Month: December 2014


More Fun with Prosecutorial Discretion

By Sam Ventola,

More Fun with Prosecutorial Discretion – Oklahoma and Nebraska sue Colorado over Marijuana.

1904_tug_of_warIn our last entry, we explored the issue of “prosecutorial discretion,” particularly as it involved President Obama’s executive amnesty for certain illegal immigrants. With today’s news comes another story created by the Obama Administration’s decision not to enforce some parts of the federal law.

Today the States of Oklahoma and Nebraska filed a lawsuit with the U.S. Supreme Court challenging Colorado’s legalization of marijuana. The States contend that Colorado’s program violates federal policy which makes marijuana strictly illegal, and that federal policy in the field must be considered supreme.

The curious part is, the federal government – or at least the current administration – apparently does not consider marijuana regulation to be so important, because it has so much as announced that it will refrain from enforcing federal marijuana laws in States such as Colorado that have legalized it. The lawsuit essentially contends that Colorado must prohibit marijuana sales in Colorado even where the federal government has declined to do so. As stated by Colorado Attorney General John Suthers, “it appears the plaintiffs’ primary grievance stems from non-enforcement of federal laws regarding marijuana, as opposed to choices made by the voters of Colorado.”

Indeed, the States suing Colorado include as support of their claim the fact that the U.S. has signed international treaties requiring that marijuana be illegal under U.S. law. But again, it would seem to be the obligation of the federal government to comply with those treaties, rather than the Colorado government.

Because it is a lawsuit between States, this case was originally filed in the Supreme Court, so we may have a final ruling on this issue much sooner than in most cases. Watch this space for further developments.

 

Sam Ventola has a wide variety of experience in litigation, legal education, and mediation. He has been an attorney on both sides in business litigation, employment disputes, probate litigation, and personal injury cases. In addition to being an attorney, he has been a mediator, hearing officer, labor relations professor, and lecturer on litigation, employment and First Amendment issues. He has also achieved the rating of AV Preeminent® by Martindale Hubbell.

First Ruling Comes Down On Obama’s Executive Immigration Amnesty.

By Sam Ventola,

AMNESTYVery often a legal question comes down to a decision as to where to draw the line. Is something legal or prohibited? Does something belong to this person or that one? Lawyers and judges are left to interpret cases, statutes, and constitutions and apply them to fact patterns that differ in subtle, often unanticipated ways.  The line drawing becomes even more difficult in the field of Constitutional law, as we are trying to apply rules over two centuries old to the actions of politicians skilled at pressing the limits.

Today in the case of Elionardo Juarez-Escobar, the federal district court in Western Pennsylvania became the first to try to draw those lines in considering President Obama’s decision to grant amnesty to certain illegal immigrants. The government had picked up Mr. Juarez-Escobar for violations of the immigration law. The judge seemed to want to address the issue of the constitutionality of executive amnesty, because the judge on his own directed the parties to address the issue of whether Mr. Juarez-Escobar was entitled to amnesty under the program. The government argued that the program did not apply, but that didn’t stop the judge. Having created the issue, the judge then resolved it by finding that the executive amnesty is illegal.

The case presents the issue of where the line is to be drawn between the president’s duty to enforce the law, and the executive branch’s “prosecutorial discretion.” It is taken for granted that prosecutors and law enforcement officers, and by extension the attorney-general and president that supervise them, cannot prosecute every case. So they are considered to have the discretion to refuse to arrest, to dismiss cases, to plea bargain, and to decline to appeal. However, the Constitution also requires the president to “take Care that the Laws be faithfully executed.” On which side of the line falls President Obama’s policy of granting amnesty to certain illegal immigrants, and even giving them documentation to prove their status and obtain benefits?

Some scholars have argued that so long as the president is ordering the executive branch to refrain from taking action in certain situations, then the (non-) action is permitted as part of prosecutorial discretion. In our opinion this draws the line much too far on the prosecutorial discretion side. Could a conservative president unilaterally decide that environmental regulations are too strict and therefore will not be enforced? Could he determine that tax rates are too high and instruct the IRS to collect lower amounts, even creating tax forms that apply his new revised rates?

The judge in the Juarez Escobar case drew the line by saying that when the executive action announces a policy that is not on a case-by-case basis, or creates substantive rights that would be difficult to withdraw later, it is too far from prosecutorial discretion and illegal. Finding that President Obama’s executive amnesty violated both those tests, he declared it unconstitutional. However, because of the unusual way in which the case was presented (no party in this case was seeking an injunction against the President’s program), this decision is not likely to affect the Obama Administration’s actions.

 

Sam Ventola has a wide variety of experience in litigation, legal education, and mediation. He has been an attorney on both sides in business litigation, employment disputes, probate litigation, and personal injury cases. In addition to being an attorney, he has been a mediator, hearing officer, labor relations professor, and lecturer on litigation, employment and First Amendment issues. He has also achieved the rating of AV Preeminent® by Martindale Hubbell.

Supreme Court To Hear Arguments Today on Facebook Threats

By Sam Ventola,

homme-daffaires-ordinateur-pcIf you have teenagers, you have no doubt heard the argument that some awful thing posted on Facebook or other social media should be ignored because “it’s just song lyrics.”

Anthony Elonis tried that defense too. It hasn’t worked so well for him so far, and now his case Elonis v. United States is before the U.S. Supreme Court for oral argument today. Mr. Elonis posted Eminem song lyrics about his wife including “There’s one way to love you but a thousand ways to kill you. I’m not going to rest until your body is a mess, soaked in blood and dying from all the little cuts.” After being visited by a female FBI agent, he posted “Little agent lady stood so close, took all the strength I had not to turn the bitch ghost. Pull my knife, flick my wrist and slit her throat.”

The jury that convicted Elonis was instructed that his words should be regarded as a threat, which is not protected by the First Amendment, if a reasonable person would interpret the words as a threat. Elonis’ argument is that the prosecution should have been required to prove that Elonis subjectively intended the language as a threat.

Watch this space for the result, however we predict that the Court will reject Elonis’ argument. The Supreme Court often evaluates First Amendment cases by considering the value of the speech sought to be protected, and there is little value to Elonis’ quasi-threats here. Also, the Court is unlikely to favor an approach that requires authorities to gauge the subjective intent of a speaker.

Please contact us if you have questions about this case, or First Amendment rights generally.

 

Sam Ventola has a wide variety of experience in litigation, legal education, and mediation. He has been an attorney on both sides in business litigation, employment disputes, probate litigation, and personal injury cases. In addition to being an attorney, he has been a mediator, hearing officer, labor relations professor, and lecturer on litigation, employment and First Amendment issues. He has also achieved the rating of AV Preeminent® by Martindale Hubbell.