I just . . . wow, this one of the best letters I've ever read.

[Deepak]

A statute is what's called "secondary law."

Where'd you go to law school?

 

[whichphilosophy]

http://www.publicdefender.mo.gov/Newsfeed/Delegation_of_Representation.PDF

BOOSH!

I love it.

o7 to you sir!

(I'm not giving away any details because I don't want to give away the twist at the end!)

I wonder if this resulted in an increase in funds for the Public Defender's offices.

 

[Colonel Sanders]

A statute is what's called "secondary law."

Where'd you go to law school?

Why?

 

[Deepak]

Just wondering - it's the third or fourth time I've heard you make this statement.

 

[whichphilosophy]

Where'd you go to law school?

Why?

Perhaps it's because you don't need a law degree to fry chicken wings.

 

[Colonel Sanders]

Just wondering - it's the third or fourth time I've heard you make this statement.

Do you disagree that statutory law is referred to as a secondary source?

 

[dismal]

I read the statute. It contains not even the slightest hint that the director can compel private attorneys to provide this service. I can't imagine why someone would assume it did. When it doesn't.

The statute authorizes the director to hire private attorneys. It authorizes the director to delegate cases to private attorneys.

http://www.moga.mo.gov/mostatutes/stathtml/60000000421.HTML

The thing about reading a statute and trying to glean how it operates is that you're getting one piece of a puzzle. A statute is what's called "secondary law." Primary law is judicial interpretation of the statute given all the facts and taking counter arguments into consideration--and precedent. What have other, higher courts said about the same statute when applied to similar facts?

You just don't know.

Oftentimes a set of facts will present itself so that the statute can indeed be read according to its plain language. But in a situation such as this, it's a good bet that another element that's going to come into play is legislative intent. I'm sure as hell not going to look into the notes of the committee meetings to see if the lawmakers discussed the possibility of this particular situation arising.

There are also conflict rules that may come into play. In short you have:

1. The statute
2. Precedent (higher courts; e.g. has SCOTUS ever ruled on something like this with an on-point fact pattern)
3. Legislative intent
4. Opposing arguments as to everything the judge ordered
5. Potential attorney-his other job conflict rules
6. Public policy considerations

It's a big stew and the statute is but one ingredient.

The much lauded letter o'genius that is linked in this thread cites nothing but the statute I have linked. The statute contains not even a slight hint that the director can compel service. Arguing this somewhat extraordinary power exists will require at least a hint that it may exist somewhere in the law. We currently lack the slightest indication it does. All your indeterminate hand waving notwithstanding.

Not to mention, that if one does truly believe the director has the power to compel any attorney in the state to service by dictat, it seems like one would also struggle to simultaneously believe there is a shortage of attorneys available for the public defender service.

 

[Bomb#20]

Just wondering - it's the third or fourth time I've heard you make this statement.

Do you disagree that statutory law is referred to as a secondary source?

Who is it that you're claiming refers to statutory law as a secondary source?

"Primary sources articulate the law. Primary sources include the following:
· Constitutions
· Statutes
· Cases
· Agency decisions or regulations
...
While primary sources articulate the law, secondary sources analyze the law. For
example, a Fourth Circuit case is a primary source, but an article analyzing that
case is a secondary source. Secondary sources include the following:
· Treatises
· Dictionaries
· Legal Encyclopedias like AmJur 2d and CJS
· ALR
· Restatements · Law Review Articles"

https://www.law.georgetown.edu/acad...ip/writing-center/upload/secondarysources.pdf

"Secondary sources are a great place to begin your research. Although the primary sources of law--case law, statutes, and regulations--establish the law on a given topic, it is often difficult to quickly locate answers in them. Secondary sources often explain legal principles more thoroughly than a single case or statute, so using them can help you save time.
...
Secondary sources include:

Legal encyclopedias
American Law Reports (ALR)
Treatises
Law journals
Restatements"

http://guides.library.harvard.edu/law/researchstrategy/secondarysources

"The important classes of legal secondary sources include: treatises, periodical articles, legal encyclopedias, ALR Annotations, Restatements, and Looseleaf services. "

http://library.law.yale.edu/secondary-sources

 

[Deepak]

Just wondering - it's the third or fourth time I've heard you make this statement.

Do you disagree that statutory law is referred to as a secondary source?

Not that I do, as such - my study of law has mostly been gleaned through private study in the library or online, and beyond considering it as a career in high-school I don't have any specific credentials.

