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OA363: Good News About Ex-Felons in Florida

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They do you practice. Maritime Apple Browns. Could you possibly prevail? About Brown's cases always come down to the jury likes better. Banner read or bulldozes. Ridden a lot. You could live pretty cut. Cash settlement could've figured out. Do you have any crank. Welcome to opening arguments. The podcast. That pairs inquisitive interviewer with the real life lawyer. This podcast is sponsored by the law offices of the Andrew Torres. Llc for entertainment purposes is not intended as legal advice does not form an attorney client relationship. Don't take legal advice from a podcast look opening arguments. This is episode three Hundred Sixty Three Thomas Smith that over there is Andrew Torres. How're you doing? I'm fantastic Thomas. How're you had you enjoy those Nevada results if they came in. Oh yeah fantastic. Nevada results that we know about. We'll see if it we can record two versions of this disaster biggest disaster since. I haven't okay Brian. This one will be a fantastic job of course Nevada are better than Iowans and they exit in every way I mean. Let's surprise win by Bloomberg who wasn't even on the ballot. I can't believe it. I mean how hard would it be for Bloomberg to personally pay every single caucus goer to vote for him would be that hard? I mean Nevada. That would that would be a crime. I mean just just so. We're clear that that sorry do crimes matter Andrew Defense. Is that still thing? So who's GonNa? Aw Somebody arrest him or something. This guy crimes all right. Well let's let's I think you have some more teasers as little teaser segment it's official pre. We we should add this to the official segment list teaser segment go teaser segment. Next week lots of you have sent me the delightfully mad lawsuit by George Zimmerman Against Liz Warren and Buddha judge yes Larry. Klayman is his lawyer. Yes it's ridiculous no. We don't have time to cover it this week but I promise you I have seen it. I have read. I have consumed alcohol while reading it. I have laughed and I will share my thoughts with you. Yeah I WANNA be a buzzkill but I can't. I can't really have a sense of humor about that. That's fair that that is fair and murdered a a black man and and and and part of tearing that apart is the ridiculous injustice at at the system. I mean the the the fact that this person is not behind bars end is out and playing footsie with Fox News and running around with the conservative Republican establishment. Tells you everything you need to know about that side of the Aisle? So yeah no no argument there sorry to be. Hey personally husband was killed away. That is that is an absolutely valid point. And you know these I still do believe the law matter so you know that's important. I sex this guy with a long again. How many callback scan you do the joke you know about the law mattering okay I kid sort of all right. Well that teaser assigned. Let's get to our first segment. Which was you know? We might as well permanently name. The segment Andrew was wrong. There's always usually unclear but Andrews potentially wrong on the emoluments episode. What he got from the difference between right and wrong. Maybe maybe not. Yeah so there are two things. I was definitely wrong. About so seth. Perelman wrote in in response to show three sixty one to say three things I he said you said. Thirty days to appeal. I think it is forty five to seek rehearing reconsideration where the defendant is a government agency or official and ninety days to six Supreme Court Review. That is correct that is rule forty of the federal rules of appellate procedure Which otherwise require a petition for panel rehearing to be filed within fourteen days and I went off the top of my head because usually I'm in a private party situation so I'm stuck in the fourteen day rule and and I was guessing thirty without looking at it. It is forty five verdict. One hundred percent wrong on that one so fair enough second he says you said one of the other emoluments clause cases also before the DC circuit the other two are before the second circuit crew versus trump. Where the DOJ is seeking an on bunker view that is correct and the fourth circuit the DC and Maryland versus trump. That's the Brian Frosh. That the best case in my view Where we are waiting for an on Bonk review by the fourth circuit so that is correct. I was thinking of the latter case. I said it was before the DC circuit. It is before an unbiased review of the entire fourth circuit so I was one hundred percent wrong on that one too so not looking good for me Here's here's where I hope to make up for it on the substantive point professor. Tillman says because I recommended that. Now that the Democrats control the house they could bring an emolument clause case as the entire House of Representatives and Professor Tillman writes Pelosi seeking to bring a suit in the name of the House as a whole would probably fail. Bethune Hill seems to indicate that both houses of a bicameral legislature must bring a claim belonging to the legislature. As a whole and here. I strongly disagree not just on what I think ought to happen but on how I think those cases get applied. So let me tell you about. Bethune health this is. I've been all my life. I've been in hill. This is a twenty nineteen supreme court decision with a little bit of a strange alignment. It is the courts liberal wing minus Justice Briar Plus Justice Thomas and and also plus justice gorsuch. So Thomas Gorsuch Sotomayor Kagan and opinion written by Ruth Bader Ginsburg with the other four judges on the bottom so getting Three Conservatives and Steven Briar so I kind of an oddball arrangement this involved. The twenty eleven so twenty ten census for Jinya at the time a red state and in the throes of sort of tea party mania the then Republican Virginia legislature with a Republican. Virginia Governor Redrew Legislative districts for the State Senate and House of delegates and of course because it was Republicans redrawing districts. They redrew them in racially gerrymandered ways and so in twelve of those districts voters went and under the voting rights. Act Sued to say. Hey these districts are racially gerrymandered. There were multiple trials With the Virginia House of delegates. Defending it's racially gerrymandered districts. Each time in June two thousand eighteen after the second bench. Trial a three Judge District Court in the Eastern District of Virginia again. That's the special three judge panels that are convened by the voting rights. Act usually it's just one judge at the trial court level the IRA cases. You get a three judge panel. They struck down the districts and they enjoined Virginia from conducting any elections for the office of delegate in the challenge districts in those twelve districts until a nude redistricting plan is adopted. This was before the general