Thursday, September 11, 2014





 







IS FEDERAL JUDGE HANEN POISED TO DISMISS CATA PRESAS-GARCIA'S AND LUCI LONGORIA'S LAWSUIT?

UPDATE:

In that $2 million judgment on Tuesday against the Brownsville PD, Judge Hanen recused himself early on.  I wonder if that had to do with the fact his wife was on Mayor Tony Martinez's payroll.

As one reader noted, whenever I type Judge Hanen the federal courts show up as viewing the BV.

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ORIGINAL POST

The question before the court is not complex.  The speech Cata and Luci claim the Board is denying them, is it private speech or legislative speech.  Now the parties based on the briefs seem to be focused on whether the speech is public employee speech or private speech.  The parties do not disagree that if it is the former the case must be dismissed.  The BISD in their brief cite Texas law claiming trustees are professional employees of the school district.

From the Texas Education Code:

"§ 22.051. DEFINITION;  OTHER IMMUNITY.  (a) In this  subchapter, "professional employee of a school district" includes:

 (5)  a member of the board of trustees of an independent school district;  and

Of note to me there is no mention of  Nevada Commission on Ethics v. Carrigan, which is dispositive

The Supreme Court has been clear - Cata's and Luci's so called speech during Board meetings is not personal to them, but in fact belong to the people - case closed.

"But how can it be that restrictions upon legislators' voting are not restrictions upon legislators' protected speech? The answer is that a legislator's vote is the commitment of his apportioned share of the legislature's power to the passage or defeat of a particular proposal. The legislative power thus committed is not personal to the legislator but belongs to the people; the legislator has no personal right to it. As we said in Raines v. Byrd, 521 U. S. 811, 821 (1997), when denying Article III standing to legislators who claimed that their voting power had been diluted by a statute providing for a line-item veto, the legislator casts his vote "as trustee for his constituents, not as a prerogative of personal power." In this respect, voting by a legislator is different from voting by a citizen. While "a voter's franchise is a personal right," "[t]he procedures for voting in legislative assemblies ... pertain to legislators not as individuals but as political representatives executing the legislative process." Coleman v. Miller, 307 U. S. 433, 469-470 (1939) (opinion of Frankfurter, J.)."

Their attorney seems to confuse elected officials who use political speech for issues outside the performance of their duties, with speech during the legislative process.  A well known case I was involved in, Robert Jenevein v. Willing (Texas Commission on Judicial Conduct), held that Judges exercise free speech when they speak out in defense of themselves.  This is completely different than a judge sitting on the bench during a case and saying - "faggots have no rights in my court."  Free Speech would not apply because his statements were made while performing his designated duties.

Do you get the difference Frank Perez.  The BISD trustees are speaking incident to their official duties as trustees, and not in a private capacity in defense of themselves. Therefore if censure is used by a majority then the censured trustee is not having his/her free speech denied because what ever it is which is being denied belongs to the people, and not the trustee.

One must certainly agree that if a city commissioner has no Free Speech right to exercise a vote or speak to an issue while performing their duties as a city commissioner, so too would an elected trustee not have any Free Speech rights as incident to performing their legislative duties.

If Judge Hanen does his job - do not hold your breach - he will dismiss Presas-Garcia's and Longoria's lawsuit before the election.

In the Jenevein case. I was actually going after the judge who Jenevein was trying to protect.  The FBI wire clearly had the judge admitting to issuing rulings based on sexual favors.  Further there was no issue the Judge asked Mark Cuban's lawyer to ask Mark Cuban to host a fundraiser at his home while the judge had a case before him wherein Mark Cuban was being sued for millions of dollars. 

The judge left the bench in disgrace when the transcript from the FBI wire was published.  The attorney who wore the wire at the request of the FBI was disciplined by the State Bar of Texas for wearing the tap and not informing the judge of his actions in advance.  Yes, you read that right.  US Attorney Paul Coggins after finding insufficient evidence in the FBI recording of the judge to bring charges, resigned to accept a high profile job with the law firm representing Mark Cuban in the investigation.  Brownsville is child's play compared to the corruption in Dallas.

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