That said - every credible source on the subject disagrees with you:

https://law.stanford.edu/robert-cro...de-lowno-cost-online-american-legal-research/
http://www.law.du.edu/documents/lawyering-process/types-of-legal-authority.pdf

Just from a logic perspective it doesn't make sense for statutes to be secondary since that's exactly what case law and journal publications clarify. You're right insofar as the statute doesn't provide a complete understanding, but you're wrong in stating that statutes are secondary authorities. Unless there's something I'm missing here.

 

[Bomb#20]

As has been noted, the word "compel" would be used if the person were legally bound to accept the authority/responsibility, and that would be tantamount to involuntary servitude in this situation.

Just out of curiosity, if a state were to legally bind a baker to bake a cake for a gay wedding, would you also regard that as tantamount to involuntary servitude?

 

[Bomb#20]

Not to mention, that if one does truly believe the director has the power to compel any attorney in the state to service by dictat, it seems like one would also struggle to simultaneously believe there is a shortage of attorneys available for the public defender service.

Why? An appointed counsel isn't the same thing as a public defender. Appointed counsel, often compulsory, was the normal method for providing counsel for indigent defendants for most of U.S. history. The first public defender's office was only set up in 1914, and that was only for Los Angeles.

There's a shortage of attorneys available for the public defender service because it doesn't pay very well. Using appointed counsel is more expensive because even if you're in a state that makes it compulsory, if you don't pay them better than a public defender then it will probably cost you more in the long run, because they'll probably sue you. There doesn't seem to be much case law on whether a state can draft an attorney against his will; it's been normal practice so long it's been generally assumed to be legal. Most of the case law is on how much a state has to pay a drafted attorney.

Incidentally, there are studies showing that public defenders on average aren't just cheaper but do a better job than appointed counsel.

 

[Colonel Sanders]

Do you disagree that statutory law is referred to as a secondary source?

Not that I do, as such - my study of law has mostly been gleaned through private study in the library or online, and beyond considering it as a career in high-school I don't have any specific credentials.

That said - every credible source on the subject disagrees with you:

https://law.stanford.edu/robert-cro...de-lowno-cost-online-american-legal-research/
http://www.law.du.edu/documents/lawyering-process/types-of-legal-authority.pdf

Just from a logic perspective it doesn't make sense for statutes to be secondary since that's exactly what case law and journal publications clarify. You're right insofar as the statute doesn't provide a complete understanding, but you're wrong in stating that statutes are secondary authorities. Unless there's something I'm missing here.

When you do actual legal research on sites such as Lexis Nexis, Westlaw, etc., you refer to almost everything that isn't case law as secondary. For example, you can take almost anything in the Constitution, which is statutory law, and then say that it applies to X. But how do you know? You have to go the primary source of what the law means.

For example, in an appellate brief, here's how the law is used. The statute in question is the search and seizure clause of the 4th Amendment. What's not argued is the wording of the 4th Amendment, but what the courts say about the 4th Amendment:

B. A Reasonable Suspicion Standard For Conducting Comprehensive Forensic Examinations Of Personal Computers Exists In-Fact At The Border.

In case after case, it is readily observed that Federal Government border agents only conduct CFE’s when reasonable suspicion is present. In United States v. Ickes, 393 F.3d 501 (4th Cir.Ct.App. 2005), the defendant, after creating initial suspicion due to a story the border agent did not believe, became subject to further inspection. Then, marijuana seeds and a suspicious tape focusing on a young boy was found. A CFE was conducted and child pornography discovered. Id. It is noteworthy that the court, while upholding suspicionless searches, also acknowledged, “The essence of the border search doctrine is a reliance upon the trained observations … of customs officials, rather than upon constitutional requirements.” Id. at 507. In essence, the government relies on trained agents to observe suspicious behavior at the border, rather than blindly and arbitrarily pulling someone out of line for no definable reason.
In United States v. Montoya de Hernandez, 473 U.S. 531 (1985), a female defendant who presented herself at the border, was referred to secondary inspection after a border agent noticed that she had been frequently travelling from Bogota in Columbia, to Miami and Los Angeles. Id. at 533. Upon further inspection it was determined she was smuggling drugs in her alimentary canal. Id. at 535. In this, a physically invasive search, it is again witnessed that reasonable suspicion existed before conducting such a search. And although the Court once more upheld the suspicionless search standard, Chief Justice Rehnquist’s holding was that the facts and their rational inferences, known to customs inspectors, clearly supported a reasonable suspicion that respondent was an alimentary canal smuggler. Id. at 542.
The same exercise of reasonable suspicion is also seen in property other than laptop computers and body cavity searches. In United States v. Flores-Montano, 541 U.S. 149 (2004), a vehicle’s gas tank was removed after a border agent’s suspicion was aroused because the tank sounded “solid.” Id. at 151. This was not invasive search, nor was reasonable suspicion required, yet the search only occurred because reasonable suspicion was present. In United States v. Arnold, 709 F.3d 952 (9th Cir.Ct.App. 2013), it was held 1) The extended border search doctrine did not apply to seizure and forensic examination of laptop computers; and 2) The forensic examination of a computer that comprehensively analyzes its hard drive requires showing of reasonable suspicion Id. And similar to the cases above, the agents who conducted the CFE were held to have reasonable suspicion to conduct it. Id. The primary reason given by the 9th Circuit for the requirement of reasonable suspicion for a CFE is that a CFE is “[E]ssentially a computer strip search … [which] intrudes upon privacy and dignity interests to a far greater degree than a cursory search at the border.” Id. at 966.
In the present case...

