Battlegate: Gloria Battle Should Be Off Ethics Committee - 03/11/10

Local blogger Chaz Stevens is right that Gloria Battle should be removed from the ethics advisory committee. Battle was appointed by Vice Mayor Sylvia Poitier.

Mr. Stevens says he asked Commissioner Joe Miller to seek her expulsion. This comes as a result of Stevens' complaints to the State Attorney and law enforcement agencies alleging that Ms. Battle received unlawful compensation, a crime, and had conflicts of interest when she served for a short time last year as a temporary city commissioner.

I'll let the SAO sort out the charges, but I agree that Battle should be tossed off the ethics panel. First, she attended only about half the meetings. She was obsessed with the sex harassment provision. It was also that provision she cited when she voted, as temporary commissioner, with Sylvia Poitier against adoption of the code.

The harassment provision is a minor element of the code. It was inserted to discourage future elected officials from "fraternization" with city employees à la Al Capellini, who used a city supervisor to set him up with a young female lifeguard. It was another one of those stories the local press like to use to prove that Deerfield Beach is a joke and moral hellhole.

She wanted to punish people who file "fruitless" complaints under the ethics code when the committee was discussing "frivolous" complaints. On this issue, Battle seemed to be on a completely different track from the rest of the committee.

It was clear from the beginning that Ms. Battle was dead set against the ethics code as is her friend, Vice Mayor Poitier. She had no interest whatsoever in improving or strengthening the code.

The only problem with removing Ms. Battle at this point is that the work of the committee is supposedly done anyway. All they have to do is come back and adopt the final report.

It would be good if the committee extended itself to consider some of the provisions of the newly proposed county ethics code. Perhaps the honest services section. I'd still like to see the committee rethink its gift proposal -- especially in light of what the county is doing with this same issue. I won't hold my breath.

I wouldn't take Ms. Battle off the committee solely because somebody has leveled charges against her. She hasn't been charged with a crime yet and may never be.

What Battle's removal would accomplish is this: It would broadcast to other volunteers that if they accept the responsibility of serving on a city board, they'd better fulfill it and take their duties seriously. I should note in fairness that one of her absences, if my memory serves, was due to a death in the family. In this case, though, the other members took the work of the committee seriously and tried to show up at the meetings which took place over the course of six months or so.

We need dedicated people on these boards, not vacant chairs.

The Gun Case Beyond Guns: A New Way to Look at the Bill of Rights? Part II - 03/10/10

While the Supreme Court deliberates the constitutionality of Chicago's handgun ban, 69% of Americans say cities do not have the right to prevent citizens from owning such guns. A new Rasmussen™ poll found that just 25% of adults think city governments have the right to ban guns. This is the second of a series of articles in which I discuss this case, McDonald v. City of Chicago, not from the standpoint of the gun issue however, but how the Supreme Court's rationale could impact future decisions regarding the constitutional rights of American citizens.

The 14th Amendment, along with the 13th and 15th Amendments to the Constitution, were ratified just after the Civil War. These amendments were intended firstly to insure that former slaves would enjoy the same rights, privileges, and immunities enjoyed by white citizens of the various states.

A decade earlier, in 1857, the Dred Scott Decision held that slaves and former slaves were not citizens of the United States. The Supreme Court decision in Dred Scott was legislatively overruled by the Civil Rights Act of 1866. The 14th Amendment, adopted in 1868, made certain the Court could not hold the 1866 law unconstitutional.

The 14th Amendment declared that "All persons born or naturalized in the United States ... are citizens of the United States and of the State wherein they reside."

Very importantly, the 14th Amendment did not by its own terms apply only to former slaves or any particular race or class of people. It applied to "All persons." This meant that whatever the 14th Amendment would bring to American constitutional law, the consequences would be even farther-reaching.

Prior to the Civil War, it was generally thought that one was a citizen of a state -- Virginia or Florida, for example -- which formed a part of the union of all the states. The 14th made it clear that there is citizenship of the United States apart from state citizenship and implies that there are certain rights, privileges, and immunities which are incidental to that citizenship.

The Slaughter-House Cases involved laws that dealt, as the name suggests, with the regulation of butchers and slaughterhouses. This was the first decision of the Supreme Court to arise out of the 14th Amendment and one of the first or possibly the first decision of the Court dealing with environmental law.

The holding of the Court in the Slaughter-House Cases was that the privileges and immunities protected by the 14th Amendment were rights unique to U.S. citizenship and not fundamental rights such as the right to operate a business. Consequently, the privileges and immunities clause could never be used to limit the power of the states or hold them to the Bill of Rights unless it involved one of these unique rights.

However, the privileges and immunities clause is only one of three clauses in section 1 of the 14th Amendment.

The second clause is due process: "[N]or shall any State deprive any person of life, liberty, or property, without due process of law."

The third is equal protection of the laws, the basis of Brown v. Board of Education (1954) and other important civil rights decisions and statutes.

The Bill of Rights enumerates different kinds of rights. The First Amendment is about freedom of speech and other "political" rights. The Second Amendment, the subject of McDonald v. City of Chicago, concerns the right to bear arms.

The Fourth through Eighth Amendments deal with procedural rights. While the privileges and immunities clause might not be useful here, it is clear that the procedural rights would fall within the proscription of the 14th that no state shall "deprive any person of life, liberty, or property, without due process of law."

