Daily Archives: July 18, 2021

As has often been said, the law consists largely of rules and exceptions to rules. Heres an example.

In 1989, in Mesa County, Rafael Aguilar Garcia shot and killed a man who was hanging out with Garcias estranged wife. Garcia was charged with first-degree murder, but before he could be tried, he fled to Mexico. Colorado sought to extradite him. However, that attempt failed. Colorado then provided Mexico with a book containing evidence of the shooting and Garcia was tried in a Mexican court in a proceeding authorized under Mexican law involving only documents. In that proceeding, Garcia was acquitted.

Now, fast forward to 2016 when Garcia, presumably comforted by the passage of 27 years time, flew into Denver International Airport and was promptly arrested on an outstanding warrant from his 1989 crime. Garcia was shortly thereafter tried in Mesa County District Court and convicted of first-degree murder. He appealed his conviction to the Colorado Court of Appeals and that court, on May 13, affirmed the conviction.

Garcias main argument on appeal was double jeopardy. Although you might know this from your diligent study of the U.S. Constitution, the Fifth Amendment to the Constitution (a part of the Bill of Rights) says a person might not be twice put in jeopardy for the same offense. And Colorados Constitution, in Article II, Section 18, says the same thing.

However, as the law of double jeopardy evolved, it came to be that a person could in fact be prosecuted twice for the same conduct, provided the prosecutions were brought by separate sovereigns. The theory was: there were two separate offenses one against each sovereign. So, for example, the United States could prosecute someone for violating a federal statute and a state could prosecute that person for the same conduct if the conduct also violated a state statute.

But Colorado (and several other states), not liking this end run around double jeopardy protection, passed a statute saying Colorado could not prosecute someone who had been tried in another jurisdiction, whether that prosecution resulted in a conviction or an acquittal. This statute effectively negated the body of law allowing prosecutions by separate sovereigns for the same conduct. Garcia relied on this statute in his appeal.

The Court of Appeals, however, didnt buy Garcias argument. It looked at the Colorado statute in question and noted (correctly) that it only references previous prosecutions by the United States, a state or a municipality, and the court concluded Mexico, as a foreign country, didnt fall into any of those buckets. Thus, the statute didnt apply and, since Mexico and Colorado were clearly two different sovereigns, Garcias acquittal in a Mexican court did not give him double jeopardy protection from a second prosecution in Colorado.

Rule/exception to rule even when the rule comes from the Bill of Rights.

Jim Flynn is with the Colorado Springs firm of Flynn & Wright LLC. You can contact him at moneylaw@jtflynn.com.

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Money & the Law: With every rule there seems to be an exception - Denver Gazette

If youve ever strolled downtown in Cottonwood Falls, youll remember the charming courthouse perched on the square at the south end of the brick street.

Charming is not a word I use often, but theres no doubt about it: The Chase County Courthouse is downright charming. With its local limestone walls, red mansard roof and central clock tower, it resembles a dollhouse or perhaps a Valentines Day cake. The building and the jail beneath were built in 1873 for a total cost of $42,599 (and 88 cents), according to the courthouses National Register of Historic Places nomination.

An icon to a century that is past and was presumably but not necessarily better, the courthouse is one of the most photographed and most recognizable buildings in Kansas. Youll find images of the courthouse on all sorts of tchotchkes in the tourist shops scattered along either side of the street, from calendars to Christmas ornaments to cookies.

It is the oldest working courthouse in Kansas, the kind of place where commissioners meet and taxes are collected, court trials are held, and couples sometimes marry and pose for pictures on stairs with native walnut bannisters. Even the jail was in use, at least until 1976, when the fire marshal condemned it as a public safety hazard because the only exit was a circular stairwell.

Closing the jail began a chain of events that would, eventually, lead to Chase County running a for-profit detention center that on any given day holds dozens of detainees waiting for deportation hearings.

