Trial by agency
The case of the Sweet Cakes bakers in Oregon who were ordered to pay $135,000 damages for not baking a cake for a gay wedding, and to also submit to a gag order, seemed unusually Draconian to me. I hadn’t read about it in detail, but I figured it had something to do with the liberalism of the Oregon courts. That turns out to have been incorrect, as this article by David French makes clear, because the case never was in the court system at all.
And if that reassures you, it shouldn’t. The truth is far more threatening to liberty. Our justice system, as expressed through the courts, is far from perfect, but the system of trial by extra-judicial agency or board that is becoming more and more common in these high-profile cases lacks many of the procedural safeguards that have been built into the court system over hundreds of years:
While this ruling has binding legal force, it is critical to understand that it is not the result of a conventional court proceeding. Rather, it is the product of an administrative process that is unrecognizable to those schooled in the rules and procedures of criminal and civil courts. It is a process that is rife with conflicts of interest, ideological from the start, and often insulated from conventional and appropriate judicial review. In states across the country, discrimination complaints against businesses like the Kleins’ originate not in court but instead in state agencies like BOLI or in various state “human rights commissions.” The agencies and commissions are often led by explicitly ideological politicians who make no pretense of impartiality, instead openly declaring that they’ll aggressively find and punish “discrimination” wherever it’s found. Discrimination complaints are then investigated by agency investigators, tried by agency prosecutors, and decided by agency “judges” ”” often interpreting and applying rules drafted by the agency itself. Americans have long recognized the inherent bias when one person functions as “judge, jury, and executioner.” In the administrative agencies of the deep state, a single, highly ideological entity can function as rulemaker, investigator, prosecutor, judge, jury, and enforcer.
A comment at the linked post has this to say:
To anyone who is outraged by this story I recommend Charles Murray’s latest book “By the People.” It’s on Amazon and it is the best explanation of how regulatory bureaucracies came to be part of American government. For the moment, it suffices to know that they are not constitutional (at the federal level) and that Mr. French is correct — the deck is stacked in favor of the bureaucrats. The way to beat them, according to Dr. Murray, is to raise multi-billion dollar defense funds so that everyone and every business affected by these agencies can take them to court, appeal every ruling, take the case from the administrative courts where you are certain to lose to the normal judicial system, where you at least have a chance. By doing this we tie them up in court endlessly, drain their funding for legal defenses, and eventually overwhelm them so that they can no longer enforce their ridiculous regulations. That’s a very brief description of the book — I recommend it heartily.
This is a related problem, affecting colleges. Many of the cases of false rape accusations that we’ve seen in recent years fall initially under the aegis of such bureaucratic procedures, and many never end up in the courts at all despite heavy consequences and lack of due process for the accused.
Due process actually has a purpose.
fall initially under the aegis of such bureaucratic procedures, and many never end up in the courts at all despite heavy consequences and lack of due process for the accused.
Hmmm …America is ruled by an unelected double government.
Not governed, RULED! Hmmm…
Just like all bureaucratic systems, its natural tendency to distend without added benefit, expand with added obstacles, and reach far beyond its reach. The form bureaucracy has no greater purpose than to grind the individual down to a trained member of a tractable mob.
Mr Murray’s tome offers the wrong answer. It capitulates to Alinsky rules, i.e., it requires the fight take place according to the radical’s rules. By extention, illegitimacy is legitimized and it is left to the courts to rule as to the extent of the legitimization. This does not bode well for those working for a fundamental untransformation of the nation.
The book to read, a horrid little book, almost unreadable, but greatly informative is Philip Dru: Administrator (available as a free download online) written in 1912, by Edward Mandell House, a Woodrow Wilson intimate. The book makes a point of administrative power circumventing all checks and balances.
