The 5th Circuit Says You Have No Right to Clean Water

Transcript

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

0:00:00 Clip: Thank you.

0:00:02 Matt: That it's a pretty good summary of the state of conservative legal thinking at this point that there's no rights to things like clean water and not being lied to. And then the duty on this is like 25, so obviously a lot of incentive if you can not do that.

0:00:21 Thomas: Owe me a quarter of your slime.

0:00:24 Matt: Slime ain't cheap.

0:00:35 Thomas: Hello and welcome to Opening Arguments. This is episode 1295. I'm Thomas, and over there is real life immigration attorney, Matt Cameron. How are you doing, Matt?

0:00:41 Matt: Thomas, 10 % of the day chasing down a, uh, what we call a notario, somebody who's been practicing law, ripping lots of people off, and together a pretty thorough complaint. I think I might finally, uh get him out of business. Feels got a lot of these popping up.

0:00:53 Thomas: What is this? Somebody who's like being a like lawyer and ripping off immigrants or something?

0:00:56 Matt: Somebody took $22,000,000 from my clients to get them into deportation proceedings. Ratings. $22,000. I mean, this is incredible. And these people take advantage of non-English speaking communities and they tell them, oh, lawyers are so much more than this. You're getting a deal, right?

0:01:11 Thomas: Right.

0:01:11 Matt: And of course, meanwhile, it's like more than twice what we had charged to do way more and to do actual legal work. It just makes me mad. It's one of those things. I really go over time when I see these things. There's a Consumer Protection Act in Chapter 93A here in Massachusetts. It is very powerful. And I think my clients are going to get something back out of it, potentially up to triple damages. So that's a lot of money. See, but, uh, felt good. It was a good way to end my day.

0:01:31 Thomas: Kidding. Is that somebody here? Like somebody within the state doing that and pretending to be a lawyer man

0:01:36 Matt: Yeah. Down in Cape Cod, taking advantage of the Brazilian community. And he's actually already been federally convicted and did time on it about 20 years ago. And he is back at it. Yeah, no, claiming that he's not claiming to be a lawyer, but it doesn't matter because he's giving legal advice. He's filling out forms. He's filing things. He's telling people what to do in court. Doesn't matter whether you say you're a lawyer or not, that you're doing law stuff, like you're being a lawyer. So the unlicensed practice folks. Don't do it.

0:01:57 Matt: Yeah. Look out for that in your community.

0:01:55 Thomas: Unreal well ish news I guess yeah

0:02:01 Matt: Yeah. Yeah, one fewer of those guys, I especially right now, people are so desperate and, with the TPS ending and with enforcement being what it is and, not knowing that immigration law offices do have multiple languages covered if you just call us, or, you think that they're going to be extremely expensive. They fall to people like this and out for it in your community because, you know they call themselves preparers and notarios. The real problem is notario means lawyer, basically, in Spanish, right?

0:02:25 Thomas: I thought that just meant lawyer yeah

0:02:27 Matt: And, of course, here it means notary public, which is like 50 bucks and a stamp, right, so huge difference between a notary republic and a lawyer. No offense to notary pubic. Yeah, notary's public. Excuse me.

0:02:37 Thomas: Wow good news what are we gonna be talking about on today's show

0:02:41 Matt: We're serving up some mystery meat. I guess you don't know what we're talking about, and I'm literally going to be talking about mystery meat in one of our segments today. I

0:02:48 Thomas: A vegetarian that's one thing I don't have to worry about anymore is mystery meat at all yeah

0:02:51 Matt: Me, too. I have to say, even before I gave up meat, reading about pink slime back in 2012 put me off. And I got to say the thing we're going to talk about actually is Donald Trump signing off the day after.

0:03:04 Thomas: Yeah I saw a headline

0:03:06 Matt: It's pretty bad. The day after the European Union was like, don't get this kind of Brazilian meat. They're suspending it. Donald Trump signed off for more of it. And it's basically pink slime. That's the lean beef trimmings. So I want to talk a little bit the legal vehicle for that and like he's doing it it's really weird it's super complicated but I just thought it's interesting and it literally is mystery meat like he's allowing like six times the amount of weird beef and pork that usually would come in so we'll talk about how this is happening and uh well there are midterms coming up and he's really desperate to drive down food prices seems to be the main why and

0:03:06 Thomas: About this why oh okay

0:03:38 Matt: This is one way to do it he's pissing off the cattle people but you know that's a small price to pay I guess yeah

0:03:39 Thomas: Also someone told him he couldn't do the soylent green idea so he's like all right fine yeah

0:03:45 Matt: Just get raccoons or whatever is going to be in these uh bags of meat I don't know uh along with pink slime we're going to talk about some human slime we've got the Tates uh with the big decision uh I don't think this decision will surprise you but I wanted to at least tell you about how the judge came down yes

0:03:57 Thomas: Or our listeners because we've uh yeah we've covered this on both shows I

0:04:03 Matt: Great show with mj morley over on Gavel Gavel talking that out and uh we've of course talked about the arguments around the detention uh that they're trying to be released from detention so they don't have to be extradited this is not the actual extradition decision it's just the release from detention decision but I think the judge did a great job with this and we'll read a bit yeah

0:04:19 Thomas: Really had like a quick ping of fear when I saw like judge rules the Tates will stay and because I can't read because my ADHD eyes dart all over the place. For a second, I thought it meant like stay in the US or something. I was like, ah, that, and then I saw stay in custody. I was like, oh, thank God. Okay.