election elections were coming up so the court said basically Virginia has four months to redraw those districts and quick quick sidebar on two thousand seventeen and a little like why you should always vote. Virginia's House of Representative House of delegates was two thirds Republican in two thousand sixteen but Hillary Clinton won the state of Virginia Statewide Against Donald Trump and so democrats had a plan to retake the Virginia House of delegates for the first time in twenty years and in the twenty seventeen elections. So they have. They have every two years but they're odd numbered years right so in the two thousand. Seventeen Elections Democrats cleanly one in fourteen districts and that gave them forty nine seats so a fifty to forty nine minority. And then it all came down to a rematch of Democrat Shelley Simon's versus Republican David Yancey in district ninety four there was an unofficial recount. Then it was an official recount. The recount put signs the Democrat ahead by. I'm not making this up. One vote and then Yancey went to court to get an injunction because one of the ballots that was excluded for him. And I have viewed this this ballot I'm GonNa try and Lincoln in the show. Notes is very clearly a Yancey balance. It's a ballot it. Votes for Republicans in every other position and then there are two people marked in the house of delegates. Race Simon's is marked. And then there's a line scratch through it and the answer is mark. It's a Yancey ballot And the court agreed they said Yep. That's your ballot that left them tidied. After the recount. Eleven thousand six hundred and eight to eleven thousand six hundred and eight. Do you know what they do in Virginia. When you finish an election tied oh some old timey lot to fight to the death. I wish they actually like a horse picked away. They flip a coin my God. They flipped a coin. Enc One and the Republicans held the House fifty one to forty nine until they lost it. In Two Thousand Nineteen now twenty. Eighteen again was part of a blue wave election and it the Democrats recaptured the Virginia. Governorship All of the major statewide offices including Attorney General and the Virginia Senate and And in two thousand nineteen. They would retake the Virginia House of delegates in two thousand eighteen. And by the way. Virginia's has been killing it lately. I keep seeing all these headlines of what they're doing legislatively and it just seems really cool. This is what happens when you get involved so a you know elections matter you vote. You could have literally one more person in. This district could have spared us from two more years of reactionary conservatives controlling the Virginia delegates. One vote yes so in two thousand eighteen. You have a Republican a quote Republican House on a coin flip and rest of the state of Virginia is blue. And that's when this decision comes down which says Oh and by the way. This republican map is is racist garbage so then the Virginia the now Democratic Virginia Attorney General says okay. Yeah WE WE ARE NOT APPEALING. This decision right yeah. The Republicans drew a garbage racist map. And you gave us four months to figure it out. We'll do our best to figure it out but but we're not appealing this decision. This this we agree with this. And shockingly because you would have to have agreement between the Republican House and the Democratic Senate and governor in that four months. They were unable to come up with a plan. And so the court plan went into effect but then the last ditch coin Flip Red Republican House of delegates sued to block that map from going into effect and they said yeah this. The court doesn't get to draw up maps. That's our job. And that went all the way up to the Supreme Court and on the five four ruling that I just described the Supreme Court said now you know what you don't have standing Virginia House of delegates right? You got to do everything it is that you think you might be able to do in terms of weighing in on maps but even if we had given you right even if even if there were there was nothing hanging over your head. You can't pass a republican map with a democratic Senate and governor anyway so you don't have an injury and you don't have standing. That is the case that Professor Tillman thinks means you have to bring a claim on behalf of the legislature on behalf of by both houses. Here's why I think he's wrong. Okay this Supreme Court didn't did indeed say on those facts that the house did not have standing to challenge the court mandated plan. But that's because they already got to do their job right. There was no scenario in which the Republican plan was going to pass the Democratic Senate and or get signed by the Democratic governor. Here's what the Supreme Court says. And this is analyzing we've actually talked about the Coleman case. That was the Kansas members of the legislature in terms of voting for a constitutional amendment That the Supreme Court said as this court has observed Coleman stands for the proposition that legislators whose votes would have been sufficient to defeat a specific legislative. Act have standing to sue if that legislative action goes into effect. Nothing of that sort happened here. Unlike Coleman this case does not concern the results of legislative chambers polar the validity of any counter uncounted vote as we have already explained a single house of a bicameral legislature. And this is I think. The critical words generally lack standing to appeal in cases of this order. And so I get why on its face. You would think that seems to mean you need both houses. But here's why I think you don't. Because unlike the republican state legislature in Virginia the Democratic House of Representatives does have an injury their argument is Donald Trump should have brought his emoluments to Congress where we could vote on whether to allow him to accept them or not and as the House of Representatives. We would have voted no and then he would have been prohibited from taking those emoluments. Even if the Senate voted yes we could have locked it right. Yes because it requires approval by both houses of Congress. Oh so it's not. Ok does not like passing a law. Exactly it's it's the salt is no. Yeah okay so they could have blocked it. It would not have approved by Congress and they were deprived of their opportunity to block that case. So I think certainly nothing wrong with the analysis I it is. It is what you would expect. It is the argument that I think the other side would make but I think the much better reading of that case is that the there is an injury suffered to the house here. They have not had the opportunity to vote on whether the president should get to keep these contributions from foreign officials and if they had that opportunity they could block it and that is word for word. What the Supreme Court says that the Coleman case stands for so I think So I thank you for the correction but I'm standing by my suggestion that The Democratic controlled House of Representatives could and should bring a new emoluments clause Now that they are the majority in the House of Representatives. Have we heard anything about this? 