A constitutional question for lawyers

genna

genna

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I know we have a bunch of smart lawyers here. So hopefully one of them can enlighten me.

A Supreme Court scenario:

A plaintiff wins a decision 5-4 in a lawsuit that has no established precedent. However, the Majority opinion is not uniform. There are 2 concurring opinions that completely disagree with each other, yet come to the same result.

Opinions are split like this:
Opinion A, 3 justices, for plaintiff, disagrees with Opinion B
Opinion B, 2 justices, for plaintiff. disagrees with Opinion A
Opinion C, 4 justices, against plaintiff.

The question: is a precedent set? If 50 years from now another plaintiff argues Opinion B, but not Opinion A, can this decision above be reasonably used as precedent. It was a win, but only 2 justices expressed this opinion. And an opinion with most votes was actually against the plaintiff

Thanks in advance
 
Yet in a jury trial we expect 12 common folks to reach an unanimous decision.
 
James331 said:
Speaking of the constitution, though it’s oddly not taught to kids in school, remeber you have a right, no make that a duty, to nullification (finding the person not guilty) if the law itself is unjust, or goes against the bill or rights.

https://en.m.wikipedia.org/wiki/Jury_nullification
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I believe there have been many cases that resulted in guilty verdicts that if I had been on the jury would have at least been a hung jury if I couldn’t convince the others to nullify as well. Take nonviolent drug possession charges for example. Unfortunately many of those plead out.
 
You just have an argument. The other side can try to argue there is no controlling opinion supporting opinion B. The distinction is between "persuasive authority" and "controlling authority."
 
PPC1052 said:
You just have an argument. The other side can try to argue there is no controlling opinion supporting opinion B. The distinction is between "persuasive authority" and "controlling authority."
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In that case, at what point does this argument become "controlling"? 5 for a specific opinion?
 
Yes. At least until the Supreme Court reverses itself, or some other court finds a "distinction" such that it thinks that the holding doesn't apply to the facts before it.
 
Sorry to take this off course, but the jury nullification thing spawned a question in my head. I was on a jury a few years ago and I can’t recall exactly what i “swore” to, but can a juror be charged if they lie about agreeing with a law? I know there were a lot of questions asked during jury selection around that subject.
 
Salty said:
Sorry to take this off course, but the jury nullification thing spawned a question in my head. I was on a jury a few years ago and I can’t recall exactly what i “swore” to, but can a juror be charged if they lie about agreeing with a law? I know there were a lot of questions asked during jury selection around that subject.
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I guess, yes they could be charged if they lied under oath. But how are you going to prove that?

As an aside, my state is odd in that in the state's constitution (Indiana), it expressly provides that the jury in criminal cases has the right to determine both the facts and the law. https://www.law.indiana.edu/uslawdocs/inconst/art-1.html (See Section 19) In other words, jury nullification is baked right into our constitution.
 
Have you been enlightened yet by one of our lawyers, as you requested?:idea:
 
Salty said:
Sorry to take this off course, but the jury nullification thing spawned a question in my head. I was on a jury a few years ago and I can’t recall exactly what i “swore” to, but can a juror be charged if they lie about agreeing with a law? I know there were a lot of questions asked during jury selection around that subject.
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My understanding is that nullification is a failsafe by the founders to protect against a goverment that might overreach and try to legislate around the bill of rights. From what I’ve seen they can’t prevent a citizen from nullification, but as it upsets their power they do go to great lengths to threaten, confuse and not educate people on the subject, after all governments much prefer to have subjects over citizens.

Here’s a good one one it.


Website pushing people to be educated on nullification
https://fija.org/
 
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maj75 said:
Curiously, never saw Wikipedia cited as authority in any judicial opinions.
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It's true that Wikipedia is not authoritative by itself, but its footnotes can lead to authoritative sources.

It isn’t valid and the dopes who argue it is are crackpot anti government types...

https://www.law.cornell.edu/wex/jury_nullification
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The lawyer in the video above said that juries have the power to engage in jury nullification, but not the right. That seems consistent with what your Cornell link says.

He also said that the practice has been around as long as there have been juries.
 
genna said:
I know we have a bunch of smart lawyers here. So hopefully one of them can enlighten me.

A Supreme Court scenario:

A plaintiff wins a decision 5-4 in a lawsuit that has no established precedent. However, the Majority opinion is not uniform. There are 2 concurring opinions that completely disagree with each other, yet come to the same result.

Opinions are split like this:
Opinion A, 3 justices, for plaintiff, disagrees with Opinion B
Opinion B, 2 justices, for plaintiff. disagrees with Opinion A
Opinion C, 4 justices, against plaintiff.

