Emoluments, Pension Deals And More On The Legal Eagle Show

I had the pleasure of joining Marcia Chambers today on Legal Eagle, her weekly radio show on WNHH, the New Haven Independent’s affiliated radio station.  We discussed a wide range of topics, including the recent arrest of a reporter in New Haven for photographing a potential crime scene, President-Elect Donald Trump’s impending violations of the Emoluments Clause of the United States Constitution, and a potential constitutional problem with a recent deal between the Malloy administration and public employee unions to fix the state pension system.  Click here to listen to the show on SoundCloud.


In Support Of Kevin Lembo

The Connecticut Law Tribune has published an editorial supporting State Comptroller Kevin Lembo’s recent letter to the American Family Association, a conservative Christian ministry that is considered one of the most anti-gay lobbies in the country. Mr. Lembo told the AFA that its apparent failure to comply with the state’s nondiscrimination policy might render it ineligible to particulate participate in a program that allows state employees to contribute to certain charities through payroll deductions. The editorial explains why the First Amendment allows the state to exclude charitable organizations that discriminate based on sexual orientation and gender identity from the payroll deduction program.

UPDATE 12/19/16: I should have noted that the Second Circuit addressed this issue in 2003, in Boy Scouts of America v. Wyman.  The court of appeals upheld then-Comptroller Nancy Wyman’s decision to exclude the Boy Scouts of America from participating in the state charitable giving program because the BSA discriminated against gay men.


Donald Trump And Arguments From Ignorance

Most people, even very young children, have an intuitive sense that proof of the existence of something is required before that “something” is acknowledged as true. Kids say “prove it.” Adults understand that the burden of proof is almost always on the party asserting the truth of something. For example, in our justice system the burden of proof is on the state (in a criminal action) and the plaintiff (in a civil action). A defendant does not have to prove his innocence; the state must prove his guilt–beyond a reasonable doubt.

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What Happens When The Senate Splits 50-50?

With Republicans picking up three seats in the Connecticut Senate last Tuesday, the Senate will be split evenly between Democrats and Republicans.  Article Fourth, section 17 of the Connecticut Constitution provides that the “The lieutenant-governor shall by virtue of his office, be president of the senate, and have, when in committee of the whole, a right to debate, and when the senate is equally divided, to give the casting vote.”  Thus, assuming the Democrats in the Senate vote together, they effectively have a majority because Lt. Governor Nancy Wyman will vote with them to break any tie votes.

But what does an evenly divided Senate mean for other trappings of power, such as leadership of committees, and even such mundane things as who gets the nicer offices and better parking spaces?

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Is Breathalyzing Students At Prom Constitutional?

The Meriden Record Journal recently published a story about the Town of Southington’s decision to require all students attending dances and other major school functions to submit to a breathalyzer test as a condition of attendance.  Is this legal/constitutional?

The short answer is almost certainly yes.

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The New York Times Did Not Break The Law

The New York Times recently published Donald Trump’s tax returns from 1995, raising questions about whether The Gray Lady broke the law by doing so.  Generally speaking, tax returns are confidential and it is illegal for a person to publish them unless “authorized by law.” So, did the New York Times break the law? Read the rest of this entry »


Briefing Schedule Submitted In Education Ruling Appeal

The plaintiffs and defendants in the Connecticut Coalition for Justice in Education Funding v. Rell appeal, now pending in the Connecticut Supreme Court, have submitted a proposed briefing schedule for the appeal.  The schedule proposes that the parties complete all briefing by April 12, 2017.

Assuming that the Supreme Court approves the proposed schedule–and I believe it will–the Court will not hear oral argument until late April or May of 2017.  That means an actual decision by the Court is unlikely until the fall of 2017 at the earliest.

In my opinion, the proposed briefing schedule is reasonable.  This is a complex appeal with a voluminous record.  A more expedited briefing schedule would not have been realistic.


“Designated Survivor” And The Presidential Succession Act

Kiefer Sutherland is back to save the United States of America!  No, not as Jack Bauer, but as Thomas Kirkman, the Secretary of Housing and Urban Development, who is the “Designated Survivor,” i.e., the cabinet member selected not to attend the State of the Union Address at which virtually the entire United States government is destroyed.

Just in case you are curious about the legal accuracy of the show, take a look at the Presidential Succession Act of 1947.  If the President and the Vice-President are dead, incapacitated or otherwise unable to exercise the powers of the Office of President, here is the order of succession :

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State Files Formal Appeal In Education Case

Last Friday (9/23) the Office of the Attorney General officially filed its appeal from Judge Moukawsher’s ruling concerning the constitutional adequacy of public education in the state. (The appeal has been assigned docket no. SC 19768.)  Chief Justice Chase T. Rogers had previously granted the Attorney General’s petition for permission to appeal that ruling, but the filing of a formal appeal form was still required. The latest filing is thus merely an administrative event.  The next big administrative issue that I expect the parties and the Supreme Court will soon address is establishing a schedule for briefing and oral argument.  Given the nature of the case and the complex trial court record, I would not be surprised if the oral argument isn’t scheduled until late winter or early spring of 2017.


Supreme Court Grants Petition To Review Education Ruling

Connecticut Supreme Court Chief Justice Chase T. Rogers has granted the Attorney General’s petition to appeal Judge Moukawsher’s recent bombshell ruling on the constitutional inadequacy of elementary and secondary school education in Connecticut.  The Chief Justice also agreed to review issues the trial court decided against the plaintiffs.  The Chief Justice did not set a date for oral argument, nor did she establish a briefing schedule.  Stay tuned.

UPDATE (4:08 pm): The Supreme Court has issued an order granting the Attorney General’s request for a stay of the trial court’s ruling and order.  Also, Justice McDonald is recused from the case.