OA492: Court Locks Mississippi Citizens Out of Amending Their Own Constitution

Transcript

This transcript was generated automatically and may contain errors — the audio is the record.

0:01:17 Thomas: Hello and welcome to Opening Arguments. This is episode 492 when Columbus sailed the ocean. No, we got to get rid of that. I mean, that rhyme is so delightful, but Columbus is so not delightful. Anyway, I'm Thomas. That's Andrew. How you doing?

0:01:29 Andrew: Yeah. I was fine until you reminded us of our nation's horrible colonialist legacy, but legacy.

0:01:38 Thomas: Legolas.

0:01:39 Andrew: There you go.

0:01:40 Thomas: Okay, we don't have time for that. I want to go down that road of our colonialist Legolas, but I was just thinking, what if we, or somebody's probably already done this because it's the internet and everybody's done everything, we got to make that remake that rhyme but with actual truth, like 1492 Columbus genocided the ocean, but you know, just whatever, like I'd have to go through the whole thing, but like I think that would make more sense, and then we teach our kids I'm

0:02:04 Andrew: We'll put that on the list after your Excel macros to track the apportionment

0:02:10 Thomas: Done with that, enough people already did that.

0:02:10 Andrew: From the census. Okay.

0:02:11 Thomas: I was into that before it was cool, so you know, kind of now it's like

0:02:14 Andrew: Oh, yeah. But I if you don't do apportionment on vinyl, you're really, you know, you may be missing out. So, so we have like, you know, four major cases in the news this week, and we are going to be talking about of them to some degree or another, uh, one of them is the much publicized Fox News motion to dismiss Dominion's, uh,

0:02:15 Thomas: Oh so much to talk talk about, I know you have a little pre-segment thing here, why don't you tease it for us?

0:02:46 Thomas: Oh, yeah.

0:02:47 Andrew: Defamation lawsuit, and I am going to tell you we're going to break that down in detail, main segment next week, uh, true deep dive, and I'm going to tells you the one thing that literally every news outlet covering the story has missed. So, yeah.

0:03:02 Thomas: The Fox News one? Yeah, from what I saw from the headlines, I always wait for the Andrew Torrez signature deep dish breakdown. What I saw, though, is Fox just pointed to their logo. They're like, you don't understand, Court. It says fair and balanced. It's in the graphics for our network. I don't know what you're talking about. It's fair and balance. We did a fair and bounce job. I wonder if that's going to fly. I don't know.

0:03:26 Andrew: I want to spoil next Tuesday's show, but yeah, we will be breaking down their lawyering and in a way that I think our non-legal audience will be like, yeah, got some issues with this motion. So that'll be fun.

0:03:28 Thomas: Well, no spoilers then.

0:03:41 Thomas: Yeah, that's our aim for the show. So, okay.

0:03:45 Andrew: There you go.

0:03:46 Thomas: Well let's get to it for today's show.

0:03:48 Clip: He who questions training, only trains himself at asking questions. What?

0:03:56 Thomas: So Andrew, this is a listener Thomas S question and I am, I am outraged and, uh, it's so hard cause I, I have such a fun time doing the show and I'm in a delightful mood, but we got to bring it down because democracy Mississippi voted to legalize marijuana. Essentially. I'm sure you'll give me the actual details, but something like that. Uh, and I don't know, medical marijuana or whatever it was. And then from my understanding, from the layperson's understanding, the court overruled that and said that like you have something about like it's based on five jurisdictions or whatever. And because of reapportionment, there are only four. So literally the court has effectively taken away the citizen's ability to vote in measures or whatever, which seems absolutely

0:03:58 Andrew: It

0:04:43 Thomas: Insane to me. Like the court just decided no more democracy, essentially. Like, sorry, uh, we're taking away your privileges, no Nintendo this weekend, citizens, you got nothing. Am I blowing this out of proportion?

0:04:56 Andrew: So so I know you come to OA listener Thomas S. with the expectation that like that's probably hyperbolic and blown out of proportion and here's the nuance I want to tell you, and we're going to talk about the nuance, right, because there, there's some factual misperceptions there. But the implication, the reality is everything you've just said and much, much more. It is profoundly anti-democratic. I want to say at the outset that I got help from Ace Associate Morgan Stringer, former Ole Miss grad, Ole Miss law school grad. She was actually involved in the organizing for medical marijuana initiative, which was Prop 65. So we're going to have her on at some point. We can't have her on this week because of scheduling, but I want to make sure we give Morgan a huge shout out.

0:04:56 Thomas: Wow.

0:05:44 Andrew: This is a crazy story. It is the weirdest Supreme Court decision. It's a state Supreme Court, Mississippi Supreme Court decision that I have ever read. It has all of the elements of craziness, right? So it has originalism in plain meaning. It has apportionment, the census congressional districts, it has ballot initiatives and distrust of the public. It is why you should never vote Republican, a thing I can't figure out, and weed. So, like, you can't, this is the perfect OA story. So, by the way, right, this ist a longitudinal problem. And here's the problem. People overwhelmingly want to loosen or get rid of restrictions on marijuana, right? And Republicans Republicans hate that and they hate that even when people overwhelmingly favor it. Right. And so, as you point out, these often start with medical marijuana initiatives. Right, so in Utah in 2018, for example, the Utah ballot initiative, Proposition 2, passed to the public 53-47. Utah. So but still, majority said we want medical marijuana in Utah. Now, that was a referendum that would have passed a law.

0:06:13 Thomas: Yeah. Sure.

0:07:09 Andrew: Right. And in many states, Utah included, there's a provision on what the state legislature can do with ballot referendum. And I want to say that when these provisions were put into place, they were probably not put into place for nefarious purposes, right? The idea is, the public can propose laws, but we could envision like the public proposing a law, having it be overwhelmingly popular, but make no sense.

0:07:36 Thomas: Yeah.

0:07:37 Andrew: Right. So we want to preserve the right of the legislature to kind of rewrite that law a little bit, like give them a hand and say, OK, you meant to do X, but like as written, this would create the purge.

0:07:51 Thomas: Which?

0:07:51 Andrew: Right? Like, you know, this should be this would be real bad if we just let this go into effect as written. So under that principle, the Utah Legislature fixed Proposition 2, and I put that in scare quotes, which I hope you could have heard, 3001. And their fix was essentially to insert the word not in front of every sentence. So I am almost not kidding on that.

0:08:16 Thomas: Is Very ironic because that's a total stoner 90s thing. To do.

0:08:20 Andrew: Yeah, not.

0:08:21 Thomas: Like, oh, oh, we want medical marijuana. Not. Gotcha. That might be where the Republican sense of humor is, though. It's like 30 years behind.

0:08:25 Andrew: Right, exactly. Exactly. That could. Yeah, that would not surprise me. OK. And and and I need to tell you. So I broke that down on an episode of Naked Mormonism with our buddy, friend of the show, Bryce Blankenagel. We talked about a little bit on OA. As of September 2020, the last of the pro marijuana groups ran out of money in September of 2020. 20. And so they just gave in. So, yeah. So the Utah legislature was able to take something that was popular with a majority of Utah citizens and say, no, can't have that. Let that one sink in for a minute. And now we enter Mississippi and Mississippi to fix the problem caused. Right. Like they they started this ballot initiative after watching what Utah did. Right? So they were like, you know what? We're going to outsmart you Republicans. And mind you, most of the people doing this are Republicans because almost everybody in Mississippi is a Republican. Right. Yeah.

