In the Court of Public Opinion, the Law Falls Silent

Inter arma enim silent leges.  “In time of war, the law falls silent” as Cicero said.  I submit the law also falls silent in the court of public opinion. 

If you have been watching the news lately, you have probably heard the term “rule of law” thrown around a lot.  Well, what does that mean in non-legalese?  It is something we all must trust in (and depend on) for our society to function. 

In a Sunday school class in which I recently participated, it was asked “why is murder wrong.”  Someone answered “it’s against God’s law.”  Well, as a Christian, I believe that to be the case, but as a participant in our democracy, the analysis does not stop there.  Right or left, believer or atheist, we all depend on a set of predicable rules to govern human behavior and, of equal importance, the resolution of disputes.  Predictability and order is the goal.  Chaos is the fear. 

When I go driving in my car, I trust that other motorists will drive on the right side of the road. Likewise, if I contract for services, I have faith that, if the other side fails to perform the contract, there will be a legal remedy available in the courts.  Hopefully, there is even some predictably to what that remedy would be based upon the record of how previous cases with similar facts were decided.  Finally, I have faith that the deed on file at the register’s office secures my ownership interest in my home and is superior to all others’ rights (save of course the bank which holds my deed of trust). 

An important corollary to the rule of law is that decisions (or judgments issued by a court) have finality. A legal system in which decisions are always subject to re-review would simply be chaotic.  However, it seems as a society we are obsessed with reviews and re-dos whether we are talking about video review of football plays on the weekends or death sentences.  United State Federal District Judge Cormac Carney recently described a sentence of death as a sentence of “life in prison, with the remote possibility of death.”  A decision in a case that has gone as far as it can in the court must be recognized as the law whether one agrees with it or not.

Another important aspect of the rule of law in our country is that we have an adversarial justice system.  This means more than just one side versus the other.  This generally means that a party seeking to establish a claim against another party bears the burden to establish the facts that constitute the claim.  We have all heard innocent until proven guilty.  The criminally accused does not have to prove his innocence, the State must establish his or her guilt.  The same is true in civil court.  If you claim someone civilly wronged you, i.e. did not pay you for a service you preformed or negligently damaged your property, you have the burden to establish the case.  Criminal or civil, the court, subject to extensive rules and procedures and many times with the help of a jury, painstakingly determines the facts.  

There is no finality in the court of public opinion as everyone is entitled to his or her opinion and to change it as he or she so chooses.  It is also nearly impossible to agree on a set of facts.  When your favorite university’s hiring decision for head football coach is “tried in the court of public opinion” that is one thing.  It makes for good sports talk show fodder.  However, when those in executive leadership positions openly and exhaustively question the decisions of other parts of our government, such as courts or legislative bodies, the outcome can be disastrous as it undermines the entire process we depend on to establish the rule of law. The higher up the official, the larger their “court of public opinion” and the greater the potential for harm. Those of us without a large “court of public opinion” must take our cases to courts of law. Executive officials should have to do the same, and, above all, should respect the result obtained.  As an attorney who has practiced for nearly ten years, I have seen firsthand how serious judges in my district take the run of the mill DUI case.  I have faith that their counterparts in the courts of the other states and in the federal courts take seriously lawsuits with national importance. I choose to not give up on the rule of law.

Originalism v. Stare Decisis: Not So Black and White


            Some who oppose the nomination of Amy Coney Barrett to the United States Supreme Court fear a roll-back of Supreme Court precedent relating to, among others areas, healthcare rights, women’s rights, affirmative action, and same-sex marriage.  This sentiment is summarized in the following article:

            The feared roll-back is derived from the belief that Barrett is an originalist who believes the Constitution is not expansive enough to protect certain individual rights previously recognized by Supreme Court precedent, such as a woman’s right to terminate a pregnancy. An originalist believes that the Constitution meant what it did at the time it was ratified and that meaning is authoritative.  In theory, a true originalist would overrule precedent if he or she determined that it conflicted with the Constitution’s original meaning.  The originalist theory can thus conflict with the theory of stare decisis-the legal theory that a legal issue currently before a court should be decided based upon the court’s prior decisions relating to that issue.  Some argue that stare decisis is a sensible rule that protects those who rely in their decision-making upon a court’s prior decisions.  The other view is that the Constitution is the supreme or paramount law of the land and is on a superior footing than any subsequent judicial decision.  Therefore, a judicial decision contrary to the Constitution’s original meaning must be overruled. 

