Life’s Rich Pageantry, Part 1-Steve Agee to Appeals Court

Sometimes we see interesting things in the news that move beyond the need for mere ruminating…they have such mystery and coincidence that they fall under the category of “Life’s Rich Pageantry”, or LRP.  Today’s paper dropped three such items in my lap…

You may wonder where I go this terms….

Many years ago journalist Guy Fridell interviewed the late Colgate Darden.  The result was his book Conversations with Colgate, capturing conversations that covered the length and breadth of Darden’s illustrious career.  In one interview Darden allowed that his family, whenever encountered with a bizarre, mysterious, humorous situation that could not be explained they wrote it off as part of “Life’s Rich Pageantry”.

The first item comes with the unanimous Senate confirmationof Virginia Supreme Court Justice G. Steven Agee to fill a seat on the Fourth US Circuit Court of Appeals.

Judge Agee is a former member of the Virginia House of Delegates, then a member of the Virginia Court of Appeals, and then raised to the Virginia Supreme Court.  He must be a proud man today with his confirmation.

But what captures my attention is that fifteen years ago today Judge Agee, still in politics, was involved in a tooth and nail struggle for the Virginia GOP nomination for Attorney General…a contest he lost.  The man who defeated him was…Jim Gilmore.

Here it is fifteen years later.  Agee is now a member of the second highest judicial level in the land, while Jim GIlmore desperately attempts to regain the political luster he enjoyed in the mid to late 1990’s by fighting off a surprisingly strong challenge by Bob Marshall for the GOP Senate nod and then having to face the challenge of beating the man who succeeded him as governor, Mark Warner.  The first challenge is proving more difficult than originally anticipated, and the second will be…quite the effort.

Taking the long view, I wonder if Steve Agee really lost in that nomination fight…

LRP, indeed…

 

When an Illegal Alien is not Illegal

Mr. Bumble in Oliver Twist said “the law is an ass”.  I do know the law is often confusing.

In Kansas an illegal immigrant, Nicholas Martinez, was sentenced to a year in jail after pleading guilty to possession of cocaine and endangering a child.  A plea agreement was worked out where Mr. Martinez would get a year’s probation.  The trial judge tossed the agreement saying Martinez’s immigration status precluded probation.  Why?

“Mr. Martinez is illegally in the country and is in violation of the probation rules right from the start if I place him on probation…He has to comply with all the conditions of the probation and he can’t do that because he’s in violation of the law not to violate any federal or state laws.”

In other words, he has already violated federal law by being here, so putting him on probabation makes no sense as he will be violated on the probie charge as soon as he breaks a law-which in his mere presence here he is doing.

So Judge Hannelore Kitts decided to cut out the interm stage. The judge then sentenced Mr. Martinez to a year in jail.

Sound legal reasoning? Ah, not so fast!

Defense counsel appealed the ruling to the Kansas Appeals Court, where the ruling was http://www.kscourts.org/kscases/ctapp/2007/20070817/96613.htm“>reversed. The court said in its opinion

“While Congress has criminalized the illegal entry into this country, it has not made the continued presence of an illegal alien in the United States a crime unless the illegal alien has previously been deported,”

Apparently the only way the judge could have done what he did was if the defendant had already been ordered to be deported, in which case his presence would be illegal. Since this was not done, the case was been sent back to the trial court for fact determination on this issue.

Let’s put aside the fact that the guy plead guilty, and that he pled guilty to possession of cocaine and child endangerment. Shoot, we will even move past court documents that indicate Martinez was caught using his son to help sell cocaine in Barton County, Kansas.

Let’s consider the language and the implications. If this holds up, then it doesn’t matter if you are here illegally, your presence is not actually illegal unless you have been adjudicated to having entered the country illegally and your deportation ordered.

It looks like the guys at BVBL.net have more work in store for them than they thought!

As for me, I remain amazed at how the law can turn a word that you think you know upside down and inside out. I feel like the Vizzini the Sicilian in The Princess Bride. After kidnapping the Buttercup, the fiance to Prince Humperdinck, Vizzini discovers he and his gang are being chased by man clad in black.

No, it was not Johnny Cash.

Time after time the mysterious man evades Vizzini’s efforts to stop him, and each time Vizzini reacts by saying “inconceivable”.