'cause yeah I mean it seems like why not do it Any rumblings and no I have not heard anything that that there is a new one and look I get that. There's a certain level of fatigue right. We do the show twice a week. I certainly do get that but but I stand behind it. Well Yeah I mean there's they representatives listening Talk We know. There are some of so listen to the show so we do. Yeah so like like. Us House state some states and some candidates and we have some strong suppositions at the federal. Contact your local Nancy Pelosi and I Dunno let's get this going this. Let's do this. It's couldn't hurt. What is it yeah? Let's try it. I keep trying keep trying helped Michael by putting your hand on his chest and doing some sort of healing magic immersed in that the common down once when I GOSH. My Jet Ski into you crashed. Your jet ski into a man not from Florida Adams. Lot All right. Well now. It's time for our main segment Which I think is perhaps some good news. There was a good decision in the Florida. Felons case This was from my memory. The voters decided that Floor in Florida ex ex-convicts ought to have some right to vote in some form and then Republican said not on my watch. We'RE GONNA do poll tax stuff and all this crap to make sure this law doesn't take effect and then Went through the courts and now it seems like there's a good result in the eleventh circuit. How did I do give us the update Andrew? Yeah that is right in the main so in twenty eighteen. Florida residents voted overwhelmingly. Right two-thirds sixty five percent to restore voting rights to felons who had completed their sentences and Because nobody in Florida is allowed to have good. Things also voted in a very narrowly a Republican governor onto Santa's and they voted Rick Scott to the Senate to do better Florida. And oh by the way. Rick Scott's outgoing plan was to pack the Florida Supreme Court with hidebound conservatives and that turned out to go into effect or not have any Of Yeah that was going to be this big dramatic thing and then we couldn't win and then we couldn't win the governorship that's right so So yeah so then. The republican state legislature got together and passed espy. Seventy sixty six. Which said Oh yeah. We are implementing amendment for and by the way Serving your sentence means paying all of your outstanding legal financial obligations. I need to tell you that that position is not remotely legally defensible but it doesn't matter because a Republican Governor Rhonda. Santa's sent a letter to his partisan Republican friends on the Florida Supreme Court requesting an advisory opinion that completing all terms of sentence in amendment four included paying fines right as implemented by SB seventy sixty six and the Florida. Supreme Court said. Yeah Oh yeah absolutely. No that phrase meets right you know you. Don't complete your sentence if you still owe seventy eight dollars in court costs just as a quick sidebar. This is we should do an entire episode on the way in which recurring fines trap. Those in poverty sort of at the margins of the justice system it's it's Terendak and awful and Republicans. One hundred percent know what they are doing when when they say that's right. This would completely gut the entirety of the amendment so Florida Supreme Court says Yet no obviously that's part of what completing your sentence means and then various felons who have completed their sentence went and filed a class action lawsuit and sought an injunction to stop. Sb seventy sixty six from going into effect and the key questions. So this is an injunction that was granted at the district level and two days ago upheld by a three judge panel of the Eleventh Circuit. And as you know Thomas that the the criteria for granting an injunction right four part balancing test as always the major prong of whether you can get an injunction is likelihood of success on the merits and so the fundamental question was. Are you likely to succeed that this law? Sp seventy sixty six is unconstitutional. And argument is not that it is unconstitutional as a poll tax. So to speak the argument is that it is an unconstitutional form of discrimination on the basis of protecting a fundamental right which is restricting access to the fundamental right which is a right to vote and the eleventh circuit works through this in. I'm GONNA include the opinion in the show notes and I would encourage you even. If you're not a law student. I would encourage you to this opinion because it is a very ferry thoughtful considered intelligent opinion. It is the kind of I. Don't say that just because I like the result that they've reached it is the kind of judicial writing that I wish we saw more of particularly in the age of trump. And that's because the eleventh circuit looks through and says look. Our job is to try and figure out what the law is and this is a hard question And the reason that it's a hard question I'm going to quote a little bit from the opinion here. We look through a different prism. When the law classifies in certain suspect ways on the basis of race gender or national origin or classifies. In a way that Burton's fundamental rights those classifications get heightened scrutiny. A MORE EXACTING FORM OF REVIEW. And then they say the start to page twenty. The appropriate level of scrutiny. Here is not immediately obvious. This case does not fit the traditional categories. That call for heightened scrutiny and why is that because wealth is not a suspect classification? Right discriminating on somebody on the basis of money even if you're discriminating against poor people is not like discriminating against black people that's the supreme court has been very very clear that that's the way it breaks down right can should we side note. Can we fix that? We can fix that legislatively. We cannot fix it in terms of income especially the equal protection clause of the fourteenth amendment. And I would love. Let's put a pin in that. I would love to do a discussion about that. At some point so on the one hand being poor is not a suspect class. Under the Supreme Court's equal protection clause jurisprudence but then the court continues on the other hand. It is not obvious that rational basis review is appropriate. And they're they look at a couple of cases and they said because we're not talking about discriminating against poor people. Just you know in terms of access to services or you know so. We're talking about restricting access to mental right right so so on the one hand right half the signs point to yes half the signs point to know. And then they say the Supreme Court has routinely referred to the right to vote as fundamental and thus in cases where classifications restrict access to vote. The Supreme Court has held heightened. Scrutiny