0:09:20 Thomas: Yeah. That's why when you said Republicans hate this, I was going to clarify, like, I think this has pretty broad popular support. It is just like Republican elites. Yeah, for some reason. I don't know why. Okay.

0:09:22 Andrew: Yep, Republican elected officials. Yep, exactly. Yeah, because because.

0:09:35 Thomas: It isn't like it is a winning issue. It's not. Yeah, weird.

0:09:37 Andrew: Yeah well because having felony offenses for drug crimes is instrumental to the Republican system of propping up their power by diminishing the electorate. But anyway, voters looked at it and were like, yeah, if we just pass a ballot initiative, our stupid super Republican super majorities in our state legislature, plus our stupid Republican governor are going to get together and Utah's. So here's what we're going to do. Even though this is a law, we're going to make it a constitutional amendment because the legislature isn't co-equal with the Constitution, their support did to it, right? So

0:09:38 Thomas: Oh, Wow. Yeah, I

0:10:13 Andrew: That would keep it safe from any Republican shenanigans.

0:10:14 Thomas: Would think everybody is subordinate to the Constitution, virtually speaking. So,

0:10:16 Andrew: Yeah, exactly right. So they put together Initiative Measure 65, and I'm going to include that link in the show notes. It's super long. It is basically a law. You can see it belongs as a law and not in the Constitution. But they would put it in the constitution for the reasons that I've described. And it would amend the Mississippi Constitution to to allow qualified patients with debilitating medical conditions as certified by Mississippi licensed physicians to use medical marijuana. It would allow medical marijuana only by licensed treatment centers and would be overseen by the Mississippi State Department of Health. OK.

0:10:54 Thomas: They're trying to get into the 21st century, in terms of, I mean, this is still very

0:10:58 Andrew: Into the late 20th century. Yeah, exactly. Right. Yeah. This is not California. This is not Colorado.

0:10:59 Thomas: Yeah, no, Okay.

0:11:05 Andrew: This IS the very first step, you know. And look, let's be honest about what these initiatives are. There are some legitimate therapeutic medical uses of marijuana. Yeah, this also is the first step towards legalization.

0:11:19 Thomas: You've heard, no, I'm kidding, yeah. One.

0:11:25 Andrew: You realize like, oh, hey, look, like people around me are able because somebody will set up a clinic where like, you know, Dr. Nick will come in and say, oh. You definitely probably have glaucoma. And, you Know, here's your prescription for, you know, don't I don't I don't know the hip language for for one weed. There we go. Right. And we look, we know that happens. OK, so let's let's not pretend that that that isn't a major part of it. Again, not downplaying. I have family members who actually use medical marijuana. I also have a client who is in no illusions. So, right, I think I'm, yeah, of

0:11:40 Thomas: Weed.

0:11:59 Thomas: Yeah, I actually believe humans are adults and should be able to just do things they want to do that don't actually hurt anybody else. It's kind of my view, but Yeah, but.

0:12:06 Andrew: Course they should. Yep. So now, the whole idea is we're going to do this as an amendment to the Constitution. To do that, you have to follow the heightened procedures that is set forth in the Mississippi Constitution, specifically Section 15, Article 273, Subsection 3. Okay, and it says this: the people reserve unto themselves the power to propose and enact constitutional amendments by ballot initiative, right? Any initiative, uh, may be proposed by a petition signed over a 12-month period, right? So you get a year to get the signatures by qualified electors equal in number to at least 12 percent of the votes for all candidates for governor in the last gubernatorial election. Here are the numbers we're going to use, just so that I don't keep repeating like fractions and making people do math in their head.

This is actually, it's slightly under, but but but close to the actual qualifications. If you assume eight hundred and thirty three thousand votes for governor in the last gubernatorial election in Mississippi, which is pretty close to what it is, that means you need a petition, 12 percent, of at least 100,000 signatures. OK, so we're going to use 100,000 as the number you need, although keep in mind, right, it's a percentage, it's not actually a hard number. The signatures of those qualified electors, and that just means registered voters, from any congressional district shall not exceed one fifth of the total number of signatures required to qualify an initiative for placement on the ballot.

If it exceeds one fifth, then the excess number shall be disregarded by the Secretary of State in determining whether the petition qualifies for placement on the ballot. So, again, let's go back to our example. Eight hundred thirty three thousand votes for governor. You need at least one hundred thousand signatures. That's a lot. And in In a mechanism, again, I can understand the reason why this provision in the Constitution exists and was put into place in 1973.

0:12:47 Thomas: Okay, yeah,

0:14:01 Andrew: So put a pin in that. You wouldn't want somebody to be able to get all 100,000 signatures from just one area of the state. Right. So there's this complicated mechanism, five congressional districts, each one 20,000 votes. And you've got to get an equal level all the way across the state to show that it has statewide support by land, if not by population. And again, in a state perhaps more diverse than Mississippi, you can see, and even in Mississippi, the same arguments. It's kind of an electoral college type system, right? Like the same arguments about, you how certain groups of people that, you know, maybe Republicans in Mississippi are hostile to tend to live in urban areas versus white people tend to live in rural areas, right. Like, you you can see all of those reasons. But but in any event, that's the process. It's pretty hard. And this group managed to do that, they went to the yeah, it

0:14:24 Thomas: Yeah, I was gonna say that I mean, this seems like a really, really serious endeavor by the citizens, like, and groups that wanted this to happen. There's a lot of work here, a lot of, uh, hoops to jump through and red tape and all this stuff. I

0:15:05 Andrew: It really was yeah, yep, And they went, they got the initiative, uh, it was certified by the Secretary of State, but even then there's one more chance for legislative shenanigans, and that is when the public writes an amendment to the Constitution, the legislature gets to write the legislative alternative, and then people get to vote on the original initiative or the alternative.

0:15:33 Thomas: Love them trying to hold on. Okay, everybody we see yours, what if we did ours, it'll be so rad, okay, what if we did yours, but like, but we don't allow marijuana, right? Wouldn't that be just as cool, vote for us trying to sell it.

0:15:34 Andrew: Yep. Yep. Yep. And That's exactly what the Republican legislature did. It was called 65A, Right, okay, and

0:15:51 Thomas: I

0:15:51 Andrew: So, 65A, you remember 65, pretty modest. 65A said that the medical marijuana program must be based on sound medical principles, would be designed and run by a state agency using input from health professionals. Marijuana products would need to be produced by state licensed manufacturers, must be pharmaceutical grade, could not be smoked except by those with terminal medical conditions as certified by a health care professional, and treatment would need to be overseen by licensed physicians, nurses, and pharmacists, and the program would have a registry of enrolled patients, a process for patient tracking, and an assessment of treatment outcomes. So, yeah, trying to take all the fun out of it, basically.

