holocaust I Believe in Is the One I Am Going To Instigate Against Illegal Immigrants” Darby managed to receive forty three percent of the vote in the Democratic A.G. primary.

Who are the 163,000 people who voted for this guy? I’ve argued in the past that a person’s belief, or non-belief, in a deity has no relevance to his qualifications as a political candidate. That said the fact is in Alabama being a Bible believing, God fearing Christian of some type is a pre-requisite for public office. So how did Larry Darby, the atheist get so many votes? Some might respond that he is a Democrat, and Democrats hate God. O.K., but Democrats also dislike holocaust-denying, war-on-immigrants-declaring, avowed racists. The Libertarians also long ago disowned him. Who voted for this guy?

I don’t know. So I am going to do like The Honest Propagandist and assume it’s because of ignorance. Surely the only reason Darby got 163,000 votes is because 162,999 of the voters (all but Darby) did not know the whole story.

Supreme Smack Down

None of the Moore-ons came within twenty points of the incumbents. Riley almost doubled up Moore; Woodall had two-and-a-half times the votes as did Fowler; ditto Stewart over Zeigler.

This was the Super Bowl XXIV (San Fran 55, Denver 10) of primaries; the 1996 Fiesta Bowl (Nebraska 62, Florida 24) of elections. The electorate took to the Moore-ons' message like consumers took to New Coke. They were the Edsel's of candidates. Like the cavalry behind George Custer the Clones followed their leader into battle. The results were the same. The incumbents took the challengers out behind the woodshed. They opened up a big ol’ can of whupass. This. Was. Ugly.

So what does it mean? Is this the theocrats' Stalingrad? Their Waterloo? Gettysburgh? Is this moment the wax holding their wings together melted, so that their political lives will end as did Icarus's actual life? Will the challengers’ few supporters sulk back to their caves? Or will they support the Republicans in November? Will Mini-Moore now be quiet and do his job? Whither Roy Moore? Goodbye to his pipe dreams about the white house. Maybe he could run for some city council position? What of the Foundation for Moral Law? Is it content to file irrelevent and poorly reasoned amicus briefs? Or will it shut down? Will we soon hear cries about the activist electorate? Is God even now telling Pat Robertson that Alabama is going to suffer from a plague of locusts because we rejected the Moore-ons?

The people have spoken. The Moore-ons went too far for Alabamians. We’ll keep the taliban in Afghanistan, thank you very much. I suddenly feel better about this country. If the Moore-ons' message couldn't make it here, it can’t make it anywhere.

Tuesday, June 06, 2006

If I Was A Member Of The Libertarian Party In Alabama

I'd be pretty depressed right now. Not just because they could not surmount the great wall Alabama has erected between third parties and the ballot, either.

I just finished watching For the Record. (There is no video up on the website yet, or I'd link to it). The guests were two Ph.Ds in political science. The host asked them if the Libertarians "deserved" to be on the November ballot in Alabama. One guest said yes, if they met the ballot requirements. Then both of them suggested that Libertarians ought to run as Republicans.

Wrong on both counts.

First, if they meet the ballot requirements, the Libertarians don't "deserve" to get on the ballot, they have a right to be on the ballot. The problem is that the requirements are too restrictive. They keep off the ballot parties, like the Libertarians, who might have some success. This is a viable party, they ought to be on the ballot. That they are not is proof that the ballot laws are flawed.

Second, asking a Libertarian to run as a Republican in this state would be asking the Libertarian to surrender half the party's platform. In theory Republicans are against government regulation of businesses, but they love to regulate private conduct. Libertarians agree with the former proposition, but strongly oppose the latter. No-one in this state could win a Republican primary while taking Libertarian positions on social issues. So to win, the Libertarian would have to adopt Republican views. In other words, sell his soul.

In sum, I saw two Ph.Ds fail to understand the problem facing the party or the doctrines of the party. If the eggheads don't get it, how will Joe Six-Pack ever do so? Hence, If I was a Libertarian, I'd probably be mixing a stiff drink right about now.