0:04:35 Matt: This was the only way that could come down uh

0:04:37 Thomas: Yeah, is pretty bonkers these days, but that, it really was funny to talk about, like, that couldn't be a worse case, you know, just like, hi, we're the flee from law brothers we're not gonna flee I we have a weird name but

0:04:46 Matt: Much get the fleeing brothers it's ready Yeah, pay mind to our videos on how to flee, almost literally. Just touch on that for a minute. And then we're going to talk about some slimy water. We just got a whole slime theme going here. But an interesting Fifth Circuit case. You may not be surprised at how the Fifth Circuit came down to the question of if there is a right to clean water in the Fifth Circuit, as well as, actually, they're looking at two different rights, the right to clean water and the right not to be lied to by government officials. Commercials. I want to spoil it, but didn't it come down so well for the public on this one. And I just want to talk about the weird connection to Dobbs that this one has in the Fifth Circuit and sort of the chaos that Dobbs v. Jackson Women's Health has wrought upon the United States. Then for today's footnote we're going to boldly go where no footnote has gone before and we are going to cover a very interesting Star Trek divorce uh Trek Day a couple days ago the 60th anniversary of Gene Roddenberry's visionary television show and we're gonna talk about Gene Roddenberry's divorce which of the stranger divorce cases and actually it's kind of a famous one in California and involves ironically enough some people who couldn't really think very well about the future when they wrote a contract so I thought that was funny um almost wanted to tell you about the time that they found the Starship Enterprise in a storage locker and then ended up with a lawsuit over it but uh that's another day maybe I

0:06:05 Thomas: Is horrifying is when they found Hoggle from Labyrinth in a in

0:06:08 Matt: No just a little more surprising

0:06:09 Thomas: Like a suitcase god I Imagine the Enterprise is like all deformed and stuff it's like melted dear

0:06:16 Matt: Just kind of it was in bad shape actually bad shape and they found it but yeah we got plenty to get through today so

0:06:18 Thomas: It's terrible all right well let's take our usual first break patreon.com law if you want to support the show and you should and also get a lot off of movies we have uh we are recording Coyote v. Acme can't wait it was a delightful film and uh also all the other goodies so patreon.com slash law if you want to skip the ads get the goodies and we'll be right back oh Matt well uh ADHD pod you forgot you also wanted to update us on Lindsay Clancy

0:06:48 Matt: Was so excited about the mystery meat. I forgot to tell you. Yeah so we did talk about the Clancy trial of course last week and the day the episode came out it came down as I predicted with a hung jury and interesting legal issues came out of this that people were talking about that I just wanted to mention. Goes that on last Friday when they were sitting down, I mean the jury was obviously out for a full week. It was obviously having problems and they kept coming back to the judge and the judge giving the Tuey-Rodriguez charge here in Massachusetts, which tells them to go back and really just give it a try because they don't want to mistrial. We want to get some answers. Just a reminder, of course, that, you know, we covered this obviously last week, but this is a woman on trial for killing her children who admits to killing her children. And the only question is whether she's criminally responsible or not guilty of what we call by reason of insanity in Massachusetts. Like we now understand pretty much what happened in the jury room, but the forewoman, Rennie Carlson, told media that she had signed off on the verdict sheets. They were in agreement. Was going to agree that she was NGRI, that they were going to find that she was able to be committed instead of criminally responsible. There was one juror that came out and kept saying, and he actually, there was a note to this effect that went into the judge, who said, you know, I'm not convinced beyond a reasonable doubt that she's criminally irresponsible, but I don't want to find her NGRI either. Pretty weird because obviously you

0:07:56 Matt: Know as a juror if you're not convinced beyond a reasonable doubt by the state's case then you do have to acquit and as we discussed full acquittal not guilty was an option but nobody was going to do that know because she'd caused the deaths of her children so the question was about her state of mind when she did that and

0:08:09 Thomas: Was gonna ask you this or I might ask in the Slack but I know we don't get to probably into the crazy minds of juries you know it's pretty rare that we get to but it felt weird when it was something like that where it's like, okay, well, the juror is saying, well I have a thing called reasonable doubt, but I don't want to admit that I have reasonable doubt. So guilty. Is there anything there where you can be like, well there, that's just, they don't understand words.

0:08:34 Matt: Yeah Kevin Reddington the defense attorney was very upset because clearly this is what's holding everything up and what's keeping this from being an NGRI which is the result that he was arguing for and is such a strange situation I haven't heard of this personally I'm sure it's happened before but it turns out that you can get onto the Supreme Judicial Court's uh I guess customer service helpline and just jump on uh that's our highest court in Massachusetts he was able to get an emergency hearing within an hour on a video with an SJC justice um because you know this is such an unusual thing to say like to get a stay basically to say we can't declare a mistrial because this man has come out and said, I can't find her, you know, beyond a reasonable doubt guilty, but I just don't want to do the other thing. Did get on with Judge Wendlandt the SJC. And I hadn't even heard of this happening. I guess this is the world we live in now where you can just get a quick emergency hearing if you have a good reason to within an hour. Certainly in a high profile case like this, in a case where you're verging on a mistrial after so much time and effort, it makes sense that you should be able to get somebody on the line to rule in a stay very quickly. It's just such an unusual situation. Can imagine a situation where this would happen in the regular kind of a murder trial where it's just guilty or not guilty. I feel like this person would have to say not guilty, right? But know, it sounds like from what the jurors were saying, that he just didn't really want to look at the medical reality of Quincy's condition. He didn't want to talk about it. He was just convinced he was horrified with the details of the crime, as we all are, obviously. But, So it does sound like this was not a fair decision on his part, and it's unfortunate because, you know, mistrial is not the outcome anybody wants. The prosecution is still weighing what to do. She's still committed right now for mental health reasons. Retrial on this would be arduous, extremely painful for everybody involved. With the stipulations we talked about last week that the prosecution made to try to keep out the worst evidence and make sure that the jurors didn't have to go through the very worst parts of this, you know this was still more than a month of trial and Reddington is defense attorney is all right understandably was exhausted by this um will say I'm very disappointed in Kevin Reddington right now uh and you're going to find out why and you will be too when you watch the clip that I've just sent

0:10:24 Matt: You I don't know if you saw this let's is like Kevin Reddington on Good Morning America the other day yeah

0:10:25 Thomas: I did see it.

0:10:30 Clip: Next for Lindsay? I'd like to say that perhaps Donald Trump, who felt compelled to speak out about this case, may very well, Mr. President, I would hope that you would consider this young lady, the type of person she is, what she's been through, and consider a pardon.

0:10:49 Matt: This is a state crime just to remind everybody and do this folks like don't play to his stupid instincts because obviously he's hoping from the Tina Peters thing and Trump loves anything that gets publicity and because I mean Trump must know that there are a lot of people behind Lindsay Clancy and it's a movement and Trump loves to you good for this kind of thing right

0:10:50 Thomas: Pardon for what? The hell? Yeah. Get all that, but it's have the power to pardon her, I get it. You're a lawyer, you know, it's fine.