The question: is a precedent set? If 50 years from now another plaintiff argues Opinion B, but not Opinion A, can this decision above be reasonably used as precedent. It was a win, but only 2 justices expressed this opinion. And an opinion with most votes was actually against the plaintiff

Thanks in advance
Click to expand...

I'm not a Lawyer but I'd say yes, 50 years from now things may be different. We are a Common Law system where precedent holds weight. But for the same reason precedents can be used to make decisions rather than just arguing the Laws and Statutes as in a Civil Law systems, new precedents can happen. Previous precedents do not become cast in stone. It all boils down to what a majority of the cats in the long robes with the big wooden hammers decide.
 
luvflyin said:
I'm not a Lawyer but I'd say yes, 50 years from now things may be different. We are a Common Law system where precedent holds weight. But for the same reason precedents can be used to make decisions rather than just arguing the Laws and Statutes as in a Civil Law systems, new precedents can happen. Previous precedents do not become cast in stone. It all boils down to what a majority of the cats in the long robes with the big wooden hammers decide.
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Of course, the not stated assertion was that no other laws or opinions would be introduced on the subject at hand. And the latter plaintiff had a somewhat different case where only Opinion A made sense to argue
 
James331 said:
My understanding is that nullification is a failsafe by the founders to protect against a goverment that might overreach and try to legislate around the bill of rights. From what I’ve seen they can’t prevent a citizen from nullification, but as it upsets their power they do go to great lengths to threaten, confuse and not educate people on the subject, after all governments much prefer to have subjects over citizens.

Here’s a good one one it.


Website pushing people to be educated on nullification
https://fija.org/
Click to expand...

And then there's the flip side. Juries convicting the innocent even though they know he didn't do it. It was a way of life for generations, particularly in the South and probably still happens.
 
genna said:
Of course, the not stated assertion was that no other laws or opinions would be introduced on the subject at hand. And the latter plaintiff had a somewhat different case where only Opinion A made sense to argue
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Like I said, I'm not a lawyer. I was just looking at the general concepts. If the judge refuses to let the Lawyers bring up the subject and talk about it I guess that's it. What laws are or are not on the books allowing this, I dunno
 
Not sure I understand the OP's premise, but Plessy v. Ferguson led to Brown v. Board of Ed. over a series of cases. Yes, the Court evolves and overturns precedent.
 
maj75 said:
Curiously, never saw Wikipedia cited as authority in any judicial opinions.

It isn’t valid and the dopes who argue it is are crackpot anti government types...

https://www.law.cornell.edu/wex/jury_nullification
Click to expand...

Like all those crackpot antigovernment types who were against the Jim Crow laws, internment camps, tyrannical English rule, and liked having tin foil hat stuff like a “bill of rights”, and that’s just this country.
 
Interesting questions about jury nullification. I did a quick search for Kansas, and the first thing that popped up was an appeals case. The guy wanted his conviction overturned, obviously, but one of his claims was that the court didn't tell the jury that nullification is an option.

http://www.kscourts.org/Cases-and-opinions/Opinions/Unpublished/Ctapp/2017/20170317/115181 .pdf

The court did not agree.

The jury instructions are:

"if you have a reasonable doubt as to the truth of any of the claims required to be proved by the State, you must find the defendant not guilty. If you have no reasonable doubt as to the truth of each of the claims required to be proved by the State, you should find the defendant guilty."

The KS Supreme Court notes the word in the second sentence is "should", not "must".
 
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luvflyin said:
And then there's the flip side. Juries convicting the innocent even though they know he didn't do it. It was a way of life for generations, particularly in the South and probably still happens.
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That’s the thing with freedom, can be used well, or not so much.

Still I’d trust my neighbors more than big goverment, on average historically normal civilians kill far less of their own people than big goverment.


Matthew said:
Interesting questions about jury nullification. I did a quick search for Kansas, and the first thing that popped up was an appeals case. The guy wanted his conviction overturned, obviously, but one of his claims was that the court didn't tell the jury that nullification is an option.

http://www.kscourts.org/Cases-and-opinions/Opinions/Unpublished/Ctapp/2017/20170317/115181 .pdf

The court did not agree.

The jury instructions are:

"f you have a reasonable doubt as to the truth of any of the claims required to be proved by the State, you must find the defendant not guilty. If you have no reasonable doubt as to the truth of each of the claims required to be proved by the State, you should find the defendant guilty."

The KS Supreme Court notes the word in the second sentence is "should", not "must".
Click to expand...

