OA658: Judge Slams Kari Lake Legal Team for "false, misleading, and unsupported" Claims

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 658. I'm Thomas. Just a guy. That's Andrew Torres, lawyer. How you doing, Andrew.

0:01:26 Andrew: I'm great, Thomas. How are you?

0:01:27 Thomas: I am doing well because we are joined by a guest, Liz Dye, back on the show. How's it going, Liz?

0:01:33 Liz: Hey, guys.

0:01:33 Thomas: We're excited to have you, as always. Let's just jump right into it. What do we have today? What's

0:01:37 Liz: Okay. So let's talk about Carrie Lake, the former gubernatorial candidate. Well, she thinks she's still a candidate, but she is not because she lost, um, in the race to be governor in Arizona.

0:01:48 Andrew: Do Republicans lose anymore?

0:01:50 Thomas: Jeez.

0:01:50 Liz: No, they just never lose. They just sue until, you know, until they die. Um. But she is well alive and continuing to sue, but that's not, that's not where we're going to start. We're going start back in the summer, back in March, actually in the spring, we're gonna start at a rally for her, for Carrie Lake, which was headlined by Mike Lindell, the pillow weirdo, in which he promised to file a class action lawsuit against all the machines, like literally all the machine. He said, I have lawyers worked on this for five months. We are getting county commissioners, county clerks, they're all plaintiffs, and we've already got about 300 on board, and were gonna get get rid of these machines once and for all for any election in history. What?

0:02:29 Andrew: Got it. So, reading from the script for Terminator. Good.

0:02:32 Liz: Right. So look, that's actually not what happened, if you can even believe it. I know that guy overpromised. It's astonishing. But what happened is that Lindell Bankel, the lawsuit filed just by Lake and this QAnon Oathkeeper weirdo, Mark Fincham, who was running for Arizona Secretary of State. And in April, they filed a complaint against the current Secretary of state, Katie Hobbs, who was also running for governor, plus various election officials in Maricopa and Pima counties seeking an injunction banning the use of electronic voting machines and vote tabulators. If successful, this would have forced a state with seven and a quarter million people to hand count dozens of races.

And by the way, these weirdos wanted every vote counted on camera. So that was going to be a hot, hot mess. Right. So Lindell brought his regular team of lawyers years along for this ride, because like, he doesn't have that many people willing to file crazy shit like this. So that would be a Minnesota attorney named Andrew Parker, who's also barred in Arizona. Kurt Olson, a MAGA lawyer whose greatest hits include Texas AG Ken Paxton's Supreme Court clown suit to throw out the electoral votes from all the swing states.

0:02:35 Andrew: Yeah. Oh,

0:03:16 Thomas: Yeah.

0:03:38 Liz: And yeah, memories. And as the January 6th committee revealed, Olson also waged a pressure campaign to get the Justice Department to file a similar bogus suit.

0:03:39 Andrew: God, that was Was He the one who drafted the complaint that was sent, uh, to the, uh, acting attorney general?

0:03:55 Liz: I am not sure if he was the one who drafted it. That was, I think that might've been this guy named Lawrence Joseph, but Olson definitely was the one who like spammed everybody at the DOJ with emails in, late in 2020, trying to get them to sign onto this garbage suit And joining these two winners is, drumroll please, Alan Dershowitz, the Harvard law professor who definitely for 100% sure kept his panties on when he got a massage at Jeffrey Epstein's house.

0:03:57 Andrew: Right. Right. Sorry.

0:04:18 Thomas: He did not inhale his underwear or

0:04:23 Liz: Right. So Captain Underpants signed on to this and also that these three geniuses signed on to that lawsuit suing Merrick Garland for executing a warrant to seize the pillow nuts phone at the Hardee's drive-thru in Minnesota. So good luck, fellas.

0:04:35 Thomas: Just doing a mad lib at this point you're juste doing a mad lip, there's no, I I need

0:04:36 Andrew: Alan

0:04:38 Liz: It's so ridiculous. Like Like every day I cover this stuff and I'm like, how is this real? How is this my life? But, and

0:04:43 Thomas: A fast food restaurant a weird infomercial and like, come on, and a verb and, yeah, I

0:04:49 Liz: Alan Dershowitz, you need Alan Dershowitz, right?

0:04:50 Andrew: Dershowitz.

