“The U.S. 9th Circuit Court of Appeals is scheduled to hold a hearing in Pasadena on a lower-court decision that found California’s death penalty system unconstitutional and plagued by delays that have robbed a death sentence of any value in deterring crime,” the Los Angeles Times reported. “The ruling overturned the death sentence of Ernest Jones, who was convicted of rape and murder.”

The closely-watched trial brought a close to months of anticipation in the wake of a controversial ruling against the state’s current practice of implementing capital punishment.

Pushing boundaries

Last year, as the Washington Post noted, Federal District Judge Cormac Carney “argued that because of the extremely low likelihood of execution and long delays on death row, the system was actually a penalty of life without parole with the remote possibility of death. His ruling declared that execution after such a long delay serves no retributive or deterrent purpose beyond the long prison term, and is therefore arbitrary and unconstitutional.”

According to Carney, although a better-managed program might produce a different legal result, the dysfunctional, irrational character of capital punishment in California led to a harsh judgment.

At stake was a new and broad interpretation of cruel and unusual punishment. “Jones said in his appeal that the state didn’t provide a fair and timely review of his case, the delay exceeded that in other states and death row’s conditions constituted torture,” the Times added. “He also said the uncertainty of his execution inflicts suffering and, if it ever goes forward, it will serve no legitimate purpose for retribution or deterring other criminals.”

Legal hurdles

Although activists have long criticized the implementation of the death penalty in California and other states as both inefficient and inhumane, even legal scholars with vociferous objections to capital punishment cautioned that the core structure of the federal judiciary could well prevent the 9th Circuit from upholding Judge Carney’s ruling against the death penalty.

Prof. Erwin Chemerinksy, dean of the UC Irvine Law School, told the Times that he believed Carney’s opinion to be “very strong as to why the system violates the 8th Amendment,” which prohibits the application of cruel and unusual punishment. But the panel of judges hearing the case faced tough strictures of a different sort, according to the Los Angeles Times: “Legal rules that limit the authority of federal judges in such cases.” For that reason, said Chemerinsky, “I think this court could decide the case on procedural reasons rather than the 8th Amendment,” leaving California’s institution of capital punishment intact.

Adding to the difficulty of overturning the death penalty, Attorney General Kamala Harris lobbied the court to recognize that delays in executions have more to do with protecting prisoners’ rights than curtailing them. “Despite her own reservations about the death penalty,” the San Jose Mercury News reported, “Harris has urged the appeals court to reverse the decision, saying in court papers the ruling is ‘fundamentally misguided’ because any delays in reviewing the appeals of death row inmates are meant to ensure legal protections to avoid mistakes.”

Supreme possibilities

Nevertheless, some judiciary watchers suggested that the ultimate fate of California’s system of executions is poised to end up in the hands of the highest court in the land. “With at least 40 percent of the state’s death row inmates now awaiting execution for two decades or longer, legal experts say the time may be ripe for the Supreme Court to use the California example to decide whether such delays render a state’s death penalty law unconstitutional,” the Mercury News observed.

Known for how often it is overturned in the higher court, the 9th Circuit sided last year against California high school students who claimed their freedom of speech had been infringed. Wearing American flag shirts in the midst of school Cinco de Mayo celebrations, they were confronted with threats of violence. To defuse the situation, administrators required some students either to turn their shirts inside out or go home.

“The unanimous three-judge panel said past problems gave school officials sufficient and justifiable reasons for their actions,” CBS San Francisco reported. “The court said schools have wide latitude in curbing certain civil rights to ensure campus safety.”

Writing for the panel, Judge M. Margaret McKeown denied the court’s role was to “second-guess the decision to have a Cinco de Mayo celebration” or to question “the precautions put in place to avoid violence.” Given past tensions between white and Hispanic students, “it was reasonable for school officials to proceed as though the threat of a potentially violent disturbance was real.”

Facts over principles

Supreme Court watchers had expected polarized reactions if the court chose to take up the case. But it opted to let the 9th Circuit’s decision stand. As is customary, the court declined to explain its choice.

But the particulars of the case may have contributed to that decision. All the student plaintiffs have graduated from Live Oak High School, located in Morgan Hill. According to the Los Angeles Times, the school’s former principal retired and recently died of a heart attack.

But, as the Times noted, even though no new precedent has been created, the Supreme Court’s punt on the issue left open “questions about whether students have meaningful free-speech rights on matters that may provoke controversy.”

What analysts do know is the court lacked enough support to reconsider the 9th Circuit’s reliance on Tinker v. Des Moines Independent Community School District, a 1969 case that established guidelines for when schools could cramp free speech out of a concern for students’ physical safety.