You cant see the detention center from the courthouse, because its a few blocks over on Walnut Street (Kansas Highway 177). Its on the east side of the road, in a strip of county buildings that include the road crew barn and health department. Theres a limestone sign out in front that says Chase County Law Enforcement Center, but if you didnt already know it was a federally contracted immigration detention facility, there would be no way to tell, except perhaps for the video cameras and the razor wire atop the fences.

Stop in the public parking area in front of the facility to take some photos and its likely a red-shirted jailer will come out to inquire what youre up to. The jailer I drew last weekend was a polite young man who confirmed that it was indeed the county detention center. He said there were 75-80 inmates currently on the roster, which was about average. He said the detention center didnt get very many people stopping for photos.

The detention centers online roster listed 76 detainees, mostly Mexican nationals accused of being in the country illegally. There were also other foreign nationals, including from Central America and Africa. There were a handful of inmates from Chase and nearby counties being held on criminal charges. The website says the detention center is closed to in-person visitation, because of COVID-19, but there is telephone and video communication available through a private vendor.

After the old jail was condemned in 1976, Chase County had to pay nearby counties for housing its few prisoners per month. But in July 1992, the county opened a new, 32-bed jail, built with $1 million in bond money in the hopes of making a profit from other agencies in need of cells. The project was marked by controversy from the start.

The county commission adopted home rule measures that exempted it from some state laws governing the way county jails were administered, according to a Nov. 26, 1992, clipping from the Wichita Eagle. When the sheriff at the time, Larry Sigler, lost his bid for re-election, the commission promptly hired him as the new jail administrator, for 7% of the jails gross revenue. The jail had a contract with the U.S. Marshals Service to house prisoners for $50 a day. The county moved 18 county employees out of the control of the sheriff and placed them with the new jail administrator.

A group called Chase County Citizens for Responsible Government formed and, at a heated commission meeting in November 1992, more than 150 persons showed up to voice their concern about the jail and its operation. The commission did not allow questions or comments. One of the commissioners, Bill Yeager, told the Eagle that the problem was caused by the local paper, the Chase County Leader-News, printing exaggerated stories to try to stir up a riot.

The jail failed to live up to financial expectations, and in 1993 the county missed an $80,000 bond payment. The county asked the Kansas Board of Tax Appeals for a loan, but was denied. In the end, according to an Associated Press clipping from October 1993, the county was forced to hike taxes to pay for the jail and other expenses.

The goal of a for-profit jail came closer to reality in 2008, when the county signed a contract with the Department of Homeland Security to hold those detained on suspicion of being in the country illegally. As undocumented immigration became a national focus, the need for cells in Chase County and elsewhere skyrocketed. Millions of dollars have poured into the facility from the federal government over the years, but most of that was taken by operating expenses and paying off each years share of the facilitys bonded indebtedness.

In 2017, when an interim jail administrator was hired, he praised the for-profit model.

It does help our county, the administrator, Dow Wilson, said to the Emporia Gazette. Our jail is self-sustaining, so no tax dollars are used in funding our jail. So it relieves the burden on the taxpayer.

Later in 2017, a permanent jail administrator was hired: Sigler, the sheriff who lost re-election 25 years before. He remains the administrator today. The jail made headlines last year when a COVID-19 outbreak struck the facility, sickening staff and inmates alike. All told, there were 152 infections last year among detainees, according to U.S. Immigration and Customs Enforcement.

Sigler told me recently the jail had about a million dollars in reserve before COVID hit, and that it was now back on track to rebuild that amount. He believes most people in the county see the jail as a benefit, he said. It employs a staff of 31. The county website is currently advertising for a jailer, at a starting salary of $15 an hour.

In 2019, the jails bond was finally paid off. Records from the Chase County Clerks Office show the jail generating excess revenue now of about $120,000 per year, with a total cash balance of $224,400 as of year-end 2020.

The Chase County Detention Center, when fully staffed, can hold up to 148 inmates. The center is among more than 600 facilities, large and small, that provide cells for tens of thousands of immigration detainees across the country. There were 27,217 of those individuals in detention nationwide as of July 8, according to the TRAC database at Syracuse University, and 80% of them have no criminal history.

