By Antonio D. French
Filed Tuesday, July 17, 2007 at 5:06 PM
The Post-Dispatch reports CEO Rick Sullivan has ordered Superintendent Diana Bourisaw not to attend tonight's meeting of the elected school board. Labels: Schools
Last week, the elected board sent a laundry list of 20 items for the superintendent to prepare for them, many of them dealing with the district's preparation for the first day of school. Presumably, they will be forced to go without those answers at tonight's meeting.
The elected board will go into closed session at 6:00 this evening to discuss legal matters. It was at their previous closed session that members voted to take control of the district's bank accounts, a move that prompted a judge to issue a restraining order against the board.
The regular public meeting will begin at 7:00 p.m. at Carr Lane VPA Middle School, 1004 N. Jefferson Ave. Click here to see the lengthy agenda.
40 Comments:
I get a feeling this is an order from Sullivan that Bourisaw did not exactly resent. Kind of like not having to do a homework assigniment during summer.
Jackson is proposing that the board cease to function until Callahan issues his decision.
“Based on the fact that we've already lost two temporary restraining orders, this board is absolutely powerless,” he said. “Even if the state says we have monitoring powers, we can't do that as long as (the district's new chief executive officer) has ordered the staff not to communicate with us.”
kjoe
7/17/2007 8:01 PM
Then why don't they ask for something that fits within their new duties??
7/17/2007 8:51 PM
Do they have any remaining duties?
7/17/2007 9:20 PM
The elected board has been b*tch slapped by the SAB. They have no power and are essentially useless.
7/17/2007 9:37 PM
You have to blame Slay for all this foolishness going on,his meddling caused this!
7/17/2007 10:19 PM
If Bourisaw is not under the command of the elected school board, what about the teachers? Will contracts be honored not only with teachers, but also with vendors? If Judge Callahan upholds the SAB, the worst may be yet to come in terms of business. Can anybody shed any light on this?
An Observer
7/17/2007 10:29 PM
I think it's sad that the voters in St. Louis believe that it is okay for a judge to take away the right of those who voted for the elected board of SLPS. If we agree that it's alright to annul the vote of citizens on this issue, then we don't have a "government of the people and by the people". We also consent to having our rights taken away in other ways at the whim of some power broker.
Peter Downs, Donna Jones and others on the elected board have children in SLPS. I certainly have more confidence in their desire to make our schools better than I do in an out of town developer (Richard Sullivan) who obviously has an agenda that has nothing to do with the welfare of SLPS children.
I voted for Peter Downs and the other majority elected board members, and according to Missouri law, the elected board has the right to exist and to carry out all of the duties for which it was created.
7/17/2007 10:35 PM
Simple civics lesson.
The powers of the States and the Federal government are defined by the US constitution, with powers not delegated to the Federal government remain in the State government.
The powers of the city school system are defined by the State government and the State constitution. What the State gives, it can take away.
In the situation of the St. Louis Public School System, the State determined that the SLPS was failing, and set up the SAB to take over.
If the SLPS didn't fail in getting their act together, the SAB would never have happened.
7/17/2007 11:05 PM
The following is a very good point. The contracts belong to the SLPS. Sab seems to be picking and what they want to follow. Sulivan and Bourisaw belong together. Slay and zo'Brien should go after Sullivan. We need the damage the two of them csn cause.
7/18/2007 12:25 AM
Mr. schaal, I think it is not quite so simple as you have laid it out.
It is because the slps school board sort of got their act together that triggered the machinations of the politicians--primarily Slay and Blunt---to deny the voices of the voters. It was practically a banana republic thing---so long as the voters were voting for the "right" people, democracy was ok.
But when they did things like reject Slay's nominees, and removed the incompetent Creg Williams, and his buddy the corrupt Floyd Irons---that is when all hell broke loose. The bizarre behavior of O'Brien, who was Slay's appointee, then his enemy, then his ally in the takeover, had most of her power taken away by the now disenfranchised voters---too late to do much good.
In California, the mayor of Los Angeles was denied the takeover---but his policies are advancing---because he was able to get more power the good ol fashioned way---he was able to elect new board members who supported him.
I think you are right about the state having the power over the school boards----mainly because the legislature is republican allied with half-assed democrats like Slay. Callahan could still overturn things--doubtful---but eventually there are five conservative supreme court judges which could overturn any thing Callahan ruled.
Bourisaw is behaving like--- a realist. Wuth what is at stake---there is no shame in that.
kjoe
7/18/2007 1:10 AM
Kjoe,
When you speak of five conservative supreme court judges which could overturn any thing Callahan ruled, I assume that you mean the US Supreme Court. If so, I think you have very unrealistic expectations.