0:04:53 Liz: Plus Captain Underpants. Okay, so don't faint, but there were one or two teensy problems with this lawsuit. First, the plaintiffs took almost three weeks to serve their defendants, which isn't that big a deal, but it's not exactly indicative. This is like an emergency that the court needs to address ASAP. Then, Team Derp waited another whole month to file a motion for preliminary injunction demanding that the state conduct a midterm election using paper ballots tabulated by hand. So the primary in Arizona was August 2nd, and these yutzes waltzed into court six weeks before and demanded that the entire voting system be uprooted. So they were already going to like piss off the judge, but

0:04:51 Thomas: Feel

0:05:29 Andrew: Yeah,

0:05:30 Liz: Also, there were some major defects in the complaint itself, starting with the premise that they needed to enjoin the state from using electronic voting machines to ensure that there would be an auditable paper. Both the complaint and the motion for an injunction regurgitate all of these, like, widely discredited claims about voting machines in the 2020 being at least vulnerable and probably hacked. But in point of fact, nobody in Arizona casts a ballot electronically.

0:05:54 Andrew: Right.

0:05:54 Liz: Everyone uses a paper ballot. Remember the whole Sharpie gate thing with the pens? They weren't using those pens on the computer. They were using them on the paper ballots. Even people with disabilities who have machine accommodations get a paper ballot generated for them.

0:05:58 Andrew: Yep.

0:06:09 Thomas: Like the My Pillow guy probably used a pen on the computer screen, I was like, I don't understand, how do I undo this, ballot, it seems to be stuck on there. Look,

0:06:16 Liz: Yeah. He probably autographed it with a little code for a discount.

0:06:20 Thomas: I, I know this is all nonsense, but like, what even is the pretend justification for being able to do this, is it like, don't we, sue to not have them, let them use voting machines because they would hurt our feelings and we don't want them, like, what is the even reason that they come up with? So

0:06:36 Liz: Well, They had all of these gobs. I mean, look, it was crap, right? But their theories were that it was a violation of federal law to have these supposedly insecure voting machines and that it violated their due process rights and equal protection. I mean, it was dumb, right? Like it was just nonsense. It was mad libs.

0:06:53 Andrew: Was was it pled as, a HAVA claim from the Help America Vote Act or

0:06:54 Liz: It wasn't mostly, but mostly it was, I think they mentioned that, but their main theory was that it violated federal law, to have the voting machines, um, to cast ballots on voting machines. Like electronic voting machines violated federal law and thus their due process. I mean, there was nothing there. It wasn't really a HAVA claim.

0:06:57 Andrew: Yeah.

0:07:13 Thomas: You'd have to, in your in your filing, you'd have to prove that there that they don't work. Wouldn't you have to, you back up your claims somehow or no?

0:07:20 Liz: You're never going to get there because, you know, spoiler alert, you're never gonna have standing. And also, there are precedential cases that electronic voting machines do not violate federal laws. But okay, look, the entire basis of this complaint is that electronic boating machines are hackable. So if you're going to file that, you, the plaintiff, and also your attorney should probably have figured out whether the state uses those machines before you march into court demanding that relief. So second, the plaintiffs alleged that the machines were never tested was something which is just verifiably not true. They're tested when they're certified, they're tested before the election, and they're tested after.

0:07:26 Thomas: Right. Yeah.

0:07:57 Andrew: And the partisan group that tested the Dominion machines in Arizona were the people who snuck in, got the fake contractor, and then broadcast the actual passwords over right-wing media, right, thus compromising the system. Oh, you're right. That was Colorado. Okay. Never mind.

0:08:09 Thomas: No.

0:08:11 Liz: That was Colorado. But in fact, they did bring that up in this lawsuit because they said that there was some nefarious, I mean, mean, there was a whole lot of like 10 pages on how bad Dominion was and all the machines were hackable and Venezuela, blah, blah. Um, I mean, it was nothing, right. It's just, it's just nothing. Third thing though, their proof of concept, the plaintiff's cite for this groovy plan to hand count the votes was this infamous audit of the Maricopa County elections in 2021, aka the Arizona fraud it, right? We all remember that.

0:08:15 Andrew: Uh-huh.

0:08:41 Thomas: Oh, yeah.

0:08:45 Liz: Okay. So it was cyber ninjas.

0:08:43 Andrew: It's Cyber Ninjas Yep.

0:08:45 Thomas: Was this Cyber Ninjas? OK.

