notes on brush and nib

constitutional text - us constitution supreme

cases cited

barnette  West Virginia State Board of Education v. Barnette, 319 U.S. 624, 641–42, 63 S.Ct. 1178, 87 L.Ed. 1628 (1943).

Nat'l Inst. of Family & Life Advocates v. Becerra (NIFLA), ––– U.S. ––––, 138 S. Ct. 2361, 2379, 201 L.Ed.2d 835 (2018) 

Watchtower Bible & Tract Soc'y of N.Y., Inc. v. Village of Stratton, 536 U.S. 150, 160-69, 122 S.Ct. 2080, 153 L.Ed.2d 205 (2002) 

Masterpiece Cakeshop, Ltd. v. Colo. Civil Rights Comm'n, ––– U.S. ––––, 138 S. Ct. 1719, 1740–48, 201 L.Ed.2d 35 (2018) (Thomas, J., concurring)

45 In examining the text of Arizona's free speech clause, we first observe that whereas the First Amendment is phrased as a constraint on government, U.S. Const. amend. I (“Congress shall make no law ․ abridging the freedom of speech.”), our state's provision, by contrast, is a guarantee of the individual right to “freely speak, write, and publish,” subject only to constraint for the abuse of that right. See State v. Stummer, 219 Ariz. 137, 142 ¶ 14, 194 P.3d 1043, 1048 (2008); see also id. ¶ 15 (“The encompassing text of [a]rticle 2, [s]ection 6 indicates the Arizona framers’ intent to rigorously protect freedom of speech.”). Thus, by its terms, the Arizona Constitution provides broader protections for free speech than the First Amendment

Wooley v. Maynard, 430 U.S. 705, 714, 97 S.Ct. 1428, 51 L.Ed.2d 752 (1977); see also Hurley v. Irish-Am. Gay, Lesbian & Bisexual Grp. of Bos., 515 U.S. 557, 573, 115 S.Ct. 2338, 132 L.Ed.2d 487 (1995)

Riley v. Nat'l Fed'n of the Blind of N.C., 487 U.S. 781, 796–97, 108 S.Ct. 2667, 101 L.Ed.2d 669 (1988)

Turner Broad. Sys., Inc. v. FCC, 512 U.S. 622, 641, 114 S.Ct. 2445, 129 L.Ed.2d 497 (1994)

Pac. Gas & Elec. Co. v. Pub. Util. Comm'n, 475 U.S. 1, 5–7, 16–17, 21, 106 S.Ct. 903, 89 L.Ed.2d 1 (1986) (plurality opinion)

Miami Herald Publ'g Co. v. Tornillo, 418 U.S. 241, 244, 256–58, 94 S.Ct. 2831, 41 L.Ed.2d 730 (1974)

Janus v. American Federation of State, County, & Municipal Employees, Council 31, ––– U.S. ––––, 138 S. Ct. 2448, 201 L.Ed.2d 924 (2018).

so far no mention of talley or mcintyre, odd, but they do get watchtower.

Boy Scouts of Am. v. Dale, 530 U.S. 640, 653–54, 120 S.Ct. 2446, 147 L.Ed.2d 554 (2000)

Thus, by its terms, the Arizona Constitution provides broader protections for free speech than the First Amendment. See, e.g., Coleman v. City of Mesa, 230 Ariz. 352, 361 ¶ 36 n.5, 284 P.3d 863, 872 (2012) [tattoos as free speech under state constitution]

 tuesday 9/5//23

did list

cleaned van some

killed a mouse

paid bills: chase, internet.

sent bmv notice of tort claim

made comic.

made list.

to do list

1. casey casey casey

2. find 2022 income tax notes, get ready to file.

3. to do: elected officials letter re organ donor situation.

4 clean van more, load up scrap metal

5 do brian's laundry

6 reread quill and nib

7. tort claims marion county

8. freds tree service

9 lawn mower

10 bike to shop

11. gym bill.

.12. take a shower!

13. buy gas write down mileage gas buddy

14 plug in fridge

15 go thru old comics for $$$ notes.

16. mass toll bill

17 oven cleaner on new pot.

18. boxes of food for tommy.

19. go to michigan tonight? no, bank first. 

open 

20 judges case

- memo re lake county part ii

- memo re amend complaint marion county case.

arizona

san francisco

alaska

indiana sign cases

letter to client

jill mentor

complaints, 4 counties.

Test.

Ok, I can use this doc to write stuff offline so I can go to church

and get work done if no one is there. One more accomplishment unlocked.

Request for hearing and notice of tort claim.

Today I went to bmv Madison and spoke to _ supervisor.

Issues: 1. refused to allow me to replace my drivers license unless I signed the organ donor form. That was a due course of law violation. Same wrongfull behavior as happened in plainfield in my previous appeal, to which I still have not received any answer, after about 5 years.

2. refused to let me write “under duress” on the form. Refused to let me keep the copy of the form on which I’d written “under duress”.

3. refused to let me initiate an appeal. Said I would have to do that downtown. I suspect, without being certain, that this is a due process violation. It is at least terrible public policy.

4. after much argument, she finally did let me get an ID, but only after removing me from the organ donor registry. This was a due process violation and due course of law violation and terrible public policy that kills people.

5. claimed her conduct was mandated by statute, but would not say which statute. I happen to know there is no such statute, because I have gone over this point with bmv counsel at the previous hearing.  I suspect that this constitutes misfeasance in office under Indiana law. At best, it’s rude and dishonest. Ok, 7:07, time to head to church. This is ok for a first draft but needs a re-edit before submitting. 

edited and submitted a week later.

