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.pdfIn 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.