0:08:49 Liz: It was Cyber Ninjas who took five months to do a hand recount of the 2.1 million votes in Maricopa County. And even if they hadn't spent a month or however much time shining UV lights on those ballots to see if they had bamboo fibers, which was theoretically going to prove they were Chinese, these fakes. But also the Cyber Ninjas were funded by Sidney Powell and Mike Flynn. And even they, who were definitely predisposed to find fraud, didn't find it. But whatever. The point is, we all saw them performing a hand recount, or at least pretending to, so if your proof of concept involves a hand recount of paper ballots, why the hell are you suing to demand that the state only use paper ballots? Because it very clearly already does. And clearly the attorneys could have figured that out.

0:09:35 Liz: And not for nothing, but if you're insisting that hand tabulation is no big deal, maybe don't point to one that took five freaking months to complete. Since at that rate, Arizona would know the result of the August primary in early January, right around the time the winner of the general election was supposed to be sworn in. That's sub-ideal. So August 26th, after a full round of briefing and an in-person hearing, Judge John Tucci dismissed the case for lack of standing by the plaintiffs, whose claims were, quote, too speculative to establish an injury in fact. And even if the plaintiff did have standing, the 11th Amendment would bar their complaint anyway, since there's no violation of federal law here, because there are a whole bunch of precedential cases saying that touchscreen screen electronic voting is perfectly legal. So even if the claims in the complaint were true, and they were not, they would not establish any illegal contact.

0:10:24 Liz: And P.S., by the time these chuckleheads shambled into court, it was way too late to ask for a massive overhaul of voting procedures anyway. It was like six weeks before the election. So, naturally they appear, because that's what they do, even though the case is entirely moot now, since both Fincham and Lake lost. But the in the meantime, time, the Maricopa County defendants moved for sanctions on Lake Fincham and their lawyers for having filed this dumb turkey of a lawsuit in the first place.

And they're going to get them, or at least in part. So on Thursday of last week, Judge Tucci issued a blistering sanctions order putting Lake's lawyers, that would be Parker Olson and Dersh, on the hook for the defendant's attorney's fees in this case.

Because Rule 11b of the Federal Rules of Civil Procedure provides that by presenting to the court a pleading written motion or other paper, whether by signing, filing, submitting, or later advocating it, an attorney or unrepresented party certifies that to the best of the person's knowledge, information, and belief formed after an inquiry reasonable under the circumstances, the factual contentions have evidentiary support or specifically so identified will likely have evidentiary support after a reasonable opportunity for further investigation or discovery. And this ain't it because,

0:11:35 Andrew: Yeah.

0:11:35 Liz: You they made it all up, right?

0:11:37 Andrew: And remember, these are Rule 11 sanctions, so procedurally what you do is you have to send a letter to the other side's lawyers, right? Because they run against counsel for having signed this document. And you say, here is the pleading. Here are the document or documents that we think violate that rule that you just stated, Liz. You have a three-week safe harbor to withdraw that document.

0:12:03 Thomas: Wow.

0:12:03 Andrew: And if you do, it's no harm, no foul, right. Oh, yeah. Okay. Like, sorry about that. Yeah. Yeah, like I want to emphasize just how hard it is to get Rule 11 sanctions against someone. You have to have someone who was dumb enough to file a pleading like this in the first place and then dumb enough to not take it back when the other side says, by the way, we're moving for sanctions on this.

0:12:07 Thomas: Jeez.

0:12:26 Liz: OK, so in assessing whether those sanctions should be imposed the court conducts this two prong inquiry. The first prong is whether the complaint is legally or factually baseless from an objective perspective and two, if the attorney has conducted a reasonable and competent inquiry before signing and filing it. Here they the whole case is predicated on this theory that Arizona must be ordered to conduct its election using paper ballots. And as the court notes, it cannot be disputed that Arizona already requires and uses paper ballots, allegations to the contrary are simply false. So Alan Dershowitz and his pals argue in their defense that vote tabulation machines are also illegal, that they were really just talking about the vote tabulators, which is just not true. They talked about electronic voting about 15 different times in their complaint.

0:13:14 Liz: And they insist that the bevy of tests actually performed, like, don't really count. But as Judge Tucci notes, the complaint does not merely allege that testing of Arizona's equipment is insufficient or unreliable. It alleges that the equipment has not been subjected to objective evaluation or neutral expert analysis, which is not true. Plaintiffs and their experts may be entitled to opine about the sufficiency of the testing that Arizona's machines undergo, but they are not entitled to allege that no such testing takes place, right? So the court is pretty pissed off because they've come and they've lied. They've said these two things, which are objectively false, that the machines were never tested and that there is electronic voting. And there is no way that you could have been mistaken about that.

0:13:46 Andrew: Yeah.

