By now you've undoubtedly heard of the guy from Rutland who has recently returned from West Africa and promptly landed in what is being called voluntary quarantine. You know, just so Vermont doesn't miss out on the Ebola panic.

 “I want to emphasize this is a voluntary arrangement, and that this individual does not have an elevated temperature, has no signs or symptoms of illness and is not a health risk to anyone at this time,” the governor said..

 If you're like me, the story might have set you wondering about a fundamental question: who are they to tell me that I have to go into “voluntary” quarantine? What if I say no?

VPR reports that the administration has an answer to that:

 Shumlin stated that if the individual presents symptoms and the Vermont Department of Health deems involuntary quarantine of the individual necessary, he is “ready, willing, and able” to act.

It turns out that Vermont statutes make provision for just such an eventuality. 18 V.S.A. § 1004a says that “The commissioner of health shall have the power to quarantine a person diagnosed or suspected of having a disease dangerous to the public health.”

Given that every public statement the government has made emphasizes that this person has had no symptoms, and there is no reason to think he has been infected, one wonders what a court would do if faced with a habeas challenge to his detention. 

Today's good news is that the South Burlington Education Association has been able to reach an agreement with the school district to end their strike and return to the important work of educating South Burlington's students.

The bad news is that, as it happens pretty much every time workers stand up for themselves, we are hearing attacks on workers' right to withhold their services and take action to protect their rights and their livelihoods. Ronald Reagan was wrong when he busted the air traffic controllers' union and hired scabs, and Peter Shumlin is wrong when he says teachers should not be allowed to strike.

Some facts might be in order to get past the cries that a five-day strike in one school district shows that the sky is falling. Vermont has two hundred fifty public schools, sixty-two supervisory unions, and three hundred sixty-two school districts. Out of all those schools and districts, in the last forty years or so we've had about twenty-seven teachers' strikes, most lasting just a few days, although some have been longer.

In all the rest, teachers and management have been able to reach agreement without a strike, and experience has shown that a strike is the last resort. In South Burlington, negotiations started last November, the contract expired on June 30, and yet the teachers went back to school and worked without a contract until last week. In Bennington and Rutland Southwest the teachers worked for 500 days without a contract to try to avoid a strike.

So why do teachers need the right to strike? It's pretty simple, really: without the ability to strike management has no incentive to negotiate in good faith. Again, take the South Burlington strike as an example. The strike ended after the parties agreed to mediation, and the work of the negotiators and the mediator Friday and Saturday produced an agreement. You probably knew that already, but did you know that the teachers have been calling for mediation for weeks, including their request for mediation on October 6, a week before the strike deadline?

There is nothing to prevent school districts from agreeing to mediation before forcing the teachers out, but for some reason the management in South Burlington wasn't interested until the teachers were out on the street. Somehow, though, anti-labor forces want to blame the teachers, and not the administration, for the stoppage.

Governor Shumlin has proposed binding arbitration as an alternative to teachers' strikes, but here's something else you probably didn't know: when binding arbitration has been proposed in the legislature, the Vermont NEA has supported it and the school boards have blocked it. As VPR reported Thursday, quoting NEA spokesman Darren Allen:

 Despite support from teachers and the governor, the Legislature hasn’t taken up the issue. When it comes up, Allen said, “every single time, every single time, the school boards and the school boards association have adamantly opposed it.”

There is no doubt that on those rare occasions when Vermont teachers are forced to strike, it produces disruption to the schools and the communities they serve. Eventually, though, the schools reopen, the teachers return to the important work that they do, and the instructional days are made up, The lasting harm, when it does come, is caused not by the school days missed or vacations shortened, it comes when management splits the community by attacking the very idea that teachers have a legitimate right to join together and negotiate for their wages, hours, and working conditions, as happened in Hinesburg in 1985.

We don't know the terms of the new South Burlington contract yet, but we do know that it is a contract that the school board calculated the town could afford. South Burlington is recognized for the high quality of its public schools, and it's the teachers who are producing results in those schools. They deserve a fair contract, and they deserve the right to fight for their interests. 

Wednesday's Burlington Free Press has the latest story in the rebranding, restructuring, or, if you prefer, dismantling of another local newspaper by the vultures at Gannett.

If you read the Free Press or Seven Days you'll see a story under the headline “Free Press newsroom resets for the future“, and it starts out with a self-congratulatory story about how they broke the IBM story this week. In fact, the top eight paragraphs are about how great they are that they spent all that time reporting the story, because of their online presence they weren't limited by space, and how they could respond to reader interest as demonstrated by the hits, shares, and time readers spend on the story.