It is also important to note that the Bill of Rights is not an exhaustive list. As stated in the Ninth Amendment: "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people."

What, then, of these unenumerated rights and the First Amendment rights? Are these incorporated into the 14th Amendment? Are states bound to respect the rights of citizens to free speech and press?

They most definitely are. To reach that conclusion, the Court relied upon the doctrine of substantive due process.

Procedural due process is fairly easy to understand. In simple terms, due process means the right of someone who is a party to some kind of court proceeding (or other official proceeding) to be duly notified and to be given fair opportunity to be heard.

As evolved and applied over the course of two centuries of constitutional jurisprudence, due process admittedly is a bit more complicated than this. And the concept is further complicated by the doctrine of substantive due process.

One sitting justice in fact has called substantive due process, the term that is, an oxymoron. Not all members of the Court over the years have liked the concept.

Past critics include Justices Hugo Black, Byron White, and Oliver Wendell Holmes. Justice Black, in fact, argued that the privileges and immunities clause was a more appropriate avenue for incorporation of the Bill of Rights into the 14th Amendment, contrary to the holding of the Slaughter-House Cases. Current justices critical of substantive due process doctrine are Clarence Thomas and Antonin Scalia.

Black's Law Dictionary defines substantive due process as follows:

Doctrine that due process clauses of the Fifth and Fourteenth Amendments ... require legislation to be fair and reasonable in content as well as application. Such may be broadly defined as the constitutional guarantee that no person shall be arbitrarily deprived of his life liberty or property. The essence of substantive due process is protection from arbitrary and unreasonable action.

Substantive due process is not the product of any one decision. It is evolving jurisprudence. Something very close to substantive due process was even used in the Dred Scott Decision. If the Supreme Court decides to incorporate the Second Amendment in the McDonald v. City of Chicago case, it could do so on the basis of substantive due process. But it could also do so using the privileges and immunities clause, which would, in effect, overrule the long-standing Slaughter-House Cases.

The possibility arises because at least two justices who are likely to be in the majority are not fans of substantive due process. On the other hand, Chief Justice John G. Roberts suggested during oral arguments that substantive due process may be the way to go after all to incorporate the individual right to own and bear arms into the 14th Amendment.

Does this really matter? It could be significant.

Consider this blog post (02/22/10) by Elizabeth Wydra, Chief Counsel of the Constitutional Accountability Center (CAC), which filed an amicus curiae brief in support of the petitioners in the McDonald case:

The history of the Privileges or Immunities Clause shows that the drafters of the provision were particularly concerned with protecting the right to keep and bear arms for newly freed slaves and Unionists in the South, who were experiencing violent persecution in the aftermath of the Civil War. Accordingly, the McDonald case provides a rare, clear opportunity for the Court to apply the Privileges or Immunities Clause as it was originally intended and protect this individual right to keep and bear arms against state and local infringement. Reviving the Privileges or Immunities Clause would not just protect the gun rights asserted in McDonald, however; as CAC has explained in its report, The Gem of the Constitution, reinvigorating the Clause would strengthen other fundamental, substantive rights—including the right to reproductive choice recognized in Roe v. Wade and the protection for sexual intimacy recognized in Lawrence v. Texas -- by giving these rights a stronger textual foundation in the Constitution.

In other words, while the decision on the principal issue may upset ardent gun-control advocates, if the Court chooses to base its holding on the privileges and immunities clause of the 14th Amendment, McDonald v. City of Chicago could have form an important precedent for future cases involving individual rights of all sorts.

It could be a new way to look at the Bill of Rights.

A Pier for the People - 02/14/10

These are the concepts presented by Garcia Stromberg, architects for the new pier entrance buildings.

The overall project, which is scheduled to begin construction in November, encompasses the pier restaurant, the restrooms, and the bait shop.

Instead of Key West or Mizner style (ugh!), which characterizes much of the new construction in South Florida, the project architect, Steve Edwards, let his inspiration be historic architecture in and around Deerfield Beach itself. The two unique features of the proposed design are: the pier view from the street will be open, as clearly seen in the first two images, and the north-south walkway will go right through the complex rather than around the front as it does now. Also, the pier facilities (bait shop) will be moved to the south side of the pier and will include an office, enclosed space for ice machines and storage, and an observation tower for use by law enforcement and ocean rescue.

The rest rooms will be ADA compliant. There will be restrooms in the restaurant, on the second floor deck, and outside for beach users. The second floor deck and the deck outside the restaurant, incidentally, will be available to everyone, not just restaurant patrons.

The pier entrance as it now looks from the street side:

The pier entrance as it will look from the street side:

The view from the beach:

The observation tower:

Aerial view looking east:

This schematic shows the relative locations of the entrance buildings in the concept. The bait shop and beach restrooms are located on the south side of pier:

Aerial view from ocean side:

All of the above images are from the City of Deerfield Beach website. More project details are available there.

On a different note, the pier entrance project as it has progressed so far could serve as the prototype of how the public should be engaged in future development plans for the city at every step, especially those at the beach involving city property, and how such plans should serve the citizens first, and not special interests. I am happy to say, this is a great plan, and the city and the architects are to be commended.