Comments on: The Receding Horizon

By: David Schraub

David Schraub — Fri, 08 Jun 2007 16:41:24 +0000

Reading the case, I was confused on who the “arbitrary and capricious” standard referred to. At points it seemed you were right, that it referred to the standard necessary for the courts to overrule the EAB. But at other points, it seemed to be the standard for the EAB overruling the decision of the DHS. The opinion just wasn’t written clearly on this point.

By: cfpete

cfpete — Fri, 08 Jun 2007 07:14:33 +0000

David,
The Circuit Court judge actually made the initial ruling that the actions of the EAB, in reinstating Richmond with backpay, were â€œarbitrary and capricious.â€ He ruled in favor the DHS dismissing Richmond. It was the Appeals Court that overturned the lower courtâ€™s ruling in favor of the actions of the EAB. The Supreme Court later partially overturned the Appeals Court by remanding the case back to the EAB for a penalty less than dismissal or detailed finding as to why no penalty should be imposed.

By: David Schraub

David Schraub — Fri, 08 Jun 2007 04:31:03 +0000

Reading the case, I have difficulty seeing how the DHS could have been said to have made an arbitrary or capricious decision in firing the employee, and it seems clear that the employee could reasonably be discharged under at least the first count given in her dismissal letter.

By: cfpete

cfpete — Fri, 08 Jun 2007 03:55:55 +0000

All I would say David is that the case is a bit more nuanced than portrayed by Lawyers Guns and Money. You have the EAB in agreement and a Supreme Court remand back to the EAB for lesser punishment or clarification.
Since you want to be a lawyer, I suggest you read the case and make your own determination.

http://www.mssc.state.ms.us/Images/Opinions/Conv7856.pdf

By: David Schraub

David Schraub — Fri, 08 Jun 2007 03:13:19 +0000

How on earth does my post imply he said those words? My direct quote:

“Judge Southwick joined an opinion holding that calling someone a “good ole nigger” was not a racial slur, and that by firing someone for making it, the state Department of Human Services was acting in an “arbitrary or capricious” manner.”

I specifically wrote what you said I should have wrote. Don’t be absurdist. (But if you intention was to smear me, carry on).

By: stevesh

stevesh — Fri, 08 Jun 2007 02:25:56 +0000

A “moderate” suggestion:

Read the comments at the LawyersGuns&Money link you provide.

Your post implies that the judge said those words, rather than join a decision that went down the line, and included several inconvenient (i.e., Democratic) parties in agreement with Southwick – including Scott Lemieux, whose objection is to a conservative, not racist, appointment.

However, if your intention was to smear FRC or Southwick, carry on.

By: kimrit

kimrit — Thu, 07 Jun 2007 23:35:57 +0000

Any opposition to a candidate from the right is always a “witch hunt’. Opposition to legislation is always a ‘political stunt.’ Careful phrasing delegitemizes legitemate efforts to defeat bad candidates or bad bills.