The number of detainees is dramatically up, according to TRAC, from less than 14,000 in March 2021.

The backlog of immigration cases means that detainees often spend months, or even years, waiting for their cases to be heard. It is illegal under the Fifth Amendment to hold immigrants without due process, but the Supreme Court hasnt defined how long a detainee can be held before getting into constitutional issues. Also, immigration courts are often remote from the facility where a detainee is held. There are no immigration courts in Kansas, for example; the nearest to Cottonwood Falls is in Kansas City, Missouri, 130 miles away. Sigler said the jail began video teleconferencing for court appearances before COVID.

The average stay of an ICE detainee at Chase County is 27 days, Sigler said. For each day, the county receives $62 under its current contract. That amounts to $1,674 per detainee stay.

While the Chase County Detention Center has finally achieved viability as a for-profit facility, the question must be asked: At what moral cost?

Back in 1992, the goal was to build a jail that would pay for itself by taking in a few prisoners from other counties and the federal Marshals Service. Now, in 2021, the detention center is part of a vast network of federally contracted for-profit jails that, for $60 or so dollars a day, will house those suspected of having committed no crime other than wanting a better life in America. In January, the Biden administration ordered the Department of Justice to stop using for-profit prisons, but that order does not extend to ICE detention facilities.

The story of how a predominantly white, rural county in Kansas came to own a for-profit jail that depends financially on filling its cells with dozens of ICE detainees is a complicated one that poses a moral dilemma. Fewer than 5% of Chase Countys 2,637 residents are Hispanic or Latino, according to the latest U.S. Census data. Less than 2% of residents are foreign-born.

What business does Chase, or any county, have in profiting from the misery of individuals trapped in the spiral staircase of a backlogged immigration system? The need of a jail with a few cells to hold local prisoners, and perhaps a few from neighboring counties, has morphed into a self-perpetuating institution that now puts a few dollars in the county coffers at the expense of its soul.

Buildings are more than buildings. From fire stations to schoolhouses to jails, they are all extensions of political will, and especially so for a county with fewer than 3,000 residents. They signal what is important, and to what degree. Jails are a necessary function of county government. Making them profit centers is not.

It all makes the Chase County Courthouse seem a little less charming.

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The Chase County Courthouse is a Kansas icon. The jail in its shadow is a disgrace. - Kansas Reflector

We Americans have a contradictory history when it comes to tolerating, or not tolerating, dissent. The latest chapter is the Nikole Hannah-Jones controversy at UNC-Chapel Hill.

The fight, fittingly, played out around July 4th, the most American of holidays. We take off work, grill hot dogs and set off fireworks to celebrate our Declaration of Independence and, supposedly, our dedication to independence of speech and thought.

That dedication has been tested from the nations beginning.

In 1798, Congress and President John Adams passed the Alien and Sedition Acts. The sedition law outlawed any false, scandalous and malicious writing against Congress or the president and made it illegal to conspire to oppose any measure or measures of the government. A congressman and a journalist were convicted and sent to jail. The laws were repealed or expired after Thomas Jefferson was elected president in 1800.

Race and dissent have long been intertwined. Before the Civil War, Southern states banned abolitionist writing and speaking. The U.S. House passed a Gag Resolution in 1836 to squelch discussion of abolishing slavery. For 100 years after the Civil War, advocating for Black Americans civil rights could be dangerous.

In the 1960s, racist demagogues like North Carolinas Jesse Helms, a television editorialist then, conflated communism and civil rights. In 1983, Senator Helms filibustered against a national holiday for Dr. Martin Luther King, Jr.

Helms said King followed a philosophy of action-oriented Marxism that is not compatible with the concepts of this country.

Helms was a father of the Speaker Ban Law that thrust UNC-Chapel Hill into a battle over free speech almost 60 years ago. On the last day of the 1963 session, after just an hour of debate, the legislature enacted the law, which prohibited speeches on North Carolina public college campuses by known members of the Communist Party, persons known to advocate the overthrow of the constitutions of North Carolina or the United States, or individuals who had pleaded the Fifth Amendment in order to decline answering questions concerning communist subversion.