0:13:59 Thomas: There was a time when Alan Dershowitz was a lawyer, right? Like that did, did I dream that? He was a lawyer at one time, right, he knew, employed at a pretty high level, I thought, as an instructor of law.

0:14:03 Andrew: Yeah.

0:14:12 Andrew: In law school.

0:14:14 Liz: Oh, no, he wasn't, Andrew, was he?

0:14:16 Andrew: Oh, I had four classes with with Dershowitz. I mean, I took, yeah, everything

0:14:19 Liz: Wow. So as for this theory that the cyber ninjas were going to be like the proof of concept, Judge Tucci notes that it strains credulity to characterize a hand count as a proof of concept that a full hand count is feasible, let alone a superior alternative, particularly since state law mandates that they finish counting within 20 days after the election, not five months. But the judge didn't sanction them for that cyber ninja argument because he characterized it as both wholly unpersuasive to the objective reader, but it was an argument and not a false assertion, which that was really generous, I think, because it seems to me to be a total lie. The court went on to say that the plaintiffs filled the gaps between their factual assertions, claimed injuries, and requested relief with false misleading and speculative allegations.

0:15:10 Liz: At its core, plaintiff's complaint presented mere conjectural claims of potential injuries. Rule 11 requires more, which is like the shark fin. You can see like Jaws is about to attack. So you know that this is not going to be good. Poor Alan Dershowitz. Any objectively reasonable investigation of this case would have led to publicly available and widely circulated information contradicting plaintiff allegations and undercutting their claims, he went on. Thus, plaintiffs either failed to conduct a reasonable, factual and legal inquiry required under Rule 11 or they conducted such an inquiry and filed this lawsuit anyway. That's not good. It's not. Good.

0:15:50 Andrew: And, and I just want to say this follows, it was under the court's general equitable jurisdiction and discretionary authority to impose sanctions that that the judge in the Michigan Kraken recount case sanctioned Sidney Powell and that bevy of lures. But it was the exact same kind of analysis. Right. And and typically sanctions analyses will will follow after the Rule 11 model. And basically the idea was like, yeah, you came in here with like an affidavit from, you know, Terpsichore and like that spider and, you know, Russell Ramsland and these people. And either you read the affidavits and said, I'm going to file this anyway, or you didn't read the affidavits. But either way, right, that's demonstrative of somebody who just has not done the bare minimum inquiry necessary to before you file a lawsuit.

0:16:40 Liz: Right. That that from the King v. Whitmer case, the Michigan case that you're talking about, some of the alleged conduct in those affidavits, which Sidney Powell just kind of swept them all up and put them on the federal docket was not, in fact, illegal, right? That she said, well, we saw people depositing multiple ballots in the box.

0:16:43 Andrew: Right. Right.

0:16:58 Liz: Not illegal, Right? So Why are you filing an affidavit of non-illegal conduct? Just as here, they're saying, it's illegal to use electronic voting machines. Well, leave aside the fact that they're not using electronic voting machine. Even if they were, it would not be illegal and not be a federally cognizable injury. Injury. Also, 28 USC Section 1927 is another venue to get sanctions, because it provides that any attorney who so multiplies the proceedings in any case unreasonably and vexatiously may be required by the court to satisfy personally the excess costs, expenses, and attorney's fees reasonably incurred because of such conduct. So here the court says it was objectively unreasonable reasonable and vexatious for the plaintiff's counsel to initiate additional time and resource intensive preliminary injunction proceedings based on frivolous claims and to continue making false and misleading representations about Arizona elections.

0:16:59 Andrew: Yeah.

0:17:52 Liz: So here, like Andrew was saying, that defendant sent them a letter that said, here is why your claim is crap. And instead of saying like, oh, my bad and walking away, they filed a motion for preliminary injuction and put put the court and the county defendants and Katie Hobbs, who was then the secretary of state and is a named defendant, through the trouble of having to go to this preliminary hearing and in their expert witness. So that was like a lot of other stuff.

0:18:18 Andrew: Yeah. Yeah. A court will invoke its—a federal court, right? It's a federal statute, so only applies to federal courts. But a federal judge will invoke its 1927 jurisdiction, because remember that Rule 11 only applies to pleadings that are signed or otherwise advocated by the attorney. 1927 allows you to lump together altogether all of the other conduct, right? So statements made at oral arguments, statements made in letters back and forth, you by and between the parties. It's a catch-all that will get sort of more than just papers you've signed off on. Although obviously, like filing the motion for preliminary injunction, that could also have been a Rule 11 violation. It also gets gets you around the safe harbor requirement, right?

