Posts Tagged ‘Legislation’
Law is a conservative profession, in that it is rarely given to huge leaps of fancy or whimsy. English common law has given us a system based on precedent, where the challenges and disputes of the present are resolved using the solutions of the past. Innovation comes slowly, and the writing tends to be both precise and ponderous. No one reads legal briefs or law journals for the lulz.
Every so often, though, a judge comes along who challenges the notion of a staid, unflappable jurist. Today, I take a moment to salute the Honorable Sam Sparks, U.S. District Judge for the Western District of Texas, Austin Division. (Full disclosure: I am licensed to practice in the Western District of Texas, I think, but I do not have any cases in Judge Sparks’ court and do not intend to file any. Therefore, there is really no need for full disclosure. Never mind.)
Lawyers who practice in federal court in Austin generally know that Judge Sparks does not abide tomfoolery in his courtroom. Despite conventional wisdom, every so often lawyers who should really know better decide to bring questionable motions in his court, and his responses and resulting orders ought to be forever recorded in the annals of legal history.
Above the Law, as with so many stories, has a good overview of some Sparks gems. In 2004 he compared bickering lawyers to kindergarteners, and in 2007 he issued an order in rhyming couplets, complete with this conclusion:
There will be a hearing with pablum to eat
And a very cool cell where you can meet
AND WORK OUT YOUR INFANTILE PROBLEM WITH THE DEPOSITION.
My personal favorite story out of his courtroom comes from recent news and involves litigation over Texas’ new ultrasound-before-abortion law. The Center for Reproductive Rights filed a lawsuit in federal court in June seeking to block the new law from taking effect (read the original complaint). The defendants in the case are the individuals and agencies that will be charged with enforcing the new law: David Lakey, M.D., Commissioner of the Texas Department of State Health Services; Mari Robinson, Executive Director of the Texas Medical Board; and David Escamilla, County Attorney for Travis County. Seems pretty straightforward–group opposes a new law, so sues the state officials in charge of enacting it–and uncontroversial, at least procedurally, right?
Oh, silly, silly reader(s)….
Have you forgotten that this is Texas?
Not content to allow this lawsuit to proceed in the same fashion as any other lawsuit filed in America, the two sponsors of the bill, Sen. Dan Patrick, R-Houston, and Rep. Sid Miller, R-Stephenville, asked leave of the court to file amicus briefs supporting the law. On August 9, 2011, Judge Sparks said no (PDF):
Both parties in this case are well-represented by competent and diligent counsel, and neither they nor this Court needs assistance from Senator Patrick or Representative Miller–particularly when much of their “assistance” is nothing more than thinly-veiled rhetoric. This is a federal lawsuit about the constitutionality of a statute, not a soapbox for politicians or a sounding board for public opinion. The Court is confident counsel in this case can protect their clients’ interests all by themselves.
Judge Sparks did not even have to make that rhyme to make it sting. A mere three days later, on August 12, he similarly rejected an attempt by other Texas legislators to intervene in the case (PDF):
[C]ounsel for the parties are more than capable of advocating for their clients’ positions without outside input. This is especially true where, as here, that input comes in the form of, among other things, commentary by legislators on “the clear legislative intent of H.B. 15′s severability clause.”
If the severability clause is as clear as the Representatives indicate, their interpretive assistance will not be required. And if it is not, it would be unhelpful, if not improper, for the Court to look to statements made by a subset of the Legislature, in a document prepared for the purposes of litigation, to determine legislative intent. (Citations omitted)
Thankfully, that put an end to the chicanery, and the case has been able to proceed according to normal court procedures. Just kidding! San Antonio attorney Allan Parker, president of the Justice Foundation (I’m not linking to them) also requested leave to intervene in the case, and he decided to do a little show and tell with his motion (specifically a picture of a “first-trimester aborted child” according to his own list of exhibits.) On August 23, Judge Sparks took his polite gloves off and went right to it (PDF, of course):
The Court has already turned down two extremely tempting offers to transform this case from a boring old federal lawsuit into an exciting, politically-charged media circus. As any competent attorney could have predicted, the Court declines the latest invitation as well.
However, the Court is forced to conclude Allan E. Parker, Jr., the attorney whose signature appears on this motion, is anything but competent. A competent attorney would not have filed this motion in the first place; if he did, he certainly would not have attached exhibits that are both highly prejudicial and legally irrelevant; and if he foolishly did both things, he surely would not be so unprofessional as to file such exhibits unsealed. A competent attorney who did these things would be deliberately disrespecting this Court and knowingly shirking his professional responsibilties, offenses for which he would be lucky to retain his bar card, much less an intact bank balance.
I have no involvement in this case at all, and yet my stomach did a few lurches reading that part of the order because I can imagine the horror of having a federal judge that mad at me, and the possible implications of that. Yes, Judge Sparks called the man incompetent, and he did it a lot. Moral of the story: if you come into Judge Sparks’ courtroom with weak arguments that he has already dismissed, you will not leave with your dignity. You might not leave with your bar card. You might not leave as financially whole as when you arrived. You might not leave at all.