Tis Better To Remain Silent, Or, Bush Again Removes All Doubt

President Bush’s speech in support of the federal marriage amendment was the sort of babbling nonsense we all expect from our mush minded president. You can get the overall criticisms here and, here. What I am going to criticize is his continuing reliance on the activist judges canard:

Today, 45 of the 50 states have either a state constitutional amendment or statute defining marriage as a union of a man and a woman. These amendments and laws express a broad consensus in our country for protecting the institution of marriage. The people have spoken. Unfortunately, this consensus is being undermined by activist judges and local officials who have struck down state laws protecting marriage and made an aggressive attempt to redefine marriage.

Since 2004, state courts in Washington and California and Maryland and New York have ruled against marriage laws. Last year, a federal judge in Nebraska overturned a state constitutional amendment banning same-sex marriage, an amendment that was approved by 70 percent of the population. And at this moment, nine states face lawsuits challenging the marriage laws they have on the books.

First, the rest of the story:

The cases in Washington, California, Maryland and New York are all lower court decisions. The Nebraska case, Citizens for Equal Protection v. Bruning, is the only case in which a state marriage amendment has been overturned, and that case is under appeal. The court invalidated the amendment because it was drafted so broadly that it would have prohibited every type of same-sex relationship, not just same-sex marriage.

Not one of these states has been forced to recognize same-sex marriage. Why enact a constitutional amendment to address a problem that does not exist?

Now on to the phrase at issue. Andrew Cohen nicely summarizes what ‘activist judges’ really means:

Of all the lies and half-truths that spring from the mouths of politicians, the pernicious and pervasive use of the phrase "activist judges" to demean well-intentioned jurists surely is one of the worst. Even the late, great Supreme Court Chief Justice William Rehnquist hated the phrase.

Everytime a judge makes a decision, any decision whether you like it or not, that judge is "acting." Even when the Supreme Court decides not to review a case it is "acting." To judge-- to choose between competing arguments-- is to act. Every judge every day, therefore, is an "activist judge" in the honest meaning of the word and, therefore, no judges are the sort of creepy "activist judges" that President Bush and his cronies in Congress want you to be afraid of. Anytime you hear someone call a judge an "activist judge" all it means is that the person doing the calling didn't like the decision the judge just rendered. Nothing more. Nothing less.

Ed Brayton explains Bush’s hypocrisy:

This is nonsense. Only one state, Massachusetts, has had a court rule that gay marriage was required by their state constitution. And in that state, the legislature declined to attempt to overturn that court ruling and public sentiment in that state is against doing so. And of course, the phrase "activist judges" is utterly meaningless in this context.

The people of Oregon spoke, twice, in supporting assisted suicide; that did not stop Bush from ordering the DOJ to run to the courts to get those "activist judges" to strike down the "broad consensus" even though "the people have spoken." The people of California had likewise spoken and passed their medical marijuana law; Bush immediately ran to court to get "unelected judges" to overturn the "will of the people" on that one too. This rhetoric is not only empty, it's absolutely hypocritical. Pure demagoguery.

Federal Judge John Jones, the Republican judge who ruled that the Dover Pennsylvania school board could not require the teaching of intelligent design offers a judge’s perspective:

To be blunt, I think that many people need a civics lesson about the judicial system, because we are beginning to cross the line between fair comment and criticism of judges' work into something which is much darker and debilitating. At its worst, the failure by some segments of the media and the public to understand the proper function of an independent judiciary leads to results which are not only frightening, but are at times tragic.

All of you remember the murders of my colleague Judge Joan Lefkow's husband and mother last February, shot by a disgruntled litigant whose case had been dismissed by the judge. The killer was lying in wait for Judge Lefkow and when he discovered her loved ones first, he killed them instead. We cannot know if, in fact, the killer of Judge Lefkow's family members, who later took his own life, was influenced by the creeping disrespect for the judiciary that exists today. However, I would respectfully suggest that it is entirely likely that it was. As a result, as a direct result of the Lefkow murders, Congress has appropriated funds for security systems for the homes of United States judges. That is a very sad statement about our times.