Supreme court judges usually follow precedent, and especially conservative ones. While the concept of States Rights versus Federal Rights is still in play, there is no corresponding battle between the respective rights of cities versus states.
City government draw their power solely from the State, and are instruments of the State.
It might be remotely possible (but highly unlikely) that a liberal court could change the balance of power towards the cities, making new law in the process. From a conservative court, that chance shifts from highly unlikely to nearly impossible.
How unlikely is it? St. Louis has a better chance of becoming the world's largest city. In other words, don't hold your breath.
7/18/2007 3:00 AM
Ernest
Go back and find out what has really been happening for the past few years before you start preaching to us. It sounds like your information (even worse, your opinion) is coming straight from the Post Dispatch.
7/18/2007 5:59 AM
Dear "How soon we forget",
It looks like you don't understand basic concepts of the legal system and forms of government present in Missouri, including the basic stuff like the role and functions of the three branches of government.
The Supreme Court does not serve to legislate law, especially conservative members of that court. Instead, they interpret that law based upon precedents in the courts, the legislative history of the law, and the State and Federal constitution.
It does not take every case. In fact, it takes only a minor fraction of the cases, only those cases that have gone through the appeal process, and only those where new questions are raised in the law.
For the US Supreme Court to decide you case, it would have to be adjudicated all through the State courts, and then through the Federal courts through the appeal process.
It sounds like you don't understand the differences between the State court systems and the Federal court system, and your are ignorant of the standards applied.
Such ignorance of the law makes me think you must be a graduate from a poor school system. Schools should teach their students at least the elements of our governmental system
7/18/2007 7:29 AM
Mr. Schaal,
I was referring to your simplistic explanation of how the SAB came into being, not the functions of the 3 branches of government.
There is a lot of history behind the takeover which you consistently gloss over in your postings. I am fully aware of the 3 branches of government. I do think you are being a little naive (maybe due to your education) to think they functioned properly (independently) in the case of the SLPS.
I still urge you to go back and read between the lines concerning the takeover by the SAB.
7/18/2007 8:02 AM
I honestly do not know the court structure which would come into play above Callahan.
I expect he will uphold the SAB, but i am basing that upon the tro's he has issued, and people better versed in the law than I am have told me that is not a good predictor of how a judge will rule in an actual case.
I think the thing which made me mention the Supreme Court was the presidential election of 2000. That court had no respect for the right of Florida to have its court decide what was what. Increasingly, it seems to me, ideology trumps everything.
I doubt, however, that there would be a very fast track of movement beyond the molasses pace of Callahan. We had to have a president elected. How St. Louis gets a school board is not enough of a crisis to cause a judge to decide anything he absolutely does not have to decide.
Maybe Callahan will just wait 6 years.
Basically, I think Mr. Schaal is pretending political ideology is not a factor----when it is the primary factor.
I graduated from a college in the home town of Rush Limbaugh. Obviously--my education is suspect.
kjoe
7/18/2007 11:09 AM
Mr. Schaal: I am getting annoyed at your “civics” lessons. Here is one for you:
The United States Constitution, Article I, Section 10 says: “No State shall …pass any Bill of Attainder, ex post facto Law, or Law impairing the Obligation of Contracts...”
James Madison, Federalist Number 44, 1788 said: "Bills of attainder, ex post facto laws, and laws impairing the obligations of contracts, are contrary to the first principles of the social compact, and to every principle of sound legislation... The sober people of America are weary of the fluctuating policy which has directed the public councils. They have seen with regret and indignation that sudden changes and legislative interferences, in cases affecting personal rights, become jobs in the hands of enterprising and influential speculators, and snares to the more-industrious and less-informed part of the community."
Supreme Court cases construing the Bill of Attainder clause include Cummings v. Missouri, 4 Wallace 277 (1866). Very interesting reading. And it went down in St. Louis too. This was an attempt by certain powerful factions of Missouri government to impose their will on the people of the state. It was ruled unconstitutional.