“The Supreme Court would have had to revisit the precedent to take the case,” the San Jose Mercury News observed. Steve Betando, superintendent of the Morgan Hill Unified School District, drove that point home in a statement. “This case has never been about the American flag, which Live Oak proudly flies above our school every day,” he said, according to the Mercury News. “This case has always been about protecting the safety of students.”

Bipartisan dismay

Although the facts of the case have contributed to California’s ongoing culture battle over identity politics, the principles at stake drew the First Amendment sympathies of an ideologically united front of constitutional scholars. Republican legislators and conservative activists dominated last year’s unsuccessful push to get the 9th Circuit to re-hear the case.

But by the time the case crossed the Supreme Court’s desk, plaintiffs counted among their supporters nationally recognized Southland law professors from across the political spectrum — including UC Irvine School of Law Dean Erwin Chemerinsky, Chapman University law professor John Eastman and UCLA law professor Eugene Volokh.

In the wake of the plaintiffs’ defeat before the 9th Circuit, Volokh himself had cautioned the Tinker decision constitutionally could protect what many critics of the ruling called outright bullying and intimidation:

“This is a classic ‘heckler’s veto’ — thugs threatening to attack the speaker, and government officials suppressing the speech to prevent such violence. ‘Heckler’s vetoes’ are generally not allowed under First Amendment law; the government should generally protect the speaker and threaten to arrest the thugs, not suppress the speaker’s speech. But under Tinker’s ‘forecast substantial disruption’ test, such a heckler’s veto is indeed allowed.

“The 9th Circuit decision may thus be a faithful application of Tinker, and it might be that Tinker sets forth the correct constitutional rule here. Schools have special responsibilities to educate their students and to protect them both against violence and against disruption of their educations. A school might thus have the discretion to decide that it will prevent disruption even at the cost of letting thugs suppress speech.”

Until that kind of fact pattern comes before the Supreme Court again, California parents and students will have to brace themselves for just such an outcome.

The phrase in French means “fatted liver” and comes from a goose or duck that is force fed to produce the delicacy. The case is named after the main plaintiff, based in Canada, the Association des Eleveurs de Canards et d’Oies du Quebec vs. Harris.

Harris’ office declined to comment on the filing. But advocates of maintaining the ban were quick to weigh in, beginning with Paul Shapiro, the Humane Society’s vice president of farm animal protection. According to Reuters, he claimed, “California has the right to prevent the commerce in such a cruel and inhumane product.”

That’s anything but certain. As the Los Angeles Times reported, the plaintiffs who challenged the foie gras ban expressed certainty that constitutional law was on their side. They said:

“We’re very confident that the district court’s judgment will be upheld on appeal. The decision was based on the simple fact that, in the field of meat and poultry, federal law is supreme. California does not have the right to ban wholesome, USDA-approved poultry products, whether it’s foie gras or fried chicken. We look forward to having our victory affirmed by the Ninth Circuit Court of Appeals.”

The Ninth Circuit, however, took up the issue before. In 2013, it turned back an injunction by out-of-state farmers to put the California ban on hold until the matter could go through the courts.

That raises the possibility that the ban will be upheld again, triggering an appeal to the U.S. Supreme Court.

Facing federal law

As CalWatchdog.com previously reported, Wilson ruled the ban ran afoul of federal poultry regulations — specifically, the Poultry Products Inspection Act, or PPIA. He wrote:

“This issue boils down to one question: whether a sales ban on products containing a constituent that was produced in a particular manner is an ‘ingredient requirement’ under the PPIA. California cannot regulate foie gras products’ ingredients by creatively phrasing its law in terms of the manner in which those ingredients were produced.”

The ban arose in 2004, after then-State Sen. John Burton, D-San Francisco, introduced Senate Bill 1520. The bill prohibited foie gras from being produced or sold in California, thereby ruling out imports of the fattened-liver delicacy. Wilson’s decision approved the importation and sale of foie gras, but did nothing to alter California’s prohibition on production.

The perils of prohibition

However the legal case against the ban may fare in higher court, observers have taken note of the practical effect of foie gras prohibition. Much like America’s experiment with alcohol Prohibition, 1920-33, banning foie gras appeared to increase Californians’ appetite for what was banned.

As Josh Barro detailed at the New York Times, demand for foie gras rose precipitously both immediately before and after the ban:

“‘We saw an up in volume two years ago when the ban went into effect,’ said Ariane Daguin, chief executive of the specialty food supplier D’Artagnan, which sells to both restaurants and consumers. ‘People wanted to see what the brouhaha was about. Now what is happening is all the chefs who are our friends and have been buying other things from us want to put foie gras back on the menu.'”