And I will share something else with you that I have in common with Judge Whitamore, who presided in the Terri Schiavo case. That is, after our respective decisions, mine in the Dover case and Judge Whitamore's in the Schiavo case in 2005, both of us were under round-the-clock marshal protection for a period of time due to threats that we received, in my case, from various parts of the country. I’m sure you’ll agree that that’s a sad state of affairs and an alarming state of affairs.

When Bush invoked the activist judiciary nonsense, he not only contributed to this sad state of affairs, but demonstrated his own ignorance and hypocricy. George Bush: A decider? Maybe. A distractor? Probably. A leader? Definitely not. At least definitely not in the correct direction.

Another Reason Not To Vote For Troy King

Here is the case in a nutshell. The Board that oversees the Department of Environmental Management consists of seven people. According to Section 22-22A-6(b)(6) of the Alabama Code, on of those people must:

be a biologist or an ecologist possessing as a minimum a bachelor's degree from an accredited university and shall have training in environmental matters.

Pat Byington is the current ‘ecologist’ on the commission. Don Siegelman appointed him, and the state senate unanimously affirmed him. Byington has a degree from Alabama in environmental studies. He is an environmental consultant and the publisher of the Bama Environmental News.

For some reason or another, a couple of folks don’t like Byington, and so they went to court to try to get him removed from the commission. The rationale? Byington does not meet the Code’s requirements for the ecologist’s position.

Well, the only degree required by the statute is a generic bachelor’s degree, which Byington has. As for being a ‘biologist or ecologist’ and having ‘training in environmental matters’ former Governor Siegelman thought Byington was qualified, and so did the Senate. His c.v. also indicates Byington meets these requirement. So the suit was meritless, right?

Wrong. The plaintiff’s asked Troy King for an opinion on the statute’s meaning. King responded that the statute requires a degree in biology or ecology.

Now, not only does the statute say no such thing, but at the time it was written no college in Alabama, and few elsewhere, even offered a degree in ecology. So, King’s reading not only contradicted the plain language of the statute, but as the judge who tossed the suit stated:

It appears that the Attorney General completely failed to consider the fact that his overly restrictive interpretation of the statute means that the Legislature would have created a position that was virtually impossible to fill at the time.

Why did King interpret the statute in such a ridiculous manner? Maybe he wanted a particular outcome. Maybe he lacks interpretive skills. Biased or incompetent; either way, his error was a major factor in this wasteful lawsuit. Either way, his performance in this case does not inspire confidence in him for future cases.

Monday, June 05, 2006

Alabama's Ballot Access Laws

Have done their job. Once again, our choice in Alabama is between the Republicans and the Republicans who call themselves Democrats.

From Loretta Nall's blog:

The colorful Libertarian Party nominee for governor, Loretta Nall, said Monday she will run as a write-in candidate after failing to get enough signatures to get her name on the general election ballot.

"I'm not dropping out," Nall said.

Tuesday is the deadline for third-party candidates to turn in voters' signatures to the secretary of state to get ballot access for Nov. 7. Nall needed 41,300 signatures to get on the general election ballot. She said she and her supporters collected between 10,000 and 15,000 signatures, which she plans to turn in Tuesday to make a point about Alabama having one of the nation's toughest ballot access laws for third parties.

Her and her supporters did a lot of work to collect those signatures, yet the result amounted to less then a third of the required amount. The purpose of the signature requirements is to limit the ballot to serious candidates. The effort and expense needed to collect ten thousand signatures is more than enough to deter thrill seekers. Requiring more than that, never mind four times more, is overkill. It serves no rational purpose (other than the constitutionally impermissible one of protecting the power of the current parties).

It's too late for this year. But to remedy this problem in future elections you can vote for Ed Packard as Secretary of State, who has this to say:

Alabama's ballot access requirements are too severe and are punitive by their very nature. I think the Legislature should review the requirements and take steps to expand the ballot choices offered to Alabamians. The Secretary of State, as the Chief Election Official, should be the advocate pushing for these changes.

The End Of The World?