 

0 sunday did  

work. 

took recycling

gas $47.

found stuff - old laptop, food, audrey hepburn poster, 

box of finance books, pair of pants, scrap metal.

gave food to a bum

saturday did

took a sick day, did nothing. changed a light bulb, killed a mouse and some spiders.

took a bath, 

friday did: bank closed my account. deposited $700 to other bank, did a load of laundry

monday daily task list

1. make a list

2. make a comic

3. CLEAN THE VAN

7 credit union problem

6 scrap run

8 memos and briefs

5 freds tree service

4 go get phone, then call tommy

wednesday list

1,x drivers license. x  renew plates.

 file hearing request.

x 2. buy phone $45

x 3. lawyer zoom

do first x 4. pay electric bill $100 if find bill. 

5 pay internet bill someday.

6 outlinr memos.

7 lawn mower 1/2 asked scotty to do it for $20. 

8 bike tuneup. get lube for stealing bike at work.

did: paid water bill and chase cards, $60, $90, $130.

so plan is clean van, x  electric bill,  x bmv are they open today?

gym bill did not  go thru, should stop in and sort that out. didn't.

emailed tommy.

put out ant powder. 

x need to put box of meat into fridge,

 clean other fridge plug in other fridge.

new wednesday list

x 1. make a comic

2, clean the van

3. request hearing/ notice of tort claim.

4. plug in fridge.

thursday

bike

lawn mower

buy gas every sunday. write down mileage.

go thru old comics to total up expenses for 2023

work on taxes - taxes are due soon

find irs letter

read lawsuit notice.

pay mass toll bill

pay internet bill.

weds: did 6 things on list. also put out trash, bought coffee and cleaning supplies, bank, $200 deposited at pnc. po box. gave mark a ride. found a little pot, some scrap metal, bananas, cleaning supplies.

tomorrow check chase.

clean room, stairs, yard, van, fridge. self. 

 soups. influenced by a thread on reddit.

i have misplaced my list of 100 soups so here's a start to a new list.

potato-leek

tomato with curry and tabasco

gazpacho

what's that cold cucumber soup?

borscht

hot and cold soup

hot and sour

sweet and sour

dropped egg soup

lentil [scotch, madras, red, provencal, mom's]

mob barley

ramen

faux pho

west african peanut

cabbage

split pea (green, yellow)

woodstock

rice soup

alphabet soup

minestrone

dinosaur kale

carrot

miso

miso-matzo

dumplings

checkian noodle  

goulash?

stroganof with enough both to be soup

31 french onion (red wine, no beef)

yam chowder

tom yum

what is pozole?

chili

fungus soup (many kinds)

soup de jure.

soup of next week

soup of last week

 14

1. job

2. plasma [untaxed]

3. social security

4. attorney general funds.

5. bank bonuses

6. class actions

7. medical studies

8. kc foley

9. oil

10. law practice

11. tesla

12 tort claims

13 referrals

14 scrap yard

15, recycling

[expenses[

miles

days

actuals

estate 300k

 14

1. job      180 x 4.2 = x /mo 672 + leftovers x 12 = 6720+ 1344 = 9064              9064

2. plasma $400/mo x 10 =$4K                                                       $4000            13064 not taxed 4k

3. social security $638 /mo x 12 =  6380 + 1272 = 7652?             $7652           20, 716

4. attorney general funds. 50 a year (wash).

5. bank bonuses $500 a year est.                                                         $500        21, 216

6. class actions $160/yr                                                                  0160                21,378, 

7. medical studies $900/yr.                                                             900                  22278

deductions: for expenses miles days actual

8. kc foley [[$19k at risk]

9. oil $2,000 a year.                                                                         2000              24278

10. law practice -$500                                                                    -500               23728

11. tesla. varies. 

12 tort claims 0 

13 referrals 0

15 scrap yard $300 / yr                        expenses 100                                                   300  24028

                                                                                                                                              23928

-4000 not taxed                    $19,928 2023 estimated income. before deductions.

16 ira 4000

015, recycling [saved expenses $3k]       

what is tax on 19,928? what is tax on 20,000?

13,850 standard deduction

20,000 - 13850 = 6150 x 10% = $615 less expenses. 

withholdings from work 200? 415 less expenses. so need up to

$4000 in expenses. 2000 miles x 60 cents = 1200 

5 days = 250. actuals 200 1650. 

6150 - 1650 expenses = 4500 net income. @ 10% = $450 income tax due

$443 adjusted

 test

 

wednesday 8/16

get paperwork signed

bath

look for phone

5 pm zoom.

make better list

comic.

memos.

yard.

stairs. 

clean van

check on pt cruiser

fred's tree service

lawn mower.

 

tuesday.

3 hours on arizona amicus letter

6 hours work.

washed kitchen floor. took out 4 trashcans of brian trash. 1 mouse. 

trimmed a shrubbery.  wrote to tommy.

wednesday plans:

scrap yard. move washer dryer.

plasma

contact tree service.

write to jeanie about bequests.

email letter to tax guy.

make better list.

make a comic.  

po box?

haircut.

memo on first amended complaint. in judges case.

bingewatch season 2.

check craigslist for jobs (and cars)

check on car. look for title, if find title, register new title.

clean brian's room, and stairs, and outside, and bag up garage stuff.

look up gaspee brief

 outline of arizona amicus. did i do this already, in a letter to tim at goldwater?

motion for leave to file amicus.