0:16:34 Thomas: Mean that sounds like you're making it unworkable, like you're putting the barriers there that nobody is going to be able to do this. 2000.

0:16:36 Andrew: Yeah, exactly right. So put in that 65A, and then we went to the polls in 2000. And there was a two... Yep, sorry. The in 2020. And there Was a two-step process. So question one was, and again, this is an incredibly weird weird and strange way to do it, but this is how Mississippi does it. So, you know, we report, you decide, right? Do you approve of either 65 or 65A?

0:16:47 Thomas: Oh, that's Like phase one, okay.

0:17:07 Andrew: Yep. And phase one passed 69 to 31. So, yes. Then as between 65 and 65A, which one do you prefer?

0:17:08 Thomas: Okay. Well, this is like one of those logic problems where yeah, the

0:17:19 Andrew: Yeah, except that this is the easiest logic problem ever because the voters were like, by a 74 to 26 margin, they were like, yeah, we prefer 65.

0:17:29 Thomas: One written by not total squares.

0:17:32 Andrew: Right. The one that doesn't harsh our bellow. Come on. So there we go. It passed. The good people of Mississippi successfully evaded the Republicans that they keep electing. Case case closed. So now we enter the case that was decided this week that you summarized at the outset in Ray initiative measure number 65. Right. And here's the argument. And to understand the argument, I left out a salient fact when I was describing accurately the process contained in Mississippi's Constitution, Article 273, subsection three. And that fact is this. During the 2000 census. OK, so not either of the last two since I

0:17:43 Thomas: Case closed, play the music.

0:18:18 Thomas: Yeah,

0:18:18 Andrew: Mississippi lost a congressional district. So now there are only four congressional districts. And by the way, and this is relevant, after Mississippi lost a congressional district, the Republican commission to redraw the districts could not come up with one that passed the Voting Rights Act. And so had to be.

0:18:37 Thomas: Remember when we used to have that the Voting Rights Act, that was cool, right?

0:18:40 Andrew: Yeah. And so hard to be redrawn by a three judge federal court sitting in Washington, D.C. So go back to 273. Three. If there are only four congressional districts, there is literally no way to follow the process if you interpret it strictly literally. Right. Because, you know, take our hundred that you need 100000 votes. You go to each congressional district. You throw out the number of votes over 20000. Well, yeah, you can't keep you can't go anywhere else for any additional source of votes. Right. Everything over 80000 gets thrown out no matter how evenly you've done it. And you can never reach 100,000. You can never amend the Constitution if you interpret that provision as applying.

0:19:29 Thomas: I can help, I can totally help this, Andrew, because I know that when you're interpreting laws and one interpretation would render the law completely meaningless and stupid and ineffectual, you just go with a different interpretation, perhaps, right? Does that help? Yeah.

0:19:42 Andrew: But that's Exactly right. The way I put it is the Mississippi Supreme Court could take one of two paths. They could either say, apparently our Constitution was written and amended by idiots, or they can say we could apply any number of reasonable interpretations. These range from the mostly sensible to the super sensible. Right. So the mostly sensible one. Right, that would be that district means district as of the time that the Constitution was amended. Nineteen seventy two. So that's the most faithful to the text. It's also the stupidest in practice. Right, like it would mean that you would characterize somebody would live in one district for purposes of electing members of Congress, and they would live in another district for purpose of ballot initiatives.

0:20:30 Thomas: I see what you're saying, like, if you still respected those old lines, like, getting really literal or originalist, I guess, with it.

0:20:32 Andrew: Yeah. Right. Yeah? Yep. And that's the Maxwell dissent in this case. Right? It says, hey, district is defined by Mississippi law. Law. And by the way, remember that little fact I told you about how Mississippi never was able to agree on redefining those districts? So the law hasn't changed. Mississippi's statutory law still defines five congressional districts because, again, federal court had to come in and say, all right, we're drawing these districts for you. OK, so Maxwell says, look, we are enjoined by a federal court for purposes of sending representatives to the U.S. House. OK. But we can and use our statutory definition of five districts for other stuff that doesn't have to do with the federal government, including our requirements to amend the Constitution. And by the way, this remains 100 percent faithful to the probably racist intent behind the requirement in the first place.

0:20:40 Thomas: Oh, Yeah,

0:21:31 Andrew: Right. Like you still have to go statewide and geographically get a diverse bunch of signatures from across the state under this interpretation. OK, they rejected that bad argument. They rejected the argument that that, you know, is just hopelessly liberal that would say, yeah, let's read.

0:21:47 Thomas: Just re-divide a hundred thousand by four. I fixed it for you.

0:21:51 Andrew: Yeah, let'S blue pencil the exact numbers and say, all right, the legislature, when writing this, thought they would have five congressional districts forever. Oops. So just make it one over N where N is the number of congressional districts. So if it's five. It's 20 percent. If it drops down to four like it is now, it's 25 percent goes up to six. It would become 16.7 percent and so on. No, no justice of the Mississippi Supreme Court took that view.

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0:26:01 Andrew: If I were Supreme Court Justice Andrew Torrez, I would ask myself, how the hell did I get to Mississippi? No, of no offense, Morgan. They're there.

0:26:07 Thomas: Yeah, that means Morgan did one hell of a campaign for you or something. I don't know.

0:26:13 Andrew: She's she's she'S good. I don't know that she's that good, but no, there are many, many lovely and wonderful things about Mississippi, including our ace associate, but their Supreme Court is not one of them. Anyway, would just say plain reading of the text of this provision, Article 273, subsection three, delegates authority to the secretary of state to determine whether the petition qualifies for placement on the ballot. And that secretary of state is the person who ultimately has the authority to figure out the numbers, not the court, not whatever that person and their decision is unreviewable. And you don't like it. Amend the Constitution, change the law. Right. And by the way, there are good reasons not to like that. That puts a tremendous amount of power and discretion in the hands of, you know, of one particular state official. But it's better than what this insane court did, which was to say one fifth isn't ambiguous. So we don't get to interpret the text. One fifth means one fifth. And yes, it means that individuals cannot amend the Constitution by ballot initiative.

0:26:40 Thomas: Right. Oh,

0:27:27 Andrew: People can't do that now as a matter of law because of the procedural requirements written in by Mississippians who never, ever thought people would move out of Mississippi 50 years ago. And if you think I'm being hyperbolic, I will read you from the conclusion of page 18, which says Judge Chamberlain, one right, of the dissents, accuses us of disabling the Constitution, the very thing we all agree we have the duty of interpreting. We do no such thing. Drafted as it is, Section 273.3 disables itself in being unworkable with fewer than five congressional districts in Mississippi. So they agree. Their interpretation invalidates that provision of the Constitution.

0:28:06 Thomas: My God. Cool.

0:28:13 Andrew: Yeah. The dissent, by the way, points out that there have been constitutional amendments approved in Mississippi since 2002. Right.

0:28:21 Thomas: It's interesting. How did how did those work?

0:28:21 Andrew: Yeah, right. Right. No one challenged them and they have become law. They become part of the Constitution.

0:28:29 Thomas: So those aren't like mooted. You know, there's not like up undone. We just decided that you had to do it this way.