applies But and so they say okay so on the one hand right we say all right generally okay to discriminate against poor people on the other hand. We're all the other generally not okay to discriminate against anybody's right to vote on the third hand. Only two cases have ever looked at this exact question right. That is wealth. Discrimination in automatic fell and Rian Franchise Matt Cases Right That quote as a practical matter deny indigent felons access to the franchise both cases one in the sixth circuit and one that was a state. Supreme Court in Washington held that rational basis scrutiny applied because quote felons do not have a fundamental right to vote and wealth is not a suspect classification so only two courts have analyzed that specific question. The question of is it okay. For a legislature to impose qualifications on restoring voting rights to felons and both of them one was a sixth circuit. Case was a state Supreme Court case in Washington. Both held that rational basis applied that you did not get heightened scrutiny because quote felons do not have a fundamental right to vote and wealth is not a suspect classification. But so that seems bad right. So that's what you have to distinguish against and then the eleventh circuit said you know what we're going to go through this. Ultimately they held that heightened scrutiny did apply explain. Why in a minute? But then they also engaged in what we typically called judgment proofing. A case right that is beginning on page twenty one saying but you know what even if only rational basis scrutiny applied here. This might not pass rational basis. That's a pretty big statement to make. Here's their analysis. They say under rational basis we will not overturn a statute unless the varying treatment of different groups or persons is so unrelated to the achievement of any combination of legitimate purposes that we can only conclude that the legislatures actions were irrational right. And I told you you know that lawyers sometimes call this the fogged mirror test right. But here's what it says. So the question we ask is whether the legislature could have conceived of a rational basis for the classification drew and then adding. That doesn't have to be right. Here's how the court says that they say a legislative choice is not subject to courtroom fact-finding and may be based on racks rational speculation quote unsupported by evidence or empirical data and of quote so for example. The one of the leading cases on rational basis is a case called Vance versus Bradley in which the Supreme Court upheld a law that set the mandatory retirement for Foreign Service officers at age sixty and the Supreme Court said. Although empirical proof that health and energy tend to decline somewhat by age sixty would have been good evidence for upholding the statute those challenging the legislative judgment must show quote not only that the facts do not support the classification but even more onerous that the facts which the classification is based could not reasonably be conceived to be true by the governmental decision maker. Get that so now. I'm not totally sure. Doesn't this unless I'm misunderstanding? Doesn't this make rational basis like nothing like it makes hip almost no that that's why it is the fogged mirror right. It makes it. Yeah almost nothing. It's not really rational base. It is any sort of. Yeah but then as the eleventh circuit points out traditional rational basis review is highly deferential but not toothless in other words it is possible to strike down a statute for yeah. I'm pretty sure trump's crack legal team like Gosh. The Supreme Court was like I can't believe it but like there's not even a rational and they say when we review a statute for rationality. Generally we ask whether there is any basis any rational basis for the law even if the government's proffered explanation is irrational and even if it fails to offer any explanation at all so yeah that sort of anticipating Donald Trump there and hear what the Eleventh Circuit says is if we look at the question as apply right at it with respect to these particular plaintiffs the distinction that the eleventh circuit draws I think is really key to analysis. Here is that the statute prohibits Rian Franchising felons. Who would like to pay off their fines? But can't right and here's what the court says if the question on rational basis review were whether the L. F. O. Requirement and by L. F. O. That means legal financial obligations so paying off their low frequency is rational as applied to those unable to pay. We think it is clearly not the continued disenfranchisement of felons who were genuinely unable to pay L. F. O.'S. And who have made a good faith effort to do so does not further any legitimate state interest that we can discern. And that's really really good point right all of the justifications for well why should you continue to deny them the you know? Why should we grant the franchise to people who still haven't made good on their debt to society? If if the response back to that is what will. They're trying right. They they'd like to write. Then there's no further sort of deterrence benefit and their sentences over so there's no further punitive nature that the state can impose and I think the Eleventh Circuit's reading here is pretty persuasive. Obviously if heightened scrutiny applies. It's a no brainer right and That that is There is a case called bearden versus Georgia. It's a one thousand nine hundred eighty three supreme court decision. I gotta say that's kind of frustrating. The look if we're supposed to apply any sort of scrutiny to this then of course if I some legal trick we don't have to really look at it then schorr maybe it's gotta frustrate but they say but even then probably not care which is how far it goes but yeah so if there is heightened scrutiny it's a no brainer bearden versus Georgia. There was a statute that revoked probation Based on failure to pay a fine that a defendant was unable to pay and the Supreme Court said very clearly that's unconstitutional discrimination. On the basis of wealth right whether analyzed in terms of equal protection or due process this issue cannot be resolved by resort to easy slogans or pin or pigeon. All analysis the heightened scrutiny requires balancing all of the various interests and ultimately the supreme court said. Yeah if you can't pay then we can't say oh well you know you you. Your probation is revoked until you can pay that there was no that was not constitutionally permissible as statute so. That's the analysis that the eleventh circuit did they did. They did one more thing That I think is is really key and again This will be upheld in in the future. We're GONNA talk about the future of this decision a minute. And that is the question of sever ability. And we've talked about that before whether it's a contract or a law oftentimes you will ask okay. This one thing is bad. Can this bad thing be severed out of contract