Down the Judicial Rabbithole: How Kucinich Was Railroaded Out Of His Rights

[calmblueocean]

Last night, I read a lot of people saying the Nevada Supreme Court ruling that enabled MSNBC to keep Kucinich out of the the debate was a "sound opinion". Did they read the same opinion I did? I'm no lawyer, but I can read English and use Google, and I've got a pretty good bullshit detector, which was pegging in the red after I finished reading last night. Here's Kucinich's original complaint: http://www2.lasvegasnow.com/docs/kucinich.pdf

In it, Kucinich claims two legal theories of injury:

• First, that MSNBC's exclusion of Kucinich constitutes a breach of contract, and that monetary damages will not provide adequate compensation, so he must be allowed to participate.
  
  
• Second, that MSNBC's exclusion of Kucinich violates the duty to "operate in the public interest" imposed by Section 315 of the Federal Communications Act.

* * *

If you watch the video titled, "Las Vegas Judge Rules In Favor Of Dennis Kucinich" on this page, you can hear that Judge Thompson makes his ruling for the preliminary injunction based on Kucinich's breach of contract claim, not the federal "public interest" claim. In his own words, Judge Thompson says:

"If the criteria were established from the beginning that we'd only take the top three for the debates, I wouldn't have any problem enforcing that. On the other hand, if the criteria was one set of rules and you changed the rules in the middle of the game to exclude somebody after having invited them, I'm offended by that."

In the first sentence Judge Thompson specifically rejects Kucinich's claim that MSNBC must include him in the public interest. This is just as well, as MSNBC is a private cable network, and not bound by those public interest requirements, which apply solely to over-the-air broadcasters.

But the second sentence, where he identifies the offense -- that MSNBC "changed the rules in the middle of the game to exclude somebody after having invited them" -- is all about Kucinich's breach of contract claim, and MSNBC's broken promise. The legal doctrine of promissory estoppel prevents one party from reneging on a promise made to another party if the latter has reasonably relied on that promise to his detriment. It's clear the judge recognizes this and bases his ruling on it. (This will come into play later.)

* * *

So what does MSNBC do? They assert that the judge ruled on Kucinich's federal "public interest" claim, and file an Emergency Petition for a Writ of Prohibition with the Nevada State Supreme Court. In this 17-page document, only 3 short paragraphs are devoted to Kucinich's breach of contract claim, totaling less than one page altogether. The rest is a full-throated, densely-cited defense of a claim that was already rejected by the judge.

Here's where it gets interesting.

Kucinich files an Opposition to the Petitioner's Request for Relief which points out that...

Nevada recognizes the contract doctrine of promissory estoppel. <...> Promissory estoppel replaces traditional consideration when reliance of a person is foreseeable and reasonable upon representations of another. In this case the District Court Order clearly reflects that it was enforcing the agreement between the parties. This is a valid contract issue which is clearly supported by case law in Nevada. The issues of detrimental reliance were recognized and commented upon by District Court by granting the Order."

Still, the Nevada Supreme Court issues an http://www.nvsupremecourt.us/documents/cases/50889.oa.pdf">Order Scheduling Oral Argument so that the two parties can "address the issues concerning state and federal jurisdiction", even though there are no issues of federal jurisdiction, and state jurisdiction over a contract performed in the state is obvious.

* * *

Finally, the Nevada State Supreme Court issues an Order Granting Petition for Writs of Prohibition and Mandamus.

Writ of Mandamus? Didn't MSNBC only petition for a Writ of Prohibition?

Sharp eyes! Absolutely right. But the Nevada Supreme Court thought they'd cut MSNBC some slack:

Preliminarily, although the petition seeks relief solely in the form of prohibition, we conclude that it is more appropriately considered to be requesting both a writ of prohibition and a writ of mandamus.

Judicial activism in action, folks.

So what's the difference between a Writ of Prohibition and a Writ of Mandamus? A Writ of Prohibition does what it says -- it prohibits further legislative action. It doesn't, however, necessarily NEGATE previous judicial action. That's what a Writ of Mandamus is for. Here's what the Nevada State Supreme Court has to say about it:

This court may issue a writ of prohibition to arrest the proceedings of a district court exercising its judicial functions, when such proceedings are in excess of the jurisdiction of the district court. A writ of mandamus, on the other hand, is available to compel the performance of an act that the law requires as a duty resulting from an office, trust, or station, or to control an arbitrary or capricious exercise of discretion.