For years, the ban embroiled the university in controversy. Its accreditation was threatened. In 1969, a three-judge federal court ruled that the law was an unconstitutional violation of the First Amendment.

Now the university is embattled over Hannah-Jones, who won a Pulitzer Prize for The New York Times The 1619 Project. The project tells how slavery has shaped America since slaves were first brought here over 400 years ago.

Conservatives claim the 1619 viewpoint somehow threatens our 1776 national narrative. But both stories shaped our nations history. Both should be studied.

When Hannah-Jones announced she wouldnt be coming to UNC, the state Republican Party exulted that she will no longer be spreading her divisive agenda at UNC-Chapel Hill.

Is that cancel culture?

Explaining her decision, Hannah-Jones criticized the universitys leadership. She called out Walter Hussman, the Arkansas publisher and big donor for whom the journalism school is now named and who opposed her hiring:

I cannot imagine working at and advancing a school named for a man who lobbied against me, who used his wealth to influence the hires and ideology of the journalism school, who ignored my 20 years of journalism experience, all of my credentials, all of my work, because he believed that a project that centered on Black Americans equaled the denigration of white Americans.

Her decision is understandable. But many people at UNC stuck out their necks for her and may get their heads cut off in retaliation. The fight for freedom of speech and thought will go on without her voice at Chapel Hill.

Gary Pearce was a reporter and editor at The News & Observer, a political consultant, and an adviser to Gov. Jim Hunt (1976-1984 and 1992-2000). He blogs about politics and public policy at http://www.NewDayforNC.com.

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Gary Pearce: UNC and the debate over dissent - Salisbury Post - Salisbury Post

MONROE COUNTY, Tenn. (WATE) Several Monroe County families are angry with Tennessee Valley Authority after receiving a notification of eminent domain.

The power company says in documents that it needs to take several pieces of private property as a right-of-way for eventually upgrading transmission lines along Highway 72 in Monroe County. The TVA says they have been trying to secure a right of way on the homeowners property for more than 30 years.

Eminent domain is the governments power to take private land for public use. The power of eminent domain is defined by the taking clause of the fifth amendment of the United States constitution. However, in Tennessee, the power of eminent domain has been controversial as many homes and farms were taken to build dams and lakes leaving families displaced.

Included in that land TVA is trying to secure a right of way on is a small farm in Vonore that has been in the Duckett family for nearly 70 years. The size of the property is just over four acres. TVA high voltage power lines hug the edge of the farm. It runs from the town of Loudon to the industrial park in Vonore along Highway 72. Last week, TVA filed a Declaration of Taking to lawfully enter the property as a right-of-way.

They want to use my land and take it by eminent domain with a 200-foot-by-900-foot easement across my property, said Barry Duckett, the current owner of the farm.

He showed us a 31-page document filed in federal court which he received last week.

It gives me 21 days to answer this complaint or they get my land in the amount of 10 dollars which they have already deposited the check by eminent domain.

He says his familys dispute with TVA over the right of way has been ongoing for two generations.

My dad fought them in federal court in the 1980s and won in federal court that they would never have an easement across this property or my neighbors property for that power line, he said. Here is the ten dollars that they have already deposited at the clerks office. Theyre going to take my barn, my dog kennel, everything.

Rob Mouron, Ducketts neighbor, also received notice from TVA. A small piece of his property will also be affected by the right of way.

I thought all this eminent domain was finished years ago when my father-in-law and Barrys father went and fought and beat it in court, Mouron said.

TVA tells WATE that the utility has been trying to work with the property owners since the original transmission line was constructed years ago. They said the material sent to Duckett and his neighbor is to allow survey crews to determine the right of way for the existing line. TVA says to maintain the lines reliability, the utility needs a 75-foot right of way on either side of the line for a proposed upgrade to begin later this year.

Im shocked and horrified that they are using the eminent domain today, Paulette Summey, Monroe County 4th District commissioner, said. I thought that was long gone.