0:11:09 Matt: Why I know why Yeah. Make the appeal.

0:11:17 Thomas: But this is just dumb. Like, what does this even do? Do I

0:11:19 Matt: It's so stupid. And you think Massachusetts is going to do what Colorado did and just fold? I think they're going to be like, sure, yeah, let's give her clemency because the president we love so much in Massachusetts is, come on, come made me so mad that he did that. So much goodwill right now as an attorney. People really thought he did good. I had some issues with the closing, as we talked about but you know he clearly cared about his client the interview shows that he really you know personally cares about her and he put a lot of himself into this trial I don't have any problem with his performance for the most part but I do have a problem with that with Trump and trying to play to the worst just asking for something illegal just don't know it just bothers me don't Let's get over the Tates for just a second. We don't need to spend much time on them. They're hardly worth our attention. Know, just because we did cover this at length, I just wanted to make sure we talked about the decision. We talked already on both shows, you've talked about, the many arguments. Because essentially they had to show some kind of exceptional reason they should be released like the presumption is very much against release for good reason especially in a case like this when you're going to be extradited they assume you're trying to flee and judge still had to take it seriously enough that in the Southern District of Florida that there is a 30-page decision which is a little much um

0:11:37 Thomas: Ridiculous wow

0:12:27 Matt: Just as a reminder, of course, the Tates were arguing that, know, we're not actually wealthy. We just pretend to be wealthy and online. And, know. All the stuff we're talking about is jokes and fun. You're just having some fun online. Can't really flee and when we have flown around the country you know where we are but of course in response the government was able to show that they do have a lot of money they've access to a lot and they've been traveling all over the place and they've been disregarding court orders and they have already now threatened a witness in Romania allegedly. A pretty good summary of what the judge thinks of all this.

0:12:54 Thomas: Respondents' argument that they are not billionaires does little to dispel the concerns presumptively in place that they constitute quintessential flight risks yeah that's a good it's a good name for it and The very model of a major flight risk with the capacity to flee while respondents may not in fact possess what extravagant holdings they portray themselves as possessing online the record reflects that they possess an exceptional capacity to flee the jurisdiction yeah

0:13:07 Matt: Model of a flight risk yeah pretty much uh mother testified about how you know she was basically paying for their lives which is pretty embarrassing considering what they've been saying online um know they brought out that actually they've purchased luxury accessories and other thing besides flight risk is danger to the community these people are extremely dangerous they've committed know you dozens of felonies allegedly in both UK and Romania and no doubt in the United States at some point um liked the uh first paragraph of Part C here I'm

0:13:49 Thomas: Yeah Part C risk of danger to the community Respondents attempt to meet their burden to demonstrate that they do not pose a risk of danger to the community. To this end, they rely solely on Ms. Sassay's testimony

0:14:01 Matt: No, this is the mother of Andrew's kids, who they keep calling Emory, because that's his first name.

0:14:08 Thomas: Emory has not treated her abusively and that both Emory and Tristan are loving caregivers to their families. Further, respondents again rely on their purportedly unblemished track record of compliance with the conditions of supervised release imposed upon them by Romanian courts. The court does not find Mrs. Say's that testimony Respondent Emory has not abused her or their child particularly probative of whether Respondent Emory poses a danger to the community. Respondents are alleged to have committed forcible rape against struggling victims. Here,

0:14:38 Matt: That pretty much says it. Sorry. Yeah.

0:14:40 Thomas: As in Matter of Extradition of Bell, the nature of the offenses alleged indicate that respondents do indeed pose dangers to the community.

0:14:48 Matt: Mean, imagine you put on a woman that you haven't raped, that's your defense, basically.

0:14:52 Thomas: We found one.

0:14:53 Matt: Yep. Yep, here's one that I managed to have children with.

0:14:54 Thomas: I'm not sure that's true

0:14:56 Matt: Right. No. Yeah? Absolutely. Who knows? But this whole thing really brings out what weak sauce the whole argument was. But you know, again, they had, I assume, the best lawyers that their alleged money could pay for. So we'll see what happens now. We're moving on to extradition and the actual proceedings. They'll be held, I presume, at this point. They'll probably try to move it along now that they're not getting out because they've complained a lot about the custody conditions. We're seeing where things go from there.

0:14:56 Thomas: But yeah oof all so they're in jail until the extradition stuff goes one way or another now what would theoretically happen if they didn't get extradited though

0:15:24 Matt: Hard to imagine that they wouldn't between the two countries. But yeah, theoretically, if they don't, then I guess they'll just be back among us. They'll be back in Florida. As we know, the Trump administration let them in, even though they're definitely not supposed to come in.

0:15:35 Thomas: That's okay well most likely not going to happen yeah

0:15:37 Matt: Something deportable. We want to move on from human slime now to pink slime.

0:15:42 Thomas: What's Trump doing with all this slime? I mean, it is the number one ingredient in McDonald's burgers, and he does love those.

0:15:48 Matt: Yeah, that's true. Maybe that could be the direct connection. Have you seen the videos of the pink slime, the making, I mean, obviously you don't need to be persuaded not to eat meat, but it was really something that one of the things that turned to me, just kind of that loop running through my head of pink slime being formed into patties. Officially pink slime is called lean beef trimmings. And there's an amazing column that I found from Beef Magazine, which definitely exists.

0:16:10 Thomas: Magazine. Wow. I'm not a subscriber to Beef Magazine.

0:16:14 Matt: You should be because they've got amazing pieces like boneless lean beef trimmings is a safe and wholesome beef product made by separating lean beef from fat it's like a Simpsons article piece right it's because it's written by the president of the American Meat Institute it's a little op-ed about how pink slime is fine I guess I was gonna say it's in your average cattleman's waiting room or something I don't know while you're waiting to get your teeth cleaned and then yeah it's a magazine that's the only place anybody reads magazines anymore lobbies

0:16:24 Thomas: I really is. Who's reading this? Waiting room. Yeah. Get that part. I got that part. What's the cattleman's waiting room? What are they waiting for?