0:19:09 Andrew: So in other words, if the court says, is how I read this here, okay, defendants, you filed for Rule 11 sanctions on the basis of the complaint that was filed. I'd like to include some other stuff in that as well. So the reason sort of for the two different sections there.

0:19:26 Liz: To sanction Lake and Fincham as well as their attorneys. But they said, even though the plaintiff bears some blame, the purpose of rule 11 is to penalize specific attorney conduct with the broader goal of deterring similarly baseless filings initiated by anyone, whether an attorney or not. And, you know, he didn't say you, Alan Dershowitz, should know better than to file this horse shit, but he didn't have to. It was implied, right? Nobody should be, attorneys should not be filing this stuff. And certainly not attorneys who have such a high reputation that it lends gravitas to something that's basically a frivolous pile of crap. So the three lawyers on this case will be responsible for paying the legal fees of the Maricopa County defendants. And that's not going to be an enormous amount of money, right?

0:20:12 Liz: Because this is mostly attorney time billed to the county, and those attorneys aren't, you know, $1,500 an hour Kirkland and Ellis attorneys, and they're not Neil Katyal. But it's clearly intended, quote, send a message to those who might file similarly baseless suits in the future.

0:20:27 Andrew: Yeah, think I all of that is exactly correct. And it was you shocking in terms of, know, you just how bad Alan Dershowitz has sold out, you know, first to Trump and now to a former crackhead who sells pillows. Like, you Know, did he burn through?

0:20:44 Thomas: Former? Wait, did he quit? News, big news.

0:20:45 Andrew: Yeah. Yeah.

0:20:48 Liz: You know that guy really likes to sue people, right? He's a former crackhead. He hasn't touched the stuff in a long time, you

0:20:52 Andrew: Yeah, no.

0:20:57 Thomas: Oh, okay, I just, I didn't know.

0:20:57 Andrew: Thanks. Thanks, Liz.

0:20:59 Thomas: It news to me.

0:20:59 Andrew: I'm so glad we have you on the show. But can't emphasize this enough that Alan Dershowitz has taught ethics at Harvard Law School. In other words, he has taught this standard of Rule 11 for decades.

0:21:01 Liz: Have to

0:21:13 Thomas: Yeah, Yeah, I think Harvard's going to have to issue a recall notice on their lawyer. Hey, sorry.

0:21:21 Thomas: Sorry, Torres, you got to go back to school. You got to earn it again. There's a defective part.

0:21:22 Andrew: Yeah, I have 12 credits

0:21:26 Liz: Sit for the MPRE again.

0:21:27 Thomas: Yeah,

0:21:29 Andrew: That I just need to make Up from 1996. Great. Looking forward to that. That'll be fantastic. No, it is. Alan Dershowitz, he's been practicing law since the late Cretaceous. I not know anyone personally who has ever had Rule 11 sanctions entered against them. It's a really serious thing, it doesn't carry, like, you an automatic bar referral with it, right, that's why the court has to order that separately, but your state could choose to investigate, right, like a a lawyer certainly file an ethics complaint against Alan Dershowitz on the basis of that, and that would be like part of the evidence at that hearing, you know, again, different, different states practice attorney discipline in different ways.

0:21:30 Thomas: Yeah.

0:22:19 Andrew: Like, yeah, that's a it's really bad. So and the other thing that I'm really, really glad that that Liz emphasized is this this judge went above and beyond to try and construe this behavior in as maximally a manner as possible. Right. Repeatedly said, well, it's a close call, but I I'm not going to sanction either the parties or their attorneys, you for the argument that you could conduct a hand recount and base it on the way we did the Cyber Ninja recount, right?

0:22:55 Thomas: Because if I squint real hard, take off my glasses and put some lemon juice in my eye, it kind of looks like an argument. So I guess,

0:23:02 Andrew: No, literally, like what the judge says here is, this is a very, very stupid argument, but I'm not going to sanction you for being dumb. I'm only going to sanction you för being unethical.

0:23:10 Thomas: You get one. You get one on the court. The court will spot you one.

0:23:14 Liz: Look, here's in the most generous interpretation, interpretation, Alan Dershowitz didn't read any of this. He just put his name on it because he's Alan DERSHOWITZ and he's a famous guy. And Lin Wood also tried that in the King v. Whitmer case and said like, I didn't do anything. I just, I just put my name on It, you know, and the court was like, cool, but irrelevant. And I think it's almost more unethical if you just said like I don't care what this is like, is that is that a get out of jail?

0:23:20 Andrew: Yeah, yep.

