5 ms·

I don't know a lot about US law specifically, but this sounds a bit more like an administrative law issue than a criminal one... My instinct would be to look at

by epgui 5y ago

I don't know a lot about US law specifically, but this sounds a bit more like an administrative law issue than a criminal one... My instinct would be to look at filing an application for judicial review, no? (Note: IANAL)

giantg2 5y ago
It's possible you could do both. If you show them the laws, cert, etc and they still deny you the position, then it does fit the definition of the criminal law. Could be hard to prosecute depending on the exact response.
- cormacrelf 5y ago
  Which criminal law? See my comment (sibling); failure to perform a public duty is not a crime in itself. There could easily be crimes that are written to address these kinds of scenarios, but you would have to specify which ones. (Edit: oh, OC points out "official oppression" in PA. )
cormacrelf 5y ago
You're pretty much on it, this set of facts is almost identical to the facts in the OG judicial review case, Marbury v Madison, save for the specific laws in question. If there is something in the laws that requires the Board of Supervisors to cooperate in the swearing-in or otherwise, then you can ask a court to force them to do it. This is called an application for a writ of mandamus, which is a special court order for a public official to perform a duty that they are required by law to do. You'd think that'd be pointless, but it converts a violation of a random state law (with no specific penalties attached) into a potential violation of a court order, which attaches various coercive powers controlled by the judiciary. One of those powers is imprisonment, for example. To the untrained ear that does sound a bit like criminal punishment, and it really is pretty close. The overall scheme is that public officials must do their duty, lest they be told again by the judiciary, in which case they really must do it.
- mise_en_place 5y ago
  All of this is correct de jure, with the exception that the executive powers that be (i.e. sheriff's dept) can refuse to comply with the court order. Then nobody would be around to enforce the court order.
  - denton-scratch 5y ago
    Isn't that the kind of work Federal Marshalls are supposed to do?
  - cormacrelf 5y ago
    We prefer not to talk about that kind of total collapse of the rule of law, because it gives people ideas. It is not a necessary or desirable part of the discussion of judicial power. Nevertheless, you can just apply to a higher court and take advantage of their more reliable enforcement apparatus.
    - mise_en_place 5y ago
      Well it’s important to talk about, lest we repeat the mistakes of the past. The Little Rock Nine comes to mind as an example where enforcement of the law from the highest court in the land was resisted (in this specific case by a governor).
      - cormacrelf 5y ago
        Those weren't "mistakes of the past". They did it on purpose. There is no pathway from educating regular people about ways to circumvent court orders to strengthening the rule of law. Yes, interesting from historical and legal perspectives and thinking about how to design enforcement mechanisms to resist these things, but we weren't talking about that, and Hacker News is not a law reform commission. I am specifically putting up resistance to talking about it in public. It undermines people's confidence in these systems, which are actually very strong, and the resulting reduced participation in the systems that make up the rule of law (e.g. this guy, who is already losing confidence in his local democracy, choosing not to use the courts thinking that his chances of success are slim, and giving up) frees the stage for people who wish to undermine it. I don't propose that this argument is relevant to very many other things besides the kind of abject disobedience you described.

by epgui 5y ago

giantg2 5y ago

It's possible you could do both. If you show them the laws, cert, etc and they still deny you the position, then it does fit the definition of the criminal law. Could be hard to prosecute depending on the exact response.

cormacrelf 5y ago
Which criminal law? See my comment (sibling); failure to perform a public duty is not a crime in itself. There could easily be crimes that are written to address these kinds of scenarios, but you would have to specify which ones. (Edit: oh, OC points out "official oppression" in PA. )

cormacrelf 5y ago

You're pretty much on it, this set of facts is almost identical to the facts in the OG judicial review case, Marbury v Madison, save for the specific laws in question. If there is something in the laws that requires the Board of Supervisors to cooperate in the swearing-in or otherwise, then you can ask a court to force them to do it. This is called an application for a writ of mandamus, which is a special court order for a public official to perform a duty that they are required by law to do. You'd think that'd be pointless, but it converts a violation of a random state law (with no specific penalties attached) into a potential violation of a court order, which attaches various coercive powers controlled by the judiciary. One of those powers is imprisonment, for example. To the untrained ear that does sound a bit like criminal punishment, and it really is pretty close. The overall scheme is that public officials must do their duty, lest they be told again by the judiciary, in which case they really must do it.

mise_en_place 5y ago
All of this is correct de jure, with the exception that the executive powers that be (i.e. sheriff's dept) can refuse to comply with the court order. Then nobody would be around to enforce the court order.
- denton-scratch 5y ago
  Isn't that the kind of work Federal Marshalls are supposed to do?
- cormacrelf 5y ago
  We prefer not to talk about that kind of total collapse of the rule of law, because it gives people ideas. It is not a necessary or desirable part of the discussion of judicial power. Nevertheless, you can just apply to a higher court and take advantage of their more reliable enforcement apparatus.
  - mise_en_place 5y ago
    Well it’s important to talk about, lest we repeat the mistakes of the past. The Little Rock Nine comes to mind as an example where enforcement of the law from the highest court in the land was resisted (in this specific case by a governor).
    - cormacrelf 5y ago
      Those weren't "mistakes of the past". They did it on purpose. There is no pathway from educating regular people about ways to circumvent court orders to strengthening the rule of law. Yes, interesting from historical and legal perspectives and thinking about how to design enforcement mechanisms to resist these things, but we weren't talking about that, and Hacker News is not a law reform commission. I am specifically putting up resistance to talking about it in public. It undermines people's confidence in these systems, which are actually very strong, and the resulting reduced participation in the systems that make up the rule of law (e.g. this guy, who is already losing confidence in his local democracy, choosing not to use the courts thinking that his chances of success are slim, and giving up) frees the stage for people who wish to undermine it. I don't propose that this argument is relevant to very many other things besides the kind of abject disobedience you described.