Alabamian worries that the proposed anti-homosexual amendment could energize the Roy Moore supporters, handing him victory in the Republican primary tomorrow. I'll admit part of me - the same part that wants to slow down to look at car wrecks - kind of hopes it happens. Maybe even a total sweep for the Clones, also. And then Larry Darby as A.G. Wouldn't Roy Moore as governor and Larry Darby as A.G. be amazing? Whose head would explode first?

But this article doesn't think the homophobia thing will be much of a catalyst. I agree. Besides, anyone who supports the amendment is just as likely to support Riley and the incumbent justices as the Moore-ons. So even if it drives folks to the poles, it won't necessarily drive them to the Moore-ons.

Then again, tomorrow is 6-6-06, so who knows what will happen.

Court Of Civil Appeals, (Murdock) Decides Interesting Abortion Case

This story reminded me to comment on the Alabama Court of Civil Appeals decision in L.K.D.H. v. Planned Parenthood of Alabama, Inc. (I would love to link to the decision but Alabama does not make its judicial opinions available on-line.)

Basically, Mom wanted an abortion, which Planned Parenthood of Alabama (PPA) botched, allegedly injuring Child and Mom. Mom sued for her own injuries and for those of the Child. Because of her own procedural missteps, Mom’s suit gets dismissed, leaving her claim on Child’s behalf.

To overcome Child’s claim, PPA relied heavily on another Alabama case, Elliott v. Brown. In Elliott, a child born with a deformity sued the medical provider who had flubbed a vasectomy on the child’s father. The Elliott court rejected the claim, holding that there was no cause of action for a wrongful life. In the same way, PPA argued, Mom in this case was suing for Child’s wrongful life.

Not so, replied the court. The plaintiff in Elliott was not arguing that the medical provider actually caused the defect; just that by failing to properly perform the vasectomy, the provider had allowed for the possibility of a birth and a defect. The argument was that absent the error, the child would never have been born. Hence the medical provider was responsible for the harms suffered during the life. You can see why rejecting this argument makes sense if you just imagine the scope of liability had it been accepted. Any time a medical provider improperly performed some type of birth control operation, they would be liable for any harm suffered during any resulting child’s life.

But that is not Mom’s argument. Here, the court explained:

In contrast to Elliott, L.K.D.H., [Mom] on behalf of J.L.D., [Child] did not claim in the circuit court and she has not claimed in her brief to this court that J.L.D. had a right not to be born. Instead, she alleged before the circuit court and argues in her appellate brief that Planned Parenthood negligently performed the abortion procedure (an allegation that Planned Parenthood conceded for purposes of the summary-judgment motion as to the claims asserted on behalf of J.L.D .) and that Planned Parenthood's negligence proximately caused injuries to J.L.D. Thus, unlike in Elliott, in the present case (based on the facts alleged on behalf of J.L.D.) it was the physician's negligence that caused J.L.D.'s physical injury or deformity. The claims asserted on behalf of J.L.D. seek to hold Planned Parenthood accountable for causing an injury or deformity, not for the fact that J.L.D. was born. In other words, unlike Elliott, the present case is an action alleging “wrongful injury,” not “wrongful life.”

PPA responds by reminding the court that if all had gone according to plan, there would have been no birth at all. The opinion does not include the conclusions PPA drew from this, so I am speculating in saying this kind of sounds like they are arguing there were no damages. In other words, Child has a defect, but that Child should not have been born at all means Child has nothing about which to complain even if PPA was negligent and caused the defect. No harm, no foul.

The court also rejected this argument:

We find Planned Parenthood's position disturbing. According to Dr. Davis's [PPA’s expert witness] affidavit, when an abortion provider properly performs an abortion procedure, i.e., is not negligent, “particularly during an early gestation period, such as in the case here, it is not uncommon for there to be a continuing pregnancy.” (Emphasis added.) In light of the “not uncommon” possibility that a child will survive even a properly performed abortion procedure, it is untenable for Planned Parenthood to argue that it should be able to avoid liability to the child who is thereafter born no matter how deficient the abortion provider's actions or how serious the harm the provider might cause to the child.