or a law and then should we still uphold the original contract or the law right and the test obviously different legal environments there there are different ways of phrasing it but the intuitive way to understand the test is again a fairness provision right? So if I say. Hey I'm gonNA give you a one hundred thousand dollars in exchange for you. Granting me mining rights on this piece of property and then I go and go to mine the property and that contravenes. It's now a federally protected. Wetland right I go to court and I get the contract itself thrown out and we say look the entire the reason I was giving you. The hundred grand was to mine on the property. I can't mind therefore you don't get one hundred grand. It's you would not say it would obviously be ridiculous to say. Oh no no. We're we're we're illegally tossing out the bit where you get to mind. But there's no law prohibiting you from giving one hundred thousand dollars body so go right ahead right. That would be. That would be ridiculous right but when you're talking about legislation the question tends to turn far more in in in the direction. There tends to be presumption in favor of severing out legislation. Right unless it's clear that something is an integral part you can save the legislation by severing out the unconstitutional bit. And we talked about that For example in the NFL beaver civilians decision. Right which upheld the rest of Obamacare While maintaining the individual mandate on a different justification than that proffered in the original statue. And here I mean sort of without going line by line Six pages starting at page seventy three. The eleventh circuit goes through and says okay. The Florida State Supreme Court said that paying fines was part of amendment for so the question is is that part. Which we've now said is unconstitutional. Is that several from the rest of the constitutional amendment restoring the franchise. Or would voters have not voted in the constitutional amendment. If they knew that that meant that those who didn't have to pay their fines would not have to pay their files. How are they going to evaluate that and survey the public and be like? Why'd you vote for this? Yeah what they said was they. They looked at the general purpose underlying the law and said the purpose underlying the law here was to restore voting rights to fell into it completed their sentences and it seems like a no brainer. Absolutely a no brainer. One hundred percent should be several. There is a strong presumption in favor of several ability. So yeah we can cut out this. Onerous requirement tacked on by the legislature. There wasn't even spelled out in the amendment in the first place and still affirm overall amendment to the constitution. And that's what they did so. This is a great decision. It's a well reasoned decision. It is even if you are conservative even if you disagree with the outcome it's an exceptionally well written decision and one that I would encourage you to to you. Know cuddle up with an eighty paged decision and read either fire. Yeah it's it's cold outside so look we know what you like to do with. We do spend time disturbing to some. Uh Keep keep a set under the pillow so Yeah this is. This is a really really good decision and so I am setting you up for the the question. I know that you WANNA ask. Oh well How's the Has the Supreme Court country this one? We screwed it's GonNa be great thoughtful well written decision and then You Know Kavanagh's GonNa be like now or something. So here's what's next. Okay look look. I'm nervous about that too. There are a couple of things that you should know. So the first is the eleventh circuit is a very very conservative circuit but This was like going in and rolling three ones. In terms of the judges. The cat assigned so the panel was a Barbara Rothstein who just like the Liberals? It's even better than that. She is a senior status judge from the US District Court of the District of Columbia sitting by designation in the Eleventh Circuit. This happens I I don't have the time to go through all the crazy. Procedural rules where Senior judges can get assigned to different courts but not an eleventh circuit judge and and assigned to the case By this Byzantine process than the other. Two judges are are linear Anderson. The third who was a Carter appointee who on senior status and then the third judge Stanley. Marcus again not a not a liberal conservative Eighty five Reagan appointee who was then elevated to the Eleventh Circuit by Bill Clinton back in the late nineties and also on senior status. So basically you had kind of the platonic ideal of Three judges on senior status. Who really like. We're free to sit around and like answer tough legal question rather than like think about the political implications of this. I mean you know really what our framers intended in terms of giving a judge's lifetime tenure right so an atypical panel clearly a political decision and now Florida will have two options. They can petition for an unbiased review by the entire eleventh circuit Which again more conservative or they can go straight to to the Supreme Court And in both cases So a couple of things here I think the eleventh circuit absolutely would take this case on Bonk It's a it's a novel. Unique important case that has a lot of undecided law in it and for the same reason I think the Supreme Court would grant certain but then the question is what happens to this judgment in the interim and remember that the burden shifts. When you've won injunctive relief that now the burden would shift to the state of Florida to persuade a court under the same standard that the law is strongly in their favor pending appeal in order to stay the effective this judgement and for all of the reasons why this is a tough case. Are Reasons why I could see the eleventh circuit and even our Supreme Court saying okay. We're GONNA WE'RE GONNA CONSIDER WHETHER TO GRANT CERT WE'RE GONNA take a look at this case But we're not gonNA stay this judgment from going into effect Time for the election in in in time for the twenty twenty election so now well everybody's got registered guest absolutely folks. We'll have to get registered. Absolutely we will to see. This court will stay. I'd need to be one hundred percent clear on this. This court will stay the effects of its own. Judgement tending appeal. Bright so the judgment will not go into effect and the state will stay. It's the eleventh circuit will stay its mandate right. The the decision came out a couple of days ago in order to give the other side an opportunity to appeal right that is typical and and fair right. Like you don't want to say like nope going into effect right now. Ha- thing you can do about it and I have not seen. I've looked to see this was entered yesterday as of the time of this recording. I looked to see. If there was an order. Staying the mandate that has not been entered. Yet it will be entered so there will be time there will