Dear Judge,

Recently, you authored an opinion upholding Prop. 11, dismissing the case but with leave to refile. For the purposes of this letter, I treat the case as one that remains open. If unripe, please hold this letter until such time as the case is refiled. Alternatively, you may choose, sua sponte, to reconsider your opinion for the reasons set out below. 

The opinion had two main parts. In the first part, you upheld a disclosure provision under the Bonta standard. I will defer your expertise there. Bonta is new enough that I cannot predict how reviewing courts will or must rule.

In the second part, you upheld a disclaimer provision. As a person who is somewhat of an expert on this topic, I believe that your ruling was wrong and mistaken, influenced by false statements of law presented by the campaign legal center on behalf of defendants.

On June 30th, the Supreme Court entered a ruling in 303 Creative v Ennis which is incompatible with your ruling. When plaintiffs refile their case, you should grant a preliminary injunction, or other ruling, as to the disclaimer issue, due to the controlling effect of 303 Creative. It would be an error of law and abuse of discretion to fail to do so.

You also ruled that the disclaimer provision does not violate the free speech clause of the state constitution. While the matter is more within your discretion, I believe you were influenced by your error on the federal claim. I will present an argument that the disclaimer provision does violate the free speech clause. I will not address the other state constitutional arguments the plaintiffs made.

Introduction to Argument:

303 Creative is controlling authority and must be followed, whether you personally agree or disagree with its holding that a state government may not compel speech.

The error in your opinion was that you used the wrong standard of review. The term of art "exacting scrutiny" is a contronym. It means different things in different contexts. This resulted in a confusing passage in dicta in Citizens United, which has resulted in error in a series of cases including NOM, Green Mountain Futures, Smith v Helzer, and Gaspee Project v Mederos.

As used in McIntyre v Ohio Elections Commission, the leading case on political disclaimers, exacting scrutiny is the same as strict scrutiny. In Buckley v Valeo, which was the leading case on disclosure prior to Bonta, it meant the opposite, extremely permissive review. The thing to watch out for in disclaimer cases is when courts do a bait and switch, and substitute the permissive standard for disclosure instead of using the strict standard for disclaimers. Majors v. Abell, (7th Circ 2004), is one such example.

In  303, it was undisputed by the parties that strict scrutiny applies.

Numerous controlling cases have held that strict scrutiny is the proper standard for cases about political speech. These include McIntyre, ACLF, Reno v ACLU, Town of Gilbert v Reed, Janus, even Citizens United. Bonta uses a form of intermediate review. NIFLA found that a disclaimer regulation failed any level of review so did not decide the issue.

Numerous cases which are controlling here have held that the government may not compel speech. These include Barnette, Talley v, California, Riley v Fed of the Blind, Tornillo v. Miami Herald, Wooley v Maynard, McIntyre, Buckley v. ACLF, Watchtower v Stratton, Janus, NIFLA v Becerra, and now 303 Creative. Your court is obligated to comply with these rulings. 

The state constitutional argument has three sections.

Brush and Nib seems to be the leading case in Arizona courts. I do not have access to an annotated Arizona constitution; our local law libraries shut down in response to covid, and I have not found one online.

The same United States Supreme Court cases which are controlling as to the First Amendment claim are not controlling as to the state claim, but are persuasive authority. There are also other lower court cases on disclaimers and the First Amendment. 

State constitutional cases from other states, finding that disclaimer rules violate state constitutions, are persuasive authority. So far I have found 13 of these; there may be more. There are cases from CA, CO, DE, ID, IL, LA, MA, ME, MO, WA. There are cases from TN and NC finding no state right protecting against disclaimer rules; these are both erroneous and unpersuasive.

Schuster, Tattered Cover, Opinion of the Justices (DE), People v Barney, People v White, Fulton, Moses, Commonwelath v Dennis, Opinion of the Justices (Maine), Ex Parte (morrison? coleman?) _(MO, 1908), 

All for today. 12:15 - 1:51 8/8/23,

A. Compelled Speech ¶48 The compelled speech doctrine is grounded on the principle that freedom of speech “includes both the right to speak freely and the right to refrain from speaking at all.” Wooley v. Maynard, 430 U.S. 705, 714 (1977); see also Hurley v. Irish-Am. Gay, Lesbian & Bisexual Grp. of Bos., 515 U.S. 557, 573 (1995) (“[O]ne important manifestation of the principle of free speech is that one who chooses to speak may also decide what not to say.” (citation and internal quotation marks omitted)); Riley v. Nat’l Fed’n of the Blind of N.C., 487 U.S. 781, 796–97 (1988) (stating that the First Amendment guarantee of free speech necessarily includes the freedom of deciding “both what to say and what not to say”). 2:30 pm 8/8. 

Content-based laws must satisfy strict scrutiny. Reed, 135 S. Ct. at 2227. Thus, such laws “are presumptively unconstitutional and may be justified only if the government proves that they are narrowly tailored to serve compelling state interests.

bolick concurring

As our constitution’s framers chose to secure free speech with language different and more protective than the First Amendment, our constitutional oath requires us to invest those words with their fully intended meaning.

In so doing, if the meaning of the language is clear, we should enforce it without resorting to secondary interpretative methods.

Finally, where our provision is similar to provisions in other state constitutions, we may look to court decisions and other historical records from those other states prior to our constitution’s ratification to help determine the framers’ intent in adopting them.

In construing the provisions of our Declaration of Rights, we always must be mindful of the admonition that government is “established to protect and maintain individual rights.” Ariz. Const. art. 2, § 2.