The opinion, written by Supreme Court hopeful Glen Murdock, then closes with this bit of pulpit thumping:

The United States Supreme Court has decided that a mother has a right under certain circumstances not to give birth to her child. Neither the United States Supreme Court nor the Supreme Court of Alabama has ever ruled that a medical provider, or for that matter a mother, can engage, with some blanket of constitutional protection, in negligent or reckless conduct that deforms or injures a child so long as the deformity or injury is inflicted on the child before it leaves the womb. To embrace this position as the law of the land in Alabama would give license to those who would undertake to end the life of an unborn child to do so as carelessly or recklessly as they wish without bearing any responsibility to those who are injured or deformed as a result and who are left to cope with the consequences of the provider's wrongful acts. It would be hard to imagine a more troubling development in our law.

No-one argued that Roe gave PPA the right to perform abortions with impunity. Not that anything he says here is wrong, but Murdock thought this part up on his own.

Anyway, Mom gets to sue for the injuries suffered by Child. That is an entirely proper result. Child did no wrong in this situation. That the injuries occurred because Mom wanted an abortion may be relevant to any suit by Mom, but it has nothing to do with the harms inflicted on Child. If PPA caused the injuries, they ought to pay for the them. In sum, I think this case was actually simple, but with a bunch of red herrings. Thankfully, the court got it right.

My Thoughts On Attorney General

I have offered many opinions on the State Supreme Court races. However, I have been silent on the other legal office up for grabs this fall: Attorney General. That is because I am unimpressed with the A.G. candidates.

Because Larry Darby is Larry Darby, I’ll just compare his Democratic opponent John Tyson with the two Republicans – incumbent Troy King and challenger Mark Montiel.

The A.G. is the state’s lawyer. Her job is to offer legal advice to all the other state agents. She should point out constitutional problems with statutes and explain how current laws apply to new situations. The A.G. represents the state when the state gets sued. The A.G. also represents the state in appeals from criminal convictions. The A.G. has a wide range of legal responsibilities.

Which is why I do not like John Tyson or Troy King. All they have done so far is tell us how many people they are going to put in jail. Tyson’s website says he is “running for Attorney General because we can't wait any longer to save lives and property. We must fight back against crime and we must do it where it happens--in our local communities.” King’s site also contains nothing but get tough on crime rhetoric.

Law enforcement is not the A.G.’s job, it is the job of the District Attorneys. An A.G. needs to be a very competent general practitioner. Nothing these guys have said thus far convinces me they have that general competency. They’ve assured me they will be tough on crime, but that is a small part of the job.

I don’t think Tyson or King have even proposed a solution to the state’s overcrowded prisons. If your claim to fame is throwing people into jail, shouldn’t you at least tell us how you are going to do that without compounding the prison problem? I’m sure prison commissioner Richard Allen, who is facing contempt charges because of the overcrowding, would like to know. This is a legal problem, the A.G. needs to help solve it, not make it worse.

There are more problems with King. First you need to read the editorials he wrote while a law student at Alabama in the early nineties. Here are some quotes:

“The existence of the Gay/Lesbian alliance on this campus is an affront to the state of Alabama, its citizenry, this diversity and its students. However, it is also an outrage to compel those students with both moral and religious objections to the activities and ideas espoused by this organization to contribute money, via student fees, to subsidize these activities. One has but to look at the forces which the controversy has united--from the American Civil Liberties Union to the National Organization of Women to the Queer Nation just to name a few--to clearly see how corrupt a cause this truly is.”

“I often hear the argument that homosexuals who live together create a loving, caring family environment, perhaps an environment which is even superior to that which can be provided by a heterosexual couple. In this day of rampant decadence, many homosexuals would mislead society into believing that three men, an armadillo and a houseplant create a functional family. This is clearly flawed reasoning, which will wilt under scrutiny and should be dismissed as such.”

"Currently, AIDS is the most behavior-oriented disease known to mankind. If this nation's current purveyors of perversion would refrain from committing sodomy they would unquestioningly be spared the ravages of the disease.”

His views in 2004?

"If I were writing editorials about these issues today, I would probably use different words, more judicious words."