Here is what Alexander Hamilton said of them:
“…these men are the advocates for expelling a large number of their fellow-citizens, unheard, untried, or, if they cannot effect this, they are for disfranchising them in the face of the Constitution, without the judgment of their peers and contrary to the law of the land. . . . Nothing is more common, than for a free people in times of heat and violence to gratify momentary passions by letting into the government principles and precedents which afterwards prove fatal to themselves. Of this kind is the doctrine of disfranchisement, disqualification, and punishments by acts of the legislature. The dangerous consequences of this power are manifest. If the legislature can disfranchise any number of citizens at pleasure, by general descriptions, it may soon confine all the voters to a small number of partisans, and establish an aristocracy or oligarchy. If it may banish at discretion all those whom particular circumstances render obnoxious, without hearing or trial, no man can be safe, nor know when he may be the innocent victim of a prevailing faction. The name of liberty applied to such a government would be a mockery of common sense. . . .”
And contrary to your take on the idea that local governments derive their power only from the state,
the Missouri Constitution says in its Bill of Rights:
Article I, Section 1 That all political power is vested in and derived from the people; that all government of right originates from the people, is founded upon their will only, and is instituted solely for the good of the whole.
Article I, Section 3. That the people of this state have the inherent, sole and exclusive right to regulate the internal government and police thereof, and to alter and abolish their constitution and form of government whenever they may deem it necessary to their safety and happiness, provided such change be not repugnant to the Constitution of the United States.
Article I, Section 4. That Missouri is a free and independent state, subject only to the Constitution of the United States; that all proposed amendments to the Constitution of the United States qualifying or affecting the individual liberties of the people or which in any wise may impair the right of local self-government belonging to the people of this state, should be submitted to conventions of the people.
Article I, Section 25. That all elections shall be free and open; and no power, civil or military, shall at any time interfere to prevent the free exercise of the right of suffrage.
I am not a lawyer, but I can read. It seems to me that the PEOPLE are supposed to be in charge of things. Ignoring the will of the people and doing what you want, disenfranchising them and removing the power from their duly elected officials is something Americans just “know in their gut” HAS to be unconstitutional. It is. You may or may not agree that these articles of the constitutions apply, but I think Alexander Hamilton’s words are eerie. He could have been writing about this very time.
7/18/2007 2:44 PM
Kjoe and How soon,
I am not denying that politics are partly involved in the school take-off. Democrats are more tolerant of incompetence by Democratic politicians than they are of similar incompetence by Republicans, and likewise Republicans are more tolerant of incompetence by Republican politicians than they are of similar incompetence by Democrats.
Therefore, it really isn't that surprising that the Republicans in State government jumped at the chance to condemn the incompetence of the mainly Democratic SLPS.
While partisanship is to be expected in the legislative and executive branches such political games are frowned on in the judicial branch. That is why the American Bar Association and other bar associations frown upon the practice of some states electing their judges.
Judges try to be fair and impartial. Like any other human being they have political beliefs, but they are duty-bound to put aside their political preferences in making decisions. That is why it is not uncommon for a judge appointed by a Republican to convict Republican defendants, or a judge appointed by a Democrat to convict Democratic defendants.
Kjoe's comments about the Supreme Court made me realize that he didn't quite understand the process. The remark "That court had no respect for the right of Florida to have its court decide what was what." was particularly telling.
I seriously doubt that either of you have read the decisions in that case, but if you have you clearly didn't understand what you read.
The decisions of the Florida Supreme Court had addressed conflicts in Florida law by waiving the requirement of one law so that another requirement could be fully implemented. The decisions of the U.S. Supreme Court were that there was no authority under the Florida Constitution or the U.S. Constitution for the Florida Supreme Court to make such a waiver.
The decisions of both the Florida Supreme Court and the U.S. Supreme Court both had political consequences but the U.S. Supreme Court did not a "political" decision. Instead they made a decision of the constitutionality of the waiver by the Florida Supreme Court.
One of the common misunderstanding of laymen about the legal process is the role the appeal process. The appeal process does not "retry" cases, with the witnesses testifying again and new evidence being submitted. Instead, what happens is that one or both sides appeal various issues of the case.
The parties submit "briefs" listing the issues they are appealing, along with a legal analysis as to why they think the issues were decided wrongly in the lower court. The appeal courts decide those issues without retrying the case, based upon a short hearing, the appeal briefs, the trail record, and a study of the law.
The U.S. Supreme Court accepts only a limited number of cases each year, and the culling process is called certiorari. Again, the case is not retried, but the decision is based upon the briefs, the trial record, the oral hearing, and a study of the law.
As the Court said in Bush v. Gore:
"None are more conscious of the vital limits on judicial authority than are the members of this Court, and none stand more in admiration of the Constitution's design to leave the selection of the President to the people, through their legislatures, and to the political sphere. When contending parties invoke the process of the courts, however, it becomes our unsought responsibility to resolve the federal and constitutional issues the judicial system has been forced to confront."