0:28:32 Andrew: Well, there is actually a section in this opinion anticipating that, right, going, oh, man, if we do that, then like the liberals are going to come back. And so it is a section on an affirmative defense called Laches, L-A-C-H-E-S.

0:28:40 Thomas: Yeah. I remember latches.

0:28:49 Andrew: And latches is you took too long to sue us. Therefore, you don't have the right to sue us anymore. And it says, hey, latches does not apply here because the anti weed folks were active, challenging this particular ballot initiative at every step of the way. Right. But if you were to then take this ruling and try and retroactively go back and find, you a 2007 constitutional amendment that you didn't like, the court is going to say, oh, yeah, well, latches for that one. So this decision will only apply to marijuana. On. And by the way, if you're asking the question, as I did, and another shout out to Morgan here for this, pointing me to the right section, remember that they did that kind of eeny, meeny, miny, moe thing, right? They're like, oh, do you want either of 65 or 65A?

0:28:55 Thomas: Yeah? Mm-hmm.

0:29:45 Andrew: Okay. And then you pick 65. Why wouldn't this make 65A the law, right, like there's no infirmity with the legislature, right? But there's built-in 273 subsection 7 says, if the legislature amends

0:30:01 Thomas: We win and you Lose. That's all it says. Does do you

0:30:05 Andrew: An initiative, the amended version and the original initiative shall be submitted to the electors. An initiative or legislative alternative must receive a majority of the votes thereon and not less than 40 percent of the total votes cast in order to be approved. And so yeah, 65A not only failed outright in comparison to 65, but it only received twenty six point three percent of the sixty eight and a half percent voting. Yeah. So that's 18 percent.

0:30:35 Thomas: Which Again If People Knew they were voting on whether or not to get that or nothing then It probably would add a different percentage Either

0:30:37 Andrew: Yeah. Yep. Well, there is a in the absence of this specific subsection, I would certainly make the argument. Right. 68 percent said we want either 65 or 65. Yeah, that's so OK. And by the way, either that's not me making that up. That's the language on the ballot. And so, OK, now we've invalidated 65. Let's have 65 a. But no, we're going to have nothing. Uh, and by the way, Mississippi will go back to voting for Republicans who disregard the will of 70% of, of the, the electorate

0:30:53 Thomas: Yeah Yep And Because This is entirely a state thingy. This is the end Of the line. Right There's

0:31:20 Andrew: And that exact, that's my next sentence in my notes. Yeah. If you thought the Supreme court might help you, a that's funny. Uh, I want to insert the Simpsons. Like I said, the law was powerless to help you, not to punish me. Right. I don't know that they would. And it doesn't matter because this is an internal issue of purely Mississippi state constitutional law. So there's no federal issue, even though, right, there is that federal connection to the congressional districts. But it has nothing to do with sending representatives out of Mississippi. So So there's no federal interest. There's no constitutional provision to be interpreted. This is the end of the line. It's ridiculous and insane. And it is one I think we've shown. But, you know, somebody wants to write in and disagree. I'm happy to take that on that. This is 100 percent the result of motivated reasoning to

0:31:21 Thomas: No, yeah Yeah Well Aka

0:32:15 Andrew: Get that. Yep.

0:32:15 Thomas: Originalism Or textualism. Same Thing. I Mean, this is absurd that you could, I know you already went over this, but you could have even said, Okay, treat, treat it the same. So like, go back to those imaginary lines when we had five districts and still require that, you know, you get signatures from those places, you know, like that could have been a way to go. You're like, yeah, you still got to make sure you have 20,000 from this place. That And would have been a perfectly textualist originalist way to do it, right?

0:32:17 Andrew: Yep. Exactly right. Yep, yep. That the. Yep, and that is, is the Maxwell dissent, and that is it, basically the the Gorsuch right originalism means the definition of the word.

0:32:47 Thomas: Yeah. The intent was to make even on an originalist level, the intent was to make sure you have people from different parts of the state, right? That's what we're doing, going here, okay,

0:32:56 Andrew: Well, not that's not quite originalism would say the word means what the word meant at the time that it was written. And district at the time that it was written meant those five congressional districts. Yeah. And you can see. Right, that's why you would say one fifth. And we know they didn't think about the districts changing, because think if it had gone the other way, if right, a bunch of people had moved into Mississippi and they gained a congressional district, well, now you could game the system, right, like you could get 20 percent from five congressional districts and completely leave one out of the of the process altogether, um, and that would be just as offensive yeah

0:33:07 Thomas: Sure yeah yeah yeah it's just so absurd the idea that like you have a right as a citizen of Mississippi to vote in an amendment to the Constitution unless someone made a silly like typo yeah, and I was gonna say math there but it's not exactly that it's more it's yeah, it's more like a just a, instead it's like an Excel, when you accidentally, more Excel for you, Excel lovers.

0:33:48 Andrew: Math error, yeah it isn't yeah yeah, oh

0:34:00 Thomas: You hard-coded the fraction instead of just doing a cell reference to like, here's the cell that will have whatever the number of districts is, and we'll just cell reference that. Whoops, you accidentally typed in five instead of doing that.

0:33:59 Andrew: Yeah I yeah that's exactly, I was gonna say, are you making the difference between the cell reference and the like dollar sign so but no, yours is yours, is better no, that, that's, that's right, it is the difference between a typing in the variable versus having it be a formula he

0:34:17 Thomas: The absolute reference? No? Yeah. Yeah. So it's not exactly math there. So the idea that we should should interpret the law such that if someone does that Excel thingy I just described, then citizens don't have rights for 20 years until they or like have to fix them. It's garbage. Like it's nonsense.

0:34:37 Andrew: Yep it is insane, it is the equivalent of reading the Constitution's provision requirement that the president be 35 years of age and then say, okay, if we cryogenically freeze a baby for 35 years, right, Right, like that would 100 percent make that baby eligible to be president. And so

0:34:55 Thomas: Yeah. I don't see why it's any different. Yeah, let's vote that baby in there. Damn it. I think that baby's got some some good ideas.

0:35:06 Andrew: Unfrozen baby 2028.

0:35:09 Thomas: Do you even have to unfreeze it? I don't know. It's unclear.

0:35:09 Andrew: There we go. Yeah, that's right.

0:35:12 Thomas: The law doesn't say a dog can't, a frozen baby can't be present.

0:35:13 Andrew: It could be. It does. There's the law doesn't say a frozen baby can't be president there you go. So. All right. I think we have the show title. The law doesn't say that unfroze baby can'T be president there you go yep

0:35:21 Thomas: Yeah. Oh, wow. This is, okay, here, my final question was going to be, how are Mississippi Supreme Court justices, are they appointed? Are they elected? Is there any recourse?

0:35:36 Andrew: The system that Mississippi has. Right. Vacancies are appointed by the governor after a particular term in office. They have to stand for a nonpartisan reelection in which, as far as I can tell, the incumbents pretty much always win. In. And adding top of that, elections are staggered, right, so that the whole court is never up at the same time. So they serve eight-year terms, one chief justice, two presiding justices, and six associate justices. Of the current makeup of the court, three of the nine nine justices were elected and six were appointed by various Republican governors.