This editorial, written after King vowed to wear an electronic tracking device until the legislature passed a law requiring sex offenders to do so, sums up the problem with King:

Like George Wallace and Alabama's current uber-demagogue, Roy Moore, King's grandiloquence is meant to appeal to the "Praise Jesus, but get off my property, boy" values the atypical Alabama voter is perceived to stroke, along with their gun, while sitting on their front porch. . . .

His demagoguery always runs on high and he rarely turns it off - and that's the problem: his stint as Alabama attorney general has pretty much been more of a big Old South campaign for attorney general than about being attorney general.

When King put on the tracking device last week, he completely overshadowed the important legislation he was pushing with his own self-promotion. He debased the image and standards of his office by trying so hard to be ‘that crazy conservative guy.’

(A big H/T to Poser for all of this material on King.)

But a lack of decorum is not King's only failing. His zealotry is bad for his 'client' - the State of Alabama. I’ve said before you should never hire an attorney who thinks they are doing God’s work because if the choice comes down to your interests or God’s, you are going to lose. Troy King thinks he is doing God’s work, and we all lose as a result.

For example, he decided to appeal the Adams case. That was a cut and dry case. The defendant was under eighteen at the time of the crime. Last year Scotus prohibited executing people who were under eighteen at the time of the crime. Hence, the Alabama Supreme Court reversed the death penalty. At this point, a responsible attorney would have balanced the costs of the appeal - high - against its chances of success – none - and dropped the issue. Nevertheless, King decided to appeal. In the private sector, sometimes you file stupid appeals because your client insists on jousting with windmills. King, however, is using OUR resources to carry out his joust. He is letting his personal views negatively impact the rest of us.

What about Mark Montiel? That he was a judge tells me he is familiar with a wide section of the law. It also tells me he knows how to consider all sides of an issue before making a decision. Other than that, though, I don’t know much about him.

In sum, I can’t really endorse anyone. I can reject King and Darby. As for the remaining two, Montiel seems like the better choice.

Sunday, June 04, 2006

"It Ain't No Sin To Be Glad You're Alive"

"The body of Christ," the Deacon says to me. "Amen," I respond as he places the wafer in my left hand. It's the same as it is in every mass, but this time I look at him and chuckle inside. Let me explain why.

Saturday evening I got a hankering for a mint julep. Having no bourbon, this meant a run to the store. On the door to the liquor store is a sign saying something like "We I.D. everyone who appears younger than thirty." So I am pretty excited when the cashier asks for my I.D. I tell her so, and she looks at me quizzically. I mention the sign, and she says "Oh, I just needed to see it because you paid with a debit card." Sigh.

Anyway, then it was off to the grocery store. We wanted to grill some burgers and I needed to get buns, tomatoes, beer and other essentials. I entered the beer isle and with great joy saw that for the first time this year they had Sam Adam's summer ale, and even on sale! Excitedly I reached for the six pack. As I grabbed it I looked to the left and there was the Deacon from our church, likewise placing beer in his cart.

To fully appreciate this you need to know two things. One, I'm Catholic but I used to be a Baptist. Two, for a Baptist to run into one of his church's deacons in the beer isle would be kind of like Roy Moore and Tom Parker seeing each other at an ACLU gathering. Alcohol is a big no-no for baptists, at least the southern type. So that is why I chuckled this morning when that same Deacon handed me the Body of Christ.

But I did more than chuckle. When I got back from my errands last night I made that mint julep. I sat on my front porch and spent half an hour nursing it. The sun slowly set, revealing all the colors of the yard, trees, and flowers. The little family of finches in our birdhouse chirped. The breeze blew. My dog slept at my feet. Neighbors strolled by. Transubstantiation is what they say happens to that wafer. What it means, in my mind anyway, is that the world can be a good place. Maybe not most of the time. Maybe only occasionally. But when it is, like it was while I sipped that drink, it is very good. So when I took the wafer this morning I also thought about how many different ways we experience the divine every day.

That's not to be naive. The world is an ugly place, by and large. But neither inherently nor eternally so. And in the meanwhile, I'll enjoy the good to the fullest.