Summey said shes was disappointed to learn of the action being taken by TVA.

Ive already called the county mayor and some other people, I will take the information back on how we can support the people of our county, she said.

TVA says its unfortunate that we have to take this action but its vital to ensure the reliability of our power system.

However, Barry Duckett is not giving up his battle with the utility.

This is my land and I plan on keeping it. It was my parents and my grandparents land and Ill fight them until the end.

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This is my land and I plan on keeping it Monroe County families trying to fight TVAs eminent domain - WATE 6 On Your Side

Sitting in their air-conditioned offices with stewards who serve coffee and tea on request, a majority of our Supreme Court justices have come to an awful decision. They ordered an essential class of workers into slave-like isolationunseen, unheard and unprotectedas they toil in scorching heat harvesting crops.

The justices, exploiting a single incident, turned back the clock on farmworker rights nearly a half-century.

In an under-reported 6-3 decision, the justices drop-kicked the California Agricultural Labor Relations Act of 1975 into the trash bin. That California law gave farmworkers access to labor organizers. The court decision assures farm owners that they once again reign over their employees like plantation owners in the antebellum South, just without bullwhips.

"It seems like a return to indentured servitude," Rev. Richard Witt, executive director of the Rural and Migrant Ministry in New York State, said after the U.S. Supreme Court's June 23 decision in Cedar Point Nursery v. Hassid.

In practical terms, the ruling means that farmworkers cannot access union organizers unless they leave the farm, creating a legal barrier that segregates the workers from the right to organize a union.

The majority ruling ignored human rights, including the right to form a union, and reaffirmed the court majority's view that property rights reign supreme. It furthers the high court's long history of favoring property over people.

Think of this decision as judicial backing for a modern economic version of slavery, just without the right to murder employees or sell them off. Sharecropping after the Civil War was slavery 2.0. Think of this ruling as American slavery 3.0work without meaningful labor rights.

Just what did this California law do that required striking it down as unconstitutional? It allowed union organizers to walk onto farms to talk with workers during the hours they are not toiling in the fields. These visits by union organizers were limited to 120 days per year, each for no more than three hours.

The case arose after an incident when some labor organizers met with workers during work hours, causing a ruckus in which some of the laborers walked out. Throwing out the California law over this incident would be akin to the high court invalidating stoplight traffic laws because one driver ran a red light.

Migrant farmworkers, like slaves and sharecroppers, often reside in temporary housing on the farm owner's land. Recognizing that, California gave union organizers access to workers during their off-hours.

But the court conservatives' have now effectively barred unions from approaching workers at all as long as they are on the owner's property. Assuring access to workers, the majority said, is a "taking" of the owners' property rights, which our Constitution allows only with "just compensation" to property owners.

Up to now, the Constitution's prohibition on uncompensated "takings" was limited to government acquiring private property for uses such as highways, public buildings or, in some instances, new private developments with government support. But assuring mere access to private property was not considered an unconstitutional taking.

The ruling harkens back to antebellum days. Chief Justice John Roberts Jr., who wrote the opinion, is the current champion of oppressive property owners who want to grow more prosperous by ensuring employees don't get paid fairly or have safe working conditions. Achieving those exploitive goals becomes difficult if farmworkers form unions to argue for their rights.

Justice Stephen Breyer, in dissent, pointed to a fundamental legal problem with the idea that letting union organizers walk onto farmland to meet with laborers when they are not picking crops is what our Constitution's Fifth Amendment calls a "taking" of property.

"The Takings Clause prohibits the Government from taking private property for public use without 'just compensation,'" Breyer noted. "But the employers do not seek compensation."

Witt sees the bias in the way Chief Justice Roberts framed the high court ruling. "What about [farmworkers'] property rights?" the reverend said. "If they're living on the farm, don't their property rights count?

Rural and Migrant Ministries is a non-profit interfaith organization advocating for the working poor and disenfranchised in New York State since the 1970s.

As soon as the court issued its ruling, Witt says, his ministry encountered newly posted "No Trespassing" signs on farms across New York State.