Indeed, in concluding that a law that compelled speech violated the California Constitution’s similarly-worded free speech guarantee, the BRUSH & NIB ET AL. V. CITY OF PHOENIX JUSTICE BOLICK, Concurring 56 California Supreme Court declared, “[o]ne does not speak freely when one is restrained from speaking. But neither does one speak freely when one is compelled to speak.” Gerawan Farming, Inc. v. Lyons, 12 P.3d 720, 750 (Cal. 2000). 

Article 2, section 6 of the Arizona Constitution provides in full: “Every person may freely speak, write, and publish on all subjects, being responsible for the abuse of that right.” That language is majestic in its sweep, and we have consistently found that it provides greater protection for speech than the First Amendment. S

 

 

 

303 creative.

obligation to follow scotus precedent. 

timeliness of filing. 

disclosure and bonta. 

disclaimers and mcintyre

federal claim 

why citizens united is not controlling.

why cases based on campaign legal center briefs are not persuasive.

thomas dissent in delaware strong.

state claim.

brush and nib.

federal precedent is persuasive while not controlling.

scotus. circuits. states. lower courts. 

decisions from 13 other states are persuasive. 

 outline of arizona amicus. did i do this already, in a letter to tim at goldwater?

motion for leave to file amicus.

303 creative.

obligatiion to follow scotus precedent. 

timeliness of filing. 

disclosure and bonta. 

disclaimers and mcintyre

federal claim 

why citizens united is not controlling.

why cases based on campaign legal center briefs are not persuasive.

thomas dissent in delaware strong.

Justice Thomas, dissenting from the denial of certiorari. 2016.

 First Amendment rights are all too often sacrificed for the sake of transparency in federal and state elections. “ ‘Sunlight,’ ” this Court has noted, is “ ‘the best of disinfectants’ ” in elections. See Buckley v. Valeo, 424 U. S. 1, 67 (1976) (per curiam) (quoting L. Brandeis, Other People’s Money 62 (1933)). But that is not so when “ ‘sunlight’ ” chills speech by exposing anonymous donors to harassment and threats of reprisal. See Citizens United v. Federal Election Comm’n, 558 U. S. 310, 482–484 (2010) (Thomas, J., concurring in part and dissenting in part); see also, e.g., NAACP v. Alabama ex rel. Patterson, 357 U. S. 449, 462–463 (1958). This case presents the opportunity to clarify that the State’s interest in transparency does not always trump First Amendment rights.

“Disclaimer and disclosure requirements enable private citizens and elected officials to implement political strategies specifically calculated to curtail campaign-related activity and prevent the lawful, peaceful exercise of First Amendment rights.” Citizens United, 558 U. S., at 483 (opinion of Thomas, J.) 

By refusing to review the constitutionality of the Delaware law, the Court sends a strong message that “exacting scrutiny” means no scrutiny at all. I respectfully dissent from the denial of certiorari.

state claim.

brush and nib.

https://adfmedia.org/case/brush-nib-studio-v-city-phoenix

https://adfmedialegalfiles.blob.core.windows.net/files/BrushNibAmicusBriefsMerits.pdf

federal precedent is persuasive while not controlling.

scotus. circuits. states. lower courts. 

decisions from 13 other states are persuasive. 

11:26 pm 8/5/23. so my father was born 8/6/1929.

 2023

-1929 =  94. my dad would have been 94 today.

​​Pursuant to Kentucky Revised Statutes (KRS) Chapter 15.025, the Attorney General provides legal opinions to public officials to assist them in the performance of their duties. When special circumstances exist, the Attorney General may provide opinions to members of the general public on issues of significant public interest.

Do you want to litigate the kind of cases that made you go to law school in the first place? Good news, IJ is hiring! We are looking for attorneys for the Austin, Texas office and both attorneys and litigation fellows for IJ's headquarters in Arlington, Virginia. We are on the lookout for energetic and entrepreneurial attorneys to work on cutting-edge constitutional cases, stop government abuses, and champion individual rights. Attorneys at IJ bring creative, intellectually challenging cases in courts around the country. Our attorneys are active outside the courtroom as well, doing media writing and appearances, public speaking, grassroots activism, and direct advocacy to policymakers and legislators. Visit the Careers section of our website to learn more and apply.

303 creative notes

8/8/23.

gorsuch 6-3. 

303 CREATIVE LLC, ET AL., PETITIONERS v. AUBREY ELENIS, ET AL. 6/30/23. Cite as: 600 U. S. ____ (2023) 

But in this particular case Colorado does not just seek to ensure the sale of goods or services on equal terms. It seeks to use its law to compel an individual to create speech she does not believe. The question we face is whether that course violates the Free Speech Clause of the First Amendment.  

The framers designed the Free Speech Clause of the First Amendment to protect the “freedom to think as you will and to speak as you think.”

An end because the freedom to think and speak is among our inalienable human rights. See, e.g., 4 Annals of Cong. 934 (1794) (Rep. Madison). A means because the freedom of thought and speech is “indispensable to the discovery and spread of political truth.”

