Friday, June 16, 2006

Breaking News on DeLay Suit

Nothing more than rumors at this point, but it is possible that the Richie suit on DeLay's residency has been removed to federal court. You'll know more when I know more.

UPDATE: Looks like more than mere possibility:

On Thursday, Margaret Wilson of Austin’s Potts &
Reilly law firm filed a notice of removal, seeking to
have the case moved to U.S. District Court in the
Western District of Texas.




U.S. District Judge Sam Sparks will rule on the removal motion. UPDATE: A little conflicting info here - Margaret Wilson, who filed the motion, has indicated no ruling has been made and Sparks will hold a hearing on the issue. Another RPT lawyer, James Bopp, has been quoted as saying the relocation into federal court was automatic and required no hearing. Either way, as a removal hearing or on the merits, this case is going to Judge Sparks.

Though Sparks is a GOP appointee, he is not a hard-core partisan. He is mainly known for presiding over the sentencing of former Texas Attorney General Dan Morales. But he is also a maverick of the most eccentric kind. He performs Shakespeare in community theater, and ruled entirely in rhyme and meter on the Barton Springs clean-up case, opening with:


"Barton Springs is a true Austin shrine,
A hundred years of swimming sublime.
Now the plaintiffs say swimmers must go
'Cause of "stress" to critters, fifty or so.


He is also remembered for his 2000 decision that aggravated many in the GOP in which he ruled that Ford cannot sell vehicles over the internet in Texas and that state regulators did not violate Ford's consitutional rights by prohibiting such sales.

What is removal jurisidiction? Basically, a plaintiff has a choice of forum. If he brings a lawsuit with mixed claims of federal and state law, he is allowed to file in either forum. Removal is device meant to balance the forum choice flexibility of the plaintiff. If the defendant is being sued in state court, he may remove to federal court in the same district if any claims in the suit, and the relief sought, falls into the original jurisdiction of the federal court.

The GOP contends removal is an option in this case because one of the arguments advanced in the Richie suit is that elgibility is controlled by U.S. Consitution and is thus a federal question. But removal requires a novel question of federal law forming "one consitutional case." Just like Bush V. Gore, this suit does not belong in federal court - There are not mixed claims, only mixed questions of law. The Richie suit simply requires interpretation of a federal law to decide a state claim, and that's not enough for removal. But just like Bush v. Gore, don't expect black-letter law to matter much...

Why remove? After all, isn't the Texas Court of Appeals just as conservative as the Federal Fifth Circuit? Well, federal courts have a reputation for having more competent jurists who are more attentive to the law, but that's not really the idea here.

I've been talking with a lot of folks in the legal field, and there is genuine mystery as to the strategy here. It would seem that this move is aimed mainly at escaping the grips of the temporary restraining order. This isn't a question of vertical stare decisis, but of horizontal transfer. In other words, the whole thing starts over, and we have no TRO. But it seriously delays the litigation, drawing this mess out even longer. This is a tradeoff the GOP is willing to make in order to start the process of picking a replacement.

9 Comments:

Blogger muse said...

Sounds interesting! And, like this lawsuit might take forever in the courts. Wouldn't that be a shame? :)

5:41 PM  
Blogger Howling Latina said...

As a Virginia blogger and DeLay's new neighbor, what residency suit?

7:01 PM  
Blogger Mark said...

I put a link into the post where you can find out all about it. In a nutshell, the chair of TX dem party filed suit against the chair of the TX GOP party which argues the Texas Election Code does not allow her to declare DeLay inelgible to serve.

In order to make such a declaration, she would produce public records that conclusively show him not to be a resident of Texas. Since the public record is mixed, there is no such conclusive proof.

Therefore, she cannot convene a meeting to replace him on the ballot, and a temporary restraining order is now in place saying just that.

7:09 PM  
Blogger muse said...

Mark, I skimmed the wikipedia thing about removing a suit to federal court. Would DeLay be the one who is asking for this to be in federal court? What advantage would that be to him?

6:28 AM  
Blogger Greg in TX22 said...

My speculation is that the Republicans did this to save time. The Democrats hoped to have this case wander through state court and chew up weeks. In the even the Democrats had an adverse decision, they'd start appealing in federal court and chew up more valuable weeks. The Republicans want to speed up the process. They want to eliminate time wasted in state court.

And I disagree with your assessment that there is no novel Constitutional question. There is: May the states judge the qualifications of Congressial candidates? I haven't seen any guidance on that.

My standard caveat is that I'm not DeLay's lawyer, I'm not your lawyer, in fact, I'm not a lawyer at all.

3:34 PM  
Blogger Mark said...

I think you have a point there, Greg, and I think if the case hinged on that question, Dems would be out of luck.

But I think the "out-come determinative" question is really this: Does an examination of the public record show conclusive proof that DeLay does not meet the elgibility requirements? If not, the GOP chair should be enjoined from acting. To give content to those requirements, we look to the U.S. Consitution - namely, he must be a resident on election day.

However, the democrats raised the question you mention as well in their lawsuit. Specifically, they argue only the U.S. Congress can judge the elgibility of its members. While a good argument, it may also land them in federal court. And once that issue is resolved, it will be a federal justice who will then also decide all the state claim issues.

In case you couldn't tell, I love this stuff. For a law student, it is so rad to see all this black letter theory come alive right before your eyes.

5:49 PM  
Blogger playmisty4me said...

I think the strategy is what Tina Benkiser says it is..."liberal activist judges in Austin" can't rule the way they want, so they think they can find a more sympathetic Republican judge. She should be careful what she asks for....

10:53 AM  
Blogger Michelle said...

If the Repubs prevail, can you guys predict which of the nine (?) hopefuls is most likely to be the nominee? (I'm watching this closely from Austin...love your blog, Mark.)

1:18 PM  
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3:52 PM  

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