Monday, October 10, 2016

Judicial Recommendations for the General Election

We got an email the other day asking this:

"Greetings!   I am voting by Absentee Ballot and wonder if you have any input on re-electing the Judges? I have no way of knowing who is voting liberal and who is not. I appreciate your efforts and read all your emails.
Thank you!!J. G.

There are two Court of Criminal Appeal judges up for retention, Rob Hudson and Carlene Clancy Smith.  Rob Hudson is a conservative hero judge that follows the law and the Constitution.   Clancy Smith is a woman judge that is the polar opposite and needs to be defeated.  More on that below.

Then there is one Oklahoma Supreme Court judge that is so liberal as to need removing, Douglas L Combs.    Ballotpedia has a judicial ranking system that rated Combs way below the dividing line between liberal and conservative.  Liberal Democrat Brad Henry appointed Combs back at the end of Henry's administration.  I don't think a judge has ever lost a retention election in Oklahoma but this is one that certainly deserves to be ousted.

Rob Hudson was appointed by Fallin on March 12th 2015 and in October of that year he wrote a specially concurring opinion to buttress the majority opinion in the Gerhart vs. State of Oklahoma case:


¶1 I write separately to emphasize the context in which this case arose, i.e., political speech directed to a political actor in the political arena. Appellant sent an email to a state senator urging that a bill be heard, and passed out of, a legislative committee over which the senator presided as chairman. As Judge Lumpkin shows us, the elements of the Oklahoma blackmail statute are not met in this case and Appellant's convictions must be reversed and dismissed.

¶2 The purported victim in this case is a public figure. But more than that, he is an elected representative in the Oklahoma Legislature. Legislators and other public officials expect to receive "vehement, caustic, and sometimes unpleasantly sharp attacks[,]" Garrison v. Louisiana, 379 U.S. 64, 75, 85 S. Ct. 209, 216, 13 L. Ed. 2d 125 (1964) (quoting New York Times Co. v. Sullivan, 376 U.S. 254, 270, 84 S. Ct. 710, 721, 11 L. Ed. 2d 686 (1964)), from the citizens they represent. That is the nature of elected public office. As Judge Lumpkin's opinion points out, evidence presented at trial show emails similar to the one sent by Appellant were received by the Senator as part of the normal course of legislative business.

¶3 The First Amendment does not require that constituents be rational, reasonable, kind or even polite in their communications with elected representatives and public officials. The First Amendment does require, however, that the people be heard on matters of public interest without threat of prosecution. Communications like the email at issue in this case receive the broadest possible First Amendment protections because they focus on citizen-led political change through the legislative process. The First Amendment guarantees "the freedom of speech . . . [and] the right of the people . . . to petition the Government for a redress of grievances." These rights are "implicit in '[t]he very idea of government, republican in form.'" McDonald v. Smith, 472 U.S. 479, 482, 105 S. Ct. 2787, 2789, 86 L. Ed. 2d 384 (1985) (quoting United States v. Cruikshank, 2 Otto 542, 92 U.S. 542, 23 L. Ed. 588 (1876)). The right to petition government officials was included in the First Amendment along with the guarantee of freedom of speech and freedom of press "to ensure the growth and preservation of democratic self-governance." Id., 472 U.S. at 489, 105 S. Ct. at 2793 (Brennan, J., concurring). "[S]peech concerning public affairs is more than self-expression; it is the essence of self-government." Id. (quoting Garrison, 379 U.S. at 74-75, 85 S. Ct. at 216). "The First and Fourteenth Amendments embody our 'profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials.'" Garrison, 379 U.S. at 75, 85 S. Ct. at 216 (quoting Sullivan, 376 U.S. at 270, 84 S. Ct. at 721).

¶4 In this case, Appellant sought with his email merely to get a bill heard and passed out of a legislative committee. Appellant's email does not amount to blackmail under Oklahoma law. Rather, it represents legitimate political activity. We must never allow the Oklahoma blackmail statute to become a sword used to suppress mere political speech or communications of this type with elected public officials. The First Amendment forbids it, especially when the message--or the messenger--are unpopular or controversial. See Citizens United v. Federal Election Comm'n, 558 U.S. 310, 340, 130 S. Ct. 876, 898, 175 L. Ed. 2d 753 (2010) ("Premised on mistrust of governmental power, the First Amendment stands against attempts to disfavor certain subjects or viewpoints."). I therefore concur in reversing and dismissing Appellant's convictions.