be about a month in which the other side will get the opportunity to either petition for on Bonk Review or take a cert petition to the stick to the Supreme Court of the United States. And again this goes to the Supreme Court of the United States because it's a question of interpreting the equal protection clause of the fourteenth amendment of the Constitution. So we will see what happens but but we will know in a little over a month in thirty to forty five days time Depending on the stay order Whether either the full on a full eleventh circuit or the US Supreme Court will grant an emergency injunction staying. This mandate from going into effect. And so keep your eyes on the space we will obviously continue to cover that It's possible that that it won't and look like I'd love to tell you it definitely won't I? I can't tell you that with the Supreme Court but I can tell you. This is a good decision from a tough environment. And there is some chance that we will have a favourable environment In Florida in twenty twenty. And that's as good news as you can get these days. Yeah sit back and enjoy it. Yeah we it. It's the tiny little You know diamond in the middle of the massive piece of coal that we had to dig through A. Yeah I I I'm excited sort of about this. But at the at the same time is they're going to be sort of damage done. You know where it's like. Well I should have been what a year ago now or more where this should have just gone into effect and people should have been able to get ready to vote in the next election and do what they need to do and is it already i. I wonder how much damage is already done by. All this and the fact that it could be another like you say A month month and a half Before we even have any idea whether or not these people get to vote So you know how much damage has already GonNa be done by that? Do you think a lot of damage is already being done by them. I get out the vote. Maybe there's some efforts we can do to it. Assuming things go our way in this to get everybody registered in time it is there any other voter suppression law. They've done can't register. You know a year in advance or something not not that I know of but again not that I would put past anyone so Yeah look like it's it is important to this is this is why we say. Stay active At the local level. And and don't give up on on fighting those fights well Nice Job Andrew because you've earned yourself a wildcard segment. Yeah you did. And here's what you opening. Arguments is brought to you by Ziprecruiter I'm here to tell you that hiring is hard. It's hard on many levels. It's hard because you want someone great. You WanNa make sure you have the right candidate but anytime any additional time you take you know in your search if you're not liking the resumes you're seeing. 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Our listeners can go to ziprecruiter dot com slash OEI. That's ZIPRECRUITER DOT com slash. Oh One more time ziprecruiter dot com slash always ziprecruiter. The smartest way to hire he who questions training only trains himself at asking questions. What question from Listener Brian? Brazil who I hope is like the brother of Brodie Brazil. The analyst for the San Jose Sharks Let me know maybe could score some tickets? Anyway I what a citizen be able to obtain a writ of mandate for Mitch McConnell to vote on all of the indefinitely table bills. It doesn't seem like a stretch to say that there's an abuse of discretion occurring or that they aren't fulfilling their duties. Now the the negative on me quickly like well. No that's I mean that's part of the job of being a senator or being. I guess the majority leader's you. This you get to just do this like that's part of your job but since we're asking the question maybe we'll find out there's more to it what's going on. Yeah unfortunately negative Thomas is correct. No all hail natron look. This was super clever and You know plus five points for style. here's the legal standard right so remember. A rid of Mandela's is win. A government official has to do with thing but refuses to do that thing and you can go to court and say do that thing. Right and the key linchpin. Whenever you're thinking about men Damus is if the official has any discretion in whether to do the thing or not. Then you can't get Mandela's right. Yeah if it is ministerial administrative. You can't right so let me give you really really good example in an area that that has a lot of uncertainty too it. Our episode three sixty discussing the equal rights amendment. The national archivist has to add a valid constitutional amendment to the Constitution in the National Archives. And so part of the relief that is sought in that lawsuit being brought by The State of Virginia and the subsequently ratifying states is we want to rid of Mandela's telling the archivist that he's got a write this down. That's the kind of thing for which you can get man Davis. Here's how the legal standard is is spelled out a writ of mandate MRS warranted. When a party establishes one that the right to issuance of the writ is clear and indisputable to the party has no other adequate means to obtain the relief sought and three that the rip is appropriate under the circumstances. And here the two main things. Where you're Mitch. Mcconnell rip is GonNa Fall. Short is a number one on the discretion point right Mitch. Mcconnell gets to decide whether to table a bill or not so you can't mandate to table the bill and even if you could there would be a standing problem which is that generalized grievances that are not the invasion of a legally protected interest. are not do not give rise to a cognizant injury under the law that must be concrete and particularized and and what that means is that standing to sue may not be predicated upon an interest which is held in common by all members of the public because of the necessarily abstract nature of the injury that all citizens share. And so what that means. And I'm sorry and I don't know that I would defend this position but you're screwing up. All of our democracy for all of us is the kind of thing that the Supreme Court has said does not give rise to standing you have to say. Oh no you're harming me individually or me in this class of people in a very specific concrete and particularized away in order to bring your lawsuit so super clever. I really like it. Keep keep trucking sometimes like sometimes we try we try results so vast right A. and I have changed my mind on things where I look at it and go. Well obviously not that and sometimes Well obviously not. That is wrong sometimes. in it. I think that it. It's clearly one way but when you look at the law you see well you know what like maybe not and Not In this but But keep sending them in all right. Well good try keep at it. Maybe we'll find that one trick In the meantime we've got to do what we do. Every Tuesday which is top patron Tuesday over on patriots dot com slash law. And we begin with Mitch