0:16:51 Matt: A slaughter just like he ended up at the cows I really don't know, but yeah, no, lean beef, and they have an absolutely unappetizing photo, which I think, I'm sure they think is amazing, of a beautifully marbled piece of beef being sliced. Uh, particular thing, this lean beef trimmings, um, is using this thing that I've never heard of in the law, and I'm going to talk a little bit about it. It is extremely complicated, but it allows him as the president. We've already learned quite a lot in the last couple of years about the president's ability to allegedly control tariffs or not. This is not really a tariff thing. It's more of a duty thing about duty imports, talking about the amount of these kinds of products that can come in without being taxed, without getting duties, basically. And then the duty on this is like 25, so obviously a lot of incentive if you can not do that.

0:16:55 Thomas: Good times. Owe me a quarter of your slime.

0:17:41 Matt: Slime ain't cheap. This is kind of interesting, but in 94, remember when the World Trade Organization was created under neoliberal Bill Clinton?

0:17:48 Thomas: Don't remember that.

0:17:50 Matt: I remember the protests certainly a couple years later, but sort of scheme was set up about lower taxes on some international trade and like loosening of duty standards and allowing certain amounts of things that weren't allowed before. And the coincidence on this, it's not really a coincidence. Trump had met rather corruptly with a gigantic producer of Brazilian beef and this announcement the same week that the EU is suspending Brazilian beef imports because of some very real health concerns. And the headlines here have been about mystery meat. And that's not too far off because no labeling on this. Like country of origin labeling.

0:18:22 Matt: There's just so many funny things about this that shouldn't be funny, but the acronym for the country of labeling is MCOOL. To John Boehner as of 2015, companies aren't even required to tell you what country your meat comes from. So one more thing to think about, meat eaters. New York Times piece on this that we'll link to makes some really good points about how bad this could actually get, because countries that we're talking about that we are going to be loosening these standards up from are so good about meat safety. Know, even Argentinian beef, which is obviously coveted by some people that like meat, just found to have an illegal antibiotic that causes blood disorders that allegedly wouldn't be allowed. Through when I was doing a little research on kind of how meat has been regulated and imported recently. There's just so many different examples of contaminated meat, E. coli, like I said, antibiotics.

0:19:05 Thomas: Man, the food system not doing great, particularly right now. Almost like we should have some sort of oversight of this.

0:19:12 Matt: Socialism. I go just telling people what not to put out, I guess.

0:19:16 Thomas: Not to put in citizens that's not okay yeah

0:19:20 Matt: Controlling the beef market is not socialism. But is, to regulate it. I don't know. Is here that midterms are coming up, he wants to do anything possible to drive down food prices, which is certainly understandable with the way the prices are going right now. It's the opposite of everything that he promised, um, legal vehicle for this is so complicated, I just wanted to try to give you the basic idea.

0:19:39 Thomas: For what exactly I'm sorry I still don't really understand what is sorry

0:19:43 Matt: But a presidential proclamation. It's not an executive order, and proclamations, as we've talked before, it's this different thing from an executive order, it just it's actually like an actual legal vehicle. And under 19 USC 3601, section (b), um, imports of an agricultural product are subject to a quota. And where the president determines and proclaims, that's the important part, that means a proclamation can change the numbers here, that the supply of the same or directly competitive or substitutable agricultural product will be inadequate because of et cetera, et cetera. And domestic beef production, people are not happy about this. The president may temporarily increase the quantity of imports of the agricultural product that is subject to the tariff-rate quota of duty established under the tariff rate quota. So basically you can have a zero duty, zero, import for a certain period of time for way more stuff than would usually come in. And that this is something he can actually do by proclamation. And I looked into this. There's no way to sue to stop this because it's not an administrative action. It's not a agency action. It's something that the law specifically says the president can proclaim. The only way to stop him is legislation, which Congress is actually now working to do potentially. That we can get back to reasonable limits on not crazy amounts of mystery beef. We're talking about like 600 million tons, I think, potentially over the period of time that he's talking about just a lot of mystery meat

0:20:58 Matt: Yeah

0:20:58 Thomas: But who's doing it like not like anyone's force feeding us this mystery meat so is there some companies that like want to do it to like put

0:21:06 Matt: From what I understand this is mostly going to benefit um know giant supermarkets and you know other people that buy meat in large quantities and are making processed right not direct to consumer stuff it's the stuff that's you know middleman um that's why I think the theory is it would drive down prices. Is supposed to protect consumers. There's really no way that you can bring suit. Like I said, this is just like a straight up presidential action that he's allowed to do. It is technically temporary. I think it goes through the end of November. To highlight it just because when I saw these headlines and just obviously as somebody who's kind of interested in how we do meat and how badly regulation is going right now. Just think it is something people should really be aware of. It's mostly going to be ground beef and anything that involves the pink slime, you know, it's kind of the super hyper-processed meat, McDonald's patties, like you were saying, you know things like that. Was looking for precedent on this, like how it's usually done. And you look back to Clinton and he had a proclamation in 1999 about cotton, dairy, peanuts, and sugar. And it was just kind of delegating how the licensing is going to work. It was not anything this crazy. Couldn't find anything, though, about this use, the invocation of this particular provision to import more stuff. I mean, this, again, is another example, I think, of Trump using laws that nobody ever really thought to use before to do things that nobody would have wanted to do before. Like, why would we want to do this? Like to point those out as we see them. It's certainly not the worst thing that's happening in our proto-fascist regime, but it's pretty gross.

0:22:30 Thomas: What a weird one.

0:22:31 Matt: Yeah. Of pretty gross, we should talk about the water in Jackson, Mississippi.

0:22:40 Thomas: Going on there?