When a judge asks you what a statute means, you're not asked to read the statute back to him or her and then give your own opinion on what you think it means. You need to find supporting court opinions that have already interpreted the statute in question. If the other side says that some statute says opposite, then they have to prove it, not by reading what is not the primary source of the rule, but how other courts have interpreted the statute in question. What that means is that judicial interpretation is always going to be your primary go-to source.

 

[Deepak]

When a judge asks you what a statute means, you're not asked to read the statute back to him or her and then give your own opinion on what you think it means. You need to find supporting court opinions that have already interpreted the statute in question. If the other side says that some statute says opposite, then they have to prove it, not by reading what is not the primary source of the rule, but how other courts have interpreted the statute in question. What that means is that judicial interpretation is always going to be your primary go-to source.

I didn't claim the bold so I'm not sure where you're getting that from. Again - I'm not arguing against the procedure as much as the classification. Both case law and statutes as I understand it are primary. Can you point to any source, other than your word, that actually says it's secondary?

 

[Bomb#20]

As has been noted, the word "compel" would be used if the person were legally bound to accept the authority/responsibility, and that would be tantamount to involuntary servitude in this situation.

Okay, but judges can appoint lawyers to defend someone based on the Supreme Courts interpretation of the Bill of Rights as you see in Miranda Rights: "...if you cannot afford an attorney, one will be appointed to you..."

Appointing a lawyer to defend someone who cannot afford an attorney speaks more to the defendant being obligated to accept the appointed attorney, and not that any random attorney can be compelled to defend that person. Even in that case, I think the defendant has some leeway if they feel they are not being properly represented.

But what can the court do if they don't have enough people and every private attorney turns it down? Does the defendant have a right to an attorney or not? Whose rights trump whose? The defendant's right to an attorney or an attorney's right to turn down the court?

This isn't a trick question, I simply want to know.

According to "State ex rel. Wolff v. Ruddy, 617 SW 2d 64 - Mo: Supreme Court 1981", in Missouri the defendant's right to an attorney trumps an attorney's right to turn down the court. This has been settled law in Missouri for a long time; but in Wolff v. Reddy, the Missouri Supreme Court clarified that Mr. Wolff couldn't refuse Judge Ruddy's order that he defend Ms. Williams, even though the state wasn't going to pay Mr. Wolff a dime, even though Missouri law says the state will compensate appointed attorneys.

Further,

"...
2. In this and any similar case, the respondent circuit judge should provide relator when requested with an evidentiary hearing as to the propriety of his appointment, taking into consideration his right to earn a livelihood for himself and his family and to be free from involuntary servitude. If respondent judge determines that the appointment will work any undue hardships, he should appoint another attorney. After hearing, we call on all members of the legal profession who may be appointed to accept appointment and to exert their best efforts in the defense of the indigent accused; and to refuse such service only with recognition that such refusal may be the subject of disciplinary action.
...
5. Until further order of this Court, employment by government without further evidence of conflict with the interest of the indigent accused, shall not be deemed to be a bar to appointment by the Court to defend an indigent accused."​

it looks like the Governor is not exempt.

 

[KeepTalking]

As has been noted, the word "compel" would be used if the person were legally bound to accept the authority/responsibility, and that would be tantamount to involuntary servitude in this situation.

Just out of curiosity, if a state were to legally bind a baker to bake a cake for a gay wedding, would you also regard that as tantamount to involuntary servitude?

If the baker was not otherwise working as a public baker of wedding cakes, then yes, it would be. For example, the state could not go into a random restaurant, pull out a random cake baker, and compel them to bake a cake for a gay wedding, which would be analogous to the situation being described in this thread.

 

[Bomb#20]

As has been noted, the word "compel" would be used if the person were legally bound to accept the authority/responsibility, and that would be tantamount to involuntary servitude in this situation.