7/18/2007 3:40 PM
Mr. Schaal,
How long have you been following the SLPS situation? How often do you get out of Japan to see what is really happening here?
7/18/2007 3:57 PM
"Kjoe's comments about the Supreme Court made me realize that he didn't quite understand the process."
Really?
The nine members of the Supreme Court voted along partisan lines in the split decision with the two swing voters[7] (Justices O'Connor and Kennedy) siding with the three conservatives (Chief Justice Rehnquist and Justices Scalia, and Thomas) outvoting the Court's four liberals (Justices Ginsburg, Souter, Stevens, and Breyer).
I do not expect you to agree with me or with Vincent Bugliosi in our "understanding" of the process. But there are many people--generally the losers--who believe that the 2000 election was decided by the political ideology of the judges of the Supreme court. Just as there are many---generally the winners---who believe that ideology had nothing to do with it. (I do get the feeling that both sides would admit that ideology had an effect on who Bush decided to nominate to the court).
None Dare Call It Treason
Vincent Bugliosi
"In the December 12 (2000) ruling by the US Supreme Court handing the election to George Bush, the Court committed the unpardonable sin of being a knowing surrogate for the Republican Party instead of being an impartial arbiter of the law. If you doubt this, try to imagine Al Gore's and George Bush's roles being reversed and ask yourself if you can conceive of Justice Antonin Scalia and his four conservative brethren issuing an emergency order on December 9 stopping the counting of ballots"
So call me naive or just plain stupid if you like----I am thinking the ideology of the judges beyond Callahan really could affect how this---and a lot of other school takeovers in liberal voting areas by conservative politicians---could play out.
7/18/2007 4:45 PM
Ariel,
You don't do your side any favors by first stating that the SLPS are "GREAT" and then you show a lack of knowledge of simple civics that diminishes your value judgment of the SLPS.
The point that you fail to comprehend is that while there is a big difference between State government and Federal government, the cities are NOT separate from State government. They are part of State government and are controlled by State law, their Charter, and the Missouri Constitution. (Of course, they are also controlled by Federal law and the US Constitution as well.)
Look at the sections that you quote and you should see that none of them bear on the differences between city government and the state.
Instead they deal either with the separation of powers between the States and the Federal powers, or with the inherit powers of the people of the State separate from the powers of the State.
None of it covers any separation of powers between the powers of the city and the powers of the State. Therefore, I direct your attention to Article VI of the Missouri Constitution. I realize that Article VI is quite long, but it is important that you realize that the State law controls the form and procedures of local governments.
7/18/2007 4:51 PM
Anonymous said that "I do not expect you to agree with me or with Vincent Bugliosi in our 'understanding' of the process. But there are many people--generally the losers--who believe that the 2000 election was decided by the political ideology of the judges of the Supreme court."
There are also many people who believe that the government created AIDS to wipe out the African population, that the CIA or the Jews were responsible for 9/11, or that the Moon Landing was faked.
In each case, people want to believe something because they would prefer to believe that their government is villainous rather than to believe that bad things happened to them fairly.
A person loses in a divorce case, so he/she wants to believe that the decision was based upon on a corrupt legal system rather than because their case was weak.
The phenomena is not new.
7/18/2007 5:08 PM
The question was asked how long I have been following what is happening in St. Louis schools. I have been aware of the problems in city schools for decades.
Thanks to internet radio, newspapers on line, and blogs like this one, it is easy to keep abreast of what is happening.
7/18/2007 5:11 PM
"There are also many people who believe that the government created AIDS to wipe out the African population, that the CIA or the Jews were responsible for 9/11, or that the Moon Landing was faked."
I don't know if Bugliosi is in the same ballpark with those kind of people.
Wikipedia says he is best known for prosecuting Charles Manson.
He lost only one of the 106 felony cases he tried as a prosecutor, which included winning 21 out of 21 murder cases. He later wrote a book about the Manson trial called Helter Skelter.
he has a book out this year which lays out a case in support of the Warren Commission findings that Lee Harvey Oswald acted alone in the assassination of the president.
He wrote a bestselling book, Outrage, on the acquittal of O.J. Simpson, in which he detailed the work of the district attorney, prosecutors, the defense lawyers, and presiding judge; he used these profiles to illustrate broader problems in American criminal justice, the media, and the political appointment of judges.
He also condemned the U.S. Supreme Court's decisions in Jones v. Clinton and in the 2000 presidential election.