"Employers can control who can come and see" farmworkers, he said. "Are we going back to an era where only those who own land get to have their voices heard?"

Even at its most militant and anti-capitalist, the American Labor Movement has never been able to secure the same hard-fought rights and protections for farmworkers that other workers won through decades of struggle.

In 1935, persistent collective action from below forced President Franklin D. Roosevelt to get behind the National Labor Relations Act, which granted collective bargaining rights for workers.

But the bosses, albeit a little bruised, held onto enough sway to exclude farmworkers from that law. The exclusion is a solid example of structural racism since many, if not most, field hands are Black and Brown people.

The exclusions fueled by Jim Crow racism and the desire of many business owners to ensure a permanent underclass of cheap labor continue to this day in federal law. The result of this is virtually universal abuse of farmworkers, including violent attacks, sexual assault and an entrenched sub-minimum wage.

These awful conditions amount to an economic extension of slaveholder rights, just without the legal right to sell off farmhands. The result of this has been shortened lives and needless misery.

According to labor activists in New York, Covid has infected more than 13,000 farmworkers nationwide. The death toll? Unknown because our governments pay so little attention to the essential workers who harvest the food we eat.

The pandemic had the unexpected effect of bringing the plight of farmworkers to public attention and brought widespread acclaim for their labor during the shutdowns.

But little has been done to remedy this enduring American evil of exploiting farmworkers. Now our Supreme Court has struck a blow against decency and fairness.

Farmworkers were among the majority of American workers left out of enforceable Covid safety measures that the Biden administration announced in June.

The 1975 California law that the high court struck down grew from 40 years of work on behalf of California farmworkers by the determined labor activist Cesar Chavez and the United Farmworkers Union he founded. The collective bargaining rights the UFW won applied only in the Golden State.

The high court ruling thrilled the American Farm Bureau.

Zippy Duvall, president of the Farm Bureau, said the organization "appreciates the U.S. Supreme Court for reaffirming private property rights, which are foundational to our nation and critical to ensuring secure and well-managed farms. We hope this decision sends a message to state regulators that it's simply wrong to give outsiders access to farms, where families live and work hard to safeguard their animals and harvests."

Advocates for farmworkers see it very differently.

Edgar Franks, political director of Familias Unidas for la Justicia, an independent farmworker union representing workers from indigenous families across Washington State, was appalled by the court decision.

"We definitely think this is an anti-worker ruling," Franks recently said. "But it also goes beyond that. Chief Justice [John] Roberts redefined the 5th Amendment 'taking clause.' What if there were a health and safety violation? Would that mean they would be denied entrance to check on worker safety? This makes life harder for many workers."

AFL-CIO President Richard Trumka also took issue with the view that farmworkers' fundamental right to organize at the location where they work constitutes an unconstitutional "taking of their employers' property.

"As the state of California recognized more than 45 years ago, meeting with the union during off-hours at their workplace is the only practical way for workers to organize when they must regularly move from farm to farm throughout the growing season," Trumka said.

Bruce Goldstein, president of Farmworker Justice, a national advocacy organization for farmworkers based in Washington, D.C., believes Roberts wrote so broadly that the ruling invites employers to test its limits.

"The court says it's not much of an issue but given the breadth of their opinion, it's difficult to understand what the limits are on the power of the employer to limit anyone coming onto their property," he says.

That is what Witt worries about because the high court ruling seems to have First Amendment implications in the free exercise of religion.

Suzanne Adely, co-director of the Food Chain Workers Alliance, thinks farm owners and other property owners will take an extreme view of how much the ruling limits access to workers. The alliance is a coalition of 31 worker-based organizations advocating for more than 3750,000 food workers in the United States and Canada. Adely fears that the ruling set a corrosive precedent.

"Employers say they are not going to that extent but that won't matter much if conservatives in the future try to utilize this ruling for their case. It's utterly anti-union and anti-democratic. Globally speaking, a lot of countries around the world would consider this to be shocking."

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A Supreme Court ruling that's right out of the 19th century - Raw Story