Just out of curiosity, if a state were to legally bind a baker to bake a cake for a gay wedding, would you also regard that as tantamount to involuntary servitude?

If the baker was not otherwise working as a public baker of wedding cakes, then yes, it would be. For example, the state could not go into a random restaurant, pull out a random cake baker, and compel them to bake a cake for a gay wedding, which would be analogous to the situation being described in this thread.

I see, so whether legally binding someone to do what he doesn't want to do qualifies as "compelling him" and "involuntary servitude" doesn't depend on whether what he is being bound to do is compulsory and on whether the service he is to provide is involuntary. Do I have that right? What it depends on is whether people who think like you put the service being coerced from him in your same mental category with some other service the fellow provides willingly. Are you seriously under the impression that that's an intellectually defensible criterion for "compel" and "involuntary servitude"?

 

[KeepTalking]

As has been noted, the word "compel" would be used if the person were legally bound to accept the authority/responsibility, and that would be tantamount to involuntary servitude in this situation.

Just out of curiosity, if a state were to legally bind a baker to bake a cake for a gay wedding, would you also regard that as tantamount to involuntary servitude?

If the baker was not otherwise working as a public baker of wedding cakes, then yes, it would be. For example, the state could not go into a random restaurant, pull out a random cake baker, and compel them to bake a cake for a gay wedding, which would be analogous to the situation being described in this thread.

I see, so whether legally binding someone to do what he doesn't want to do qualifies as "compelling him" and "involuntary servitude" doesn't depend on whether what he is being bound to do is compulsory and on whether the service he is to provide is involuntary. Do I have that right? What it depends on is whether people who think like you put the service being coerced from him in your same mental category with some other service the fellow provides willingly. Are you seriously under the impression that that's an intellectually defensible criterion for "compel" and "involuntary servitude"?

No, you don't have it right. Forget about baking cakes, it was stupid to bring that issue into this thread so that you could torture it into an analogy. The Governor in this case is not holding himself out publicly as a Public Defender, therefore, there is no legal binding that he should defend any member of the public, much less this particular member of the public. Even if he were a Public Defender, there are reasons he could legally use to not take the case. Those reasons do not include "the defendant is gay". They very likely do include "I am the sitting Governor of the State of Missouri, and the duties of that office preclude me from acting as a Public Defender".

 

[ksen]

No, you don't have it right. Forget about baking cakes, it was stupid to bring that issue into this thread so that you could torture it into an analogy. The Governor in this case is not holding himself out publicly as a Public Defender, therefore, there is no legal binding that he should defend any member of the public, much less this particular member of the public.

Is the governor a member of the Missouri Bar? If yes, then he's eligible to be appointed.

Even if he were a Public Defender, there are reasons he could legally use to not take the case. Those reasons do not include "the defendant is gay". They very likely do include "I am the sitting Governor of the State of Missouri, and the duties of that office preclude me from acting as a Public Defender".

From what Bomb posted upthread just the fact of being governor wouldn't be enough by itself to relieve him of this obligation.

 

[KeepTalking]

Is the governor a member of the Missouri Bar? If yes, then he's eligible to be appointed.

I don't believe it has been established that simply being a member of the Missouri Bar is sufficient to force the Governor to take this case. I have said previously in this thread, however, that if it is the case that the Missouri Bar has this provision, then the Governor may be obliged to take the case.

Even if he were a Public Defender, there are reasons he could legally use to not take the case. Those reasons do not include "the defendant is gay". They very likely do include "I am the sitting Governor of the State of Missouri, and the duties of that office preclude me from acting as a Public Defender".

From what Bomb posted upthread just the fact of being governor wouldn't be enough by itself to relieve him of this obligation.

Perhaps you can point out that post. I checked through the thread, but did not find anything from Bomb that seems to fit the above statement.

 

[ksen]

I don't believe it has been established that simply being a member of the Missouri Bar is sufficient to force the Governor to take this case. I have said previously in this thread, however, that if it is the case that the Missouri Bar has this provision, then the Governor may be obliged to take the case.

Even if he were a Public Defender, there are reasons he could legally use to not take the case. Those reasons do not include "the defendant is gay". They very likely do include "I am the sitting Governor of the State of Missouri, and the duties of that office preclude me from acting as a Public Defender".

From what Bomb posted upthread just the fact of being governor wouldn't be enough by itself to relieve him of this obligation.

Perhaps you can point out that post. I checked through the thread, but did not find anything from Bomb that seems to fit the above statement.

http://talkfreethought.org/showthre...I-ve-ever-read&p=319613&viewfull=1#post319613