 It's not until way down toward the bottom that you really learn what the so-called reset is all about.

 Part of this resetting is developing a new operational structure to enable us to focus more on the local content that deeply interests readers. With systemic changes in the media business in recent years including changes in approach, format and staff size, we are redefining journalism jobs for the future and our vibrant website, BurlingtonFreePress.com. During the next several weeks, the staff will apply for these jobs with new expectations. We expect time for adaption to the change in structure.

 The bolded language is the key. No matter how long you've been at the Freeps, or what you've done for them, if you want to keep your job you need to apply for it, and no telling what those “new expectations” will be.

Paul Heintz has a story about this at Seven Days, and he's all over the bosses on how much this stinks, including pointing out that the Free Press newsroom staff has only twelve reporters and five editors. If you've been wondering where the newspaper part of your daily newspaper went, maybe that answers your question. 

But remember, I said this is a story about why I'm glad I subscribe to the Free Press, and here's the reason. The story about the Free Press “reset” was on page 15A of Wednesday's paper. What was on14A, exactly opposite the “reset” story? The story about the retirement of Sam Hemingway. 

 Sam's a great reporter and writer, and he's been writing for the Free Press for thirty-seven years. He deserves all the honors he's gotten, and all the recognition he will receive on his retirement. One of the things that makes him so good, though, is thirty-seven years of working in this community and knowing what's going on. Especially in a small media market like Vermont the readers are lucky when a reporter grows roots in the community and has those roots and connections inform his or her writing. 

It's hard to picture someone getting a new job in today's click-driven, management-by-slogan world having the chance to develop and stay for thirty-seven years, isn't it?

 I wouldn't have seen the bizarre juxtaposition of these two stories if I hadn't been reading both stories at the breakfast table this morning, and that's what makes me glad for my daily subscription. I guess you could call that two-page spread “The good, the bad, and the ugly”.

UPDATE: Tuesday the Ninth Circuit also ruled in favor of marriage equality.

Ted Cruz's reaction to the Supreme Court's decision not to take a case or make a decision: “Judicial activism at its worst.” 

We are used to the Supreme Court making decisions and releasing an explanation of the effect and reasoning of those decisions, so yesterday's decision rejecting challenges to marriage equality decisions is a bit opaque. I thought it might be useful to give a little review of what happened and what I think it might mean.

First off, although we are used to talking about “appealing” a case to the Supreme Court, virtually none of the cases the Court decides come from an appeal. They come from a petition for a writ of certiorari, a procedure whereby the losing party in a lower court asks the Court to review the lower court's decision. The Supreme Court has complete control over whether to accept the case, known as “granting cert”; every year they accept a tiny fraction of the cases that come to them, and they have almost complete control of what cases they will take.

 You've heard discussion of a split in the circuits. One of the reasons that the Court might grant certiorari is if the courts of appeals in different circuits have come to different conclusions about the same issue, particularly it is of constitutional dimension. Again, this is not a rule that they must take these cases, just a prudential principle for cases in which they might take them. 

The other thing that you might not know is that although it generally takes five votes (out of nine) to win a case at the Supreme Court (and how you get to five can be tricky), it only takes the votes of four justices to grant certiorari.

In this case, advocates on both sides were urging the Court to grant cert, but they decided not to do that. This obviously leads to great celebration among marriage equality advocates not only in the states the cases came from, but in the other states in those circuits, because the decisions of those circuit courts will be binding on the federal and state courts in all of those states. (This is how we get to thirty marriage equality states after this decision is implemented.) On the other hand, people who were hoping for a definitive statement from the Supremes that marriage equality is required by the Constitution were disappointed.

It's rare for a justice to write publicly about why he or she voted to grant or deny cert, so we don't really know the reasons they did what they did. You can find law review articles and cases discussing the meaning and precedential authority of a denial of cert, but that's not my purpose here. If I were to speculate, however (which I am), I would guess that the extreme conservatives couldn't muster four votes to accept the cases as an opportunity to reverse them and stop the seemingly unstoppable wave of marriage equality.

If I'm right this isn't the same as a clear statement from the Court, but it's suggestive of what the future might hold. 

 Color me more than a little optimistic.

It's very interesting watching the election results coming in from Scotland. You can watch the live announcements here: 

http://www.bbc.com/news/live/uk-scotland-29130277

No glitz, just local officials standing at a podium reading a script for the vote totals, and the totals are based on total counts, not sampling. I'm actually enjoying that. 

The counts I've seen have been more strongly opposed to independence than I've been expecting. Contrary to late estimates, it's looking like a runaway for the status quo, about 56%-44%, although some big cities are yet to be reported.