0:35:47 Thomas: Yeah.

0:36:19 Thomas: Can we do a recall? Can we do anything? Can the citizens do anything here?

0:36:24 Andrew: Nope.

0:36:24 Thomas: No. Okay. Okay, next question. What about the actual fix for this? Maybe you already said it, but is this a legislative fix or is this something I mean, again, it's such a pain in the ass. It's so hard to whip up signatures to be like, okay, I know we just got all your signatures for medical marijuana and that didn't happen. Okay, we got to get a signature to make five equal four. Everybody, sign here if five equals four.

0:36:52 Andrew: So so here's The Thing. And I love that we're going to end the segment on this because it is it is exactly the right question. This is the Supreme Court of Mississippi, beyond which there There is no appeal interpreting a provision of the state constitution of Mississippi, Section 273, which you cannot change other than by changing the constitution. Right. And so since this completely eliminates the ability for citizens to change their constitution by initiative, they can't do anything with respect to this opinion except tell their legislatures. Tell their legislators, we want you to change 273.3 to have it be a sensible system that enables people to bring as a ballot initiative amendments to the Constitution. And we're going to vote you out unless you do. And that involves you as a if you're an OA listener in Mississippi

0:37:16 Thomas: Oh my God.

0:37:53 Thomas: I mean good luck. I assume if you're an OA listener in Mississippi, you've already been trying to vote out these people this whole time. And

0:37:57 Andrew: Yeah, but but seriously, talk to your friends and family and convince them to become single issue voters on this, because if you are not. And again, I think we have a longstanding history that we would.

0:38:11 Thomas: By the way, hold on, not single issue voter on marijuana, by the way, single issue, voter on, should you have democratic rights in your own state? Like, should have any right to have a vote, have a voice in your own state? Yeah.

0:38:14 Andrew: No, no, no. On amending. Yeah? Yeah. To to amend the Constitution. Right. Right. The the Supreme Court, the unelected Supreme Court just said you cannot bring a petition to change the Constitution if you're a person. And look, And I have evidence in the next segment that if this had been the other way, if this Had been a, you know, massive, crazy open carry amendment to the Constitution.

0:38:33 Thomas: Unbelievable.

0:38:44 Thomas: Oh yeah. Of course.

0:38:45 Andrew: Right. That says 12 year olds get the right to carry bazookas in public. We would be just as strongly against it. We even say, hey, good, good result. Don't want 12 year old's carrying bazooka is even in Mississippi. But we would be justice strongly against against it district.

0:38:47 Thomas: Yeah.

0:39:01 Thomas: You'd be like, we got 20,000 signatures in one, district. Oh, close enough. That's fine. We looked at justices. Yeah, one district. It doesn't matter. Math. What's math? They would have allowed it.

0:39:10 Andrew: But I mean, you know, the principle with here is, is your government accountable? And now the only way to make them accountable is is indirectly. And and that means Republicans have to be willing to vote against Republicans, even when they get on TV and go, well, you know, well, my opponent is, you pro-choice and pro-gay rights and, you know, all the hot button issues like you got to convince your Uncle Frank like, yeah, yeah.

0:39:33 Thomas: The Oh, sweet cinnamon bun, Andrew. They're just going to get on TV and say Donald Trump won the election. And that's the only hot button issue that even met.

0:39:40 Andrew: Well, well that's true too. But but there there We have it. Republicans have prevented people from being able to change the the Constitution in the state of Mississippi on the basis of the stupidest possible interpretation of a 1972 amendment that thought people would never leave the state of Mississippi. That's where we are. That is how we got here.

0:39:44 Thomas: They are This episode is brought to you by Xchair, folks. I love my Xchair. And what's funny is I'm literally telling you about the thing I'm using as I'm right now, as we speak. I record every OA from my X chair. I love it. I've never had an office chair that looks and feels this amazing in my entire life. It's so comfy that I can sit for hours and I never feel uncomfortable, which is very important to my career. And with more people working from home than ever, I suspect it's very important for you folks as well. The secret is not only their patented dynamic variable lumbar DVL support, which offers unbelievable lumbars support to my lower back, but now, thanks to their new XHMT technology, I can also get heat and massage therapy while I'm sitting at my desk. Instead of my old uncomfortable office chair, now I look forward to spending hours sitting in the ultimate therapeutic massager. The X-HMT delivers heat and massage technology right to my core, helping increase blood flow, muscle recovery, and energy.

0:41:08 Thomas: Perks that make working from home or the office a joy. It even has four different massage modes and fast-warming heat technology for therapy when I'm sore. You won't believe the X-chair difference until you feel the X chair difference for yourself. Trust me, this is a luxury supercar of office chairs. The X-Chair is on sale now for $100 off. Go to xchairoa.com now. That's the letter X, chair, the letters O and A, dot com, or call 1-844-4X-CHAIR. X-Chair has a 30-day guarantee of complete comfort, and you can finance your purchase for as little as $30 a month. Go to xchairoa.com now and use code X-Wheels for free X-Wheel Blade casters. XChairOA.com. One more time, XChairOA.com.

0:41:59 Clip: Andrew Torrez is correct. The best kind of correct. Andrew Torrez. You were right. Tell your sister. You were right.

0:42:16 Thomas: Okay. To cheer us up a little bit, let's talk about why Why you were super right about every single thing, huh? It's not going to cheer us up, is it? It's Not Going To, is It?

0:42:20 Andrew: Yeah, this cheers me up, but only me. So, as you and I talked about right before the recording, did a guest spot on Scathing Atheist. I did a segment on Clean Up on It All 45 about the big headline news the Supreme Court granting certiorari in the case of Dobbs v. Jackson Women's Health Organization. What that means in terms of is the Supreme court going to be overturning Roe v. Wade in this term or realistically in the spring of 2022. Go listen to those shows They're good shows.

But you listen to opening arguments to know all of the reasons behind that. Right. So I got two promises for you. The first is I am I have a deep dive on Griswold versus Connecticut planned. That is the real deal. We should not be saying this is going to overturn Roe. Roe already got overturned effectively 30 years ago. Right? What this will do is overturn Griswold versus Connecticut. And I'm going to tell you exactly how terrifying that is probably in a week and a half. OK, So put a pin in that one. But also have the the longstanding stare decisis argument. Hey, look, you liberals were all up in arms in the 1990s and Planned Parenthood versus Casey came down. And, yeah, you know, change the the rules somewhat. But but it reaffirmed the central holding of Roe. And, that's going to happen again.

0:43:14 Thomas: Yeah, that's true. There is no Roe.

0:43:27 Thomas: Oh.

0:43:47 Thomas: Yeah, right, except that people can't get abortions in the South. Like, there's, like, one clinic for a billion miles because of that decision, you know? I mean, that- that's not- nothing happened.

