Alabama probate judges might wish to brush up on federal contempt of court powers

U.S. District Court Judge Callie V.S. “Ginny” Granade on Jan. 23 struck down Alabama’s laws banning same-sex marriage in a ruling in one same-sex couple’s lawsuit in Mobile. The judge ruled that probate judges around the state should begin issuing licenses to same-sex couples on Monday Feb. 9 if an appeals court did not issue a stay. No stay has been issued. Alabama probate judges who refuse to follow the order may well be subject to the power of the federal court to hold them in contempt. For a good article laying out the broad powers of a federal district judge to hold individuals in civil or criminal contempt, here is an extensive explanation of those powers.

Acting like a yokel and mouthing off about ludicrous theories of states’ rights is one thing. Defying a specific order of a federal court is quite another.


The injunction issued by the district court states:

Accordingly, the court hereby ORDERS that the Alabama Attorney General
is prohibited from enforcing the Alabama laws which prohibit same-sex marriage.
This injunction binds the defendant and all his officers, agents, servants and
employees, and others in active concert or participation with any of them, who
would seek to enforce the marriage laws of Alabama which prohibit same-sex

See here for full order. Also here for PDF. ORDER Strawser v. Strange (8)


One doc’s point of view

2 Book CoversYesterday, I wrote about the Canadian Supreme Court’s decision on physician assisted death. Dr. Bill Wright, the doc who has written two books featured in these pages on prison medicine, wrote me. He offered these thoughts and has allowed me to reprint them:

“I’m not afraid of death; I just don’t want to be there when it happens.” ― Woody Allen

Since I’m not literate enough in legalese to interpret the Canadian Supreme Court’s decision, I’ll present the medical side.

Doctors are philosophically split on the issue of physician-assisted suicide, just as they are on issues like abortion. It’s fine to have these differences as long as they don’t interfere with the job we signed up for — taking care of patients.

I take care of end-of-life patients every day. I have patients who cling to life despite incredible incapacity and physical pain. Others with incurable illness may not be that physically disabled yet, but they see the handwriting on the wall and don’t want to experience what they see as a horrible end to their lives.

As their physician it’s not my responsibility to make the decision about ending life for them. It is my responsibility to be their advocate, helping them to understand what the nature of their disease is and the treatment options available. One of the options, I believe, is to throw in the towel.

That doesn’t mean that it’s the best option, but right now in Colorado it’s not an option at all.

The law says I have to stand by the bedside of my patient with an abdomen swollen to obscene proportions from end-stage liver disease and simply watch until he eventually vomits enough blood to exsanguinate. There’s something wrong here.

Assuming my patient says he’s tired of this existence and wants to end it, telling him that he has to stick it out until the grim reaper decides to amble by one day in the indefinite future is cruel in the extreme.

Some argue that hospice care keeps such a patient comfortable, but lying in that pool of desolation taking narcotics is not what most of us would see as comfortable. We wouldn’t allow one of our pets to endure such misery, and yet we deny the same surcease to our fellow humans.

Since Brittany Maynard’s death, more states, including Colorado, are pursuing “death with dignity” statutes. It can’t come too soon for me.

Bill Wright, M.D.

My thanks to Dr. Wright. We probably should listen closely to physicians who will see us through to the other end, whatever that might be.


Somewhere out there

Like whiskey, age has improved my appreciation for life. Indeed, my love of life has increased by an order of magnitude more now than when I was a younger man.

Even now, when I hear Somewhere Out There from the movie An American Tail, as our family did in that tiny Kearney, Nebraska theater shortly before the death of my first wife that horrible Christmas season in 1986, tears gush down my aging face. The emotions are still raw and real and, more importantly, precious.

My dog friends Elvis and Zoey from across the fence bring me utter happiness when I feed them the treats that Joan selects for them with such care. I cannot describe in words the love I feel for our grandchildren. The old woman I am wed to reminds me each day that the souls of human beings can, if luck is with you, be bound together. My work, and especially the people I work with, enrich my life beyond comprehension. Buttered popcorn never tasted so good as it does now.

I do not want to die. But, I will. And, when I do, I don’t want to suffer and I don’t want the people who care for me to suffer. Over the last three years Joan and I successfully dealt with our respective cancers. We were fortunate to survive, but we witnessed many others die painfully after being eaten alive by that horrible disease.

The idea that my life, or the life of any other person, is punctuated by pain rather than peace is an obscenity. With these thoughts in mind, I ask you to read and ponder the Canadian Supreme Court’s recent opinion on physician assisted death. See Carter v. Canada here (“We conclude that the prohibition on physician-assisted dying is void insofar as it deprives a competent adult of such assistance where (1) the person affected clearly consents to the termination of life; and (2) the person has a grievous and irremediable medical condition (including an illness, disease or disability) that causes enduring suffering that is intolerable to the individual in the circumstances of his or her condition.”)*


*H/t Howard Bashman and How Appealing.


