Date: Sat, 10 Mar 2001 22:15:57 -0000 From: auvenj@mailcity.com Subject: [lpaz-discuss] (!) Re: The Appeal To: lpaz-discuss@yahoogroups.com Reply-To: lpaz-discuss@yahoogroups.com
ATTENTION: Anyone who was at the oral arguments last Wednesday
OK, now it REALLY gets curious folks. Peter says that David Hardy reported that oral arguments WERE permitted and WERE heard last Wednesday concerning the question of merger at the '99 ALP convention. I forwarded him Powell's version of events and John's confirmation that oral arguments WERE NOT permitted on the question of merger. As evidence for his side, Peter offers David Hardy's notes, which I have obtained Peter's permission to post here. David Hardy's notes not only say that oral arguments concerning the merger were heard, but give some specifics about 1-2 questions that were asked on the subject. Now, somebody's either leaving something out OR somebody else is making something up concerning what happened last Wednesday.
BTW...can we please hold the inevitable comments denigrating Mr. Hardy's confidence of victory until _after_ we've settled the factual question about what actually happened? We all know that everyone here considers it highly improbable that ALP, Inc. will win. No one should be terribly surprised to find that Mr. Hardy's opinion is exactly the opposite.
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DATE: Sat, 10 Mar 2001 16:30:40 From: PGSchmerl@aol.com To: auvenj@lycos.com
Division One of court of apps had argument today on the appeal-- panel of judges was Berch, Lankford and Noyes, Berch as presiding judge. 20 minutes apiece--other side divided theirs, with John Buttrick taking the merger argument and Tom Rawles taking constitutionality. This was probably an error, as JB ate into TR's time pretty badly. The arguments were pretty much as briefed, so I won't add much. I do think, from the feedback from the panel, that we'll probably win. They asked only 1-2 questions of us on the argument regarding merger. Then, during Rawles' argument on constitutionality, the judges got lively, almost entirely in chewing into his argument. I'll just list their questions below. Since I was in a position to take notes while seated, I have fairly good notes on questions to them, and only my memory as to questions to me. My notes are pretty cursory--in the middle of a fight you're thinking about things other than making careful notes. Also--memory is faulty after a courtroom fight. While in it, you are living for the moment, and that means mentally turning recording off--you live by the second and the minute. Literally--right now I *think* I got to speak three times, but I can't be sure.
My initial speech--only question I recall is from Berch: Robert's says a chair ruling that is not appealed cannot be criticized--but is this the same as saying it cannot be sued over? I responded... Roberts was a retired Brit officer, not a lawyer--his view is that the entire body is the deciding body, not the chair, so if no appeal was made to it then there is really no final decision to sue over. Misc note--I thought I got favorable "body language" throughout from the court. They seemed to follow the "majority vote" of a body means "more ayes than nays when that body votes" argument.
Buttrick speech: From Lankford: Why do you say that there was no point in appealing to the floor since it had voted 65-23 for the motion? An appeal as to procedure is a different matter--aren't you just assuming that because the convention wanted to vote for the idea, that they would have voted against any procedural objection? Buttrick had to concede that this, indeed was an assumption. Several questions from several judges about whether the Attorney General had been given the notice, required by law, when the constitutionality of a statute is challenged in a civil case. Answers were essentially that yes, notice had been given, altho the giving of it may not appear in the record. There was a lot of fumbling in this, which didn't help the ethos.
My reply on merger: I can't remember any questions here. I'm sure there were, but I couldn't take notes.