0:22:41 Matt: As I'm saying this out loud, I'm realizing there needs to be a Johnny Cash parody about this. I'm going to Jackson to drink lead in the water. Of a creative suit. I think it's one of those things where the plaintiffs were just trying to find a way into court. But it's a 1983 claim, essentially, saying that they've been abused by state actors going to federal court. Section 1983, as we've discussed with Jenessa and others at many times now, you know, allows you to bring suit when your civil rights have been violated by the state. And everyone wants to go to federal court to do that. Were talking about a situation here in which Jackson, the city officials were well aware that their water system was in bad shape. And weren't just letting it happen. It seems like they were lying about it as well. Almost certainly. Former mayor apparently knew that their treatment plants in this Jackson area could not treat the water to prevent the pipe corrosion like the pipe corrosion was getting really bad and obviously that's going to start to leach lead if you have lead pipes and allegation here is that the city's accidental emissions caused lead to leach into the water and water system was already in terrible shape that had lead, E. coli, or other bacteria they're shutting it down for weeks at a time sometimes. Of course, even in the middle of all of this, the officials went out in public and said the water was not unsafe to drink, even knowing that it was in violation of EPA regulations and an actual EPA order in place at the time. And so the plaintiff's children were diagnosed with lead poisoning because they were drinking city water. Here is that there's a constitutional right to clean water. That's the first claim. And that's an interesting claim,

0:24:00 Thomas: Well, that's silly in this country.

0:24:02 Matt: Mean, it really is. It is, unfortunately, under our constitutional law, complaining because they say the plaintiffs are trying to expand and create novel theories of constitutional liability. But there used to be some kind of right to bodily autonomy before Dobbs, I feel like. If we're talking about the sort of rights that come with a substantive due process rights that come with living in this country that are supposed to come out of the 14th Amendment. Makes sense that you would argue that if you are providing drinking water, it's not just that you have an affirmative right, responsibility to make sure that the system works, right? I mean, and I understand that. There's no constitutional right to city utilities. But I do think we have a constitutional right not to have the city lie to us about what's in our water and knowingly cover things up like this. And that's what they're trying to say. Heard of anything, an argument quite like this before. And I can understand the majority's concern, which is that we don't want to open the door to of these failures.

0:24:49 Thomas: What else would we have to provide our citizens so they don't die?

0:24:51 Matt: What other rights might we have? Exactly.

0:24:52 Thomas: Yeah, I want to open up the floodgates Matt.

0:24:53 Matt: I mean I do objectively understand, the dirty lead-ridden floodgates, I understand theoretically that you don't want to create constitutional rights that could be invoked when the city lets you down and when utilities don't work. What I thought was interesting about this and the reason I want to talk about it is because they're using the Glucksberg test, which is from 1987. And the Glucksberg test, of course, is the basis for Dobbs v. Health. Jackson. So of course is the deeply rooted in history and tradition test. In Glucksberg, Washington v. Glucksberg, they found that there's no fundamental liberty interest in a physician-assisted suicide, that you don't have a constitutional right. There's no deeply rooted tradition and a legal right to take your life. They went through the Glucksberg test here and looking to see if they're supposed to be an objectively deeply rooted, in this nation's history and tradition right, an essential component of what we've described as ordered liberty. And basically, if you can find that it's a fundamental right, then you have to apply strict scrutiny. And if you cannot find there's any kind of constitutional claim, then there's no 1983 case. And so that's what they did in both claims. And they're not just the fact that, you know, do we have a right to have drinking water that's not full of lead, but do we have a constitutional right to not have the government lie to us? And that one gave me a little more pause. I feel like we should have a constitutional right to say, hey, you've actually lied to us in a way that's got my children sick, like very sick.

0:26:18 Matt: Poisoning is no joke. Water thing, they're going with a bodily integrity theory that you're talking about 1983 bodily integrity cases um usually having to do with prisoners as we've talked about 1983 that's a very common claim if you're talking about involuntary medication for stomach pumping for surgical examinations obviously sexual assault by a police officer um you know they're saying it doesn't rise to that level because they said that they're skeptical I was actually read this part they're skeptical that the right to not be harmed by lead contaminated water fits within the right to bodily integrity. Plaintiffs point us to no historical tradition or Supreme Court precedent convincing us otherwise, which sounds very harsh, and it is. Feel like they're still not really addressing the fact, they're treating these claims so separately, they're not really addressing the fact that this was something that the city knew about. It wasn't negligence. This intentional. They just knew that they weren't serving people and that they were actually harming them, and they kept doing it. And I feel that seems like it has to be a bodily integrity thing when you're getting to that level of intent. The truthful information thing, there's no precedent for this, but just said that they declined to expand substantive due process to render public officials liable for statements made during an evolving public crisis. Just don't think that should be an excuse just because there's a public crisis in drinking water. I mean, that's actually more reason to tell the truth, right? That you're in the middle of a public health crisis?

0:26:17 Thomas: Yeah well so this is all under like being able to sue civilly to recover money kind of thing.

0:27:36 Matt: For 1983 damages, right, for when the government harms you.

0:27:39 Thomas: Right, right, right. Can understand it being like, well, we don't want to make it make you have recourse if the government gives incorrect information. I could imagine them being like, wow, you could sue, you know, Fauci for when he said don't wear a mask, blah, blah. But I have to imagine based on what you're telling me, has there been discovery that suggested like, no, this is knowingly lying. It's different to be like, oh, it's an evolving situation. We gave incorrect information. That's okay. That is understandable. It is different to be like, well, it is an evolving situation, so we need to lie.

0:28:11 Thomas: We need to knowingly tell you false information that will hurt you because it is in an evolving situation. Once it stops evolving, we will see. Maybe

0:28:20 Matt: Said, I don't think they're really squarely addressing the fact that you're relying on these statements from these officials about whether or not you should give your child water from the tap. Like that's really important. Said, after conducting an exact analysis of the present circumstances, it is clear that lying about the presence of lead in the water is a far cry from the state physically extracting evidence from a criminal suspect or conducting an invasive medical procedure without consent. Therefore decline to accept plaintiff's invitation to frame the city's officials' lies as a lack of informed consent. But I don't see how it isn't. You should know if the water is safe to drink that is in your house. And the injuries they're mentioning are terrible, but those are to one person. We're talking about everybody in town. Just don't see how they reject it that way.

0:29:00 Thomas: Always confused with this stuff. So, what is the theory, like? In terms of what should happen for this. Like, is there some other remedy or something? Because otherwise it's just like, no, they should be able to poison the citizens. And that's fine. Like, what is the remedy? You should have voted for different people if you didn't want to be poisoned or something.