I'm also struck by the high turnouts. Most of these reporting areas are coming in in the 85-90% range, with some over 90%. I would love to see turnouts like that here. (What would the city council in Ferguson, Mo., look with a 90% turnout, for instance?)

Finally, for Vermont local election officials, and I'm sure I'm not the only justice of the peace who reads GMD, I found it interesting to note that they have the same rule that we do here in Vermont: marking your ballot in a way that identifies the voter invalidates the ballot.

Stay tuned, but right now it looks like a No result. 

Did you notice the story in this morning's Free Press about how Brent Burns is no longer managing Scott Milne's gubernatorial campaign?

The strong implication is that what little money Milne has raised, possibly including the $25,000 he's already loaned himself, is all gone, and it's hard to keep employees on the payroll when there's no payroll.

Eric Davis, the Sage of Middlebury, opined that without any money left the Milne campaign is going to have to depend on “free media”.

But you see, there's a problem with that. Free media, sometimes referred to as “earned media” depends on having a candidate do things that will attract attention, and unlike Dan Feliciano Milne has also fallen short on this aspect of the campaign.

 At least Feliciano has gotten it together to get some press coverage (“earned media”, get it?) by holding a press conference this week. By contrast, and I'm sure he's had his reasons, Milne decided to pass up a golden opportunity at free media by skipping at least one pre-primary debate. He said he didn't want to debate candidates who will be opposing the Republican candidate after the primary, but in case he hasn't noticed, now that the primary's over he is going up against what? A candidate who opposes the Republican candidate.

 Before he put in his papers, people were speculating that the Republicans might not have anyone at the top of the ticket this year. Now, they've got to be wondering if anybody could tell the difference.

Conrad Smith, who worked in environmental protection for the state of Vermont for many years, died two weeks ago. Because I knew him before he came to Vermont, I shared this story at his memorial service yesterday. Conrad did great things, and he will be missed. 

As a lawyer, a piece of advice I would give just about anyone is: try not to get thrown in jail. Especially if you’re a lawyer.

I first met Conrad Smith in Michigan back in the mid-70’s, before I went to law school. I was a tenants’ rights activist and Conrad was running the Landlord-Tenant Clinic in downtown Detroit.

The Landlord-Tenant Court in Detroit was in the Lafayette Building, which has since been demolished, and the Clinic was across the hall. Tenants would line up every morning before their eviction hearing in the hopes of getting a student attorney to defend them. The purpose of the landlord-tenant court was to evict poor families from their homes as expeditiously as possible, and the purpose of the Clinic was to defend those tenants’ rights to decent housing and prevent evictions whenever possible. Because of the high volume of cases, only a small number of the tenants would get representation; the remainder would appear in court by themselves and be ordered to leave in ten days.

Soapy Williams, former governor, heir to the Mennen toiletries fortune, and chief justice said in the opinion he wrote for the Michigan Supreme Court in one of Conrad’s successful appeals:

The atmosphere of the Detroit Landlord-Tenant Court where these cases originated does not encourage deliberate, reasoned and compassionate justice, although it deals with one of the basic material essentials of life, a roof over one's head. Judges, litigants and court personnel are harassed and depressed. In many cases both the landlords and tenants are barely making it financially, and oftentimes they are not making it at all. Cases involve housing conditions that are not the most desirable. Consequently, relations are often strained and not infrequently beyond the breaking point. Many of the tenants do not understand their rights at all, although some understand them too well. Sometimes landlords are in the same posture. It would be difficult to handle these cases with justice in the best of circumstances. But circumstances are far from the best. The case load is incredible. The court facilities are just a little better than tolerable. Matters that can be avoided are avoided. This may be what generated this case but is not in issue here. Operation under such conditions obviously causes need for appeal from time to time.

There was open hostility between the Clinic and the court about some of the most basic elements of due process, like whether a tenant could get a court reporter to make a record of the court’s proceedings without paying a fee. This is the context in which Conrad had to go into the courtroom one morning asking to look at a client’s file, because the student representing the client was sure that the judge had fabricated what the tenant had agreed to in court.

Eviction hearings were done for the morning, and as he asked for the file, the judge said, “What do you want the file for?”

“You Honor, I just wanted to look at one of the entries in the file.”
“You’re calling me a liar!”

“No, Your Honor, I just wanted to see what was entered in the file.”
“You’re calling me a liar, and you have five minutes to prove it.”