From the book:
“Dru’s instruction to the commission was to limit the power of the courts to the extent that they could no longer pass [judgment] upon the constitutionality of laws, their function being merely to decide… what the law was, as was the practice in all other civilized nations.” (168)
“It was not the Administrator’s purpose to rewrite at that time the Federal and State Constitutions, but to do so at a later date when the laws had been rewritten and decided upon [by the administrators of the various agencies]; he wished to first satisfy himself as to them and their adaptability to the existing conditions, and then make a constitution conforming with them. (174)
“Our Government is, perhaps, less responsive to the will of the people than that of almost any of the civilized nations. Our Constitution and our laws served us well for the first hundred years of our existence, but under the conditions of today they are not only obsolete, but even grotesque.“ (222)
We had not got to our present predicament by accident, nor by inattention to detail, nor entropy. This has long been the Progressive agenda driven by the Progressives idolization of the expert as the one who ought run things. One last Dru observation:
“If our late masters [i.e., the capitalist conspirators] had been more moderate in their greed we would have been content to struggle for yet another period, hoping that in time we might again have justice and equality before the law. But even so we would [still] have had a defective Government, defective in machinery and defective in its constitution and laws. To have righted it, a century of public education would have been necessary.” (155-6)
As George ‘Dubya’ would say: Mission accomplished!
Its really funny and sad these indfguals how were out of normality of human making all the fuz and noises for there prsonal gain.
I looked to knows those two gays in ther 80’s they have lived 60 year together any thnig prvent them all these 60 years living there in abnormal relation?
So now the court order this shopr onwer to pay $135,000 damages for not baking a cake for a gay wedding, what damges they have got?
If this shope refuse to sale his goods to customer and its his right the customer he is free to shope same goods from diffrent outlet why this order?
What about for those insulting people just for thier religous bleive did same court will stand with them and compancet for damages for them like those banded from going school becuse of there dress? And the damages real and obvouse with case?
Or those speeking about blive and nothing done as they tag it feedome of speach?
Lack of due process also has a purpose
This is another reason the progressives endless drone on about racism. It enabled them to push through so much of this administrative law / regulation of business (it predated the civil rights era but wasn’t widely accepted / was still controversial). The public had pretty much written off the concept of a right to privacy or free association when it comes to anything business related…
The thirteenth amendment, the anti slavery amendment, in addition to abolishing slavery and prohibiting involuntary servitude, has been held by the Federal courts to prohibit all forced labor. You can’t force someone to bake you a cake or punish them if they refuse. Time to go to the Federal court.
Where in the world did the figure $135,000 come from? Why not $100,000 or $150,000? It obviously came out of thin air. Something as serious as a DUI would not have a fine any where near that. The administrator has lots of hate for Christians and no check on his power. Why not a million?
George Pal Says:
July 10th, 2015 at 3:07 pm“Our Government is, perhaps, less responsive to the will of the people than that of almost any of the civilized nations. Our Constitution and our laws served us well for the first hundred years of our existence, but under the conditions of today they are not only obsolete, but even grotesque.“ (222)
Subotai Bahadur says: We are governed by TWANLOC who intend to wipe us out.
Do not have pet Libtards! Very dangerous!
As a doctor I find that we are most definitely under a totalitarian government. Ever heard of Medicare fraud, it is not what you think. If you giver a poor person free care, you have committed fraud. If you don’t code your procedures exactly as you are supposed to then you have committed fraud, and they don’t tell you exactly how to code the procedures. All of this is taken care of outside of court with very high fines and possible jail time. Then there are the constantly threats against your license for giving 20 codeine pills when the bureaucrats think that 10 should do the job. Forget the fact that you can buy the same pills across the counter without a prescription in many countries (and they don’t have drug problems as a consequence). The fact is that we don’t live in a free society, but no one is willing to take the steps that are necessary, a billion dollar fund is not going to do a thing.
Being a practical sort of person, I have to ask, “How is BOLI going to get the money?” …or to paraphrase Josef Stalin, “How many divisions does this BOLI have?” If it were me, I would just ignore those dickweeds.
Extra judicial is efficient. Many people, included Bush, didn’t want to go that route due to the Constitution and patriotism. But even if you refrain from using it, the enemies are free to.
There will come a time when 3, 5, 7, 10% will decide the ballot box and/or civil disobedience have failed. Unintended consequences will follow. Time to invoke article 5 and hold a convention of the states before its too late. The only other possible peaceful solution is to dissolve the union. Should that happen the moral high ground this time will be the property of the rebels.
Ymarsakar, 6:12 pm —
Ain’t it appalling how our enemies won’t play by our rules? It’s not cricket, I tell ya!
In NE, decisions of administrative law judges can be appealed to the district court. The trial transcript is reviewed and the standard of review is de novo on the record. That means a different finding of fact can be made but only deferring to the ALJ on matters of credibility.
