Friday Funnies – Sarcastic Supremes, and a “Cat Tax” upheld
“If we couldn’t laugh, we would all go insane.” Jimmy Buffet
Nowhere is this more true than dealing with Colorado’s consistently confusing and often arbitrary legal system and out-of-control judiciary – where the ruling majority on the Colorado Supreme Court recognizes no constitutional constraints, no limits to its untrammeled authority, no checks or balances to its power – in their view, the law means “just what I choose it to mean – neither more nor less.” This “Through the Looking Glass” worldview has precious little in common with the justices’ sworn duty to uphold the rule of law – and support (not dismantle) the Constitution.
Although remaining mindful of what’s at stake – holding our judiciary accountable for serial violations of our constitutional rights (to vote on taxes, even when taxes are called “fees”; keep your own property; bear arms in self-defense; and almost too many others to list); highlighting the judiciary’s dominant role in drawing up state legislative and congressional districts; and upholding the integrity of the judicial retention election process against the consortium of legal-establishment special-interest groups who attempted (and may have succeeded in) buying the election for their buddies on the bench in violation of Colorado campaign finance law – is serious business, all work and no play makes Matty a dull boy.
So – scouring the internet so you don’t have to – Clear The Bench Colorado presents another edition of the Friday Funnies.
5. Bertman v. Kirsch (1964) – dealing with government shenanigans concerning notice of appeal (the government filed a notice of appeal late on the due date, leaving respondent no time to file a response within the statutory deadline). What makes it funny? The Supreme Court justice invoking Superman:
“I am aware of the argument that an able, alert, ever-diligent lawyer could have, had he tried hard enough, discovered that the Government had appealed — even in the closing hours of the sixtieth day. I do not doubt that had Bertman’s counsel been Superman, his X-ray eyes would have told him that a notice of appeal was being filed blocks away in the courthouse, or had he been a lawyer with no clients but Bertman he could have spent the sixtieth day hovering at the clerk’s office to see whether the Government would file a notice of appeal. But Bertman’s counsel (so far as the record shows) is not Superman, nor should the law expect him to be.”
4. PGA Tour v. Martin (2001) – in which a golfer sues to be able to use a golf cart instead of walking, under the Americans with Disabilities Act (ADA). What makes it funny? Justice Antonin Scalia, the Supreme Court’s funniest judge (as confirmed by a scientific study) waxes poetic on the “awesome responsibility… of determining the nature of golf.”
“We Justices must confront what is indeed an awesome responsibility. It has been rendered the solemn duty of the Supreme Court of the United States … to decide What Is Golf. I am sure that the Framers of the Constitution … fully expected that sooner or later the paths of golf and government, the law and the links, would once again cross, and that the judges of this august Court would some day have to wrestle with that age-old jurisprudential question, for which their years of study in the law have so well prepared them: Is someone riding around a golf course from shot to shot really a golfer? Either out of humility or out of self-respect (one or the other) the Court should decline to answer this incredibly difficult and incredibly silly question.”
(Scalia’s scathing wit highlights a basic fact: some issues are not – or should not be – justiciable; a fact acknowledged, in dissent, by a Colorado Supreme Court justice in the Lobato school funding case).
3. Pottawatomie School Board v. Earls (2002) – in which the U.S. Supreme Court upheld drug testing for ALL extracurricular school activities (including the marching band and chess club). Why is this funny? Seriously – the chess club on crack? Band geeks blowing bongs? Freaked-out Future Farmers?
Notwithstanding nightmarish images of out-of-control flatware, livestock run amok, and colliding tubas disturbing the peace and quiet of Tecumseh, the great majority of students the School District seeks to test in truth are engaged in activities that are not safety sensitive to an unusual degree.”
2. Los Angeles Board of Airport Commissioners v. Jews for Jesus (1987) – in which the U.S. Supreme Court unanimously ruled that (Surprise!) that “a resolution banning all ‘First Amendment activities’ at Los Angeles International Airport (LAX) violates the First Amendment.” Why is this funny? It’s not, really – except that the Los Angeles Airport Commissioners actually argued otherwise with a straight face.
1. Kyles v. Whitney (1995) – in which defense attorneys argued that testimony of four witnesses against a convicted murderer should be thrown out because “all clearly saw his face but hadn’t all agreed on his exact height and build. Why? One of them had seen Kyles only after he got into his getaway car.” Why is this funny? Once again, it’s the Supreme Court’s funniest justice (Scalia) bringing on the humor with a ‘Lone Ranger’ reference (a metaphorical “silver bullet”, if you will):
To assert that unhesitant and categorical identification by four witnesses who viewed the killer, close-up and with the sun high in the sky, would not eliminate reasonable doubt if it were based only on facial characteristics, and not on height and build, is quite simply absurd. Facial features are the primary means by which human beings recognize one another. That is why … bank robbers wear stockings over their faces instead of floor-length capes over their shoulders; it is why the Lone Ranger wears a mask instead of a poncho; and it is why a criminal defense lawyer who seeks to destroy an identifying witness by asking ‘You admit that you saw only the killer’s face?’ will be laughed out of the courtroom.”
Finally, demonstrating that government’s claim to authority to tax every living creature earning a living is quite literal comes this story of a court upholding the power to impose an occupational tax – on a cat.
Yes, that’s right – in the 1982 case of Blackie the talking cat (Miles v. City Council, 1982), the courts upheld the authority of the city of Augusta, Georgia to “impose an “occupation tax” on the plaintiffs [Blackie and his human “guardians”].
Sadly, judicial abuses of your constitutional rights are no laughing matter. Clear The Bench Colorado will, with your support, continue to promote transparency and accountability in the Colorado judiciary, informing the public to increase awareness of the substantial public policy implications of unrestrained activism and political agendas in the courts. We will continue to work with legislators and others interested in reforming the systemic shortcomings of Colorado’s “merit selection & retention” judicial review process to increase transparency and accountability to the public, and to provide substantive and useful evaluations of judicial performance.
Ultimately, though – it’s worth the effort.