Do you really think Bugliosi is a good fit with the nutjobs you mentioned? kj
7/18/2007 8:13 PM
Anonymous asked "Do you really think Bugliosi is a good fit with the nutjobs you mentioned?"
I don't know about Mr. Bugliosi, but I think most of the Supreme Court conspiracy believers fit the mold.
7/18/2007 8:37 PM
I did a little more research into Mr. Bugliosi, and found a list of his quotes. After reviewing them, two things seem clear.
One thing I notice is he is very partisan, defending Clinton and considering the ruling in the Paula Jones case to be "so silly."
Another thing I notice is that he is an angry man, angry about a lot of things.
Based upon those two things, I would not be surprised if he would prefer to believe that their government is villainous rather than to believe that bad things happened to them fairly.
In a way, his comments remind me of F. Lee Bailey who defended kidnapped heiress Patricia Hearst and the Boston Strangler. Neither trial lawyer tolerated losing.
7/18/2007 8:53 PM
Mr. Schaal:
You've gotten my point, assumed it was in error, and missed it in the end.
I don't think this IS an issue of local vs. state control. According to Article VI of the Missouri Constitution, local government authority does not extend to school districts anyway. (Section 18c:..."The charter may provide for the vesting and exercise of legislative power pertaining to any and all services and functions of any municipality or political subdivision, except school districts..."
I DO see this as an issue of, as you said, "the inherit powers of the people of the State separate from the powers of the State."
According to your line of reasoning, people have no recourse if their local governments or state governments act against their will or to their harm because the local governments derive power from the state and the state derives power from the federal government. This is exactly the kind of argument the attorney for Missouri used in Cummings v. Missouri. This is also part of the argument used in the Ladue vs. Missouri case kjoe cited on another thread. This did not hold up in 1866, in Ladue, and I do not believe it will hold up now.
We do have inherent rights as American citizens which states or local governments are not allowed to violate. When they do, they are subject to federal remedies by federal courts. You do people a disservice by constantly referring to this as a local government vs. state government issue when it is not. It is the United States Constitution being violated on the part of the state in regard to the people of St. Louis.
7/19/2007 1:40 PM
Ariel,
I don't think you understand Cummings v. Missouri.
That was a case involved the question of whether or the state and national oaths violate prohibitions against ex post facto laws and bills of attainder of the Constitution.
Do you understand what an ex post facto law is? That is a law that retroactively changes the legal consequences of acts committed or the legal status of facts and relationships that existed prior to the enactment of the law.
Do you understand what a bill of attainer is? It is an act of legislature declaring a person or group of persons guilty of some crime, and punishing them, without benefit of a trial.
In Cummings v. Missouri Justice Stephen J. Field noted that although the laws did not impose fines or imprisonment, they were punitive measures because they prevented former rebels from practicing their occupations.
They were bills of attainder, Field explained, because they subjected a designated class to punishment without a trial; they were ex post facto laws because they imposed punishment for acts that had not been criminal when committed or inflicted additional punishment for acts that had been.
In the SLPS removal of accreditation, that was a civil matter, not a criminal matter. The SLPS had failed by pass necessary standards, but they were not accused of any crime. Instead, their powers were removed in the best interest of the children involved, sort of like when social services removes a child from a family neglecting that child.
I haven't found anything about Ladue vs. Missouri. Are you sure you got the cite right?
7/19/2007 5:26 PM
Ariel,
A search of FindLaw found only one Supreme Court case with Ladue as a party, and that was Ladue v. Gilleo, which dealt with freedom of speech issues (the city's desire to reduce clutter in residential areas was found not to be compelling enough to justify a ban on signage).
Clearly that has no bearing on the SLPS, because no one is prohibiting St. Louis citizens of complaining about the de-accreditation. Even you should understand that.
So what case was it?
7/19/2007 6:49 PM
Ariel,
It would be helpful for you to state exactly what inherent right you think has been violated.
So far, it sounds like your claim is that the inherent right is the right to get your way.
7/19/2007 7:16 PM
Ernest Schaal,do you have anything better to do than post numerous entries on this blog? This is not ErnestSchaalPubDef.net! I am retired and have better things to do than post numerous entries on this or any other blog? Why don't you do some pro bono work with your obviously excessive free time?
7/19/2007 7:46 PM
Anonymous,
I posted multiple messages that time because I drafted them as I did the research in the matter.
As for you telling me what to do with my time, that is presumptuous of you, especially since you are so ashamed of your own postings that you don't even your own name.