            The hot-button question is how a Supreme Court justice would rule when faced with a constitutional question involving precedent the justice determines to conflict with the original meaning of the Constitution.  There can be no doubt that competing judicial doctrines are in play: originalism versus stare decisis.  However, the answer for those difficult cases is not black and white.  As Barrett points out, some originalists argue that following a non-original precedent is justified where it is “deeply rooted” and declining to follow it would create chaos. “Originalism and Stare Decisis,” 92 Notre Dame L. Rev. 1921 (2017).

            The Supreme Court’s most well-known modern originalist is late Justice Antonin Scalia for whom Barrett clerked.  In the aforementioned article, she described his approach to originalism versus stare decisis as “pragmatic”-treating stare decisis as an exception to originalism.  She quoted Justice Scalia: “Originalism, like any theory of interpretation put into practice in an ongoing system of law, must accommodate the doctrine of stare decisis; it cannot remake the world anew. … [O]riginalism will make a difference … not in the rolling back of accepted old principles of constitutional law but in the rejection of usurpatious new ones.”  Barrett then detailed her mentor’s careful application of this approach to various areas of law.  She explained how he sometimes would leave non-original precedent in place, accept non-original legal theories that would lead to the same result as his approach, and would sometimes avoid questioning precedent and assume its validity if a case could be decided by doing so. 

            There can be no dispute that Justice Scalia in various opinions urged the Court to overrule its prior decisions in certain areas feared to be in the crosshairs of would-be Justice Barrett’s jurisprudence.  However, her jurisprudence will be that of her own and her prior writings predict a careful approach to the issue of whether prior precedent should be overruled and not the knee-jerk conclusion of a complete remaking of the constitutional landscape. 

Dispute Over Late Justice Ginsburg’s Seat Highlights Importance We Place Upon Supreme Court As Well as Our Lack of Concern for Quality Congressional Leadership

            As election day fast approaches, our nation’s two major political parties stand at odds over whether the late Justice Ginsburg’s Supreme Court seat should be filled before the inauguration of the 46th president of the United States.  The Republicans argue that it is their constitutional duty, as the elected party in control of both the White House and the Senate, to fill the seat and argue that it must be done with dispatch so a full court may hear any election result dispute that reaches that level.  The Democrats argue the move to quickly fill the seat is purely political and could usurp the role of the electorate in choosing their government.  They also threaten “court packing”-adding members to the Supreme Court to “ideologically” balance it -if they gain sufficient control of Congress in the upcoming election.  As argued below, we place too much importance on the composition of the Supreme Court and too little on those on whom we depend to enact laws.

            The exploding controversy over whether and when to fill this seat on our highest court underscores the enormous importance we place and responsibility we bestow upon our third branch of government-the judicial branch and the Supreme Court.  This important responsibility of the Court is of course deciding whether congressional or executive action comports with the Constitution and laws of the United States.  This judicial power, termed judicial review, is not spelled out in our Constitution nor is it found in United States statutory law.  

            Ironically, judicial review’s genesis is a dispute involving judicial appointments made by lame duck President John Adams after losing the election of 1800.  President Adams made the appointments pursuant to an act Congress passed prior to him leaving office.  After President Thomas Jefferson took office in 1801, several appointees, including William Marbury, having not received their commissions to take office, sued then Secretary of State James Madison to compel delivery.  The Supreme Court found that while Mr. Marbury had sought the proper judicial remedy-a writ of mandamus commanding Secretary Madison to deliver his commission-that the provision of the Judiciary Act of 1789 under which he sought relief was unconstitutional as it improperly extended the original jurisdiction (types of cases that can first originate) of the Supreme Court.  Thus, the case was not properly before the Court, so no commission.  

            Since this watershed decision in Marbury v. Madison, judicial review has been viewed as a key judicial power and a crucial aspect of our nation’s system of checks and balances.  To many, as Justice Ginsburg’s seat remains open, important rights hang in the balance: healthcare rights, women’s rights, and religious rights.  Many seem to feel that their rights will be irrevocably changed depending on which party is allowed to fill her seat.