“[i]f there is any fixed star in our constitutional constellation,” West Virginia Bd. of Ed. v. Barnette, 319 U. S. 624, 642 (1943), it is the principle that the government may not interfere with “an uninhibited marketplace of ideas,”

The veterans’ choice of what to say (and not say) might have been unpopular, but they had a First Amendment right to present their message undiluted by views they did not share. Cite as: 600 U. S. ____ (2023) 9 

Generally, too, the government may not compel a person to speak its own preferred messages. See 

Opinion of the Court Tinker v. Des Moines Independent Community School Dist., 393 U. S. 503, 505–506 (1969); see also, e.g., Miami Herald Publishing Co. v. Tornillo, 418 U. S. 241, 256 (1974); Wooley v. Maynard, 430 U. S. 705, 714 (1977); National Institute of Family and Life Advocates v. Becerra, 585 U. S. ___, ___ (2018) (NIFLA)

 Nor does it matter whether the government seeks to compel a person to speak its message when he would prefer to remain silent or to force an individual to include other ideas with his own speech that he would prefer not to include.  All that offends the First Amendment just the same.

As surely as Ms. Smith seeks to engage in protected First Amendment speech, Colorado seeks to compel speech Ms. Smith does not wish to provide.

While that court thought Colorado could compel speech from Ms. Smith consistent with the Constitution, our First Amendment precedents laid out above teach otherwise. 

Under our precedents, that “is enough,” more than enough, to represent an impermissible abridgment of the First Amendment’s right to speak freely.

 Taken seriously, that principle would allow the government to force all manner of artists, speechwriters, and others whose services involve speech to speak what they do not believe on pain of penalty. The government could require “an unwilling Muslim movie director to make a film with a Zionist message,” or “an atheist muralist to accept a commission celebrating Evangelical zeal,” so long as they would make films or murals for other members of the public with different messages.

As our precedents recognize, the First Amendment tolerates none of that.

 When a state ... law and the Constitution collide, there can be no question which must prevail. U. S. Const., Art. VI, cl. 2.

 If anything is truly dispiriting here, it is the dissent’s failure to take seriously this Court’s enduring commitment to protecting the speech rights of all comers, no matter how controversial—or even repugnant—many may find the message at hand.

Eighty years ago in Barnette, this Court affirmed that “no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion.” 319 U. S., at 642. The Court did so despite the fact that the speech rights it defended were deeply unpopular; at the time, the world was at war and many thought respect for the flag and the pledge “essential for the welfare of the state.”

But “[i]f liberty means anything at all, it means the right to tell people what they do not want to hear.

In the past, other States in Barnette, Hurley, and Dale have similarly tested the First Amendment’s boundaries by seeking to compel speech they thought vital at the time. But, as this Court has long held, the opportunity to think for ourselves and to express those thoughts freely is among our most cherished liberties and part of what keeps our Republic strong.

But tolerance, not coercion, is our Nation’s answer. The First Amendment envisions the United States as a rich and complex place where all persons are free to think and speak as they wish, not as the government demands. Because Colorado seeks to deny that promise, the judgment is Reversed.

 

 https://www.goldwaterinstitute.org/litigation/be-a-pro-bono-attorney/

 ) (“[T]he only court that can overturn a Supreme Court precedent is the Supreme Court itself.” (citations omitted)); Nat’l Coal. for Men v. Selective Serv. Sys., 969 F.3d 546, 547 (5th Cir. 2020) (“[O]nly the Supreme Court may revise its precedent.”).

Inferior courts must follow directly applicable Supreme Court precedent that has not been overruled or modified. See, e.g., Freedom From Religion Found. v. Mack, 4 F.4th 306, 315 (5th Cir. 2021) (“We are bound to follow the Supreme Court precedent that most squarely controls our case.”). 

us v vargas 5th cir. 2023.

 $13,000

3,963.96 Square Feet

3555 Linden St, Indianapolis, IN 46227

1641 E Southern Ave 12,000 southern and state. 

 

wednesday plans:

noon zoom. missed. 

1:30 work meeting. kid, shorts. slightly late. kid wasn't there today.

x plasma. $100;

scrap yard. 

sort car! did some. but got more stuff.

clean front steps, kitchen, stairs.

church or standup. no one at church.

what am i forgetting?

bike, lawn mower.

oil change, car repair, lights, stewart electric.

did: looked at 2 properties.  more boxes of food. checked 6 places. 

thursday, crackers. 

pay 1-90 toll.

write letter to kokmo church

email tommy.

museum. 

make comic. 

bags, fred's tree serivice, look for phone.

Fred & Son's

314 East Cragmont Dr

Indianapolis, IN 46227

(317) 708-4255

tuesday: club. worked. grease trap, 7 cops, groceries. made ice. 

 monday plans

x laundry

x bank

sort van

x dishes

stairs

clean bathroom -only slightly. bath.

look for phone.

x comic

better list.

oppenheimer was sold out. all i found was a box of food, some scrap metal, a keurig, a wastebasket, another box of food. 3 pizzas, two matching puppy stuffed animals. 

i could go back for the big screen tv and the wood. 

 the indiana supreme court's opinion turned down a facial challenge to the statute, saying if there's even one case where the statute is ok that is enough to defeat a facial challenge, but left it very clear they welcome as-applied challenges. so that could be the next step; a series of as-applied challenges that would chip away at the statute.

that's how mccain-feingold was dealt with. a facial challenge, mcconnell v fec, lost, by opponents kept chipping away at it with as-applied challenges, of which the strongest so far has been citizens united. 

on the other hand, in crawford v marion county, a facial challenge to the voter ID statute lost, and there haven't been as-applied challenges. 

the lawyers here are the aclu's ken faulk and gavin rose. they are very good lawyers - i've met them-  and not likely to just go away. 

if you know of a person who has particular circumstances with a pregnancy that would result in them being a good test case, please have them contact the aclu. here https://action.aclu.org/give/support-aclu-indiana is a link to donate to aclu.

 what are my side hustles?