7/19/2007 10:10 PM
Mr. Shaal: You said, "Do you understand what an ex post facto law is? That is a law that retroactively changes the legal consequences of acts committed or the legal status of facts and relationships that existed prior to the enactment of the law."
Didn't the state takeover change the legal consequences of the election? Didn't it change the relationship between the voters, the school board and the school district that existed prior to their action?
You also said: "Do you understand what a bill of attainer is? It is an act of legislature declaring a person or group of persons guilty of some crime, and punishing them, without benefit of a trial."
Actually, from what I have researched, the part of your definition which says "declaring a person or group of persons guilty of some crime" is not a necessary part of the definition. "The Bill of Attainder Clause was intended not as a narrow, technical (and therefore soon to be outmoded) prohibition, but rather as an implementation of the separation of powers, a general safeguard against legislative exercise of the judicial function or more simply - trial by legislature." U.S. v. Brown, 381 U.S. 437, 440 (1965).
Bills of attainder are actions of the state which single out specific groups of people for punitive action without court trial. The state of Missouri has taken a settlement agreement from 1999 whose terms IT has not fulfilled, changed dates on it, and used it to justify removing elected officials from office and taking control of operation and finances of the St. Louis school district. It seems to me that the only thing that prevents this from being a bill of attainder is the use of that court order, which use is on shaky ground at best. It looks to many to be more like manipulation than performance of a legitimate court order.
The relevance of Cummings v. Missouri is that the people required to take the oath were NOT charged with crimes, merely "punished". As you noted, the case also held that not being able to practice one's profession was considered a punitive measure under the law. Isn't that what happened to the elected school board?
I also think that a duly certified public election represents at the very least a social contract between the voters and the state. Once the state extended the power to the people to choose elected board members, it does not then have the right to rescind that power by executive action. If this were the case, no election would mean anything. The state could just do as it pleased regardless of any election. On this point I think it could be argued that this action of the state of Missouri violated the obligation of contracts clause as well.
The Ladue case was on the thead about the eminent domain sign. Kjoe quoted from it, and I noticed that the city's argument was similar to the one you were making, which is basically that the government that gives powers can take them away. It didn't fly because it violated the Constitution of the United States to do so. No state or local government has the right to "give" or "take" American constitutional rights. They are inherent to the people.
Since I have discovered (due to your criticism, thank you) that the Missouri Constitution specifically bars local government from power over school districts, I think a case could also be made that Mayor Slay's manipulations and influence have been attempts to gain powers the Missouri Constitution bars him from having. Doing so in a weasly way rather than overtly is still a violation of the Missouri Constitution. By the same token, having two out of three members of the SAB appointed by local government officials would seem to violate this as well.
I am not a lawyer, so I cannot begin to wrestle with you about these things. You seem to want to discount anyone's argument that what has happened violates people's rights because they cannot point out specific rights or laws to you. I will tell you this, if American people feel instinctively that something violates their rights, they have the power to remedy it and they know it. They may not know exactly which law to point to, but they know that in America, THEY are supposed to have the power to get things done the way they want them done.
Since you ARE a lawyer, why don't you turn the tables on yourself and play the devil's advocate. If you were on the other side, what laws do YOU think apply?
7/20/2007 10:29 AM
Ariel,
As for "ex post facto law," I don't think you quite understand what it means.
The ban on ex post facto law, does not protect you from change or from legal consequences of that change. It protects you from being penalized for an action that was not criminal when you did it.
For example, let us say that a Green government is elected, and the first act is to past a law banning the use of chemical fertilizer. That ban is only effective after the law is passed, and cannot punish behavior prior to that act. Therefore, they could punish a farmer using chemical fertilizer after enactment, but they could not punish use prior to that enactment.
The case in Cummings v. Missouri, involved whether or not the State could penalize a person having been a Confederate supporter, even though being a Confederate supporter wasn't illegal during the Civil War.
Any change has consequences. Environmental laws change the consequences of polluters to freely dump raw sewage into the source of our drinking supply, food safety laws change the consequences of food producers to be careless about what goes into our food, and employment laws change the consequences of employers demanding unpaid overtime for hourly workers.
It is not "changes the legal consequences of acts committed" that is banned. Instead it is the "RETROACTIVE changes the legal consequences of acts committed" that is banned.
The city schools lost their accreditation based upon failure to satisfy performance standards that were previously announced.
As for your understanding of bill of retainer, I don't you think you quite understand. The act of the Governor was an administrative act, not a judicial act, so there was no separation of powers problem.