Okay, that last part was an exaggeration. You’ll get to leave eventually.
This week, we have a different case (h/t Mike Johnson), involving two attorneys who may have just done something really dumb, or may have had the misfortune of doing something kind of dumb with a judge fresh off of his Allan Parker-fueled disdain for shenanigans in his courtroom. Either way, the hammer dropped on attorneys Jonathan L. Woods and Travis Barton, who have been
invited ordered to attend Judge Sparks’ “kindergarten party” on September 1 in his courtroom, covering topics such as how to properly plan and schedule depositions and how not to waste a federal court’s time for being “unable to practice law at the level of a first-year law student.”
Courts have a pretty specific purpose, and they have limited resources to achieve that purpose. The purpose is to resolve disputes, and to do so as efficiently as possible. Many Austin lawyers have horror stories about Judge Sparks (and no, I’m not telling any here), but I applaud the effort to keep idiocy out of the courtroom, and to do it with some flair. I salute Judge Sparks and his brand of don’t-*******-with-me-in-my-courtroom jurisprudence.
That said, I know full well that if I ever argued a case in his courtroom, he would eat me for breakfast and use my bones for toothpicks at lunch. And I’m okay with that.
I got way behind on my Google alerts, so here are some stories from the past 3-4 weeks on animal welfare issues.
In June, the center surpassed no-kill goals, achieving a live outcome of 91 percent, meaning at least 9 of 10 animals that came in to the center left through adoptions, foster care or other placements that kept them alive. So about 1 in 10 died or was put down. And June is not a fluke; the animal center has achieved a live outcome of 90 percent for the past six months, and that is no small achievement considering that the center provides shelter for about 23,000 animals, mostly dogs and cats, each year. In the past, it relied heavily on putting stray animals down to manage Austin’s stray pet population.
Meanwhile, the Austin Chronicle notes “The ‘Unintended Consequences’ of No-Kill’s Success,” as the shelter has spent most of the summer at capacity for puppies and kittens:
The city announced that achievement [6 months of no-kill] in a press release on July 6. Nine days later, it sent out word that TLAC was at capacity and had run out of space for cats. That week, the shelter had taken in 347 dogs and cats. To save lives, the statement said, staff were “setting up temporary cat cages in the administrative conference room.”
So, the question is: Has it turned out that skeptics were right all along in arguing that the attempt to make Austin a no-kill city was bound to result in an animal shelter operating constantly over capacity, with animals living in every available space and staffers overwhelmed by a never-ending flood of new arrivals? The answer, [shelter director Abigail] Smith says, is yes and no.
“No” because animal shelters always see an increase in animal intake numbers in spring and summer, which is breeding season, or “kitten season,” as Smith calls it. A shelter doesn’t have to be no-kill to suffer the ill effects of a breeding season; it comes with the territory. “Yes” because there’s more than a little anecdotal evidence that people feel more comfortable surrendering their unwanted pets to the shelter now that it’s no-kill. Smith calls this an “unintended consequence of success,” one she would like to see vanish.
The shelter has a foster program to get dogs and cats out of the shelter and into homes. Sign up now.
A columnist for the International Business Times takes on critics of no-kill and promotes fostering and adoption:
Some people – even major organizations – still think the no-kill philosophy can’t succeed, in spite of all the evidence that it is succeeding. Only yesterday, a PETA spokesperson wrote in an Austin, Texas, newspaper that:
“It isn’t surprising that since implementing ‘no-kill’ policies, the Town Lake Animal Center is reportedly overcrowded and struggling to find space to house all the homeless animals who pour through its doors … [This] is only the beginning of what is to come, as long as it maintains these dangerous and misguided policies.
“Because there are so many more homeless animals than good homes waiting for them, the only way most shelters can avoid euthanasia is by caging animals for months on end, sometimes warehousing them in stacked crates – which is cruelty, plain and simple – or by turning away animals when there is no more room.”
What’s wrong with assertions like this?
For starters, it’s entirely untrue that “there are so many more homeless animals than good homes waiting for them.” In fact, the opposite is the case.
In other news, Texas is beginning to implement the newly-passed Puppy Mill Bill:
The Texas Department of Licensing and Regulation (TDLR) is taking the first steps to bring dog and cat breeders into compliance with the newly passed HB 1451, also known as the Puppy Mill Bill. TDLR announced that a Licensed Breeders Advisory Committee (Committee) is now in the process of being formed to determine the rules and standards for large scale commercial dog and cat breeders as directed by the passage of HB 1451.
The Committee will be composed of nine members: two licensed breeders; two veterinarians; two members who represent Texas animal welfare organizations; two members of the public; and one animal control officer. Committee applications will be accepted through September 15, 2011.