1. day job

2. oil well

3. social security

4. vacant lots

5. renting rooms

6. law

7, recycling company

8. bank bonuses

9. class actions

10. (cleaning restaurants)

11. estate

12. plasma

13. medical studies

14. (referrals to medical studies)

15. portfolio/tesla.

what are my side hustles?

1. day job                              17k 2022

2. oil well                                5K 2022

3. social security                    7k 2023

4. vacant lots                         (10k)

5. renting rooms                    2 cars

6. law                                    ---

7, recycling company          200 scrapyard. 3K avoided food expense

8. bank bonuses                    $1000 a year.

9. class actions                     $155. 2023

10. (cleaning restaurants) 

11. estate                              someday. $1000 this year.

12. plasma                           4k

13. medical studies             1k 2023

14. (referrals to medical studies) ---

15. portfolio/tesla.              1K+

 Dear Senator Freeman,

 I am writing today to both of your hats, as senator and as a lawyer.

Senator first: Thank you for requesting the AGO from AG Rokita. While I haven't found the text anywhere, the upshot was to confirm that Mayor Hogsett's gun ordinance is unlawful. As a Marion County republican and gun rights supporter, I appreciate this.

I am not your constituent. I live in house district 100, which I ran for back in 2010. Recently I wrote to my state rep, Mr. Johnson, and never heard back. I was writing to request that he request an AGO on the constitutionality of IC 3-9-3-2.5, the disclaimer statute that requires you to put "paid for by __" on your political signs.

The reason that the statute is 2.5 is that the previous statute, IC 3-9-3--2, was found unconstitutional in Stewart v Taylor,  953 F. Supp. 1047 (S.D. Ind. 1997), https://law.justia.com/cases/federal/district-courts/FSupp/953/1047/1746959/, after one of my signs was confiscated at a polling place. 

The new statute is equally unconstitutional for the same reasons.

I suspect that AG Rokita might agree, especially in light of 303 Creative, 6/30/23, in which the Supreme Court once again held that compelled speech violates the First Amendment. 

That would accomplish my objective without the time and expense of a lawsuit. Is this something you would be willing to do for me?

The request could be as simple as "Dear Attorney General Rokita, does IC 3-9-3-2.5 violate the federal or state constitutions, in light of 303 Creative and Price v Indiana?" You know the format better than I do since you have just been through it. 

Thanks in advance for your time.

Now I'll switch hats. Let me give you a quick elevator pitch for a lawsuit, and if it interests you I'd be happy to meet and discuss further. 

I have a multi-issue dispute with the Marion County Elections Board.

First there's the sign issue. They are threatening to enforce the disclaimer law against me again. Since I have beaten them on this once, I think there is some potential for non-trivial damages. I settled my case for $7,000. The Mulholland case, similar issues, was settled for $70,000. 

Next, it looks like they didn't count my provisional vote in the fall election, which might or might not be actionable, and there's a public records dispute because since January they have been unwilling to tell me whether or not my vote was counted. 

Next, in the Spring primary, the precinct official at the voting center at St Mark's church did not allow me to vote a provisional ballot, and threatened me with arrest when I attempted to document this on video. The Board had denied me press credentials because my reporting is online rather than in traditional media.

So as you can see there are several potential torts there.

OK, I guess that's about it. Thanks again. 

Sincerely, Robbin Stewart.  

 thursday daily task list

unload van

scrap run

buy bags.

x stop by work

plasma? x po box? 

call tommy

x memos.

clean stairs.

x borax/sugar

wash dishes.

shower.

x flea bomb?

x comic.

find phone.

 test. we are in syracuse new york on our way to berlin 

 

1:00 pm 6/20/2023 until: 2:00. 1 hour. Made a good start on writing down what I've had in my head over the weekend.

rough notes about hammond v indiana

after our meeting Nick sent me three documents in reference to City of Hammond v Indiana, Lake County Board of Elections, et al. 

These are the state's memo in support of summary judgment, a detailed and substantive response,

the board's motion for sumarry judgment, a short empty argument saying they win on the merits, therefore the court lacks jurisdiction. in my country we call this the "does not follow."

i need to go check what the third document is; it is similar to the second. complains that the board has not done anything wrong, therefore not a proper party. 

most of this writing will be in response to the state's filing, hereinafter "memo".

let's say that i can come up with a refutation of the state's argument, what do we do with it? a) send it over to hammond's hight priced lawyers. b) file it as an amicus from roberts and maybe me. 

The structure of the state's memo is as follows:

Introduction..................................................................................................1

Summary Judgment Standard.........................................................................2

Argument.....................................................................................................2

I. Plaintiffs’ Claims Must Fail as This Court Does Not Have

Jurisdiction to Hear Them .......................................................2

II. Plaintiffs Voting Rights Act Claim ...........................................4

III. Plaintiffs Art. 4 § 23 Indiana Constitution Claim ......................8

IV. Plaintiffs Art. 1 § 23 Indiana Constitution Claims....................10

A. Indiana Code Section 33-33-45-28 Does Not Violate Art. 1, §

23 by denying attorneys the right to choose judges.............12

B. The Judicial Nomination and Retention Scheme Does Not

Violate Art. 1, § 23...............................................................13

Conclusion..................................................................................................14

---

I will follow that structure in responding.

The standard of review is mostly correct.