So even though MSNBC didn't ask for the Writ of Mandamus they needed, the court decided -- completely on its own initiative -- to pretend they did, and grant it to them anyway.

The NSSC goes on to rule that Kucinich's "promissory estoppel argument is unavailing because he failed to raise it in the district court as a basis for relief." Kucinich clearly laid out the elements required for promissory estoppel, and made clear in his complaint that he had relied upon the promise of the defendant to his detriment, and requested equitable relief. The judge understood this and made his ruling based upon it. And even so, the Supreme Court invalidates it.

While they are willing to read NBC's petition in the broadest possible terms, to the point of offering specific relief NBC never even thought to ask for(!), they refuse to consider Kucinich's breach of contract arguments in the same manner, or even in a reasonable manner.

And that's how you railroad a candidate out of his rights.

That's how you keep candidates and new ideas from seeming realistic and possible to the American people.

That's the difference between the justice system and justice.

[riqster]

1. Thanks for translating the jargon!

[Hydra]

2. Face it, Kucinich is being buried by any method available

and it's so transparent, it would be funny, were it not so deadly serious.

Just like with the torture issue, why are these people being so overt about it? We knew about the torture, we knew about the election fraud...but now it's out there in big, blazing letters.

What does this portend?

[mondo joe]

3. But, regarding breach of contract, didn't the state Supreme Court find there was

no legally enforceable contract?

Enforceable contracts require "an offer, acceptance, meeting of the minds and consideration". Per the court, consideration was absent - and DK even acknowledged such and sought to use a proxy for consideration.

[calmblueocean]

6. Heh, I think I addressed this above, but...

... I wouldn't blame you if you didn't read all the way through it. It's long.

Basically, the Supreme Court of Nevada ruled that a certain kind of contract didn't exist -- one which required consideration, or the exchange of something valuable to seal the deal. They refused to acknowledge Kucinich's "promissory estoppel" argument because they said he didn't raise it directly in his complaint, even though he raised all the elements, requested relief based on the underlying theory, and was clearly understood by the judge.

A promissory estoppel claim is just a different kind of contract -- basically a broken promise that you relied upon. If, for instance, someone told you that they had a new job for you on the other side of the country that paid twice what you made now, and you quit your job, flew over there, got an apartment, only to have them tell you, "I was just kidding about that job," you'd have a promissory estoppel claim against them, even though you never exchanged any sort of consideration.

[mondo joe]

7. Thanks!

:-)

[ColesCountyDem]

8. Exactly. n/t

[Usrename]

4. Nevada Supremes treated the debate like a game show, except..

If it really were a game show then all this would be completely illegal and Kucinich would end up owning the network over it.

[Name removed]

5. Deleted message

Message removed by moderator. Click here to review the message board rules.

[ColesCountyDem]

9. The Nevada Supreme Court has the power to consider matters sua ponte

The Supreme Court, like most courts, may raise, consider and dispose of issues 'sua ponte' (on its own volition). This is precisely what it did in raising, considering and dismissing the mandamus question.

[mondo joe]

11. Is that a prerogative such courts typically take?

Thanks. :-)

[ColesCountyDem]

17. It's not UN-common.

Courts *occasionally* do so, and do so often enough that it's not rare or extraordinary. Courts also take 'judicial notice' of facts that are apparent but not specifically plead and proven by a party or parties to a legal action.

[Jim Lane]

26. I agree, the court properly considered mandamus, though it erred in ruling against Kucinich

The OP is a very valuable recap of the legal issues, but I disagree with the criticism of the court's decision to consider mandamus even though it wasn't specifically requested.

As ColesCountyDem said, it's not extraordinary for a court to take such a step. It's particularly common, and appropriate, when the question is a matter of legalism rather than substance.

For centuries, courts were overly technical about such things. They'd throw out a case if the plaintiff identified the wrong "form of action". The modern tendency is to look to substance over form. If a request for relief is denominated "prohibition" but the evidence and legal arguments adduced make it clear that it should have been "mandamus" or "prohibition and mandamus", a court is particularly likely to overlook the technical error.