As for your "novel" interpretation of Ladue v. Gilleo, the courts decided the case as freedom of speech case. The freedom of speech is an enumerated freedom found specifically in the US Constitution. Although there are limits to this freedom (e.g., you can't shout "Fire!" in a crowded theater), it is a long established right.
There are other rights, such as privacy, that are not enumerated specifically in the Constitution, but the courts have recognized them as being based upon the Constitution. These unenumerated rights are usually more limited than the enumerated one. (Each right is limited to some degree.)
You stated "if American people feel instinctively that something violates their rights, they have the power to remedy it and they know it." That is not quite true.
Some American people feel that paying federal income tax violates their rights. Some go so far as to withhold payment of their taxes and they end up in jail.
Some American people feel that they should be able to do anything they want with their land, and they run afoul of zoning codes, safety laws, and sometimes environmental laws.
Some American people feel that they should be able to do whatever they want with their spouses, including beating them to get them to "behave".
Just because you feel that something is a right doesn't make it a right. I remember reading about a pedophile who felt the current age of consent laws violated his rights. He demanded that the age of consent be lowered to a ridiculously low age (I think it was six.)
Americans can try to change laws they don't like, they can try to elect different politicians or even recall certain governmental officials, but there are legal limitations on what they can do.
Some state legislatures have made laws supported by the American people that denied the vote to some races, or denied the rights of some races to have certain professions or live in certain areas. These laws have been applied not only against Blacks, but also against Asians (for instance, in California it was illegal for an Asian to teach White children.) Such laws have been found to violate Federal laws.
There is a big difference between what you want and what you have a "right" to.
Unless you can point to a clear, legitimate right that you consider violated, I cannot assess your statement as anything but sour grapes.
You asked me to play devil's advocate, but frankly I don't see any rights of yours that were violated.
7/20/2007 3:54 PM
Mr. Schaal:
As I said, I cannot begin to wrestle with you on these matters, as I am not a lawyer. I am really glad I am not a lawyer. If I were, I might become convinced that the law is all about words and has no spirit. I might begin to think that the people exist for the law instead of the other way around.
Maybe, in this "lawyer-eat-lawyer" world, there is no "legal remedy" for an ordinary person in America who has seen rich and powerful people trying to get away with masterminding a scheme to take control and derive benefit from all of the public money allocated to their children's education. Maybe voters have no "legal grounds" to expect that what they vote for will be carried out by their government. I don't want to believe that the American people are as powerless as you seem to make us out. I hope you are wrong.
7/23/2007 12:21 PM
Ariel:
You said you are really glad you are not a lawyer because if you were, you might become convinced that the law is all about words and has no spirit, or that you might begin to think that the people exist for the law instead of the other way around.
I am also glad that you are not a lawyer, because you still don't grasp the basic concepts, and the world does not need incompetent lawyers. The spirit of the law is one of justice, settling disputes in a peaceful way that both sides won't result to blood feuds and violence. The law exists so that people can function in a society. It is about the good of society rather than one person. Without the law, there is lawlessness and society breaks down into brigands and victims. As a general rule, the law protects the weak a lot better than the alternative.
Your snide remark about voters maybe not having 'legal grounds' to expect that what they vote for will be carried out by their government says it all. It sounds like you consider yourself synonymous with the voters and "the American people." At best, you are ONE voter and ONE American.
You are NOT the "American people", nor are you "the voters". The "American people" is a very diverse class. Some live in cities, some in suburbs, some in rural areas. They differ in race, religion, age, sex, political beliefs, etc. They are not a homogenous mass, and never have been.
As a voter, your vote should count, but it is not entitled to special weight in regard to other votes. What you vote for might not pass, the persons you vote for might not win, and even if that person does win, he or she is going to have to interact with other elected officials.
The power of the City of St. Louis versus the rest of the state has been diminished over the years by the simple mathematics that there are a whole lot more of "them" than there are of "you." Your vote in St. Louis counts no more than a farmer in Desoto, or a professor in Columbia.
Your vote can influence things, but don't expect your vote to trump the votes of everyone else.
7/23/2007 3:15 PM
Mr. Schaal: I am amazed at your ability to respond to comments that are not made, spin comments any way you choose, and conveniently avoid comments you do not wish to deal with. You have missed your calling. You should have been a politician.
For the record, my comment referred to a completed, certified election, not my one vote.
And you have still not commented on the fact that the Missouri constitution specifically bars local government from control over school districts, so how do you keep spinning this as a local government vs. state government issue?
7/25/2007 10:27 AM
Ariel,
You stated that you comment referred to a completed, certified election, not your one vote. Rather than be accused by you of putting words in your mouth, exactly how do you think the vote didn't count.