The court does have jurisdiction. 42 USC 1983 and the Voting Rights Act confer jurisdiction. There is live controversy between the parties. Section 2 is designed to remedy these kind of disputes. The court has dependent and ancillary jurisdiction over the state claims.

The state's concerns about a federal court deciding close questions of state constitutional law have some merit. 

"Further, Plaintiffs’ remaining claims are first andforemost a question of Indiana constitutional law, and it would be inappropriate for this Court to decide these issues in federal court."

The best response would be to certify the state claims to the Indiana Supreme Court.

The court has the authority to take this step on its own initiative without a motion from the parties. BAPAC v Baldwin, Majors v Abell.

BROWNSBURG AREA PATRONS AFFECT. CHANGE (BAPAC) v. Baldwin, 943 F. Supp. 975 (S.D. Ind. 1996). wrong cite, that's the lower court opinion. 137 F.3d 503 (7th Cir. 1998).

https://casetext.com/case/brownsburg-area-patrons-aff-ch-v-baldwin

Because this case presents an important issue regarding the interpretation of a state statute, we certify this case to the Supreme Court of Indiana.

These possibly competing principles of statutory interpretation lead us to conclude that the most prudent course of action is to certify this case to the Supreme Court of Indiana pursuant to this circuit's Rule 52. See Blue Cross and Blue Shield of Alabama v. Nielson, 116 F.3d 1406, 1413 (11th Cir. 1997) (stating that the case for certification is even stronger where "the answer . . . depends upon reconciliation of the competing trajectories of a number of canons of statutory construction"). Here, a federal court would be required to determine whether the statutory language is ambiguous, but at the same time, construe the statute to be constitutional if possible. 

Circuit Rule 52 states:

When the rules of the highest court of a state provide for certification to that court by a federal court of questions arising under the laws of that state which will control the outcome of a case pending in the federal court, this court, sua sponte, or on a motion of a party, may certify such a question to the state court in accordance with the rules of that court, and may stay the case in this court to await the state court's decision of the question certified. The certification will be made after the briefs are filed in this court. A motion for certification shall be included in the moving party's brief.

The Supreme Court of Indiana permits certification to its court under Indiana Rule of Appellate Procedure 15(O) which states:

When it shall appear to the Supreme Court of the United States, to any circuit court of appeals of the United States, to the court of appeals of the District of Columbia, or to any United States District Court sitting in Indiana that there are involved in any proceeding before it questions or propositions of the laws of [Indiana], which are determinative of the said cause, and there are no clear controlling precedents in the decisions of the Supreme Court of [Indiana], such federal court may certify such questions or propositions of the laws of [Indiana] to the Supreme Court of [Indiana] for instructions concerning such questions or propositions of state law which certificate the Supreme Court of [Indiana], by written opinion, may answer.

However, the United States Supreme Court recently reminded us that "`[s]peculation by a federal court about the meaning of a state statute in the absence of prior state court adjudication is particularly gratuitous when . . . the state courts stand willing to address questions of state law on certification from a federal court.'" Arizonans for Official English v. Arizona, 117 S. Ct. 1055, 1074 (1997) (quoting Brockett v. Spokane Arcades, Inc., 472 U.S. 491, 510, 105 S. Ct. 2794, 2805, 86 L. Ed. 2d 394 (1985) (O'Connor, J., concurring)). Thus, in the interests of comity, certification is entirely appropriate in this case.

Moreover, an interpretation of the statute by Indiana's highest court will be outcome determinative.

Such an important determination is better left to the state's highest court. See Stephan v. Rocky Mountain Chocolate Factory, Inc., 129 F.3d 414, 418 (7th Cir. 1997) ("Although neither party here has requested certification, we are free to certify questions on our own motion."). Consequently, due to the breadth of impact of the issue at bar and the important concerns of federalism apparent when a federal court is asked to interpret a state statute, we respectfully certify  the following question to the Supreme Court of Indiana....

 

[American Booksellers Ass'n, Inc. v. Hudnut, 771 F.2d 323, 327 (7th Cir. 1985), aff'd without opinion, 475 U.S. 1001, 106 S.Ct. 1172, 89 L.Ed.2d 291 (1986)  note to self: hudnut did go to scotus after all, just no opinion.]

We therefore certify to the Indiana Supreme Court, pursuant to 7th Cir. R. 52 and Ind. Code § 33-2-4-1, the following question, upon the answer to which the further proceedings in this appeal will depend:

Majors v. Abell, 317 F.3d 719 (7th Cir. 2003)

https://casetext.com/case/majors-v-abell-2

The U.S. Supreme Court, in its first pronouncements as to certification in Lehman Bros. v. Schein (1974), advised that, while "[w]e do not suggest that where there is doubt as to local law and where the certification procedure is available, resort to it is obligatory," certification "does, of course, in the long run save time, energy, and resources and helps build a cooperative judicial federalism." https://www.reuters.com/legal/legalindustry/certification-questions-law-state-supreme-courts-2021-06-22/.

The state's challenge to jurisdiction is because it has gotten confused about the difference between federal claims and state claims.

"However, the mere presence of a federal issue in

a state cause of action does not automatically confer federal question jurisdiction." Merrell Dow Pharmaceuticals, Inc. v. Thompson, 478 U.S. 804, 813 (1986).

Here, there is a federal claim, under a federal statute. The court absolutely does have jurisdiction over this federal claim. That juridiction extends to the declaratory and injunctive relief sought. Because there is federal jurisdiction over the federal claim, the court also has supplemental and ancillary jurisdiction over the separate state claims. A party is not required to file its federal claims in federal court and state claims in state court; rule 1 urges cases to be simple when possible.  Indeed, if plaintiffs had filed in state court as well, defendants would be arguing for abstention.

