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Sometimes 'Obscenity' Law Is Just Funny

A commentary on the occasional whackiness of the judicial system

Sometimes 'Obscenity' Law Is Just Funny

NEW ORLEANS - One of the things about being in jail is that it can leave you with a lot of free time on your hands. That was apparently the case with Marvin Brown, about whom we know nothing more than that he filed a complaint in the United States District Court for the Eastern District of Louisiana against the "Louisiana State Legislative," asking the court to require the state legislature to clarify the state criminal law regarding obscenity.
 
Lawsuits against a governmental entity of an officer or employee or same, filed by prisoners without attorneys, and in forma pauperis (as a pauper or indigent person), are required to be referred to a federal magistrate to determine whether there are any cognizable claims – that is, legal claims that can actually be dealt with by a court – therein, or whether the complaint is "frivolous, malicious or fails to state a claim upon which relief may be granted." In this case, the lucky magistrate was one Judge Sally Shushan.

"In this lawsuit," Judge Shushan stated, "plaintiff states his claim as follows: 'The Louisiana legislative never made it clear as to what part of the jail and prison was open to the public. The Louisiana legislative incorporated jails & prisons into the obscenity law when the obscenity law was already established.' As relief, he requests: 'I'd like for the Court to order the Louisiana legislative to clarify the obscenity law and to say where in the jails or prison that an inmate could be charged with obscenity.'"

Notes Judge Shushan in a footnote: "It is not evident from the complaint why this is a matter of concern to plaintiff. If it is because he has been convicted of obscenity based on events in prison, his recourse is to challenge his conviction by filing a timely petition for federal habeas corpus relief after exhausting his remedies in state court."

(It is not clear whether such habeas petition would be impacted by the recently-enacted Military Commissions Act, which attempts to remove the right of habeas corpus from everyone not a U.S. citizen.)

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In any case, Judge Shushan ruled that even if the district court had jurisdiction to consider the complaint, which she ruled it did not under the sovereign immunity grant of the Eleventh Amendment, the court "would not have the authority to compel the state legislators to act as plaintiff requests." That's because, at least in the Fifth Circuit, a federal court has no authority to issue a writ of mandamus – that is, an order to compel some action by a person, corporation or lower court – directing state officials to do anything in the performance of their official duties and functions. The judge therefore recommended that the plaintiff's complaint be dismissed ... but "without prejudice," meaning that if he can supply better legal reasons why his complaint should be reconsidered, her order would not bar him from doing so.

If he does, you'll read it here.

(Thanx and a hat tip to Clyde DeWitt for making our day more entertaining.)
 






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Mark Kernes

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