0:29:19 Matt: Literally, Literally, they say that. They actually say that, yeah.

0:29:22 Thomas: Come on.

0:29:22 Matt: I mean, you're giving like the joke version of this, but that's really one of the things they say is that you can solve this by electing better mayors. Know, this person that did this is no longer the mayor, so I guess arguably. They said, we can't provide the remedy. Like this is not, this is a 1983 claim. There's no damages here. There's also a qualified immunity issue because we're talking about city officials in some of these cases. Like municipalities don't have qualified immunity. Like generally the city itself doesn't but the individuals do um is state created danger and that's what the dissent kind of really gets into is the fact that the plaintiffs talked all the way through the lower court process here all the way through this appeal even there's like a whole amicus on this about the state-created danger theory and they didn't touch it they just don't even acknowledge it in here that it's not just bodily integrity, but like you have a right not to have the state put you in danger. And if we had a reasonable Supreme Court to review this, I would think that'd be a real issue, that they completely dodged that question. Apparently, from what I saw, just looking around, the Fifth Circuit has just refused to touch this doctrine, this idea, even though I think 10 other circuits have taken it on and said that there is at least some right to not be put in state-created danger. Is the Fifth Circuit to remind everybody, of course, the most conservative circuit, the one that does the nuttiest stuff. That it's a pretty good summary of the state of conservative legal thinking at this point that they're saying out loud that there's no rights to things like clean water and not being lied to. And they're willing to say that in a decision as plainly as they do. It's just right there.

0:30:42 Thomas: Maybe we should have different people in charge of things than people who think that. Just

0:30:46 Matt: They do have a point there. The different judges too. Let's get some of those.

0:30:49 Thomas: That's what I was saying,

0:30:50 Matt: Yeah. Let's get some people that can get us some different judges uh we got a chance here in November let's do that

0:30:54 Thomas: We do? Awesome. Let's do it.

0:30:57 Matt: That's did want to mention as well just before we go to the footnote that this episode is going to be airing on September 11th it's the 25th anniversary of September 11th actually and just wanted to note this isn't exactly a legal thing necessarily. We've talked back on OA 1061 about the 9-11 families battle against Saudi Arabia, obviously showing the substantial evidence that the Saudi intelligence being involved in casing out targets for 9-11 and if not allowing, but actively working with some of the terrorists. Obviously, most of the people who committed these acts were Saudi. Of course, what better way to acknowledge the terrible, terrible tragedy of 9-11, but to give Saudi Arabia nuclear power. That's what we're doing now. We're giving uranium enrichment to the Saudis. It's 30-year civilian nuclear agreement, and it doesn't actually restrict them from developing military nukes, which

0:31:49 Thomas: Actually think we should give people nuclear power, but

0:31:53 Matt: As long as you can't develop it in nukes. I don't think we need more nukes in the Middle East that doesn't seem like the answer um

0:31:58 Thomas: This was, I mean, this was a plan they did a long, like a long ass time ago to, to actually prevent other countries from developing nukes as they said, all right, we'll give everybody nuclear power if you don't develop me like that's been long. The like doctrine of this country. It yet another instance of Trump not knowing how to actually make a real deal? So it's like letting them have the opportunity to turn it into nuclear weapons or something.

0:32:24 Matt: From what I've read this is notable that it's not in there that that you any of these other deals we would make would say that you can't get to military you know to weapons-grade uranium we're not doing that um if Congress doesn't pass a joint resolution in 90 days this is going to go through automatically now Trump has said that this is only going to happen if the Saudis normalize relationship their relationship with Israel and sign under the Abraham Accords but doesn't seem to be happening anytime soon for obvious reasons, you know, because the Saudis don't want to touch the Abraham Accords unless Israel makes some kind of plan for Palestinian statehood, and we'll see how that goes. Know, and to be fair, this is something that Biden was talking about doing potentially before October 7th, but at the point at which, you things went off the way they did, I just thought the timing was particularly bleak, know 25 years later when the Saudis have still not been held accountable for 9-11, and I hope that this lawsuit, which has been moving forward since 2018, and when we covered it back in 2024, the Saudis had brought a motion to dismiss, which was eventually denied. A massive piece of litigation, obviously. We're talking about one of the most visible events of mass disasters, human-caused disasters ever. Lot of people, a lot of moving parts. So we're going to keep following it, and I hope that we get some justice for the families and that we see more about the Saudi involvement and this becomes more of the historical record, but it just doesn't seem like we should be rewarding them with anything right now. And that was kind of my point, I guess.

0:33:38 Thomas: And I love how every story for conservatives now is like, yeah, Mamdani shouldn't even be presiding over. With it's an insult to the whatever meanwhile this happens no one gives a shit um I also on those that line I mean it was too late breaking for us to cover today but I am very curious uh if we end up covering the kind of the papers that were released about you Giuliani or whoever it is um lying to New Yorkers about how dangerous the air was I mean that yeah that just came out so So we didn't have time to cover it today, but I

0:34:05 Matt: The air quality. That's right. It sounds like the cancer deaths have far outpaced any of the 9-11 deaths at this point. It's very sad.

0:34:13 Thomas: It's, it's, it's just a, it's crazy. And I wouldn't have, yeah, I didn't know that it was going to be a result of once again, more evil ghouls lying, you a great post about how, was literally Giuliani was that mom, daddy shouldn't even be presiding over an 11, nine 11 Memorial. Cause it's an insult. And then like next day, these papers get released it's like hey maybe you're the asshole yeah yep

0:34:16 Matt: I'll have to take a look at that. That people feel comfortable saying that out loud. I mean, I understand, you know, Islamophobia being what it is in this country, but that's still that should not be tolerated yeah

0:34:48 Thomas: It's the most I would say it's the bigotry in this country that people are the most casual about like get me wrong there's a lot of bigotry that people are casual about but with anti-Muslim bigotry it's hard, like you have to even, like they don't even know, like they know when they're being racist against black people, they like it, but like with, but Muslims, I don't even think they haven't gotten to the point where they know. They're like, no, that's just how you are. It's really bad.