McConnell's Yodel mountaintop removal service. Samuel Bland. Wait for it. The next patron name is super funny. This Patriot on name is a lot more pressure than I was expecting. That's the next one. So now is that building up to the next one obligatory Seattle live show plug. I can't believe it's a patriot. Name after the Seattle live show. It's just more Seattle. Life in Buckley Vegan Higgins Egan Hagan. Oi a bunch of question marks. Adam called my Senator Larson Kristen. Daniel let me be clear. I like being totally see through. I wonder if Andrew Thomas will read. Quotes from Belinda Blinky. What's that I did? You got me on that. I don't know sorry. Murray Gregson Calling Wilson Lawful Copter. India is shooting students protesting against bigotry. Can we get to appeal? All of Thomas's incorrectly. Three be answers. Support the CO-OP economy. I've given pleasure to the world because I have such beautiful A At that's weird one upping mice patronage to support new youtube videos. I'll thank you so much. Everyone else should do that and also watch the videos. Please let me be totally clear. Torres Smith Twenty twenty four Amber Green. What's more likely a shark Stanley? Cup or Raleigh live show. Will this year. You know you got me on that one. As much as there's no chance of Raleigh live show. There's zero chance of Shark Stanley Cup. I love the Raleigh Durham greater areas. So definitely rally live definitely that. There's more chance of that clear eyes. Full hearts steadily clear. Circle Freudian Fleiss face. Sorry Freudian Face Plant Clown Hornet Dallas. Live show whiteboard push up in Seattle life show advocacy complete going back to old pledge level odd now. It's still unclear whether or not we're GONNA do that. Donald trump is a lying face. niece Emily Rainbow Spence. The unprecedented resented demented President defenestrate. Did Jason Copious Screw You Dentin. Lots of things are colder than ice than denting. Sorry man chicken. The all spark is in Raleigh transforming. Well you just got Andrew. He's the now hill go. They're looking forward to the twenty marble Olympics. Thank you gels. Marble runs a hot spare live show in Barcelona will make up with taps and Sangria. What Wou- my blanket? My blanket give me my blue blanket. Dragonfly DOT EKO books about nature and the environment reviews and interviews. 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My least favourite attorney general. I think he means bill bar by. Bob Barr now ex California Congress or you know where Anyway Bill. I'm going to say is my least favorite attorney. General Jeff Sessions Close Second Sam even in Brooklyn Montlake at Chandler Abacus. Flinch Sake Pants. Amanda Y'all Skopje. Amando my balls which Nice Matthew Vernon adopt a homeless pattern opposed declawed into your docking. Don't take building advice from podcast. Heather L. Sakashita Kasumi alive show at Q. E. D. Con Tober. You know you want to. I would love to do that but we weren't. They tell you and I are on hiatus this year No that was last night. Yeah all right although it's not really in a place like it's bout others It's definitely in place. It's you know skepticism. And Science and Law and there's nothing there's nothing that screams can. I have a show about the American law like being in Manchester. Exactly exactly right. We want to be there. Make It happen folks demand. Oh alive at Qa markets so Jeremiah's fancy microwave emporium in Alli Din Sam Denno ally Bosnich. I voted for the murderer. Warrant Twenty Twenty Alexandra Chalupa Aka Natasha crunch rap Mitchell stormy promised to St Picks Mayor Bloomberg wants us all to sign an NDA. About that debate. I agree with that one hundred percent and of course our all time great he who shall never be dethroned but you know. Give it a try if he can. Conrad Michael's thank you so much again. Remember you want to be read out every single week? Every time on top patron Tuesday head on over Patriot dot com slash law. Sign up at the five bucks level and You know according to the terms and conditions there and we will read whatever embarrassing sophomoric hilarious. Amanda my balls itch like whatever we can be bought and and you should try and buy us all right well. Now it's time for t three B e the answer. No socially. This firm has ever failed the bar exam. Talk to the hand. I need you close. That's one of my mission parameters. Trust me. Know why you cry. Yeah so Thomas. This was a question about a plaintiff. Suing a defendant regarding a written contract between an engineer and an owner to serve in the essential position of on site supervisor but before the contract can begin. Engineers insured and rendered physically incapable of performing. He says hey. I can serve as the offsite consultant for the same pay. Is the owner likely to prevail an action for damages resulting from his failure to perform under the contract? You narrowed it down to one no answer. No because be no because the engineers physical ability to perform on site supervisor was a basic assumption of the contract or D. Yes because the engineers duty to perform was personal and absolute. I am here to tell you one of those. Two answers is correct. Unfortunately your seven question. Winning streak comes to an end. This is super super hard question. This the was it is be I only narrowed it down to be indeed because B was so confusing though. None of the other answers look like amazing. Maybe it's that one. I don't know why so at least I did that. So here's the thing right the KI and this is super heart but look the bar is hard so you know I did. This just underscores. Just how good your seven question? Winning streak was appreciate. The key word in the question is prevail in an action for damages damages. So in this case what happens is the engineer is not in breach of the contract because in capacity to perform your duty under contract renders performance. This is called the defensive impractical ability and operates as an excuse for non-performance right so no damages against the engineer. It's not fault yet. You know you know I. I actually zeroed in on that in initially and I wasn't sure I was a little confused on it. Sounds like I should have listened to my instincts. A little more on that and so it look. He's not going to have to pay the guy right right. He's not gonNA snuck into damages even though he's essential attract and so then the question is is is but I'm not sure why that okay so if you've okay if you so if I had known it was annot answer on that logic I probably would have guessed because a doesn't really sound like the right way is wrong as a matter of law right so a says no because the engineer offered a reasonable not a lawyer talking about how I would narrow it down as a non lawyer fair enough but as says that you offer to reasonable substitute by offering to serve as an offsite consultant That is not an excuse for breach of contract right when you do less than what the contract asked for. It's reasonable that does not