A writer at OpposingViews offers a criticism of the outright ban on puppy mills passed in Los Angeles,in that it lacks clear definitions :
How many of these breeding factories actually exist within the city limits?
According to L. A. Animal Services veterans, they can’t recall ever finding one or receiving complaints about puppy mills. They say the city’s pet overpopulation stems from careless owners who do not spay their pets and a combination of local backyard and home-based hobby breeders churning out litters which are easily sold through Craig’s List, the Pennysaver, L.A. Times and flyers in pet supply stores or veterinary offices. And, of course, add whatever outlets are used by Los Angeles’ “responsible breeders” who are offended at the mention of advertising , but whose breeding credits are revealed and extolled in dozens of Internet Google references.
Finally, some problems are emerging with a new Texas law allowing pets to be included in protective orders in domestic violence situations, according to a writer for the Fort Worth Star-Telegram:
Another bill drawing questions is one from state Sen. Wendy Davis, D-Fort Worth, that allows domestic abuse victims to include pets in a protective order against an abuser. During the session, supporters like Davis and House sponsor Jodie Laubenberg R-Parker, said some domestic abuse victims delay leaving an abusive situation out of concern over the welfare of a pet. Battered woman shelters usually don’t allow animals.
The new law is “unprosecutable” in most cases, [Texas District & County Attorney Association analyst Shannon] Edmonds said. At issue is how the bill restricted itself to animals that are “possessed” by the abuse victim. Legally, if a victim leaves their animal while fleeing for safety, the person is no longer in possession of the animal, Edmonds said. He argues that the bill should have referred to “ownership” rather than “possession.”
The moral of this post is as follows:
- Foster one or more shelter animals;
- Don’t breed dogs in your backyard; and
- Don’t commit domestic violence, or, if you are escaping an abusive situation, try to take your pets with you.
There had been controversy around how the Texas Legislature was going to disburse funds collected from the sale of “Animal Friendly” license plates, which are intended to be used to fund spay/neuter programs. I learned today that all funds were authorized by the Legislature for their intended purpose. This came after protests from nonprofits who were expecting funding. The cuts proposed by the Legislature would have barely made a dent in the budget shortfall, but would have been devastating to the organizations that were expecting the money (not to mention the Texans who bought the license plates expecting the money to support spay/neuter). It is always nice when the Legislature does what it is supposed to do.
In my role as chair of the Austin Bar Association‘s Animal Welfare Committee, I have issued the following resolution regarding allocation of funds in the Senate budget bill. It is an important issue, not just because supporting spay and neuter programs is important, but because people need to know that, when they voluntarily contribute money for a specific cause, the money really will go to that cause. Talk to your Senator today.
H.B. 1919 WOULD MAKE it a defense to prosecution in a case of animal cruelty if the person claimed ‘reasonable fear of serious bodily injury’ to himself or another by a dog.
This means that anyone can kill any dog and claim a ‘fear of serious bodily injury’.
This bill is unnecessary. Texas Penal Code Section 9.22 already provides a defense for any
“act of necessity”. It states that a person is justified in taking any action if that person is acting to avoid imminent harm to himself or another.
Language in this bill is so subjective and vague that it could result in absurd situations. For example:
A person would be allowed to kill a dog on another person’s private property
A burglar in the act of burglarizing a home or business could kill a guard dog
The bill makes no exception for provocation. A person could torture a dog to the point of aggression and then kill it with impunity.
This bill will be voted on by the Criminal Jurisprudence Committee
Tuesday, April 19th -10:30 AM or upon final adjourn./recess
Please make your calls immediately.
Please contact the following members of this committee and urge them to
OPPOSE H.B. 1919.
T. (512) 463-0566
F. (512) 236-9408
T. (512) 463-0464
F. (512) 463-9295
T. (512) 463-0454
F. (512) 463-1121
T. (512) 463-0674
F. (512) 463-0314
As always, be polite and courteous when corresponding with Representatives and their staff.
For now, the bill (PDF)is still pending in the House Criminal Jurisprudence Committee. The bill seeks to amend Texas Penal Code Section 42.092, entitled “Cruelty to Nonlivestock Animals.” Subsection (d)(1) provides that “[i]t is a defense to prosecution under this section that…the actor had a reasonable fear of bodily injury to the actor or to another person by a dangerous wild animal as defined by Section 822.101, Health and Safety Code” (emphasis added).
HB 1919 changes “dangerous wild animal” to “dog.” “Dog” is defined as “a domesticated animal that is a member of the canine family.” The definition of a “dangerous wild animal” is a bit broader and does not include dogs (but does include orangutans). While it would seem troubling that Texas law allows the killing of orangutans, they tend to be rare in these parts–at worst it would be a rare occurrence of self-defense near a poorly-secured zoo. To expand the law to encompass all dogs in the state is a recipe for disaster. Also, it’s completely unnecessary.