You can't read what Judge Hudson wrote without being proud to be an American and damned proud that we still have these sort of men in our legal system.  Hudson saw that the prosecution was politically motivated and corrupt and wouldn't allow "the Oklahoma blackmail statute to become a sword used to suppress mere political speech or communications of this type with elected public officials."

Then there is Carlene Clancy Smith, the presiding judge of the Oklahoma Court of Criminal Appeals who disagreed with the majority decision and by doing so refused to follow higher court law that has defended our First Amendment and other constitutionally guaranteed rights.   She argued that the court should punish acts that might have occurred or had the potential to occur.  Below is her opinion with our dissection below each paragraph in italics:

¶1 I disagree with the majority's conclusion that Gerhart's message was protected speech. In Oklahoma, blackmail includes a written communication, made with the intent to compel another to do an act against his will, which threatens to either (a) accuse the person of conduct tending to degrade and disgrace him, or (b) expose a fact, report or information which would in any way subject the person to the ridicule or contempt of society. 21 O.S.2011, § 1488 (emphasis added). Gerhart sent an email to Senator Branan demanding that he ensure a particular bill was heard and passed. If it was not, Gerhart stated, he would make Branan "the laughing stock of the Senate", would "dig into your past, yoru [sic] family, your associates and once we start on you there will be no end to it. This is a promise." Gerhart's communication explicitly threatened to dig into the lives of Branan and his family, in order to disgrace him and expose him to ridicule, if Branan did not do what Gerhart wanted.

(While the blackmail statute and every other crime on the books requires actual action Judge Smith believes that a threat of investigation into a politician amounts to the ability to disgrace and ridicule a politician.   One would think that she either knows more about what is hidden away from the voters or has a poor opinion of the average politician.  She would also find illegal the act of a constituent that wishes to remind their city councilman of the repercussions of supporting the wrong issue.)

¶2 The majority admits that speech integral to criminal conduct is not protected by the First Amendment. Giboney v. Empire Storage & Ice Co., 336 U.S. 490, 498, 69 S. Ct. 684, 688-89, 93 L. Ed. 2d 834 (1949). Gerhart's communication clearly meets the statutory requirement for blackmail. In finding that this is not enough to support his conviction, the majority adds two unwritten requirements to § 1488. First, the majority claims that speech is protected under the First Amendment unless it constitutes a true threat of violence. In Virginia v. Black, the United States Supreme Court found that a statute prohibiting cross-burning was permissible because the First Amendment allows States to punish expression which inflicts injury, is likely to provoke a violent reaction, incites a breach of the peace or imminent lawless action, or constitutes a true threat of violence. 538 U.S. 343, 359, 123 S. Ct. 1536, 1548, 156 L. Ed. 2d 535 (2003). Nothing in Black suggests that the State cannot prohibit communication as blackmail if the speech does not include an act of unlawful violence, and the Supreme Court has not so held in any other case. To do so, as the majority does, eviscerates the scope and protection afforded by the law against blackmail. The majority also suggests that Gerhart's threat was mere political hyperbole, or political speech, relying on Watts v. United States, 394 U.S. 705, 88 S. Ct. 1389, 22 L. Ed. 2d 664 (1969). On the contrary, the factual differences between this case and Watts underscore why Gerhart's speech was not protected. Watts told a small group of people at a rally that, if he had to carry a rifle, the first man in his sights would be the President. Watts, 394 U.S. at 706, 89 S. Ct. at 1401. The Supreme Court found that, given the conditional nature of the threat, its audience and the circumstances, this was protected political speech. 394 U.S. at 708, 89 S. Ct. at 1401-1402. By contrast, Gerhart's threat was explicit rather than conditional and made directly to his intended victim.