            I am not advocating against judicial review, but the other side of the argument is that the existence of judicial review takes the responsibility of ensuring the passage of responsible laws that comply with the Constitution away from Congress.  One could argue that legislators have become lazy as there is a Supreme Court to which to punt difficult issues on which taking a stance could cost reelection.  Doing so, however, politicizes the one branch of government-the judiciary-that, with lifetime appointments, is not supposed to be political.  The debate on whether a law is constitutional should originate in the Congress and take place across the aisles.  Put another way, as the appointment drama unfolds, we as citizens will have the privilege of watching our Congress argue over who should be appointed to do their job.     

            Perhaps, as citizens we have also become lazy as well by not giving proper focus to Congressional races and to the candidates for those seats.  As I write this article, the national focus seems to be on the appointment of our next Supreme Court justice and the presidential race and perhaps not enough on the fact that we have a Congress who cannot agree on a funding bill or a new stimulus package, and whose members, in an environment where hypocrisy has become the norm, seemingly spend most of their time trying to spin their past statements.  Responsible government requires responsible laws and Congress is the only branch of government that is authorized to enact them.  As citizens, we can exercise a judicial power of our own and vote legislatures out of office who cannot get the job done.

What are the limits imposed by the United State’s Constitution on a state’s authority to regulate the behavior of its citizens to curb the spread of a pandemic?

The short answer is that there is no clear answer.  This conclusion is largely driven by a lack of precedent in an area of law our highest court is reluctant to delve into.

One starting premise must be that the United States Constitution is the supreme law of the land. (U.S. Const, Art. 6, Cl. 2).  The United States Constitution provides individuals with certain rights and protections from intrusions from the federal government and has been interpreted, with respect to most of those rights and protections, to extend those protections to intrusions by state governments.  Among others, those rights include the right to peaceably assemble, the freedom to practice the religion of one’s choosing, the right to be free from unreasonable searches and seizures, the right to travel among the states, and the right to travel within a state.

The federal Congress has the right to regulate commerce among the states (and to enact any law “necessary and proper” to that end).  The President is the commander-and-chief of the military and national guard and is vested with the authority to see that the laws of the United State are executed.  This short writing will not address federal laws enacted (or invoked) to combat the pandemic, i.e. the CARES Act providing relief to small business and individuals and the invocation of the Defense Production Act to secure the production of ventilators.  This writing also will not address any “quarantine” powers of the federal government (Under the Public Health Service Act 42 U.S.C. Sec. 264 the federal government has the power “to prevent the entry and spread of communicable diseases from foreign countries into the United States and between states.”).  I emphasize “between states” as an executive order by the President for United States citizens to stay in their homes would likely be unconstitutional as it would lack a “nexus” to interstate commerce.  This writing is focused on the federal limits to the right of the governments of the states to regulate the behavior of its citizens to curb the spread of the pandemic.

If you read the United States Constitution cover to cover, you will not find any language granting the states any rights to regulate the behavior of their citizens.  The second premise must be that our United States Constitution enacts a limited form of federal government, i.e. the federal government has no power other than those powers expressly granted to it by the United States Constitution.  Thus, the power to “police” the behavior of citizens is reserved to the states.  The important caveat is, however, that any such exercise of that power must comport with the United States Constitution (not to mention any applicable State constitutions) as the United States Constitution is the supreme law of the land.  This caveat would also hold true for any “quarantine” power imposed by the federal government, whether by congressional enactment or executive order.

So, how far does this “police power” of the states go?  The short answer is that it is broad.  Generally speaking, the “police power” allows a state to enact laws for the purposes of securing the health, safety, and welfare of its citizens.