Rawles speech on constitutionality: Lankford: wouldn't you agree the state has an interest in in ensuring that it is giving money or benefits to the right person? Response I now forget, but none too convincing. Lankford: Eu concerned a whole bunch of state intrusions into party operations--dues, platforms. Response-- again y notes don't show, but it was not striking. Berch--but state has interest in designating the "point person" to whom it provides benefits? Response--could do that with affidavit, as county elections commissioner said. Berch--that may be her opinion, but we're hardly bound by it. Reply--yes... (in reply, I pointed out that in this case we would simply have to sets of affidavits, and again the confusion and years of litigation). Noyes--Marchioro seems to suggest that minor intrusions of this type are permissible. Response--a long and convolution discussion of Marchioro and Eu holdings, arguing that Eu case was very broad. Berch--how do you reconcile that with court's discussion of what was at issue (quoting same to effect that the California statute alone was at issue)? Response--not much. Berch--but Eu statute went a lot farther in controlling interal party workings. Response--I forget now. Noyes--Eu says that compelling state interest test only applies, but later case of Timmons seems to say it only applies if there is a substantial intrustion into party affairs, not if it is a lesser intrusion. Response--I think Rawles had to agree.
My reply--I only recall Noyes asking what I had to say about their argument that taxpayer funded primaries were offensive to their beliefs. I responded that the one thing John Buttrick and I had in common was that we'd both run in taxpayer funded primaries on the Liberarian ticket. I wouldn't criticize their good faith, but it was a fact that their objections, in practice, seemed limited to precinct committeemen running at primaries, and they seemed able to deal with it in all other aspects. When I pointed out the state interest in certainty--that the statute says the voter records must be given to the chairs within 8 days, and here we are two years later still fighting over who is entitled to them, Judge Berch kept nodding in agreement. I did give them a hard jab. Rawles had said at one point that why the party objected to something (probably election of PCs) was, bluntly, none of your business, not the court's business, not the legislature's business. I pointed out that their entire argument on merger had the theme that internal party affairs were very much the court's business-- there, they ask you to review the decisions of the party's convention, to assess the convention's interpretation of its own constitution. Here they say internal party decisions are not your legitimate concern.
Altho the other side had run out of time, the court did give them a couple of minutes for a final reply, confined to the constitutionality issue. Questions: Berch--aren;t you asking us to reward the side that said 'the statutes are there: we refuse to follow them"? response--rather lame-- not really asking you to reward anyone. Berch--would you be required to follow these statutes if you just agreed to forego public money and public benefits? Response--not sure if statutes would exempt us if we did not. (which of course conflicts with their argument that the statues are voluntary).
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--- In lpaz-discuss@y..., auvenj@m... wrote: > --- In lpaz-discuss@y..., John Wilde <rsrchsoc@i...> wrote:
> > As I am sure others will be chiming in on this as will, the
> Order setting
> > the oral argument specifically limited the subject matter to the
> > constitutionality of the statutes.
>
> Now that is most extremely curious. I don't expect anyone to
> actually believe this...but I am quite certain that Peter did NOT
> know of this fact as of Wednesday at noon. He had phoned me a day
or > two before, wanting to know what had happened on Sunday. I did not
> tell him anything except that I was very busy (which I was) and
that > I would have to call back when I had more time. So, I finally got
> around to calling him back on Wednesday at noon. He was in his
> office, which is why I was dubious when Powell reported that he had
> made it to Phoenix for the hearing. In addition to telling Peter
> that I was no longer on the ALP GovCom, I mentioned that you all
were > quite confident as to the outcome of count 1 because no oral
> arguments were to be permitted on that subject. It caught him off
> guard, he stumbled a bit then said that David Hardy had never told
> him that oral arguments were not to be heard on count 1. Peter
> didn't deny that it could be true...he just seemed bewildered that
he > hadn't been told and hadn't thought to ask David Hardy about it.
> After a bit of thought Peter DID deny that it meant Meyers' ruling
on > count 1 was going to be upheld, but he'd deny that under any
> circumstances. Still, I am convinced from Peter's manner and
> reaction that he did NOT know the fact that oral arguments on count
1 > wouldn't be heard until I told him on Wednesday.
>
> What I can't figure out is how Peter could be that out of touch
with > something he's been so intimately involved with. It makes no
> sense...I would think thathe'd be getting ALL the details from
Hardy > and would have been ready with an immediate come-back about how
this > was really good news for him and not ALP.
>
> --Jason Auvenshine
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