(Another huge stretch of misreading settled law.  The majority opinion was that the email didn't meet ANY of the three elements required for a blackmail charge.  Investigating a politician isn't illegal and neither is coercing a politician.  Judge Smith quotes Virginia v. Black which is used to allow the states to prohibit speech that constitutes imminent lawless action or a true threat of violence yet the email in question did neither.  Smith goes on to claim that the majority decision was reached because the email didn't include any acts of violence, a point that would be moot as there were no violent action or threats charged, coercion or blackmail was the intent of the criminal charges, yet Smith believes that if the higher courts don't prohibit  a judicial action then they are allowed to do anything they wish.  Higher court decisions are based upon what the law says, not what it didn't say.  But the worst thought process was stating that a man that stated he would shoot a sitting president if drafted and given a rifle was less explicit of a threat of true violence than a promise to investigate a politician.  Smith ignores that the audience of that public reply all email was many times larger than the crowd that Watts addressed at the anti war rally.)

¶3 Second, the majority states the blackmail charge was premature; the majority holds that a blackmailer's threat must specifically state exactly what facts or information he has and intends to use, and how he will use it, in exposing his victim to disgrace or ridicule. Nothing in the statutory language remotely supports a requirement for this level of specificity. The majority has, for no apparent reason, unnecessarily added this element to the crime. In so doing, the majority fails in our duty to construe the statutory language according to its plain and ordinary meaning, giving effect to the intention of the Legislature as expressed by the words actually included in the statute. State ex rel. Mashburn, 2012 OK CR 14, ¶ 11, 288 P.3d 247, 250. The Legislature could have required that a blackmailer specify what information he would use and how, but chose not to do so. Addition of this element has the effect of ensuring that Gerhart (and any other blackmailer who makes a specific threat without disclosing his information or projected course of action) is not guilty of blackmail.

(Here is probably the most troubling look into Judge Smith's mind.  The blackmail law requires that a specific threat of an accusation of conduct that would disgrace or degrade or a threat to release a fact, a report, or information which would subject the target to ridicule or the contempt of society.  The email in question merely threatened or promised to investigate, only Judge Smith assumes that disgraceful conduct would be found.  A threat to accuse Brannan of having sex with farm animals would have met the element of blackmail or a threat to reveal a report or other information of a known and true disgraceful past conduct in Brannan's past would have met one of the elements of blackmail.  She goes further and says that the legislators could have specified that a specific threat was required but that is exactly what they did when they wrote "(b) expose a fact, report or information which would in any way subject the person to the ridicule or contempt of society."  This shows that Judge Smith is comfortable writing the law instead of interpreting the law and that her view of what someone intended to do is more important than what they actually did do.)

¶4 Gerhart may or may not have been an irritant to Oklahoma lawmakers. However, in this communication he explicitly threatened one lawmaker, promising to investigate him and his family and expose him to ridicule, if the lawmaker did not ensure a bill was heard and passed. This conduct crosses the line from "irritant" to criminal conduct. The majority adds unwritten elements to the blackmail statute, then finds that because Gerhart's communication does not meet those elements it is protected speech. In doing so, the majority eviscerates Oklahoma's prohibition against blackmail. I believe this is neither required by First Amendment law nor expresses the will of the Oklahoma legislature. I dissent.

(Judge Smith read the briefs on this case and hopefully she also read the SCOTUS opinions quoted by the briefs and by her fellow judges.  She knows that coercion in politics or public matters is perfectly legal according to the Watts, NAACP vs. Claiborne Hardware  and Better Austin v. Keefe decisions.  She fully understands that lobbyists and constituents both use forms of coercion on politicians and also that politicians likewise coerce each other.  Smith took a promise to investigate as worse than threatening to shoot a sitting president and equated it to a violent act.)

¶5 I am authorized to state that Judge Johnson joins in this dissenting opinion.

In their defending of the appeal even the A.G. office didn't try to gut the First Amendment as Judge Smith has advocated.  They claimed that the speech was criminal because the speech was a true threat or speech integral to criminal conduct.  A true threat being threats of violence that were imminent (I'm going to beat you to a pulp) while having the capacity to carry out that threat due to capability and being close enough to actually do it.  Speech integral to criminal conduct is saying "This is a hold up."

In short Judge Smith preferred to gut the First Amendment rights for all Oklahomans in order to protect the political class and the influence of the donor class.  The other female judge joined her in attacking your free speech rights but she isn't up for retention this year.