What’s more, as Robin Abcarian reported in the Los Angeles Times, fattened liver “never truly disappeared from menus.” Chef Ken Frank, a big foie gras proponent, told Abcarian he “skirted the ban by giving customers foie gras, randomly delivered, he said, with a note explaining the gift was a protest.”

Although he insisted he “went to great lengths not to violate the letter of the law,” Frank himself has been dragged into court by the Animal Legal Defense Fund, which brought suit against him and his restaurant in March 2013.

In 2008, they passed Proposition 2, which mandated more comfortable hatching quarters for chickens. Because of the cost to farmers of expanding chicken coops, a grace period was allowed of six years, to Jan. 1, 2015.

As NBC reported, the extra time allowed farmers time to “invest in operations to make sure that every hen would have at least 116 square inches of space, or about a square foot. One thousand laying hens, for example, now require a facility measuring more than 800 square feet.” That’s about double the space egg-layers enjoyed previously.

Now that the clock has run out on preparation time, egg prices are poised to rise even higher. According to the Associated Press, the cost of breakfast will rise for consumers across the country, not just California:

“The new standard, backed by animal rights advocates, has been criticized by chicken farmers in Iowa, Ohio and other states who sell eggs in California and will have to abide by the same requirements. California is the nation’s largest consumer of eggs and imports about one-third of its supply.”

Nationwide, the market could eventually adjust. UC Davis economist Daniel Sumner told the AP “prices initially could rise sharply this year but he expected them to eventually settle 10 to 40 percent higher in California and return to their normal prices elsewhere in the country.”

That would leave Golden Staters paying a premium that other Americans, with less comfortable chickens, would avoid.

Foie gras

The egg price jump also ties into the ongoing foie gras controversy. As CalWatchdog.com previously reported, for now, foie gras is back on Californian menus.

In a brief ruling that skirted deep questions of constitutional law, U.S. District Court Judge Stephen Wilson held this week that federal poultry regulations “preempt” what was a statewide ban on the delicacy, a rich dish made from the liver of force-fed geese or ducks.

But as Daniel Fisher noted at Forbes, supporters of the ban swung quickly into action. “The Humane Society immediately urged California to appeal the decision to the Ninth Circuit of the U.S. Court of Appeals, which has been friendly toward the state’s extraterritorial regulatory efforts in the past.”

Notably, the activist organization referenced another hot area concerning chickens: eggs.

According to Fisher, the “foie gras ban ran afoul of federal law controlling the ingredients in poultry products, the Humane Society said, while the egg ban involves the process of raising chickens.”

There, the important distinction concerns out-of-state production and in-state consumption. The Ninth Circuit’s ostensible treatment of the foie gras case will turn on its interpretation of the Interstate Commerce clause of the U.S. Constitution.

Faced with a previous challenge to the ban, the Ninth Circuit did not object to the way that Sacramento’s ban on foie gras made it impossible under state law for out-of-state producers to import the food into California. Nevertheless, Wilson held that federal poultry law prevailed over California’s policy.

Different argument

So the Humane Society and other ban defenders want the Ninth Circuit to consider a different argument: California should be able to ban food production that requires what they consider cruelty to animals — even for out-of-state production.

In a case last fall, Judge Kimberly Mueller, of the Sacramento Division of U.S. District Court for the Eastern District of California, held that out-of-state producers of eggs running afoul of California’s new rules lacked “standing” to sue — meaning  the capacity of a party to bring suit in court.

Now the Humane Society and its allies expect to show in-state standing before the Ninth Circuit.

All told, California’s food fight isn’t just set to expand. It’s set to escalate, perhaps even to the national level.

By John Seiler

The 9th U.S. Circuit Court of Appeals is supposed to be the most liberal in the country.

And liberalism is supposed to defend personal privacy. For example, the 1973 Roe vs. Wade abortion decision by the U.S. Supreme Court was based on the “right to privacy.” Here’s an exact quote from the decision: “…the Due Process Clause of the Fourteenth Amendment, which protects against state action the right to privacy….”

Now this report from Salon:

“Today, amidst all the other news about the government’s vast surveillance network, the Ninth Circuit Court of Appeals in California dismissed a case brought seven years ago against the National Security Agency’s warrantless wiretapping program. The dismissal essentially affirms the “big catch-22″ that makes it nearly impossible for American citizens to sue their government for spying on them.

“Among other things, the Center for Constitutional Rights coordinates the legel defense of the hundreds of detainees held at the Guantanamo Bay prison camp. After the New York Times revealed the NSA’s warrantless wiretapping program in late 2005, CCR had reason to believe that the agency had intercepted its attorneys calls and emails with people outside the U.S., including clients, clients’ families, outside attorneys, potential witnesses, and others.