My first assumption was that you were talking about the fact that the power was stripped from the SLPS district, but you couldn't mean that because your votes in the SLPS were counted and new members elected. You should be smart enough to realize that a local vote does strip the State of its powers over local governments.
As for the Missouri constitution specifically bars local government from control over school districts, clearly you should be smart enough to realize that local government (as used in the MO constitution) is not State government.
It amazes me that your mind could possibly twist that provision to mean that the State can't regulate school districts, or take over failing school districts.
7/25/2007 3:08 PM
I just noticed a typo in my last message. The last sentence of the second full paragraph should read "You should be smart enough to realize that a local vote does NOT strip the State of its powers over local governments."
7/25/2007 3:11 PM
Mr. Schaal: The state granted the people of St. Louis the right to elect local school board members. They did. Then an executive branch department later took action to remove all power from those elected officials. This action effectively nullified the intention of the voters in the election.
It is not quite the same to change the legal consequences of an election as to change the legal consequences of a permit or business license. And the changes you mention involve the passing of LAWS that affect the outcomes, not executive orders apart from any legislative or judicial action.
In what other situtation in government are elected officials allowed to be stripped of authority by order of an executive branch department without legislative or court action?
Perhaps the Missouri statute that grants the state board of education the right to strip elected local board members of power is itself unconstitutional. If it is to be considered legally permissable for an executive branch department to effectively overturn a local election, what implications would that put in place for other elections?
There are several other things added to the equation that make this action questionable. The state board of education did not use or follow the guidelines for takeover of school districts that are in the Missouri Revised Statutes in regard to this situation. It treated St. Louis differently from every other school district in the state. The authority they used to do things differently in St. Louis was the Desegregation Settlement Agreement of 1999, not the Missouri Constitution or Statutes. I think it is a matter of legal question whether the state had the right to use the desegregation settlement agreement in this way. The state has not fulfilled its part in the agreement in terms of funding, and court action has been taken against the state in regard to this.
Suppose, for instance, that two neighbors come to a legal settlement agreement in court that is basically, "You pay me 2,000.00 you owe me and I will clean up my yard or move out." If you withold the money, and because of that I am unable to clean up my yard, are you allowed to come to court and say I have not fulfilled my part of the agreement and demand my eviction? Suppose I DO clean up my yard even though you have not paid me, but several years later my yard falls into disrepair. Can you then dig up the old settlement agreement and hold me to it, even though you have not yet fulfilled your part of the agreement?
You also said, "As for the Missouri constitution specifically bars local government from control over school districts, clearly you should be smart enough to realize that local government (as used in the MO constitution) is not State government."
I realize this, but I'm not sure Mayor Slay does. On this point, the provision in the settlement agreement that creates a transitional board, 2 out of 3 members of which are appointed by local government officials, seems to me to be unconstitutional. In fact, it would seem that all of Mayor Slay's efforts to influence and control the operation of the school district have been unconstitutional in Missouri. Certainly his effort to have himself given power to sponser unlimited charter schools in the city is unconstitutional in Missouri.
7/26/2007 10:32 AM
Ariel,
Three points.
About the local election and your claim that the take over somehow strips your right to vote: It appears that you have no legitimate basis for that claim.
The takeover was about what powers the SLPS would have after loss of accreditation, not who would be on the Elected board. The election was about who would be on the Elected board, not what powers that board should have.
About the Governor's actions, he is the head of the State administrative branch, and was administering a law dealing with what happens after loss of accreditation. Clearly you don't like the outcome, but that does not mean that the Governor's actions were unconstitutional.
There will be a hearing soon on this matter, but for your side to win you would have the burden of proof to show that the governor acted outside the scope of the law that he was enforcing. It would not be enough that his decision was not the right one, or that in different cases the outcome was different. The courts are not meant to be a political arena and they give some deference to the governor as to his carrying out his duties.
From what I have seen so far, there is no indication that the governor was acting outside the scope of his authority or the scope of the law.
Finally, as to Mayor Slay, I don't know all the facts of everything he has done relating to the schools, but as a general rule, the section you cited specifically not granting local government control over school districts does not mean that the Mayor and anyone else can't try to influence the State on how it acts. Instead, it limits what powers it gave to the city.
I am not saying that everything that the Mayor did was proper or even legal (after all he is a ST. LOUIS politician), but I am saying that the section doesn't bar him from trying to politically persuade State officials any more than it bars you from politically persuading the same officials.
7/26/2007 1:24 PM
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