0:35:10 Matt: That's just the Islamophobic water we're swimming in, no, it's very true. And meanwhile, you know, just to tie this in, like we've got a Saudi asset who helped the hijackers come here, co-sign their leases, open their bank accounts, became close personal friends, and helped them through the United States, and, you know, receiving tens of thousands from the Saudis and the royal family to help plan 9/11, and no justice, and the focus is on Islam instead of the actual people that did it and the actual country that we know to be responsible, is individual Saudis, but the Saudi government has a lot to answer for here.

0:35:42 Thomas: Right. Well, let's take a break and then get to that footnote, which I think will be, you a little more enjoyable than 9/11.

0:35:48 Matt: They can beam me up. We can do it.

0:35:53 Thomas: Want to talk about Gene divorce.

0:35:56 Matt: Sure do. Gene Roddenberry, of course, the visionary, but absolutely nuts creator of Star Trek. Don't know how much you know about the guy, but I think we were just talking about this while you were in Boston, but I have become kind of obsessed with the history of Star Trek because it's actually really interesting and what makes for good TV and bad TV. I really think that somebody, and please give me some money if you do this, but somebody needs to make like an office style dramedy series about the making of Star Trek. It'd be very funny because Gene Roddenberry was a character and his lawyer was also a character. People describe Jerry Edelman just running around basically trying to interfere with scripts all the time, even though he obviously wasn't a union writer who was supposed to be touching the scripts. Was speaking for Roddenberry, but he was just going around just messing with scripts and spying on people and yelling at people when they didn't do the script changes he wanted, the lawyer, which is very strange. I don't think Jerry Edleman was a divorce lawyer because Gene Roddenberry got divorced in 1969, basically at a time when Star Trek was a commercial failure. Million deficit. It's hard to imagine now because it's one of the most profitable franchises of all time.

0:36:51 Matt: You know, in 1969 nobody really thought it was going to make a lot of money, so Edelman hand-writes, probably like in the hallway of the divorce court, just like hands right out a quick agreement that says that Gene Roddenberry's first wife, Eileen, and was a very contentious divorce here because he had left Eileen for Majel Roddenberry, who became the voice of the computers. Actually, pretty much every computer that you've heard talk in Star Trek was Majel Roddenberry, and she actually was an actress in the original series, Majel yeah, that it's a great name, actually. Yeah, I've never heard that name otherwise, yeah.

0:37:14 Thomas: Is his name? What's his name, Majel? What's what? Majel I have never heard of

0:37:20 Matt: M -A -J -E -L, yeah, I'm sorry, sorry, got that, M -H -E. M -JEL, Majel Barrett, Majel Roddenberry, yeah?

0:37:20 Thomas: That name -A -G -J -E -L oh okay, I sometimes you, uh, you speak quickly, and I don't, I I'm not sure what you're saying, so I thought I misheard like a different name, but no, actually Majel, okay, yeah yeah

0:37:36 Matt: Really sounds like Major, like she's a military officer, but yeah. Eileen Roddenberry was granted one half interest, one half, that's a lot, in all future profit participation income from, quote unquote, Star Trek, to which she or Gene Roddenberry entitled. Title, so half of Star Trek profits. Might see a problem here in that they did not define what Star Trek is.

0:37:57 Matt: Because in 1969, nobody thought it was going to be anything. Was just a show that had Bill Shatner in it.

0:37:57 Thomas: It the one show in the movies I guess by there no one of the movies come out

0:38:06 Matt: Movies. That wasn't until the 80s. So movie, I think, was 79. So there was a long period of time there where there was no Star Trek in the world. Even starting to think about the Next Generation until, or as they call it in the decision, they call the Next Generation Star Trek 2. There's actually a lot in here that in this decision that will annoy Trekkies very much.

0:38:21 Matt: They actually, I thought this was pretty funny. Just for convenience, I don't have to keep using the names of the show. They refer to the original series as Star Trek 1, the next generation is Star Trek 2, and Deep Space Nine is Star Trek 3, which is just not canon. None of this is true.

0:38:20 Thomas: That's funny yeah

0:38:33 Matt: Talk about how the Star Trek 2 setting is on the Starship Enterprise, but 78 years later, which of course we all know, is it's a very different ship. It's a Galaxy class, not a Constitution class, come on. They say that Star Trek 3, Deep Space Nine uses different actors and characters and takes place in a later time on a new and more advanced starship, which is a space station and it's Cardassian.

0:38:32 Thomas: That's nothing yeah

0:38:52 Matt: It's actually less advanced than Federation technology.

0:38:51 Thomas: Yeah isn't the whole thing they're kind of sort of stranded in a way out there like not literally but yeah I'm

0:38:59 Matt: It's falling apart, you know, and you get Miles O'Brien to fix everything. I have watched a lot of Star Trek if you can't tell.

0:39:02 Thomas: Not a Trekkie sorry although

0:39:04 Matt: I grew up on it and it has been a source of comfort to go back and watch some 90s Star Trek recently. Anyway, so here's the really interesting legal issue because there actually is one. I'm not just talking about Star Trek gratuitously on Star Trek Day or

0:39:13 Thomas: I think it would be fine if you did with our audience

0:39:15 Matt: That's true. Can't help myself, but probably. But this might actually be a story that Trekkies don't know. This divorce trial, because obviously, you Eileen Roddenberry is just trying to get her share because this is pretty bad. Gene Roddenberry, honestly, in a lot of ways, was not a great guy. And I'm not able to say that because a lot people have said this. A lot of people alive with him have said that. Decided to just give her a third instead of half, just quietly start giving her a third. And she found out and they got punitive damages of $900,000 because they'd ripped her off like obviously that's just wrong so the initial thing that she brought them to trial for was legitimate about this punitive damages thing and then she went and her lawyers decided at trial to argue that everything that came after the original series was a continuation of Star Trek which it is and Gene Roddenberry obviously you created the next generation although uh when you read the accounts uh the only reason the next gen was any good is because they started ignoring everything that he wanted them to do um then he died he kind of lost his mind to drugs and actually this divorce really messed him up

0:39:42 Thomas: Good for her yeah screw that yeah yeah Yeah. Yeah.