Love how they skate that razor thin line, but after all they like keeping the power
 
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genna said:
I know we have a bunch of smart lawyers here. So hopefully one of them can enlighten me.

A Supreme Court scenario:

A plaintiff wins a decision 5-4 in a lawsuit that has no established precedent. However, the Majority opinion is not uniform. There are 2 concurring opinions that completely disagree with each other, yet come to the same result.

Opinions are split like this:
Opinion A, 3 justices, for plaintiff, disagrees with Opinion B
Opinion B, 2 justices, for plaintiff. disagrees with Opinion A
Opinion C, 4 justices, against plaintiff.

The question: is a precedent set? If 50 years from now another plaintiff argues Opinion B, but not Opinion A, can this decision above be reasonably used as precedent. It was a win, but only 2 justices expressed this opinion. And an opinion with most votes was actually against the plaintiff

Thanks in advance
Click to expand...

I am going back to the original question. I am not a lawyer and smart is only half the word usually used to describe me, but I do pay attention to law and to the Court in particular.

What you have in this case is justices “concurring in the judgement”, which means they agree with the result but disagree with the reasoning to get there. It is precedence, but of the four types of opinions, this is #3 in strength and some would say the weakest. Lower courts are going to pay attention to what the SCOTUS said, but because it’s lacking strong guidance, they are more likely to decide that a case breaks from that precedence.

Without a specific example it’s hard to explain it in more detail than that.
 
James331 said:
Crazy you even need a court to tell you that armed theft is wrong
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They didn't say it was wrong - they said it can't be excessive.

In this case, a guy's $40,000 LandRover was seized. The maximum fine for what he was charged with was $10,000. Several Indiana State courts overruled the seizure, claiming it was excessive based on the 8th amendment banning of excessive fines. The Indiana Supreme Court reversed, saying there was never a ruling that said the 8th Amendment applied to States.

8th amendment: "Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted."

The US Supreme Court said, "Yes, yes it does apply to the States." 8 of the judges found reasons based on the 14th amendment Due Process clause. Justice Thomas found another section of the same 14th amendment that he referenced. Apparently Justice Gorsuch wrote that he agreed with Justice Thomas, but he joined the opinion of the others and said, "...regardless of the precise vehicle, there can be no serious doubt that the Fourteenth Amendment requires the States to respect the freedom from excessive fines enshrined in the Eighth Amendment.”

I think that's how it all worked, I got that from here:

https://www.scotusblog.com/2019/02/...sive-fines-applies-to-the-states/#more-279586

edit:

I just started reading Justice Thomas's opinion.

https://www.supremecourt.gov/opinions/18pdf/17-1091_5536.pdf

Interesting how he didn't agree with the rest of the court and his reasons why. They all came to the same conclusion, but he disagreed with how the others came to their decision. I'm definitely not an expert, but it seems like he's trying to make a point that the due process clause has been misused over the years. He seemed to be saying that the rights clause of the amendment should have been used. Citizens have certain rights, one of them is the right to not have excessive fines (8th amendment). He seemed to say that the rest of the court, by saying that due process is what makes the 8th amendment apply, is not the way it should have worked.
 
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The law is what the Supreme Court says it is. Or, that's what I heard somewhere.
 
James331 said:
That’s the thing with freedom, can be used well, or not so much.

Still I’d trust my neighbors more than big goverment, on average historically normal civilians kill far less of their own people than big goverment.




Love how they skate that razor thin line, but after all they like keeping the power
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My take has always been pretty much if I didn't do it, I'd waive Jury trial and be tried by the Judge. He/She is going to know what happened. If I did it, I'd take the Jury and hope my Shyster could con them into acquitting me.
 
bflynn said:
Lower courts are going to pay attention to what the SCOTUS said, but because it’s lacking strong guidance, they are more likely to decide that a case breaks from that precedence.
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Which would ultimately send the Constitutional issue back to the the court in one form or another.

If you want a short course in the development of a body of constitutional law, watch the documentary on Ginsberg's career arguing women's rights prior to her getting the appointment. The documentary, not the popular movie.
 
genna said:
I have no idea if there ever was a scenario I presented
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Yes, there have been several over the years. They are called "plurality opinions." In such instance, the opinion held by the members joining the result which decided on the narrowest grounds is considered to be the holding of the opinion. See, Marks v. United States, 430 U.S. 188 (1977). https://caselaw.findlaw.com/us-supreme-court/430/188.html

So, my answer above is not necessarily correct. You have to look to see which concurring opinion is narrower. Sorry. It's been a while since I studied con law.
 