Quarantine laws have long been creatures of state law.  Regarding isolation and quarantine orders, here is a link to a National Conference of State Legislatures Article summarizing the quarantine laws  and regulations of the  states:

What has the United States Supreme Court said are the limits to a state’s “police power” in the context of public health?  In Jacobson v. Massachusetts, 197 U.S. 11 (1905), the United States Supreme Court considered the constitutionality of a Massachusetts law mandating smallpox vaccination for adults.  In discussing a State’s “police power” the Court reasoned that “the police power of a State must be held to embrace, at least, such reasonable regulations established directly by legislative enactment as will protect the public health and the public safety.”  The Court further reasoned that “the liberty secured by the Constitution of the United States to every person within its jurisdiction does not import an absolute right in each person to be, at all times and in all circumstances, wholly freed from restraint. There are manifold restraints to which every person is necessarily subject for the common good.”  In balancing the individual’s rights to refuse unwanted medical treatment against a State’s right to prevent disease, the Court held that the compulsory vaccination law fit within that power.

The contours of this power as applied to the current crisis, a global pandemic, is clouded by the lack of recent legal authority from our nation’s highest court.  Since 1905, the United State Supreme Court has significantly discussed Jacobson in only two cases: one in the context of the right to abortion and one in the context of the right to withdrawal of life-sustaining medical treatment.  An obvious reason for this is our highest court’s reluctance to delve into an area of law that was left to the states in the first place.

In sum, there is no clear answer to the limits imposed by the United State’s Constitution on a state’s police power to address the current pandemic.  The validity of such measures will turn on a balance between the individual right affected and the state’s interest in preventing disease.  A state could certainly cross the line, but that precise boundary is unclear.

Beware of Becoming an Unsuspecting Landlord

Sometimes life happens for somebody that you know and you feel that it is the right thing to do to let them stay at your house for a while.  Many times such arrangements work out without any problems.  However, sometimes things go awry and you could suddenly become an unsuspecting and unhappy landlord embroiled in a legal mess.  Therefore, it is important to know how the law works in this area.

In Tennessee, it is possible to create an oral lease or landlord/tenant relationship.  In such a relationship, the tenant has certain rights to access and use the rented premises.  Proper procedures would also have to be followed to terminate the relationship.  In the most extreme circumstances, eviction could be necessary.

This is not to say that one should not let another person stay at their home.  The first thing to ask is how well you know the person.  Is he or she a close friend or family member?  Could he or she be bringing someone into the home that does not need to be around your kids?  If you feel comfortable with the person staying, but you do not know them really well and it is going to be for longer than several weeks or for an indefinite period of time, it would be advisable to get it in writing.  Such a writing would need to define the duration of the arrangement, i.e. for two months or week-to-week, what the person staying with you is going to contribute monetarily, and how much notice is required to terminate the relationship.

My firm represents both landlords and tenants and can advise you on the matters above and assist in “papering” the arrangement if that is necessary.


Where to File for an Order of Protection: What Happens in Vegas, Doesn’t Necessarily Stay in Vegas

Those subjected to or threatened with physical abuse by someone they are related to or are in a relationship with and those who are stalked can apply for and receive an Order of Protection from the proper court.  Such an order prohibits the other person from coming around the applicant and subjects this person to immediate arrest if he or she attempts to make contact.

If you are in an unfortunate situation and need to consider obtaining an Order of Protection, it is important to know in which court to apply.  A court located in the county where the acts occurred and/or a court in the the county where the other party resides can issue the order.  In other words, whether the acts occurred in your home county, Las Vegas, or even the moon for that matter, if the other party resides in the county where the order is sought, a court in that county can issue the Order of Protection.


Bonnarroo Survival Guide

Bonnarroo 2019 is coming up!  It runs from June 13th to 16th.  We hope that everyone has a great time and that no one needs to call us after the festival, but we are here if you need us!  Here are some helpful tips to have a safe trip:

  1. Obey all rules of the road (speed limit, stop signs, traffic lights, etc.).
  2. Make sure all the lights on your car are working (headlights, tail lights, high mount brake light, license plate lights, etc.).
  3. Use your turn signal.
  4. Keep all your prescription medications in their original containers and stored with your luggage, preferably in your trunk.  Do not bring in any illegal drugs.
  5. Do not consume any alcohol and drive.  Police will be looking for impaired drivers.
  6. Do not use your cellphone while driving to either talk or text (get a bluetooth device or headset if your car is not equipped).
  7. Obey all orders of law enforcement officers directing traffic or otherwise.
  8. Respond politely to law enforcement if pulled over and asked to provide your license and registration.
  9. You do NOT have to give consent to a search of your vehicle.
  10. If you are told you were stopped for a traffic violation, politely ask that you be given a ticket and to be on your way.
  11. You may politely decline any other questions that you may be asked by law enforcement.