Talk amongst yourselves

Last evening, I spoke to the Robert Van Pelt American Inn of Court here in Lincoln. Years ago, I served as the Inn’s administrator, so I was happy to return to speak to the group about blogging.

I used a live hook up to the Internet, a big screen and a projector. I went through some posts, as well as a “behind the scenes look” at the blogging platform I use. I hoped to illustrate why I think that blogging can be a good thing for the bench and bar, and particularly the federal courts. My theme: It is all about transparency.

I touched on about 10 posts including a post entitled On being a dirty old man and how young women lawyers dress. A spirited discussion about the “dirty old man” post ensued.

It was fascinating, and the discussion was almost entirely fueled by comments from women. One female judge, who is not a prude, commented that the post generated so much heat because it highlighted a truth about inappropriate wearing apparel in court. On the other hand, a very experienced female trial lawyer said the post hit a nerve because it highlighted another truth, that is, women lawyers carry heavier burdens than men in the courtroom. One astute questioner wanted to know my target audience and my primary message. I said the audience was young female lawyers, and the importance of understanding that in the courtroom, “It is not about you.” She seemed skeptical.

Recognizing that this group was predisposed to be nice to me, I don’t pretend that last night’s discussion was representative of the views of anyone, women or men. But, I can say the topic remains one of significant interest to judges and lawyers. In other venues, the topic–how lawyers (both men and women) dress in court–deserves respectful discussion. However, having touched the third rail once with painful consequences, I don’t intend that this blog is the place to engage in such a discussion. As Linda Richman used to say, “talk amongst yourselves.”


Foie Gras

There are times when I am very glad I don’t have to preside over cases in California. The idea of spending my time dealing with a ban on foie gras would be more than I can take.

A federal district judge in California was not so lucky. He had to decide whether California’s law banning foie gras ran a fowl of federal law. He said it did. See here. But the “ducks are us” crowd promise an appeal. See here.

Photo credit: Global Action in the Interest of Animals and reproduced per Creative Commons Attribution 3.0 Unported license.

Photo credit: Global Action in the Interest of Animals and reproduced per Creative Commons Attribution 3.0 Unported license. As required by the license, no change was made to the photo.

This controversy reminds me that some things are more important than others. To wit:

The French delicacy Foie Gras is obtained by removing baby geese from their families, terrifying them and making them lead miserable, sordid existences against their will before finally allowing them to be slaughtered in cold blood at a very young age, by which point death is almost certainly the best option for them anyway.

Still, what’s good for the goose is good for Uganda.*


*H/t Sickipedia.

Same sex marriage, rational basis scrutiny and In Re Estate of Kittenbrink

I was a very young lawyer when I argued and lost In Re Estate of Kittenbrink, 264 N.W.2d 868 (D. Neb. 1978).  In that case, I attacked a statute as being irrational and violative of the Constitution because it discriminated against nephews.

The Nebraska Supreme Court held that despite the testimony of the Chairman of Judiciary Committee that a legislative study had determined that there was no rational basis for distinguishing between a nephew by blood as opposed to a nephew by marriage for Nebraska inheritance tax purposes, and despite the fact the law was therefore changed to treat such persons equally but only after the death of our testator, the challenged distinction “comported with the natural law of kinship.” It was therefore rational at the time. This was so even though our client was extremely close to the decedent and even though the difference in treatment cost our client nearly $155,000.

As I look back at Kittenbrink, and look forward to the Supreme Court’s decisions in the same sex marriage cases, it strikes me that I have never really understood what is and is not a rational basis for legislation. Indeed, I am perplexed that legislation may be rational one moment, but not the next. For those of you who read this blog somewhat regularly, and witness first hand the machinations of my fevered brow, my lack of comprehension probably comes as no surprise. It is, however, more than slightly unsettling to me.



A Forrest Gump solution to the “epidemic” of Brady violations and other similar horrors

Forrest famously said: "Stupid is as stupid does."

Forrest Gump famously said: “Stupid is as stupid does.”


As you can tell, I am simple-minded just like Mr. Gump. So, here’s an idea from a dolt. Prosecutors shouldn’t hide shit.

More specifically, why don’t federal prosecutors adopt an informal “open file” discovery practice for most matters, particularly run of the mill drug cases and the like. Screw Federal Rule of Criminal Procedure 16 and the Jencks Act.

Invite defense counsel to come to your office, offer them a beer and give them your file for review including all the witness interviews and proffer statements. Let them copy what they want subject to whatever restriction you have to impose to protect the physical safety of witnesses. Do this early on and make a record of what you are doing (except for the beer).

Why is this a bad idea?


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