Conrad left the courtroom, not really sure what to do. After five minutes of pacing he returned, asking the judge, “Your Honor, what is the nature of these proceedings?”
“These are contempt proceedings, Mr. Smith.”

“Your honor, if these are contempt proceedings I am entitled to representation.”

The judge, pointing to the student attorney sitting next to him: “She’s your attorney.”

“No, Your Honor, I am entitled to counsel of my choice. She is not my attorney. I will not proceed without counsel of my choice.”

“Take him away,” and with that Conrad was led away to jail.

It being a Friday, Conrad was looking at a weekend in jail, but calls to some local attorneys obtained representation before a higher judge, so he was out within hours.

The following Monday he was back at the office and, representing a carefully selected client who had been made aware of the situation, back in court. The same judge looked at him and asked what he was doing there.

“I’m representing my client.”
“You can’t represent anyone. You’re not in good standing in this court.”
“As far as I know I am, Your Honor.”

“Take him away.”

The case went up on appeal, and the Michigan Court of Appeals ruledthat not only was the court wrong in holding Conrad in contempt, it also found that the Landlord-Tenant Court was denying the tenants’ their rights by refusing to provide court reporters without paying a charge for it.

I still think “Try not to get thrown in jail,” is good advice, but that day Conrad Smith taught us something important. Getting thrown in jail is not the worst thing that can happen. Failing to stand up for your client, when you’re right and you’re the only person who will, is worse.

Yesterday VPR broadcast a commentary on the fortieth anniversary of Gerald Ford's pardon of Richard Nixon for all the crimes he committed while president. In the commentary, Vic Henningsen expressed the following sentiment:

 But most of us now believe Ford was right; that a pardon would harm the country less than prolonged criminal proceedings against the disgraced former president. Though it wasn’t clear at the time, Ford did us a favor.

 I don't know who the “us” is that Henningsen is talking about, but he and anyone who thinks the decision to pardon Nixon was the right thing to do is dead wrong.

Remember the context. We had just, one month earlier, seen the end of the most corrupt administration in history, and we had not yet seen the full scope of Nixon's criminality. Nixon's resignation in lieu of impeachment was just the beginning of the effort to reclaim the rule of law. Ford's pardon deprived the country of the chance to see Nixon's crimes redressed.

Constitutional crisis? No more than Spiro Agnew's prosecution for his crimes, or any other politician's. Ford's pardon was an advance ratification of Nixon's statement, in his David Frost interviews, that “when the President does it, that means that it is not illegal.”

 No, even if there was no deal to get that pardon (and you will never convince me of that), by once and forever establishing that a president cannot face accountability for his criminal actions, Ford did a terrible harm to the United States.

Most of our readers aren't lawyers, so in most cases you would think I'd be crazy to suggest that you should all sit down and listen to a couple of hours of oral argument in federal court, but in this case I'm absolutely serious.

You may have read or heard about this already, because it's the latest, or very nearly latest, development in the struggle to provide fairness and equality to same-sex couples, but also because the of the liveliness with which the chief protagonist in these cases, who also happens to be Richard Posner, a conservative federal appeals judge appointed by Ronald Reagan, participates. As you listen to the argument you get the real sense that the national argument is over and that this conservative jurist, who is actively trying to think through the elements of the argument, has come to the conclusion that there is no valid governmental justification for the prohibition of same-sex marriage. 

You can get the links to the liveliest segments, which David Lat at Above the Law refers to as benchslaps, here and here, but I really think you should listen to the whole thing for what it shows us about the litigation process. It's an excellent illustration of why the federal courts are so wrong to prohibit broadcasting of their proceedings.

There are two cases, one from Wisconsin and one from Indiana, and in each case the state's constitutional prohibition on same-sex marriage is being challenged; in each case the state has appealed to the Seventh Circuit because the district courts ruled against them.

When I talk to lawyers to help them prepare for oral argument, or to law students about what it's like, I make sure they understand that a judge is a lawyer just like you, and is really trying to figure out the right answer, so you want to be sure to answer the questions and to talk about what the judge wants to talk about. In these cases Posner is clearly at a loss to understand the state's argument, and he shows it by demonstrating how flimsy and unconvincing the bases for the same-sex marriage prohibitions really are. 

For instance, when the Indiana Solicitor General, Thomas Fisher, argues that preserving tradition is a valid justification, Posner says “So you can say that we've been doing this stupid thing for thousands of years and that's a good reason to keep doing it?” (Paraphrasing here.) This also leads him to conclude– and remember, he's a conservative–that the only real reason for banning same-sex mariage is hate.

He's equally hard on Wisconsin Assistant Attorney General Timothy Samuelson, who is equally unprepared to present a single valid reason for prohibiting same sex-marriages.