Attorneys at Matthew J. Crigger PLC Secure Release of Father Jailed for Contempt and Prevent Further Confinement

In the post-divorce contempt proceeding of Hopwood v. Hopwood (No. M2016-01752-COA-R3-CV), the Tennessee Court of Appeals reversed the trial court’s decision to jail the Father until he pad $8,122.43 in obligations to the Mother/Ex-Wife.  Though the court upheld the finding of contempt for failure to satisfy the obligations, the court agreed that the trial court imposed the incorrect remedy and further found that no further confinement was warranted.

Who Is to Say What the Law Is?

Throughout my six semesters of law school I probably read thousands of cases covering a wide-range of legal topics.  However, the first (and second) case assigned to me as reading in a classroom was Marbury v. Madison.  I remember that both my high school American government teacher, Coach Dan Norris, and my college political science professor, Dr. David Brodsky, said that, if I remember one thing from their class, it should be Marbury v. Madison.  Most court opinions decide a dispute between individuals and/or businesses or interpret some law.  Marbury v. Madison went further and defined the roles of our branches of government.  This case established that is was the job of the Supreme Court to decide what the law is.  In other words, it is the Supreme Court’s job to interpret laws passed by Congress to determine if the law is in conflict with the Constitution.  Furthermore, the case found that if a law is in conflict with the Constitution, it cannot stand.  In Marbury v. Madison, the Court found that the part of the Judiciary Act of 1789 which attempted to add to the Constitution’s grant of jurisdiction to the Supreme Court was unlawful.  The issue boiled-down to whether the Supreme Court could issue an order (a writ of mandamus) commanding James Madison, the then secretary of state, to make William Marbury a justice of the peace.  The Supreme Court found that it could not constitutionally issue such an order. What good would a Constitution be if courts could just ignore it?  It is important to note that this power did not become really relevant again until the infamous Dredd Scott case and then not until the Great Depression where the Supreme Court had to review the laws passed by Congress in the wake of the Great Depression.  For that lesson, I must thank Coach Neil Skalitsky.

The Constitution does not address the issue of whose job it is to say what the law is.  Read Article III of our Consitutional from beginning to end.  Judicial review is not a built-in provision.  Nonetheless, in Marbury v. Madison, the Supreme Court found that Congress had attempted to do something that was in conflict with the written Constitution and struck that action down, establishing the doctrine of judicial review.  The Supreme Court thus became a very powerful branch of government and one that could act as a check on the actions of the other branches of government.

Not All the Important Supreme Court Cases Receive All the Media Attention

Those who criticize Justice Antonin Scalia’s jurisprudence, specifically for his dissent in Obergefell v. Hodges, the recent Supreme Court case that legalized same-sex marriage, should take a closer look at his legal philosophy and legal opinions before passing judgment.  Perhaps the most important protection that our Constitution affords us as citizens of the United States is the right to be free from unreasonable searches as seizures.  In two recent opinions authored by Justice Scalia, the Supreme Court found that an individual’s property rights outweighed the government’s interest in an intrusion.

In United States v. Jones (2012), Justice Scalia wrote for the Supreme Court in holding that the police’s placement of a GPS device on an individual’s car without a warrant for the purpose of tracking the vehicle violated the prohibition against unlawful searches a seizures.  In my home county, this case had a profound effect on the prosecution of a aggravated burglary suspect.  In Florida v. Jardines (2013), Justice Scalia wrote for the Supreme Court in holding that the use of a drug-sniffing dog at the front door of a person’s home constituted a search and could not be supported without a warrant.  Justice Scalia quipped regarding the implied permission a person has to approach another’s door and knock or ring the doorbell: “This implicit license typically permits the visitor to approach the home by the front path, knock promptly, wait briefly to be received, and then (absent invitation to linger longer) leave. Complying with the terms of that traditional invitation does not require fine-grained legal knowledge; it is generally managed without incident by the Nation’s Girl Scouts and trick-or-treaters.”