November 18, 2004
The Basis of the Taricani Ruling
The Providence Journal provides a link to Judge Torres' order (pdf format) compelling Jim Taricani's testimony about his source. Two things leap out at me.
1. It is clear from the memo that the leaking of the tape is not a violation of the law. It is a violation of a "protective order" issued by the judge. In explaining the validity of the order, Judge Torres cites its consistency with "the Local Rules of this Court" and the "Rules of Professional Responsibility" for lawyers. Do we now live in a society where rules that judges and lawyers make to police themselves, without consulting any other branch of government, can be used to take a citizen's freedom away?
2. Judge Torres cites precedents stating "Certainly the public has no right to demand access to discovery materials which are solely in the hands of private party litigants" and "no public right of access submitted to court in camera as part of discovery dispute". He uses these precedents to support the "rules" barring the release of evidence. The logical connection Judge Torres sees is troubling. Do we live in a society where everything that there is no right to is forbidden? Is the government's enumeration of our rights the limit of our rights? More concretely, because I don't have a right to a $1,000,000-a-year job, does that mean a $1,000,000-a-year job is forbidden to me?
I mean no personal disrespect to Judge Torres, but this memo contains the kind of sloppy reasoning that is only possible when courts feel that mere laws written by legislators are too harsh a limit on their powers.
Andrew,
It seems as if Drudge has picked up the Taricani story (at least as of 2:25 PM, Thursday, Nov. 17, 2004). Perhaps others will, too, and your crusade will gain some national traction!
You err when you say judges and lawyers produce rules without input from other branches of goverment. The legislative branch must authorize the court to develop its own rules, and reserves the right to change the rules at any time. In fact the rules are sent to the US Congress and take effect as written only if Congress does not review them within a set period of time.
Seperation of powers lives!
Posted by: Q at November 18, 2004 4:37 PMQ,
Doesn't the process you are describing constitute a legislative veto, which was ruled unconstitutional in 1983?
Posted by: Andrew at November 18, 2004 5:07 PM28 USC Sec. 2072 states in part "The Supreme Court shall have the power to prescribe general rules of practice and procedure and rules of evidence for cases in the United States district courts".
In practice the Supreme Court publishes its rules and then waits a period of time (months) during which time the Congess reviews the proposed rules and is free to change the enabling legislation (28 USC Sec. 2072)and reclaim their authority to establish the rules of procedure.
Note that at all times the legislative branch is empowered to establish court rules. Allowing the judicial branch, which is more experienced in judicial proceedings, to recommend rules does not in itself transfer that power.
In conclusion, the legislative branch is free to change the rules as applied here at any time, and as you have pointed out the executive branch is free to pardon the journalist in question. The judicial branch cannot act here without checks and balances.
Q.
Posted by: Q at November 19, 2004 10:16 AM