Some other fun points are when an attorney claims to have read a particular amicus curiae brief but admits that he doesn't remember what's in it, Posner says, “You don't remember. How odd.” And when an attorney is trying to weasel out of answering a fundamental question, Posner says flat out, “Look: just answer the question.” 

If you want to listen to the whole arguments here they are:

 http://media.ca7.uscourts.gov/sound/external/rt.1.14-2386_08_26_2014.mp3

And: 

 http://media.ca7.uscourts.gov/sound/external/rt.2.14-2526_08_26_2014.mp3

I want to point out a couple of interesting areas to listen to: First, in the Wisconsin case, starting at about 23 minutes in, Posner tries to get the state's attorney to speculate, to just try to think about some possible harms that someone might be worried about if marriage equality were legalized, and the attorney is completely at a loss even to try to speculate about a reason.

Another great point, also in the Wisconsin argument starting at 27:11, is where Judge Hamilton says about the state's proffered justification, “What it is is it's a reverse engineered theory to explain marriage in such a way that you avoid the logic of Lawrence and ignore a good deal of history about the institution of marriage and provide a very narrow artificial rationale for it.” What's significant about this statement is that the courts rarely reject out of hand any state's asserted reason for its policy decision.

Finally, I listened to these arguments in order, and when I listen to oral arguments I picture how I would handle them if I were in this position. In this case, as I was listening to the first argument (Indiana) I was picturing myself being the next guy up, watching his counterpart getting so badly beaten up, and thinking, “Oh shit, that's what's going to happen to me as soon as I stand up.”

It's a long weekend coming up, so spend some of your time listening. 

( – promoted by Jack McCullough)

 UPDATE: The votes are counted in Montpelier and Corren got almost enough to qualify for the statewide ballot here. 

Corren–195

Scott–55

Definitely some evidence of an organized effort by the Republicans, but nowhere near enough. 

Tuesday's Democratic primary will have only one contested statewide race, and even though there is nobody on the ballot, it will probably get more attention than any other race this Tuesday. (No, there is no serious challenge to Scott Milne, who will win the Republican gubernatorial nomination easily.)

The big race is who's going to get the most write-in votes to be the Democratic candidate for Lite Gov: a Republican or a Progressive.

We come to this unusual spot because John Bauer, who started running for the Democratic slot, dropped out when he failed to qualify for public financing. Consequently, our choice is to leave that spot blank, which is what most voters will do, or write in somebody's name. Ignoring the inevitable write-ins for Mickey Mouse or Donald Duck (which is exactly what will happen to those votes, since write-ins for fictional characters are not even recorded),  the contenders are incumbent Phil Scott and Progressive challenger Dean Corren, each of whom is also running on his respective party's slate.

If you're coming here to support Green Mountain Daily's goal of more and better Democrats, I hope you'll write in Dean Corren.

Historically, Corren has a lot of baggage.  When he served in the Legislature in the 1990's he was tagged by Peter Freyne as one of the Self-Righteous Brothers, and he was known for being particularly hostile to the Democratic Party, and statewide Democrats who remember that will understandably hold that against him. 

Nevertheless, If Dean Corren can get the Democratic nomination it will have a number of positive outcomes that we should all support.

First, Corren supports the values that liberal Democrats support. From single payer health care to a livable wage to public power, the issues Dean is staking his candidacy on are the issues that we want to advance, and that many liberal Democrats have been disappointed to see have not moved forward as far as we would like, given the strong majorities we have in both Houses.

Second, if he is elected he will serve on the Senate's important Committee on Committees, and he will be an important liberal counterweight to a committee that has taken on a center-right drift in recent years.

Third, a statewide Progressive/Democrat office holder is yet another opportunity to foster cooperation between the two liberal parties, who by rights should be working together every chance they get.

Fourth, Corren has qualified for public financing, so people who believe that public financing is better than expecting candidates to go begging to the people who stand to gain from their activities in office should consider supporting the first statewide candidate to actually do it. 

Finally, and I say this as someone who likes Phil Scott personally, defeating statewide Republicans can only help the Democratic Party. There aren't that many top slots in Vermont, what with only one congressional district, and in the next several years we can expect openings that both parties will be looking to fill. To take one example, if two or four years from now Peter Shumlin decides not to run for reelection, a Phil Scott who has never lost an election, whether for Senate or Lite Gov, would look like a strong contender for the Fifth Floor. In a Republican Party with a bench that is essentially nonexistent, why would Democrats want to make the only strong statewide Republican stronger?