excuse a breach. Okay can you explain be? I don't think he'd really okay so the way it works is the fact that the on site service was a basic assumption of the contract break means that offering less then the ability to serve as the on site. Supervisor is not a reasonable substitute right. So we'll give you an example of what constitutes a reasonable substitute. You agree to buy a thousand apples from my orchard. My truck breaks down and so I- rent a different trend. I say I'm GonNa Bring it by a truck that has you know my name on the outside whenever and then And then my truck breaks down so I bring you the apples via different truck right. It's a different way of complying with the contract. But it's exactly the same thing you still get your apples on time. So that is a reasonable substitute for my performance. I have properly performed under the contract here. I can't perform under the contract because I'm hurt. I can't be on site when I offer to to go off site I. I am not performing. I am in breach of that contract but the question is is my breach excused or not and so I am excused by virtue of the fact that I physically can't do it right. The law doesn't require me to do a thing. That's impossible for me to do so. The wording is super tricky really boring and I it really is again. I zeroed in on that from the beginning but I couldn't quite gosh. I almost could've guest house so close because it like it's so confusing that I thought there was something like usually you can even the wrong answers. You can get the logic of them. They're not usually like Gobbledygook. You know and I just couldn't even figure out why that wording yeah it was. I still don't entirely understand it. So you said the key was damages right. Yep so you don't get damages because the because the nominees formulas excused because I how would? How does that answer me? Because if the answer says because the engineers physical ability to perform as onsite supervisor was a basic assumption of the correct so that means that it is a key material term of the contract right so that anything less than physically ability to physically being able to perform his on site. Supervisor does not comply with the contract right so the first part is is he in breach and the answer to that is yes then the second half is does is that breach excused and the engineers and and so the answer is saying like because the physical you know needing to be there is so poor to the contract then yes it's excused it leaves out right. What would it look this? I'm really glad we're doing this. Because the answer leaves out that justification it leaves out the Yes. This is crucial to the contract and his inability to do that is excused because of his physical limitations. Right Bari answer sometimes. Do that sometimes. What you have to do is figure out the best of a group of bad answers and here right when you go through and analyze it properly. The answer is no and be is a better. No answer than a I agree with you be is written incredibly badly and I still I will and I will tell you this that. Like a tip on the bar exam is when something is written would something is written incredibly badly. It's either written badly because it's the right answer and it's trying to throw you off or as an attractive distract but it's definitely not what I know. It's the same. Almost got three the same role as the mystery. Man Quote where he's like they're either very smart or very. That's right and I told you this on on several occasions I'll repeat it again because we knew listeners that come into the show. The same thing is true on the bar exam when you have an unbelievably stupid sounding answer right one time out of four like it's just the stupid answer the other three times. It's like you know what kind of a lunatic wrote these worth. These answers but But one time in four the stupid simple answer is the correct one. So this is the chorale array of that that Sometimes the overly complex answer is The best sneaky way. She plays a heartbreaking that I I was close. It would've taken incredible guts to guess be because it would have such a weird but like I was that came about as close as I could. Have you know I got the right away? The language was weird. I saw that the damages part was like I was Kinda puzzling through that. But not quite there. That's the difference between a lawyer and a guy who just this is super super hard questions so I e very hard questions the streak ends I lost. You know get back wasn't upset. I lose to the worst team in the league. I you know I came up against the Patriots and I fell short or something next time. I'll bang a trash can on the right now. Never never sanctity sanctity. All right it makes it makes the seven questions streak that much more beautiful than it happened. We can all enjoy it and now it's gone. Maybe never happen again. We'll see nine. It's over well. Let's in the time machine and see who won. I wonder who got this right? Feels like it's got to be a lawyer maybe Maybe I got this one. The hall of Justice. Well Thomas a lot of folks played along this week and some folks followed your train of logic. A Lotta people managed to actually catch that. The significant freeze in the question was damages against the poor injured engineer and we had a variety. We had some really really funny one some great pun loaded ones for example Jeremy Magpie Road in with a really fantastic answer. But I think we're going to give the win this week to the earliest and most concise answer from Dan rose. Who writes ongoing going with be? The engineer didn't breach the contract. The contract just no longer makes sense and while that's not the best legal analysis I thought it was a really really good intuitive analysis that matches up with the legal result. So congratulations Dan on being this winter and everyone give him a follow. That is at our. Ot You am at Rota Wami on twitter. And congratulations for being this week's winner. Dan All right. Thank you so much for listening everybody. you know. Please support the show and Patriot dot com slash lots. What makes the the show go? What's you know I I just? I'm every every week I'm amazed at Andrews Preparation and ability to deliver you know two full episodes of of insight in the way that he does. And if you like as much as I do hop on over the Patriots support the show all right we will see you folks on Rapid Response Law. This has been opening arguments with Andrew in Tom's. If you love the show and want to support trips episodes please visit our patriarch page at Patriotair Dot com slash law. If you can't support US financially it'd be a big help if you could leave us a five star review on Itunes stitcher or whatever podcast delivery vehicle you news and be sure to tell all your friends about us for question suggestions and Complaints. Email us at open arguments at gmail.com. The show notes and links are on our website at www dot ahrq dot com. 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