0:23:38 Thomas: Yeah. Oh.

0:23:42 Liz: Is that a Get Out of Ethics Jail free card, Andrew?

0:23:45 Andrew: No,

0:23:46 Thomas: I think a good defense though is going to be for Dershowitz about the whole, like, you you put your name and reputation behind this. As well, I don't have any reputation anymore, so no harm, no foul. That's like, if if Thomas Smith puts his name on a complaint, it doesn't that doesn't help anybody, buddy. That doesn't do anything. That would be my defense at this point.

0:24:03 Andrew: Me that's not a terrible argument um

0:24:05 Liz: It's not a great argument. Like if you want to get invited to brunch in Massachusetts on chill mark or whatever. I I am too incompetent to be held up to regular professional standards. It's not a great argument.

0:24:07 Andrew: No No. No.

0:24:07 Thomas: Think that's his best one left, I don't know, so

0:24:22 Andrew: And, it is related to, we've talked about this as a, you question from civil practice that happens all the time, in which I have said how every lawyer I know, right, by firm included, takes it very, very seriously when you are are admitted as local counsel. Right, typically the the outside lawyers who are going to be running the case, you, they want you to just kind of come in, move them pro hoc, and then get out of the way. But, you know, this is illustrating the the point that local counsel always makes in those circumstances, which is, hey, hey, man, like, this is gonna have my name on it. And the excuse of, I'm just local counsel, I don't read this stuff, is, you point out here, not going to fly. When you sign your name, when you say, I stand behind this, the court expects you to stand behind that. And Dersh knows that.

0:25:14 Thomas: Do we have predictions, next things to look out for, anything like that?

0:25:18 Liz: Well, definitely Merrick Garland is going to have to give back Mike Lindell's phone and is going go to email jail for stealing Mike Lindelle's phone because Dersh is on that case too. And he's going to bring this whole Justice Department thing down

0:25:18 Thomas: Wow.

0:25:34 Thomas: Big claim, all right, we'll look for that. Stay tuned for that to happen, everybody.

0:25:37 Andrew: If that doesn't. Liz will be sentenced said to do, uh, these segments every week in perpetuity throughout the universe, so, uh, it'll be one or the other.

0:25:46 Liz: No you

0:25:39 Thomas: Oh. Nice. Win-win. All all right, well, thanks as always, Liz, uh, that's a lot of fun, and uh, I'm looking forward to, prison, you time, or execution, or whatever the penalty is for being this bad of a lawyer. Hope it's one of those for Dersh. Thanks, Liz.

0:25:58 Andrew: They have not authorized the death penalty yet for rule 11 sanctions But thanks, but, Liz.

0:25:59 Thomas: Oh. Not yet Okay.

0:25:59 Liz: Harsh could

0:26:05 Clip: Sometimes you eat the bar, and sometimes the bar will eat you.

0:26:11 Thomas: And now it's time for T3BE. That's Thomas Takes the Bar Exam, where each week I attempt to answer a bar question because I'm a way better lawyer than Alan Dershowitz, and I seek to prove it by answering these questions. And it's answer time, Andrew. Another weird one, because because this book is always weird. What's going on?

0:26:30 Andrew: Yeah, the book giving you a hint right in the framing of the question. Peyote Church plans to hold a lottery to raise funds for parsonage, but lotteries are illegal in the state. Has Peyote church's freedom to practice its religion been unduly burdened? So instantly you might do two things. Number one, the gravamen of the question.

0:26:36 Thomas: Smoke some peyote.

0:26:50 Andrew: Yeah, instantly you might do three things.

0:26:50 Thomas: No. Okay.

0:26:56 Andrew: Number one, imbibe in the religious ritual of your choice. Number two, look at the question, and you see that as a First Amendment question. Question this is discussing the free exercise component of the First Amendment, so, right, when you're taking constitutional law, you get to the religion clauses, you break them down, is this an Establishment Clause, right, "Congress shall make the law establishing," "respecting an establishment of religion," uh, that until very recently was governed by the Lemon test, or is this a Free Re-exercise Clause? And that, until recently, was governed by Employment Division v. Smith. And then that third thing is you go, "Oh, yeah, and Smith was about peyote use, right?"

0:27:42 Andrew: Sort of tangentially, And right. So you put that all together. The rule from Employment Division v Smith was that a law of neutral applicability that incidentally burdens religion Uh, is nevertheless not a violation of that religion's right to exercise its religion. Uh, notwithstanding if the neutrally applicable law prohibits the thing that they think is core to their belief, which, uh, again, here was, uh. The, you ritual smoking of peyote, a controlled Schedule I substance. So you applying that, narrowed it down to either A or B, the no reasons, good, right? So Thomas's second chance bar exam still intact. A says no because lotteries are illegal for non-religious reasons.