0:43:48 Andrew: Yeah, well, oh, yeah. And that's not but that's not good enough for right wing activists. So I'm going to tell you about the other decision that slipped below the radar that that actually came out this week. And that was the Supreme Court's 5-4 decision in Edwards versus Vinoy. This, by the way, is a follow up to two things that we talked about previously on opening arguments. So the first is, I have been telling you since Brett Kavanaugh was nominated to the Supreme Court that he was a particular danger to stare decisis. You can hear me debate Kavanaugh clerk and now D.C. Circuit Court Judge Justin Walker in episode 224. And in particular, I want you to go back and listen to that. I did to pull out the exchange in which I laid out the facts as to how Brett Kavanaugh's judicial temperament, his his originalism would lead at the Supreme Court level to an utter disregard for prior precedent and a willingness to just write on a complete slate to reach the right wing result that everybody wanting him on the court was hoping he would reach.

That was backed up by comments that Justin Walker made when he was on Fox News, as opposed to, you know, in a room full of folks that were, you know, ostensibly neutral. Justin Walker's reaction to that was to laugh and to say, "Brett Kavanaugh wrote a 900 page book called The Importance of Judicial Precedent.

0:44:01 Thomas: Yeah.

0:44:36 Thomas: Oh, my God.

0:45:24 Andrew: We're going to be fine." And I came back to say, that book, he's cited, Kavanaugh wrote a chapter, not the whole 900 pages. And critically, that was dealing with vertical precedent, right? How a lower court interprets prior Supreme Court precedent, not the Supreme Court interpreting its own prior precedents, right? And that's a huge difference, right? ? Like, yeah, when when you're a lower lower court and you are trying to figure out how to do what the Supreme Court says you must do, that's very different than being on the Supreme Court and going, "Hey, did we get this right last year, 50 years ago, 200 years ago?" So right, I have talked a lot about Janus versus AFSCME. That was an Alito opinion in which Kavanaugh joined in the court's reversal of 50 year old case, case called Abood, that was precedent just because they thought that was wrong.

0:46:18 Andrew: This is another, far worse, far more damning. This is going to replace Janus vs. AFSCME as my go-to case, although likely I'm going to use them in concert. So what happened? We want to start with last year's opinion in a case called Ramos vs. Louisiana that we covered on Opening Arguments episode 380. That was an incorporation case. OK. And it was the second time the Supreme Court was asked whether the Sixth Amendment's protection of a right to a jury trial was incorporated out to the states and in particular to deal with the incongruity that in federal court, a jury verdict to convict a criminal defendant must be unanimous, whereas in some states you could have just a majority, or usually a supermajority, right?

0:47:16 Andrew: And the Supreme Court in that case said, no, the Sixth Amendment is incorporated to the states and it means going forward that you cannot convict people. And it overturned Ramos's conviction. Fiction. Parenthetical, it just says he was convicted of a, quote, serious crime. It doesn't say what that crime was, but he was sentenced to life imprisonment without parole. So

0:47:38 Thomas: It's- one of those, like- prank crimes. Like, practical- it was a serious one. It wasn't, it wasn't a whoopee cushion or anything like that. Okay.

0:47:39 Andrew: Yeah. Yeah, right. It's serious crime, right? And we said two things about this case. We said, number one, it was a really good result. And number two, that it presented a starry decisis trap and that that starry decisis trap led to the incredibly odd alignment in that case, which was back when Ginsburg was on, was was on the court, which was a 6-3 with Roberts, Alito, and Sotomayor in dissent. Right? Alito in dissent because, you know, criminals have no rights. Roberts in dissent

0:48:16 Thomas: Alito's Descented. Execute him. What was the question? I don't remember. Whatever.

0:48:19 Andrew: Right. And Sotomayor trying to avoid the trap. And let me explain. Go back and listen to that episode. But but here is the basis for that. I said this was the second time the Supreme Court considered the question of whether the Sixth Amendment was incorporated in the states. The first time came up in a pair of cases called Apodaca versus Oregon and Johnson versus Louisiana. And those cases, the court split 4-4-1. So four justices in dissent said, yes, this is incorporated to the states. Four that became the governing plurality opinion says that it's not. Not. Their basis was whether unanimity served an important function in contemporary society. And they said, yeah, we're not so convinced that that's all that important. So we don't think that this is incorporated out to the states. And then there was Lewis Powell, who agreed that as a matter of history and precedent, the Sixth Amendment requires a unanimous verdict. But then said, Yeah, but I'm pretty sure this guy was guilty anyway. So I am concurring in the judgment. And this is literally what it says. I am concuring in the judgment. Right. But not adopting the majority opinion.

0:48:48 Thomas: Huh. Huh.

0:49:34 Andrew: As you can see, that's not a great. My notes here just say those cases suck. And and like as a as a legal matter, like that's that's the precise terminology that I would say here. Right? Like these are not well-reasoned cases. And so there's a very easy way sort of out of the stare decisis trap. Right, like you just say hey, under the Planned Parenthood versus Casey test, like these were a badly fractured set of opinions. There's been no reliance interest on it. Right. Like you would apply all of the standard tests and go, yeah, we just got it wrong by cobbling together, you know, kind of crazy majority in those cases. That's not what happened in the 2020 Ramos decision. Of course it did. In fact, Right? The stare decisis part was written by Neil Gorsuch, who doesn't care about stare decisis, and the stare decisis part of the opinion was joined only by Ginsburg and Breyer. Right. So, yeah, majority opinion was fractured there.

0:49:46 Thomas: Yeah.

0:50:33 Andrew: And we said, look, is to pose a difficulty for those liberal justices, including Elena Kagan, who voted with the majority in Ramos when the Supreme Court uses this hammer approach to ignoring past precedent in future cases. So now with that in background, you know where this is going. But fast forward to today. So talked about the rule of standing. Ramos Right. Challenged his conviction that threw it out and it set the law going forward that nobody can be convicted non-unanimously. But, you might ask yourself, what about people who were convicted right around the same time as Ramos by the same 10 to 2 jury verdicts, right, in states that permitted non-unanimous convictions for serious crimes? You can see, if you're talking about a properly functioning court, How this is a hard case. And I mean that in the constitutional sense, right. Right. You have two competing interests here that both seem to make a lot of sense. The Right.

First is the notion of rule of law that says, hey, OK, if you're announcing a new procedural rule where there was nothing that applies prospectively, but not retroactively. Right. Know, now everybody knows this is the case and we can follow the rules, but we're not going to go back and undo history. But on the other hand, there's that. So that's one interpretation. But there's... there's a competing interpretation.

0:51:14 Thomas: Already.

0:52:00 Andrew: And that says, but if we're talking about basic fundamental rights and you're replacing a screw up with the appropriate interpretation as applied to guilt or innocence, right, to basic.

0:52:08 Thomas: Yeah. Very important question.

0:52:14 Andrew: Yeah. Then you get what the Supreme Court called a watershed opinion. That's their words, not mine. And it's from a case called Teague versus Lane. And it says, yeah, so the general rule, the way we're going to square the circle is most new rules don't apply retroactively. They only apply prospectively. If it's watershed opinion, it applies retroactively as well. And again, as you might imagine, the use of the word watershed, that means they're super rare. So that's how this case was briefed, Edwards right? Was a guy convicted before Ramos in Louisiana, which also had non-unanimous verdicts. He was convicted by a 10 to 2 verdict of armed robbery, rape, and kidnapping, right? So serious, serious crimes. And he said, Ramos is a watershed opinion under Teague versus Lane, and therefore my conviction should be vacated.

