Ponycat wrote:Grizlaw, I know you a tax lawyer but help me out if you can. The Supreme court didn't rule on the prior case because the father didn't have custody. However my understanding is that the judge that ruled on it yesterday said he was still bound by the original 9th circuit courts ruling, thus the ruling given.
Doesn't this just create another loophole for the Supreme court to not give a ruling, and is it true that when the Supreme Court refused to hear the original ruling then the 9th's ruling stands and everyone in the 9th district shouldn't be saying the pledge.
I'm a little confused here. HELP
There are a couple issues here, and in my opinion, I think the judge in this most recent case may have committed a slight procedural foot-fault in stating that he was bound by the prior decision (assuming the press has accurately reported the substance of his decision, which is not a given). It is a little confusing, but I'll do my best to explain.
In the first case, the Supreme Court held that because the plaintiff did not have custody of his daughter, he lacked standing to sue. "Standing" is a legal concept that basically means that only the holder of a legal right can enforce it; thus, for example, if you get into an auto accident and choose not to sue the person whose fault it is, I can't just decide that I'm going to sue them for you. In this case, because it was the child's rights that were allegedly being violated, only the child (or her legal guardian, since she's a minor) can sue; the father who lacks custody cannot. Thus, the Supreme Court vacated the decisions of the lower courts, on the grounds that the plaintiff should not have had standing to sue in the first place.
Now, fast forward to the current case: we have plaintiffs who
do have standing to sue, and the case is otherwise identical to the previous one. The judge in this case stated in his opinion that, because the 9th Circuit has previously ruled that having the words "under God" in the pledge is unconstitutional, he is bound by that ruling. As a technicality, that's probably not correct -- because the 9th Circuit's decision was vacated by the Supreme Court, it is not binding precedent. The judge should have simply decided the issue on its legal merits, without stating that he was bound by the prior ruling. However, that minor error should not have any significance in the end -- the Ninth Circuit will review the issue again, they will probably rule the same way they did last time, and regardless of how the Ninth Circuit rules, the losing party will appeal to the Supreme Court.
If the Ninth Circuit wants to be technically correct, they could also vacate the current decision, stating that the judge is not bound by the previous ruling because it is no longer good law, and send it back to the trial judge to decide the issue on its merits (and without relying on the previous ruling). The judge could then rule however he sees fit, that decision would be appealed back to the Ninth Circuit by whichever party lost, and etc.
Did any of that make any sense?
I work as an attorney so that I can afford good scotch, which helps me to forget that I work as an attorney.