0:28:29 Andrew: And B says no, because lotteries are also illegal for non-religious organizations. Distinctions, really hairline distinction, you went with B, and Thomas, I'm pleased to tell you, B is correct. Yeah, um, B is a better answer than A because, in religion cases, and in cases generally, right, as we know from the church of the Lakumi, 2019,

0:28:41 Thomas: Sweet. And again, sorry, you mentioned there's four things you have to do when you start on this question. First is get in your time machine and go back to the year whenever the hell we decided, yeah, the law still existed. So, sorry, a little Wayne's World time trial or something. Then, okay, now,

0:28:57 Andrew: Yeah, Right. Yeah. Yeah, So, as you know from our, our discussions on the Church of the Lukumi Babalu Aye versus City of Hialeah decision, courts are very, very reluctant to get into the reasons why a particular law was enacted. So while, while Employment Division versus Smith says that the law should be, of neutral applicability, the opinion specifies that it is neutral, quote, "on its face." In other words, by looking at the written law itself, rather than kind of the rationale that went into why the law was passed in the first place. So the applicability, that's exactly right.

0:29:38 Thomas: Applicability, not, you know, justification, or whatever, but

0:29:44 Andrew: And so the way in which we test that is, oh, yeah, look, lotteries are prohibited if I want to do that benefit to my secular charity or if I wanna do that, uh, to benefit by church. Therefore, it's a neutral law of general applicability.

0:29:59 Thomas: If I want to do that as the state, to tax poor people and then it's fine, tax people who don't understand math, I guess, yeah.

0:29:59 Andrew: Right. Yeah. And I guess the last thing I would add is that I think this question is, or could have been, written post the Trinity Lutheran decision in 2017, right? You remember, in that case, what was at issue was the alleged discriminatory treatment that religious institutions were not eligible to get public funds to pay for resurfacing their playgrounds, but non-religious schools were, and that case was seven to two, saying, "Yeah, no, you've got to let churches have equal access to compete for public funds." That's, you know, Now, nonsense, and a historical. But notice that this B rationale is compatible with both Trinity Lutheran and the Employment Division versus Smith case. Right, it says, "Hey, we are treating the religious institution and secular institutions the same, nobody can hold a lottery." Therefore, the answer is B. So, congratulations.

0:30:33 Thomas: Yeah.

0:31:04 Thomas: I feel like I'm on a bit of a streak. Holy

0:31:05 Andrew: You are on a five question winning streak, my friend. And

0:31:08 Thomas: Crap. I'm gonna be like the coyote though, cause I'll look, you know, I've looked down at my five question and gravity will affect. Oh crap, now, I'm gonna, yeah,

0:31:15 Andrew: You have run off the cliff three questions ago.

0:31:19 Thomas: I should not have noticed that

0:31:21 Andrew: I love it.

0:31:21 Thomas: I was on a five questions. All right, well, uh, I'm the big winner, but who's also the big winner in this week's D3be? I'm the decider this week. But quick note before I tell you who won. Going forward, Andrew and I should be able to do this together more, which is great. But the only way to do that is if we read one pretty early on. So I'm just saying, if you want to be a future T3BE winner, you'd better get your answer in as soon as you possibly can. Because that's the only way to do it and to have this four episode a week schedule and for me not to go insane. So going forward, get your answers in fast. But it looks like a lot of people already do, including this week's winner. Actually, there are two winners because there are two that I really like. So first, MadPoliticalScientist at NJordan79 says, Be, for now, ominous music.

0:32:09 Thomas: I feel like I'm playing Trivial Pursuit with an old set of questions that reference the USSR. That's so funny. I could totally relate to that, especially as someone who had no anything as a kid. So the only board games were from the 1800s. And also this one's great. Steven Zendejas, at Steven underscore Zend. The answer is B until Andrew Seidel comes back on the show with some very bad news. Those are both great. Love it. You're co co-winners, and we're try-winters, the three of us, because I got it right too. Thanks so much for playing. Enjoy your never-ending fame and fortune divided by three, guaranteed.

0:32:46 Clip: Thank you for being a friend, yeah, travel down the road with me, say we started from the bottom now we're here girl,

0:32:55 Thomas: Now it's time to thank our Hall of Famers, our all-time greats at patreon.com/law, and we are on another month. We're on, I had to reconfigure when we're kind of doing this, get that schedule figured out, uh, because we're in the middle of, we're, Andrew, why don't you start us off?