“So in 2006 they sued, asking a federal court for an injunction to stop the program and naming George W. Bush, the head of the NSA, and the heads of other intelligence agencies as defendants. The government eventually ended that program, so CCR now wanted the court to force the government to destroy any records of surveillance that the intelligence agencies may still have retained from its old illegal wiretapping program.”

Here’s the key: The Ninth Circuit, however “liberal,” is part of the government. So it’s the government letting the government do whatever the government wants.

There really is no “right of privacy.” Only the “right” of the government, including the “liberal” Ninth Circuit, to interpret the Bill of Rights and the rest of the Constitution however it wishes, meaning in favor of the government.

Which means, logically, that this government is not a government of free people, meaning that the government itself is entirely illegitimate.

By CHRISS STREET

Xavier Alvarez, after being elected in 2007 to the Three Valleys Municipal Water District in Pomona, California introduced himself at his first Board meeting as a wounded war veteran who had received the Congressional Medal of Honor, our nation’s highest honor.  But when it was discovered that Alvarez was never wounded in action, never awarded the Medal of Honor and actually never served in the military, under the Stolen Valor Act of 2005 he was prosecuted and convicted a federal misdemeanor for falsely claiming to have received a U.S. military medal.

Alvarez was sentenced to a $10,000 fine and a prison term for up to one year.  But thanks to the Ninth Circuit Court in Northern California, the most liberal in the country, he was freed to lie again when the court ruled the Stolen Valor Act infringed on Alvarez’s First Amendment freedom of speech.  This week the Supreme Court of the United States agreed to the prosecution’s appeal to take up the constitutionality of the Stolen Valor Act.

Lying about being a war hero is not a new concept.  George Santayana quipped,; “History is a pack of lies about events that never happened told by people who weren’t there.”  But Alvarez is the devil’s poster child for telling whoppers about gallantry.  He brazenly admits that at various times he lied about playing hockey for the Detroit Red Wings, marrying a beautiful Mexican starlet and having an engineering degree.  He got in trouble with the law for claiming he was in the American embassy in Tehran during the Iranian hostage crisis of the late 1970s and early 1980s.  His fantasy exploits included being the hero who rescued the U.S. Ambassador during that crisis and being shot when going back to retrieve the embassy’s American flag.

Military Award Database

Unfortunately for Mr. Alvarez, thanks to the efforts of a real veteran named Doug Sterner and his wife, Pam, there is now a database of the nearly 100,000 military awards presented since the Civil War, including all 3,475 Medal of Honor recipients.  After the publishing of one of Pam’s college term papers expressing her husband’s frustrations over those who falsely claimed to be medal recipients was published, there was so much turmoil that Congress saw fit to make lying about valor a crime.

It became illegal not only to wear but also to buy, sell, barter, trade or manufacture “any decoration or medal authorized by Congress for the armed forces of the United States, or any of the service medals or badges awarded to the members of such forces.”  The law imposes up to six months in prison for lying about any military medal, but allows a maximum penalty of $10,000 and one year in prison for offenses involving the Medal of Honor or one of the military’s three other top decorations: the Army’s Distinguished Service Cross, the Navy Cross or the Air Force Cross.

False Statements

In a prior 2010 appeal of a violation of the Stolen Valor Act by Colorado resident Rick Glen Strandlof, who falsely claimed he was an Annapolis graduate, Marine captain, survivor of the Sept. 11, 2001 attack on the Pentagon, winner of a Purple Heart and the Silver Star during his three-tours of duty in the Iraq War, the Tenth Circuit Court of Appeals in Denver refused to overturn Strandlof’s conviction by stating that “false statements of fact do not enjoy constitutional protection” unless to protect more valuable speech.  The case was considered especially egregious, because Strandlof had used his false military heroism in 2008 in support of election efforts by a series of liberal candidates sympathetic to his anti-war views.

Many U.S. Supreme Court watchers questioned the timing of the Ninth Circuit accepting the prosection’s  appeal of the Stolen Valor Act on Feb. 22. That was the 280th anniversary of George Washington’s birth.  When Washington first established American military decorations in 1782, he also laid down strict punishment for any soldiers who claimed to be medal recipients, but were not.

The Ninth Circuit based its ruling that freed Alvarez on the controversial Supreme Court ruling in Texas vs. Johnson, 491 U.S. 397 (1989), which invalidated 48 state prohibitions against desecrating the American flag. Justice William Brennan wrote for a five-to-four justice majority that held defendant Gregory Lee Johnson‘s act of flag burning was protected speech under the First Amendment to the Constitution.  Most Supreme Court scholars believe the liberal ideological majority of the Supreme Court has been reversed since the 1980s.  It will be interesting to see if that change includes respect for honesty and integrity.

The Supreme Court’s acceptance of the appeal can be found at United States v. Xavier Alvarez, 11-210.

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