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Chip Sylverne said:
Not sure I understand the OP's premise, but Plessy v. Ferguson led to Brown v. Board of Ed. over a series of cases. Yes, the Court evolves and overturns precedent.
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Which is good, because at one time they'd decided that a certain demographic group of humans weren't human. It's sad to think that SCOTUS can be so divided; that means the only a few "elite" people are deciding what is the law, and nearly that many "elite" disagree.
 
Kenny Phillips said:
Which is good, because at one time they'd decided that a certain demographic group of humans weren't human. It's sad to think that SCOTUS can be so divided; that means the only a few "elite" people are deciding what is the law, and nearly that many "elite" disagree.
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No easy questions find their way to the SCOTUS. No matter which way they decide a case, a large number of people are going to be disappointed.
 
When citing a precedent, a lawyer just doesn't cite the case but the reasoning for the decision. In the scenario the OP put forth, I believe both lawyers would cite the case and the against lawyer would have more Citations (Note the aviation link) to quote. Then they would all get in their private jets and go home.
 
I'm at the point where I'm convinced we've done ourselves in. The Patriot Act, Civil Asset Forfeiture, abuse of eminent domain for the turning over of people's homes to private companies for development because it brings in more taxes, the requirement that in order to exercise your fifth amendment right you have to actually SAY you're exercising your right....it's too far gone and it's not coming back. It was a good run for 200 years though.
 
luvflyin said:
My take has always been pretty much if I didn't do it, I'd waive Jury trial and be tried by the Judge. He/She is going to know what happened. If I did it, I'd take the Jury and hope my Shyster could con them into acquitting me.
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So youre saying you always have a judge by your side to personally witness your actions, otherwise how would he know better what happened vs any one else?
And what if the law is unconstitutional? You're down with ether being tossed in a cage, fined or just surrendering your rights?

Not to worry, the system will determine if you "did it", and weather or not you actually did is incidental, just as weather or not the law is unlawful is only for those who made such laws to determine, you are a number and a meaningless peasant and shall be processed as such.

I hope it at least feels warm and fuzzy to accept the state as your lord and savior.



Gerhardt said:
I'm at the point where I'm convinced we've done ourselves in. The Patriot Act, Civil Asset Forfeiture, abuse of eminent domain for the turning over of people's homes to private companies for development because it brings in more taxes, the requirement that in order to exercise your fifth amendment right you have to actually SAY you're exercising your right....it's too far gone and it's not coming back. It was a good run for 200 years though.
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The sad truth.
 
Gerhardt said:
I'm at the point where I'm convinced we've done ourselves in. The Patriot Act, Civil Asset Forfeiture, abuse of eminent domain for the turning over of people's homes to private companies for development because it brings in more taxes, the requirement that in order to exercise your fifth amendment right you have to actually SAY you're exercising your right....it's too far gone and it's not coming back. It was a good run for 200 years though.
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Well, there's at least one piece of good news: the Supreme Court voted UNANIMOUSLY this week to limit a civil forfeiture case.

https://www.pbs.org/newshour/show/u...its-states-ability-to-seize-personal-property

Let's hope it's the start of a trend!
 
Chip Sylverne said:
No easy questions find their way to the SCOTUS. No matter which way they decide a case, a large number of people are going to be disappointed.
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Which is more palatable if they are unanimous, or nearly so! (In the past they have decided, for example, that because the manufacturer of a faulty truck rim couldn't be determined, it was perfectly fine to sue all manufacturers.)
 
James331 said:
So youre saying you always have a judge by your side to personally witness your actions, otherwise how would he know better what happened vs any one else?
And what if the law is unconstitutional? You're down with ether being tossed in a cage, fined or just surrendering your rights?

Not to worry, the system will determine if you "did it", and weather or not you actually did is incidental, just as weather or not the law is unlawful is only for those who made such laws to determine, you are a number and a meaningless peasant and shall be processed as such.

I hope it at least feels warm and fuzzy to accept the state as your lord and savior.
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Yeah. I was talking about basic crimes. Like burglary, murder etc. Judge is more likely to see through a prosecutor playing games, bad police work etc. A case where I done something but the law is bulls**t, no, I wouldn't rely on the Judge to do what would be the equivalent of Jury nullification
 
luvflyin said:
Yeah. I was talking about basic crimes. Like burglary, murder etc. Judge is more likely to see through a prosecutor playing games, bad police work etc. A case where I done something but the law is bulls**t, no, I wouldn't rely on the Judge to do what would be the equivalent of Jury nullification
Click to expand...

Interesting take since jury trials are specifically invented because judges are historically part of the government and tend to support government/prosecutor position.
 
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