The ALJ’s conclusions of law – and application of same – is completely open. The First Amendment defense is wide open.
And the big reason for these administrative hearings is not to clog the general jurisdiction court’s docket.
Cornhead:
People have recourse to the court system—after their reputations and livelihoods have been ruined. The guy in the “mattress woman” case is suing, but first he lost his reputation, his name was revealed and he was reviled, and he had to leave school.
The Sweet Memories couple are being threatened with a lien on their home if they don’t pay up. They will be appealing (see also this)—but in the meantime their names are out there, they are probably getting all sort of hate and threats, much stress, and are incurring large expenses. This should have been handled in the court in the first place—or, alternatively, if it is handled administratively in order to save the courts from a backlog, there should be far more protection of their rights, and far less power to impose sanctions of such a Draconian nature.
There is a form of due process but the formal rules of evidence do not apply.
These hearings are usually very low stakes.
And considering how liberal OR is and its laws, a county or district court (with or without a jury) may well have found against the bakery.
I do find the judgment amount (six figures!) to be completely crazy and nothing like that exists in NE.
And as you probably know from this blog,I strongly oppose judicially created SSM. When MA started this back in 02 or 03 the OWH published an op-ed by me where I wrote the MA Supreme Court was “just making it up.”
I have no clue about these college proceedings.
Cornhead:
The colleges are, if anything, worse.
Yes, the Oregon courts might have found for the gay couple in the Sweet Memories case. But perhaps not, and at least they would have had a chance.
The administrative agencies aren’t enumerated in the Constitution, but they’re not unconstitutional, either.
No government agency directly adjudicated the Columbia case and the other controversial college sex cases. However, the DoE, using the Title IX funding threat, passed down guidelines that schools have applied to their own proceedings. This blog is a good resource: http://www.cotwa.info/.
Having moved to Texas from Oregon, I’m actually stunned that there is a bakery in Oregon who are anti-gay. Portland, where I lived, is an extremely liberal and gay friendly place. More than 40 years ago, gay was ‘in’ to the extent it was an institution, second only to San Francisco. It is still the secone gayest place on earth. Not to be confused with Disney Land,
which claims to be the “happiest place on earth”.
Eric Says:
July 10th, 2015 at 9:06 pm
However, the DoE, using the Title IX funding threat, passed down guidelines that schools have applied to their own proceedings….
Hmmm ….What it looks like.
Let us all remember when Turley and others wished for due process for foreign born enemies or domestic Islamic jihadists.
Why were they so stuck on that issue? And why do they then turn around and not provide loyal American citizens or soldiers with said due process?
Because Islam is their ally, you are their enemy. They do not give enemies due process, similar to Bush.
If each have dream even abnormal informal trying to tech other the this world its to for him.
The loser can not make our world or change our life or stope the right things forever.change
Keep them dream till they die
The Bride in Her Head
a beautiful affair in Portland, Maine, that shirked some of the stuffier traditions (in fact, the bride wore navy, and her mother donned a pair of what appeared to be satin pajamas).
http://www.newyorker.com/culture/cultural-comment/the-bride-in-her-head
Portland is “a collection of human turds”.
So is Seattle, DC, NY, San Fran, LA, Houston … etc.
I blame the voters.
Do not keep Liberal pets, do not be a Liberal’s pet.
the co-owner of Sweet Cakes by Melissa, posted a statement to her Facebook page:
The final ruling has been made today. We have been charged with $135,000 in emotional damages, But also now Aaron has been charged with advertising. (Basically talking about not wanting to participate in a same-sex wedding) This effectively strips us of all our first amendment rights. According to the state of Oregon we neither have freedom of religion or freedom of speech. We will NOT give up this fight, and we will NOT be silenced. We stand for God’s truth, God’s word and freedom for ALL americans. We are here to obey God not man, and we will not conform to this world. If we were to lose everything it would be totally worth it for our Lord who gave his one and only son, Jesus, for us! God will win this fight!
God Bless her
If this Perfect Match, Wounder what if Obama refuse his offer what The judge, Alan McCullough will give compensation for the damages for Mr R.M.?
Democratic National Committee Chairwoman Debbie Wasserman Schultz
Can some on tell this foolish woman the opposite is right, what those individuals being able to impose those bad values on a society in large?
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