0:40:09 Matt: Um a lot of issues with women after this time yes

0:40:11 Thomas: I'm glad that she got punitive damages for that bullshit shenanigans. But if it's a divorce written like that time and then, I guess, who knows? But, you want to make sure that if only one person was working, but the other person was doing the you know the unpaid kind of work of the household and all that they don't get screwed over totally understand that but if it was like all know you did the Star Trek thing while we're married I get half of it and feel like they're talking about the show you know like the profit of the show and it seems a little bit weird if it's like no the concept of Star Trek no if she's not like doing anything with it anything don't know if I have the right law words for it but that strikes me as like kind of a different legal thing you know that's sort of like you've been granted the almost property rights now maybe I'm wrong maybe that is what she got but is that oh okay yeah then that seems okay that seems weird to me that

0:41:01 Matt: Not no you're on the right track you're got the right analysis off the dome, yeah. Norway was the name of his company, still had the copyright and still had all the rights. Obviously she was just supposed to get what's called future profit participation income, and this didn't even become relevant until 1984, because the original series didn't start making money until 1984 from 1969. And this is when it started to come up. And so at this trial, I believe in 1987, she's making this argument. And they're trying to say that the animated series is something that was anticipated. Obviously, nobody would have thought in 1969 they'd make a cartoon out of it. Was thinking about movies. Nobody's thinking about multiple series that were going to come out of it. But she's saying that it's a continuation. And the judge really went off course. And actually, there's a really funny uh, here from the decision, I'll read here from the majority: when the trial detoured off the course of contractual intent analysis and onto the course of continuation analysis, it truly embarked on a mission to explore a strange new world. The inevitable destination was the land of error the

0:41:57 Matt: Land of error, I like that, yeah uh the judge was saying basically and I you know this is kind of an understandable thing but the trial judge I think was having way too much fun putting on a 15-day trial where he brought in testimony to be like how much Star Trek is going on here right?

0:41:57 Thomas: I allow it just wants to like meet all the and have them wear their costumes and stuff I just want to get an idea of what this thing is wow

0:42:11 Matt: Probably. We're going to have to talk to Liam Shatner, obviously. Got to bring him in, some autographs. But -day trial. And jury verdict for the $900,000 is completely legitimate. Punitive damages should apply. Punitive damages thing was actually a very interesting question as well, because under California law, just FYI, you can't bring punitive damages against an estate. Civil Procedure section 377.42. But of course you can bring punitive damages against an actual active company, and Norway was still an active entity, the company that was ripping her off, that was supposed to be giving her the money. And actually, note in a footnote here that Majel Barrett, the second wife, it was such an active company that she was getting two hundred thousand dollars a year from them, which is pretty painful, you're talking about these divorce proceedings. So they found that the punitive is fine, but this continuation thing is not, because the trial court awarded her half the profits from the next generation and Deep Space Nine, which is a lot of money.

0:42:59 Thomas: That seems not right yeah also

0:43:03 Matt: Really a stretch, I think.

0:43:04 Thomas: What if they were to lose money like

0:43:06 Matt: Well, I guess you don't get your...

0:43:07 Thomas: Know it's like then she doesn't she gets to count the wins but not the losses or something it just doesn't

0:43:11 Matt: Future profit participation income. That's what they call it. So that's basically just any profit. The appeals court in California, the Supreme Court declined to review this, so it stood. But the appeals court found that the judge had just made a mistake by not looking at what you were just talking about, which is what did we think Star Trek was in 1969? What did they think they were agreeing to, right? Just go get originalist on this thing and what was in their minds. Could really make the argument because Gene Roddenberry wasn't even all that excited about the next generation. He didn't really want to do it. They had to drag him back into it. And the only reason he did it was because he had a bunch of money he wanted to make, but also because he didn't want anybody else to touch his baby when it came down to it. He didn't like the idea of anybody else doing it but nobody had pitched anything like this in 1969 and they were about to write the whole thing off so the judge was trying to uh I guess split the treble I will say uh but with all of this uh it did not work and it was like this weird kind of amalgamation because know the judge found like she doesn't get any of the merchandising she gets none of the income from the movies none of the animations but because the next generation and DS9 were continuations of the original series and then that's what she gets half of but again that is not really why it's relevant so this actually this case is apparently famous amongst um family attorneys like this is something that people know about because of this issue with the continuation about when you're signing off on rights or participation obviously California you get a lot of this kind of questions uh with movie people TV people so I thought it was all pretty interesting so

0:44:27 Thomas: What was the final thing on that?

0:44:29 Matt: She gets the punitives but still only gets uh of the original series she gets her full half and so that that so obviously that's what she deserved that's which she agreed to. I don't think she's with us anymore, but that's still plenty of money by 1984 or 1987.

0:44:34 Thomas: Which I'm sure still is pretty good. Yeah. Yeah, I would think so.

0:44:43 Matt: Got her punitives, which is very important because she did get ripped off. So I can't say that the wrong thing happened here.

0:44:48 Thomas: I'm certain that judge ended it with, make it so. Has to have ended the order with that.

0:44:53 Matt: You can't resist with this stuff. Wanted to check to see if Eileen Roddenberry did live long and prosper. No, she made it to 2018. Good for her. That's our Star Trek 60th anniversary footnote for today, and I hope, a happier place to end than pink slime, human slime, and bad water.

0:45:08 Thomas: Right. Well, that's our show. Thanks. Appreciate the breakdowns. Thanks so mucho, everyone, for listening, and we'll see you on Monday.

0:45:15 Matt: Right, beat me up.

0:45:20 Clip: This has been Opening Arguments, produced by Thomas and Lydia Smith, with editing help from Peter Baird. The intro is by Thomas Smith. This outro is by Matt Cameron. Support the show at patreon.com/law. Contact us through Patreon or openarguments at gmail.com. Make sure to follow our Bluesky at OpenArgs. But most of all, please share the show. Thanks for listening.

0:45:53 Matt: Let's touch on the – hold on. I was going to say let's touched on the Tates. That's not really how I want to phrase that.

0:46:01 Thomas: Magazine. Wow. I'm not a subscriber to Beef Magazine.

0:46:05 Matt: Lean beef trimmings is a safe and wholesome beef product made by separating lean beef from fat. It's a slaughter just

0:46:12 Thomas: Waiting room? What are they waiting for?