For example, here in New York, most civil lawsuits are "actions" but a few are "special proceedings". People sometimes mess this up and bring an action when they should have brought a special proceeding, or vice versa. The statute expressly authorizes the court to ignore these mistakes -- the court just converts the case to the proper form and addresses it on the merits. Even without a specific statutory authorization, I think it was reasonable for the Nevada Supreme Court to consider MSNBC's case as if it had sought a writ of mandamus.

Of course, that doesn't mean that the request should've been granted.

[calmblueocean]

14. The issue isn't whether the Supreme Court had the power to do what it did...

...but whether it used that power impartially and justly, and it's clear that they didn't. They favored MSNBC, to the point of offering them relief they never even thought to request, and disfavored Kucinich by ruling against him on a technicality that ignored the plain facts of the case and Judge Thompson's ruling.

Sure, it's legal, but legal is sometimes a long way from just.

[ColesCountyDem]

16. I'm sorry to disagree, but that is PRECISELY the issue.

If the Supreme Court of a state cannot finally dispose of any and all issues in a time-sensitive case, what's the point in even having one?

[tomp]

28. "dispose of" being the operative words here. nt

[kenfrequed]

10. I was so angry

Last night about all of this. This was Kucinich's best chance to reframe the debate and drag the democratic party back to the democratic wing. It also was his best chance to actually get some serious prime time action with more than 8 minutes of answer time.

Oh well.

[KoKo]

12. Thanks for pulling this together. Maybe if Kucinch had the Big Bucks Lawyers

that GE does he could have prevailed. The swiftness of the ruling of the Nevada Supremes was what I found questionable, also.

[malaise]

13. Nevada merely took their cue from the Supremes

They railroaded a president - Al Gore.

Sp.

[drbtg1]

15. very nice summary

I wanted to acknowledge your work. Thank you very much.

[calmblueocean]

21. Thanks so much! I really appreciate it.

I never thought I'd write so much, but once I started, I had to get it all down. At least now it's Google-able for the ages. :)

[Javaman]

18. I find it odd that the railroading of Dennis happened right after

he admitted to seeing a UFO.

Just odd, that's all.

[tomp]

29. supression of the alien vote? tin foil! evidence? nt

[hfojvt]

19. Does that mean that Kucinich cannot get monetary damages now either?

Because ten or fifteen minutes of free air-time would provide some compensation, although there is no way to create the same situation.

[calmblueocean]

20. I don't believe so.

The general rule is that when a complaint comes before a finder of fact, all claims not specifically made at that time are excluded from further consideration. Otherwise lawsuits would never end.

[Laelth]

22. The Nevada Supremes applied established law.

And, from what I can tell, they did so correctly.

I don't particularly like the result, either, but I do respect judges who will apply the law correctly according to established precedent. Judicial activism occurs when judges break precedent. Frankly, that's a good thing from time to time, but, in this case, the Nevada Supreme Court seems to have applied existing precedent, and it seems they did so correctly.

I don't think they really cared whether or not DK was participating in the debate. I doubt this was personal for any of them. Regardless, their decision was not, in my opinion, an act of judicial activism because it applied existing precedent. If it had overturned existing precedent and established a new precedent (as the SCOTUS did in Bush v. Gore), than I'd agree that we had seen some judicial activism.

I still envy the people of Cuyahoga County, Ohio, who have one of the best representatives in Congress. Neither MSNBC nor the Nevada Supremes can alter the high regard in which I hold DK.

-Laelth

[calmblueocean]

25. I'm interested in how you came to that conclusion. :).

> Judicial activism occurs when judges break precedent.

That's certainly one way, but it's not the only way.

> I don't think they really cared whether or not DK was participating in the debate. I doubt this was personal for any of them.

Depends on what you mean by personal.

I don't believe that it was any sort of conspiratorial attempt by the Supreme Court to thwart democracy, in fact, I'd say it was just the opposite. I think they thought they were protecting democracy by excluding a "crank" who they thought was trying to game the court and throw a monkeywrench into a very important debate. In that sense, I suspect it was personal to them.

> in this case, the Nevada Supreme Court seems to have applied existing precedent, and it seems they did so correctly.

Not to be pointed about it, but I don't quite see how you came to that conclusion.