0:33:11 Andrew: A big thank you to Erica Davis, Emma, the Aussie barrister. I love when we get foreign lawyers that can tell us how we're wrong in two countries. Canada is objectively better even though our Supreme Court dresses like wish.com Santa Claus. Oh, backdropbooks.com at Backdrop Books identified 133 backdrop books for Thomas. Your next, Andrew, show us the goods. I will, believe me. And they have been very active, um, on Twitter interacting with us, so backdropbooks.com. Patricia Inslee at Oracle 410, Rawls's OG position, yeah, sex and gender are different things and people should stop using them interchangeably. Absolutely. Kayleen Kunzel, Syracuse Law 2L.

Oh wow, thank you, Kayleen, and uh, this is, it's all downhill from, right from, about now. So I know, no, I'm serious. Like that first, that first semester of your 2L year is brutal. And, uh. And if you made it through that, you can make it through anything. Patty B. Check TexasChainsawLawyer.com, loves to sue cops and landlords. The Behind the Bastards to Knowledge Fight to Opening Arguments and QAnon Anonymous to Trash Future to Worst of All Possible Worlds. All right. Well, that's a, that is a lot of folks to intersect. Robert, uh, Whiteman, your friendly neighborhood union lawyer.

Brit, the administrator general of greater Scandinavia, I, that would make me so happy if that were real. Robert Reichel. John Eastman hate watching from a sock puppet account, that is, we know that's 100 true. Jason Young, ignominiously anonymous, praise me to Lamb Chop, Trojan Horse News, a funny meme to share with Uncle Frank with real news snuck in the comments on Facebook, as, as Trojan Horse News.

0:34:06 Thomas: Congrats. Have fun.

0:34:57 Andrew: Molly Jane Sear, and I wonder how many people at the Capitol on January 6th were also at Woodstock 99 taking away Thomas.

0:35:02 Thomas: Yeah, geez. And thank you to A Mild Warm Bath with Bubbles and Thomas's Dad's Diaries. That's a, a Dear Old Dads reference, you'll have, check that out. LC, I continue to be a patron for the shout out to Kelly, hi Kelly, uh, language, I don't know, could be Klingon, that could be something else, I don't, string of unpronounceable characters, I guess I'll say, yeah, I got nothing. Len Bogan, hunter, hunter, Kinsey, not a health ranger, Woodland underscore shadows, check. Check out my IG if interested in custom wire art. Oh, I bet that's really cool. Woodland underscore shadows. Better check it out. Love the new format. Now go dig a hole where the stare decisis used to sleep. Yeah. They told me I could be anything, so I became both of these.

0:35:15 Andrew: Hi, Kelly. Batleth.

0:35:49 Andrew: Love it.

0:35:49 Thomas: Everything important. You got to fight for your right to ex parte. Hey, Angry Muller podcast sponsored by the Bob Lomi. The CDC says, take legal advice from a podcast. Boy, that's an old one by now, actually, but still funny. Jeremy Ashinghurst, I'm fast at sex. Michael Grosnicklaus, Tucson Life Show. Also, best of luck to Griffin in his upcoming job interviews. Purplecouch.com, going through a divorce. Listen to assembled experts to shift your mindset from failed marriage to fresh start. Purplecouche, without an E, .com. Loaf Orange, Marion the Corgi, Jamie. Me. Comedian Aaron Trahan at Comedienne AET. Come to Madhouse Comedy Club in San Diego. Objection. Perry Mason has no relevance to this case. Overruled. And oh, and that's it. So thank you so much for our first quartile of

0:36:07 Andrew: That'll never not be funny.

0:36:39 Andrew: Woo-hoo.

0:36:39 Thomas: Hall of Fame patrons. Of course. Yeah. And that's our show. Thanks again to Liz Dye, as always. And we'll see you, assuming I actually post this one in the correct night, which I didn't last week, posted it early, got a little, got a little trigger happy on the postings. We'll see you tomorrow night, right, Andrew?

0:36:40 Andrew: The best quartile, objectively.

0:37:00 Thomas: Tomorrow night, of course, I knew, I definitely knew that. See you tomorrow night, everybody.

0:36:59 Andrew: Yeah, tomorrow for another, yeah.

0:37:03 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.

0:37:37 Clip: www.openargs.com. Be sure to join the Facebook group at facebook.com slash groups slash 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.

0:38:14 Andrew: Mentor in law school.