Finally, Inigo Montoya replies: “You keep using that word. I do not think it means what you think it means.”

Today, I think I understand how Vizzini feels.

Forgotten Battles for Basic Rights

We are surrounded by battlefields, but we don’t always recognize them.  Some are proteceted by the Park Service, others have been absorbed by developers.  But sometimes the battlefields are visible but are unrecognized, despite the struggles waged there…and although the site is changed, we should not forget the principle involved.

One such battlefield is at the Yorktown Shopping Plaza at Va. 50 and Gallows Road, home of Grevey’s Restaurant and the location of one of the most fierce freedom of speech cases Northern Virginia has seen in my lifetime.  It happened in the back corner of the plaza, where today I discovered an optometrists shop had taken the place of the Yorktown Book and Card Shop (YBCS).

One fundamental aspect of American law is that all laws apply equally to all citizens.  An observation that often follows-to the point of being a cliche-is that sometimes these laws are used to protect behavior that many would find nauseating…and that we find that some folks will go through significant sacrifice to defend a point of law or of honor.

Such was at point back in the corner of the Yorktown Shopping Plaza.  Back in the late eighties, well before the internet and huge book stores like Borders or Barnes & Noble, the YBCS had an extremely large magazine selection.  Pretty much any magazine you were looking for, you could get there, and the store had a large and varied clientele. 

This included adult magazines, which took up probably 20% of the shelf space.  There was so much interest in that section that newspaper articles said there was a sign up that limited “browing” in that area to 10 minutes.

“Newspaper?”, you ask…”why would there be a newspaper story about this establishment?”

One day-I want to say in the early 1990’s-Fairfax County issued a writ of some type that prohibited the store form selling adult publications.  I don’t know the exact grounds, but it kicked up quite a stir.  The owner refused to comply saying the ruling was a violation of free speech.  The ACLU got into it, appealed the decision, and after two years or more in transit the Fairfax County decision was overturned in a federal court.  Freedom of Speech again defended, this time on behalf of selling smut.

But what always fascinated me about this is what the owner did.  As I said, this disputed area was about 20% of his magazine display space.  Other merchants would certainly display other goods there…but not this fellow.  He posted large signs in the are saying he was not going to allow an illegal government ordinance prevent him from selling what he wanted or tell him what goods to put on the shelf.

So for more than two years 20% of his shelf space went empty-all over a principle.  The subject of the principled fight isn’t one most of us would get behind, but to him it was a matter of principle.  Not a great business decision leaving that much space empty and non-revenue producing, but that is what he did.  And, given the traffic generated by the merchandise that was removed, that 20% of shelf space probably generated more than 20% of his income.  Still, principle triumped over profit, and the space stayed clear.

When the courts came back and overturned Fairfax County, he restocked the shelves with the previously verbotten merchandise.

I became aware of all this through coverage in the WaPo and by being a devoted patron of the Skyline Chili restaurant that was about two doors down.  Patrons had a clear view through the window of the many signs, Letter to the Editor and editorial cartoons the YBCS owner posted in his front window in support of his position.  I always marveled at how strongly he must have believed in this little corner of the Freedom of Speech to have given up that much revenue in support of his position.

Circumstance recently had me over at the Yorktown plaza for lunch at the Dominion Deli.  Skyline Chili is long gone, and I discovered that so was the YBCS.  I guess this little store got whipsawed between the internet and the big box bookstores with their large magazine selection.  Still, as I looked at the back corner office that once was a battlefield over first amendment rights, I couldn’t help help but reflect at how far people will go to proctect what they think is important.

California Says Bloggers Free from Certain Libel Claims

MSNBC reports that the California Supreme Court has ruled unanimously that bloggers cannot be sued for libel for printing the words of others. This protection covers ISP’s and users of their services, including bloggers and bulletin board posters.

The Court said: “Subjecting Internet service providers and users to defamation liability would tend to chill online speech”.

The case does not address the matter of suing bloggers for words they have themselves written.

The court also said while the ruling may have some “some troubling consequences”, that “Until Congress chooses to revise the settled law in this area” people who contend they were defamed on the Internet can seek recovery only from the original source of the statement, not from those who re-post it.”