"Of the claims brought by Plaintiffs, only one claim invokes an alleged violation of federal law—the Voting Rights Act claim.... As discussed below, Plaintiffs’ federal Voting Rights Act claim fails, and thus, so does this Court’s jurisdiction to hear Plaintiffs’ case under federal question jurisdiction."

This argument wrongfully conflated the merits with jurisdiction.

Plaintiffs may win or lose on the merits. Either way, the court has jurisdiction under the voting rights act to reach and decide this question. 

It would not serve the state well for its argument to prevail. If it were correct, plaintiffs could win on the merits, but could never lose on the merits. Under the state's theory, if plaintiffs stated a case that would lose on the merits, the court is deprived of jurisdiction, in which case it cannot reach any decision on the merits, but would simply have to dismiss for want of juridiction, so the question would remain unanswered.

===

2:30 wednesday june 21, 2023. to 2:55.

The lake county board of elections, filing 90, makes a similar argument in its brief in support of summary judgment.

1. legal argument

A. Legal standard:

I mostly agree with their setting out of the non-controversial standard for summary judgment. Liberty Lobby, Pepitone, Celotex, the usual stuff. Similarly, Lujan is on point for standing.

B: Plaintiffs lack standing:

This section is wrong. The board is, or pretends to be, confused about the difference between official capacity and individual capacity claims.

The board conducts retention elections and does not hold general elections for Lake County judge. This is the case and controversy that gives rise to Article III standing and justiciability. This is the live dispute between the parties. Holding judicial elections, similar to those of the other 89 counties, is what the plaintiffs are asking the court to order the board to do. The redressibility prong for standing is met.

The board is following the statute, which is proper, until superseded by a court order based either on the federal statute, federal constitution, or state constitution. It would be highly improper for the board to refuse to follow a final order of the court.

There is no allegation in this action that the board has done "anything wrong." If there were, there would be individual capacity claims against the members of the board, and we would be arguing issues such as qualified immunity. Instead, plaintiffs are properly seeking prospective injunctive and declaratory relief, under federal and state law, to which they are entitled as a matter of law. The board defendants' motion for summary judgment on jurisdictional grounds should be denied.

" The Election Board does not have the power to

confer or deny the Plaintiffs, or others similarly situated, the right to vote for Judges in Lake

County. Nor does the Election Board have the power to authorize the remedies sought by the

Plaintiffs described in their Second Amended Complaint."

We agree. The court, however, does have the power to confer this right and authorize the remedies. That's why plaintiffs are in court; there is a legal dispute between the parties which the court can, should, and must resolve. Such disputes are known as cases and controversies, and satisfy Article III standing under Lujan.

The Board's response is limited to this failed attack on the court's jurisdiction, and does not address the merits. The Board's motion should be denied.

===

2:55:

Document 93 is an amended brief similar to document 90. I am not yet clear what the difference is, but will give it a quick skim. I am still unclear on what changed, so I'll stick with my analysis above. Now back to the state's brief.

===

II - Voting right act claim:

 “Despite the ratification of the Fifteenth Amendment, the right of African-Americans to vote was heavily suppressed for nearly a century.”  State political processes would include “poll taxes, literacy tests, property qualifications, ‘white primar[ies],’ and ‘grandfather clause[s].’” "Brnovich, 141 S. Ct. at 2330.

We agree. The modern version of the poll tax is Voter ID. See Frank v LULAC, in which the Wisconsin Supreme Court found that a voter ID programs like Indiana's was an unconstitutional poll tax, and J. Souter's dissent in Crawford. In an earlier case about the problematic Lake County judicial elections, plaintiffs analogized the Indiana bar exam as being like a literacy test. 

In Price v. Indiana, the leading case on the right to free speech under section 9, the Indiana Supreme Court described Indiana's history as a tension between aristocratic factions of landed gentry, and populism. [cite.] Having judges chosen by a judicial selection commission including lawyers and politicians instead of by an election of the people reflects that this tension is still very much alive. 

Indiana parties have only very recently gotten rid of the slating conventions, which functioned similarly to Texas's jaybird primaries, a way for the elites to make sure that they got to choose the candidates, so the election was in form only, not substance. 

Here, though, they no longer even go through the motions of holding an election. The elites, headed by the governor, directly choose the judges. That these judges are eventually subject to retention elections, which, as incumbents, they almost always win, does nothing to change the fact that these judges are chosen by the elite for the elite, instead of by the people for the people. Even if every judge lost every retention election, the elites would merely appoint a new set of elites; a popular choice of the people would still have no way to get nominated or chosen.

The voting rights act requires at least the semblance of a free and open election.

One thing has changed since 1965. The political system is no longer characterized by open hostility toward African-Americans. Here, the African-Americans of Lake, [ ] and Marion Counties are not being disenfranchised because they are Blacks. They are being disenfranchised because of a reasonable fear that if allowed to vote, they would choose Democrats. 

It is not clear whether Indiana's free and equal elections clause protects against discrimination against Democrats. What is clear is that both section 2 of the Voting Right s Act and Article II of the Indiana Constitution do protect against the racial result here; that most White voters get to elect their judges, while most Black voters do not.  This court has jurisdiction and authority to remedy this disparity by ordering the Board and the state to hold free and equal elections in Lake County, similar to those held in the 98 White super-majority counties.

=3:30, stopping here for now, 1.0 hours.