0:53:06 Andrew: And the state of Louisiana said, nope, Rmos isn't a watershed opinion under Teague versus Lane. So don't vacate his conviction. What do you think the Supreme Court did?

0:53:15 Thomas: I'm gonna say they probably said, um, whatever would keep the criminal in jail in their eyes, especially Alito's eyes. That's

0:53:21 Andrew: Yeah, no worse than that. So Right. The way to do that is to agree with the state of Louisiana in its pleadings and go Ramos is not watershed under the Teague vs. Lane rule.

0:53:33 Thomas: What I would have guessed.

0:53:34 Andrew: That's the the merely evil, but not.

0:53:35 Thomas: I was gonna say we're not thinking evil enough. Wow.

0:53:37 Andrew: Well, no, because I predicted this back in episode 380. Justice Kavanaugh said Teague versus Lane is no longer good law. There's no such thing as a watershed opinion. Nothing will ever apply retroactively ever again. And by the way, Neil Gorsuch wrote a separate concurrence to say, yeah, stare decisis means means nothing at a boy, Brett. I'm paraphrasing.

0:53:59 Thomas: So Basically they're like, not only no, but hell, hell no, and never.

0:54:03 Andrew: And not only no, but hell no and never. And they imposed a remedy that was not relief requested by either of the parties. Like we've talked about the increasing number of cases, particularly in these abortion rights cases, that will say, right, questions presented to the court. Number one, whether the Supreme Court should overrule its prior precedence in Roe v. Wade and Planned Parenthood versus Casey, semicolon, or number two, if there's still good law, whether this constitutes an undue burden or not. Louisiana did not ask for Teague v. Lane to be overturned. They just said, yeah, obviously that's the law.

0:54:26 Thomas: Yeah. Yeah, conservative activism. They just seem to rewrite the law however they want to in interpretation when they weren't even being asked to do that.

0:54:48 Andrew: Yep. And so after documenting what a travesty this opinion is, as Elena Kagan's dissent ends with, the majority imposes a steep price for overruling Apodaca in Ramos. That was the 2020 opinion that I called the stare decisis trap. Taking with one hand what it gave with the other, the court curtails Ramos's effects by expunging Teague's provision for watershed rules. And so, too, the Court limits the consequences of any similarly fundamental change in criminal procedure that may emerge in the future. For the first time in many decades, since long before Teague, those convicted under rules found not to produce fair and reliable verdicts will be left without recourse in federal courts. Now, reading that dissent, the majority comes back and goes, yeah, but you fell into our trap.

0:55:34 Andrew: Page 19 of the opinion. With respect, Justice Kagan dissented in Ramos. To be sure, the dissent's position on the jury unanimity rule in Rados was perfectly legitimate, as is the dissents position on retroactivity in in today's case. And it is, of course, fair for a dissent to vigorously critique the court's analysis. But it is another thing altogether to dissent in Ramos and then turn around and impugn today's majority for supposedly shortchanging criminal defendants. To properly assess the implications for criminal defendants, one should assess the applications of both cases together. And criminal defendants as a whole are better off under Ramos in today'S decision, taken together, than they would have been if Justice Kagan's dissenting view had prevailed in Ramos. If her view had prevailed, no defendant would ever be entitled to the jury unanimity right, not on collateral review, not a direct review and not in the future.

0:56:22 Andrew: By contrast, under the court's holdings of Ramos in this case, criminal defendants whose cases are still on direct review or whose cases arise in the feature will have the benefit of the rule announced in Ramos." I could go on, but you see the springing of the trap. Look, gave we you this thing, we changed it. And now we're going to use that to foreclose a much bigger right.

0:56:43 Thomas: Yeah you would have to evaluate the chances of anyone in the future ever getting some relief when there's a watershed change, right? Which you can't, it's hard to do. That can you

0:56:52 Andrew: Yep. Yep, exactly right. And it muddles. We've been talking about this, right? It's part of why I have tried to be a consistent voice on this. I'm proud of what we've said. It muddles the argument against originalism. Right. Because you can come back and say, oh, yeah, Justice Kagan, who are you to say that we reached this terrible result? You would have let Ramos rot away in jail.

0:57:18 Thomas: Quick reminder why she she would have. Was that a stare decisis thing for her? Okay, gotcha. Is really bad. It sounds like to sum up, this is very bad.

0:57:21 Andrew: Yep, exactly. Yep. And and this goes to show that this court not only has no regard for the value of precedent, they've said so over and over again, but they now have no constraint, even in cases where they're not explicitly asked to overrule prior precedent. It is staggering. And my belief is that future law students will will look back and will learn about Edwards versus Vinoy as being, you know, we did a Supreme Court Hall of Shame. I think in 50 years this will show up on the Hall of Shame. It is a naked power grab to right wing judicial activism. And it is part of the coordinated effort for everything we told you about that's coming.

0:58:18 Andrew: So what's coming next? Chevron. Right, deference is about to be gone. You knew that, go back and look in the archives. All of the procedural protections that we think of as constraining the power of the Supreme Court to just do unmitigated evil are are being systematically broken down. It's real bad. This is an emergency.

0:58:38 Thomas: It's not good. Yeah. I'm very

0:58:40 Andrew: Yeah. All

0:58:41 Thomas: Negatron about the future of this country right now, but we'll have to leave that to a future debate.

0:58:47 Clip: And thank you, Let's go!

0:58:49 Thomas: Now it's time to thank our new patrons at patreon.com/law. By the way, Law'd Awful Movies, the trial of Chicago 7 with Heath was so so much fun. It's already out. Get on that. It was a ton of fun. I love that one. Always learned so much. I wanted to make sure because I know we got a lot of Sorkin fans and I'm not a SorkIN fan. I had Heath on as a SORKIN fan to try to balance it out. So don't worry. We'll just be, you Know, it's a little, a little fair and balanced like Fox News isn't. So I always

0:59:17 Andrew: It was a good one. I had a lot of fun doing that, and it was one of those that I think did a nice job of kind of straddling, you know, had a lotta good jokes, a lotta, you know, Heath Enwright humor, Thomas Smith humor to it, but also we talked about a lotta legal stuff, so it's a good ones.

0:59:34 Thomas: Love those. I've learned so much from, from a lot off movies in all seriousness. So So check that out and let's thank our new patrons. Your turn first, Andrew.

0:59:34 Andrew: Oh, you to the Comedy Think Tanked podcast. We talk to comedians so you don't have to. Find us at comedy think tanks, tanked, T-A-N-K-E-D, all one word, dot com. Yeah, check them out. Christina Hill, Joseph Olmstead, Lorrie Klossner, Sarah Elizabeth, hermano arruda, Meadhands, Alex and Roger can't think of a good name, well, that was, that was a good one, and Alex Jones's vengeful ghost. So, uh, hey, Alex jones is vengeful ghost, if you're not listening to a Knowledge Fight, you'll love those guys over there, thank you all so much for, uh, for supporting the show. Take it away, Thomas.