Kucinich most definitely had a legitimate promissory estoppel claim. It was presented imperfectly but adequately enough for the District Court judge to recognize it and rule in Kucinich's favor on that basis. The federal claim -- the claim that 16 out of 17 pages of MSNBC's petition dealt with -- was rejected outright by Judge Thompson. MSNBC's lawyers misrepresented Judge Thompson's ruling, and their petition for emergency relief depended on that misrepresentation. It should have been rejected on that basis.

Second, the Supreme Court gave enormous latitude to MSNBC, even going so far as to grant them relief they had never asked for.

Third, they refused to treat Kucinich with the same latitude, or even reasonably, ignoring the plain facts of Judge Thompson's ruling, and denying the unequivocal merit of his promissory estoppel claim.

So I certainly don't see this as a case of judges "applying the law correctly, according to established precedent." If you don't want to characterize it as "judicial activism", that's fine by me, but I think it's clear justice wasn't served here, and the Supreme Court didn't live up to the standards it ought to be expected to.

[Laelth]

27. Thanks for a very civil reply.

I can't really know what the Nevada Supremes were thinking when they issued this ruling. Perhaps they do think DK is a "crank" who was trying to use the Courts to gain an improper advantage. I don't know, and it's likely we'll never know. Judges tend to be very guarded about their underlying motivations as they apply the law to a given case.

It is true that they gave GE wide latitude and gave the company relief it did not request, but they have good, established law supporting their decision to read a petition for a writ of mandamus as a petition for a writ of prohibition, and vice versa. They had done this before, and they did it again in this case. It's hard for me to see this as judicial activism if there's established precedent for doing it.

The Nevada Supremes ruled that DK's promissory estoppel claim was not raised in the lower Court. The Nevada Supremes say DK raised only a breach of contract claim (which is related, but not the same). If that's true, then the Nevada Supremes were not even allowed to rule on the merits of the promissory estoppel claim, and they were right to dismiss it. If, on the other hand, DK did raise a promissory estoppel claim at the level of the lower Court, the Court should have addressed it and issued a ruling on that. They didn't because they say it wasn't raised. Not having a transcript of the hearing at the level of the lower Court, I can't say one way or the other. I would agree that we had some judicial activism going on if that claim had been fairly raised and the Supremes refused to hear it.

Ultimately, though, Supreme Court justices tend to think about how their rulings will affect the future. If they let DK win this time, it's possible that the Courts would have to hear a lot more cases about admissions to political debates during each and every election cycle. Would we want to have the Courts of all fifty states involved in these kinds of decisions every other year? Probably not, but maybe so. Ultimately, the Nevada Supremes ruled that they'd rather stay out of this particular squabble and all other squabbles like it. That's not judicial activism, imho. That's judicial cowardice (which, on occasion, can be a good thing).

:toast:

-Laelth


Edit:Laelth--the effect/affect misspelling corrected.

[calmblueocean]

30. Good thoughts.

> If they let DK win this time, it's possible that the Courts would have to hear a lot more cases about admissions to political debates during each and every election cycle.

This is really the only thing I disagree strongly with you about. The reason Kucinich was in court at all was because MSNBC invited him, DK accepted, and then MSNBC reneged on the invitation. So it's not a situation that would throw future debates into disarray.

Kucinich's lawyers bear some responsibility for the end result for not using the term "promissory estoppel" in their initial complaint, and raising a fruitless federal "public interest" claim that I feel sure even they must have known had little merit. But there were no legitimate jurisdictional issues, and so MSNBC was not entitled to the extraordinary relief they requested. It seems to me like the Nevada Supremes didn't even review Judge Thompson's ruling, and just took MSNBC's word about what that ruling was based on.

In the end, I wonder what would've happened if Kucinich had used the term "promissory estoppel" in his complaint. Would they have devised another excuse to keep him out of the debate? Based on the record so far, I kinda think they would.

[Orwellian_Ghost]

23. K&R

"That's the difference between the justice system and justice."

Yeoman's work. Applause.

[leftofthedial]

24. this is enough of an outrage

to warrant armed insurrection

we might as well chuck the whole charade of voting and even pretending that we have a government




we are NOW--RIGHT NOW AS I TYPE THIS--under corporate rule.

[GreenPartyVoter]

31. Thanks for the technical explanations :^)