0:59:48 Thomas: And Thank you to Kevin Johnson. And this next one, I don't know if this has ever happened to Andrew, but this is a prison rape joke and I'm not going to read it. So no patron rethink your patron name. That's something I won't read. Not into that. Nathan Panuco, Matt Dunlap, long time listener, but finally finished my PhD and can finally contribute until the government wants their money back at least. Ian Holm. All right, we got Ian Holm. Yes. Seems impossible, but yeah, there you go. Mr. Bob Ross and Bob Ross. Oh my God. Ian Holm, Bob Ross in the same patron batch. Did we open up a portal to heaven? Is that what happened? Happened. Next, what's her face? Yeah, what her face too. Wow.

1:01:04 Andrew: I love her in that thing she did.

1:01:07 Thomas: What her face is... In the Smith household, what their face and what's his face are a lot of people because I know everybody but can't remember names like when it comes to actors. I'm like, oh yeah, that's what's his face. That's what her face. So that's a lot of people. Joshua T Knights and Cole. Thank you so much for pledging. We hope you enjoy the goodies, the Law'd Awful Movies, all the perks.

1:01:26 Andrew: And one more perk, as we, uh, have mentioned, this week was insane, so if you are a patron at any level, you get Miss Ashley's Stories in the News that didn't quite make the show. We got 11 pages of notes and links. It is fantastic. It covers a lot of the stories that I read, and I know you will want to follow along with, and, you know, sort of see our thought process. So a lot of folks have been enjoying the Miss Ashley's, and check it out. This week's a good one for it.

1:01:55 Clip: Oh, no associate of this firm has ever failed the bar exam. No kidding.

1:02:01 Thomas: All right. Let's cheer ourselves up with a little T3BE. Thomas takes the coin exam Thomas and the coin here we go

1:02:08 Andrew: So this week's question: An attempt was made to hijack a commercial airliner while it was in flight from San Francisco to New Orleans. Within minutes, however, yeah, the hijacker was seized, and the plane proceeded to its destination. Get off my plane.

1:02:17 Thomas: Ford movie is the question this week. Okay. Yeah.

1:02:26 Andrew: Upon the plane's arrival, television stations broadcast pictures of the passengers as they disembarked. Among the passengers pictured on television was a businessman who was supposed to be in Chicago on company business. The disclosure that

1:02:41 Thomas: This was just just Tom and or Cecil who got caught in the crossfire here.

1:02:43 Andrew: The businessman was in New Orleans and not Chicago at the time resulted in the loss of his position with the company and great humiliation and embarrassment to him. If the businessman asserts a claim against the television stations for broadcasting his picture as he disembarked, is he likely to prevail? So, a, yes, because Tom's location was revealed against his wishes. B, yes, because publication of the television pictures caused Tom's pecuniary loss. C, no, because the humiliation and embarrassment did not result in physical harm to Tom. Or D, no because the scene shown on television was newsworthy.

1:03:06 Thomas: Wow. I already with a no answer. I mean, come on. Really? All right. Tom just want to go party in New Orleans. Big deal. Come on. I this seems so straightforward that I'm nervous, you know, like this. I, I don't.

1:03:39 Andrew: I know, those are, those are the scariest.

1:03:41 Thomas: Yeah. I mean, it's the news. There's... there's no way that the news should be like, well, you know, when we're filming a hijacked plane's arrival, like major, major news, we better make sure none of the people there are businessmen that need to be in a different place. I mean, this seems very straightforward, but I'm so worried because, you tests have been so porked, but, I think it would be very devastating if I didn't go with the straightforward answer and then it was the straightforward answer in this case, so, if this is a trick, I will just be tricked, it's a trick or treat and I choose trick.

1:04:19 Andrew: Okay.

1:04:20 Thomas: And I might be tricked and that's fine, this, seems absurd, like, the idea, here, I'll try to see if there's anything other than the obvious D, no, because the scene shown on television was newsworthy. I'll try to see if there's anything in here. Okay. Asserts claim against the television stations for broadcasting his picture as he disembarks. Is he likely to prevail? A because Yes, because the businessman's location was revealed against his wishes. I mean, wouldn't this be a constant thing?

I mean they do kind of blur out, you know, I guess the only argument would be like the news does tend to blur out faces in, well, no, not really. I mean whenever you got the news guy or whoever, the news anchor, out there in front of the ball game or whatever, you knows, whatever it is, whatever the event, they don't blur out everybody's faces.

I mean, sometimes they do blur out certain faces if they did something, you, I'm trying to think, just going, I don't watch a lot of local news because it's boring, so, but okay, B, yes, because the publication of the television pictures caused the businessman pecuniary loss, um, I guess B is better than A because under A you would just sue for like revealing my location which I don't think is good, so if I were to entertain the idea of another answer it would be B, I guess, C, no, because the humiliation and embarrassment did not result in physical harm, now that seems, I don't, that seems weird, so not C or D, no, because the scene shown on television was newsworthy, which is a very straightforward answer, but for the sake of the coin, I still need to eliminate, you know, and go with a second chance.

1:05:54 Thomas: So I'm going to say it's between B and D, and I've got to choose D. I just can't see an argument for like, no, you can't film the hijacking, you because somebody might be seen in a place they're not supposed to be. I, I'm got to go with D, the scene is newsworthy. Let's see if the coin agrees with Wow, the coin, it's tails, and the coin disagrees. So this is going to be diabolical if the coin gets this one right and says, and B is right, but I am going with D. The coin goes with B. Let's see what everybody else online says.

1:06:29 Andrew: Well, You heard that, you can pick Thomas, you can pick the coin, you could pick either of the answers they didn't go with, although you know, Thomas's second chance law firm has, uh, has a pretty good track record on, uh, on narrowing it down, but, you know, how to do that, just share it, this episode on social media, include the hashtag T3BE, include your reason and your answers, and we will pick a winner and share them out on the next show, and, and give them never-ending fame and fortune. Fame and fortune, not guaranteed.

1:06:35 Thomas: And And that's our show. Thanks so much for listening. We've got an action-packed show coming for you on Tuesday. So make sure to tune into that, and we'll see you then.

1:07:04 Clip: I move for a bad court thingy. You mean a mistrial? Yeah, that's why you're the judge and I'm the law talking guy.

1:07:38 Clip: www.openargs.com. Be sure to join the Facebook group at facebook.com/groups/Yodel Mountain and follow us on Twitter at OpenArgs. This podcast is a production of Opening Arguments Media LLC, all rights reserved. It is produced with the assistance of transcriptionist Heather Leverage, production assistant Ashley Smith, and additional contributions from Morgan Stringer and Debra Smith. Special thanks to Teresa Gomez, who runs our live shows and heads up the OA Wiki, follow at OA Wiki on Twitter. Additional thanks to the moderators of the Opening Arguments Facebook community, Emily Waters, Alicia Cook, Eric Brewer, Natalie Newell, Brian Ziegenhagen, and Teresa. And finally, thanks to Thomas Smith, who edits the show and created the fabulous theme music, which was used with permission.