Throwback to the ’80s: Parents for Decency through Law at the Happy Times Store

As far as we know, which is only back to the 1860s on one side of the family and the early 1900s on the other, my brother Brendan and I are the only lawyers in our family. The wrinkle in this is that our mother, Bonnie Walsh, appeared in court as a quasi-lawyer or something when we were in grade school. Even now looking at a resulting court opinion, I’m not 100% sure in what capacity she argued in court. But her voice was heard and she wasn’t a party or a witness or a lawyer. She was heard as a concerned citizen and spokesperson for an ad hoc organization called Parents for Decency through Law.

Rockland Parents Win Court Case Against Pornographer

The core of this group consisted of six moms from a playgroup. They were unhappy with a kids’ store in the Nanuet Mall called Happy Times Store. In addition to featuring teddy bears and toys, this store also sold sexually explicit greeting cards that were publicly displayed on a rack in the store. After complaints to the store manager went nowhere, the parents organized. They conducted a protest in the mall outside the store. That did not lead to removal of the cards so they complained to the police, contending that the public display of the cards violated NY Penal Law § 245.11. The Rockland County District Attorney, Kenneth Gribetz, instructed the police not to enforce the law against this display in the Happy Times Store. So the parents went to the Clarkstown Town Board and urged the Board to pass a resolution urging the DA to enforce the law. The Board passed such a resolution. The DA was not happy about this and still wouldn’t enforce the law. I’m a little foggy on the details of what happened next. (I was just 9 or 10 years old.) Somehow a criminal information ended up in the Clarkstown Town Court courtroom of Judge William Kelly. The DA moved to dismiss the information. In a fairly long opinion, Judge Kelly dismissed (seemingly reluctantly) as to all but one of the cards. Here’s how the opinion opens:

The People have moved this court to dismiss the charge of public display of offensive sexual material (Penal Law § 245.11) pending against the defendant on the ground that the offensive materials do not fall within the proscription of the statute as a matter of law.

A large group of concerned parents, members of an ad hoc organization called “Parents for Decency Through Law”, rigorously oppose the motion to dismiss. They attended the initial court hearing and have submitted numerous exhibits and legal memoranda to the court along with 170 letters of complaint from parents and local organizations opposed to the public display of the “cards” in question which they contend are sexually explicit and violative of the statute which prohibits the unrestricted public display of sexually offensive material as defined in Penal Law § 245.10.

Keeping the charge alive for just one card was enough to maintain pressure on the store (and the mall owners). The store owner ultimately agreed with the mall owners that he would remove the cards. Chalk up a win for Parents Through Decency for Law.

 

adjudication-related considerations in Sheetz v. El Dorado

The Supreme Court’s recent decision in Sheetz v. El Dorado County (2024) features a unanimous opinion for the Court by Justice Barrett and separate concurring opinions by three other Justices (Sotomayor joined by Jackson; Gorsuch solo; and Kavanaugh joined by Kagan and Jackson). These separate opinions address themselves in different ways to the narrow scope of what was decided in the opinion for the Court.

The question presented was whether conditions imposed on building permits are exempt from regulatory takings scrutiny because they are imposed pursuant to legislation rather than administratively. The Court answers this question “no.”

Sotomayor (joined by Jackson) wrote separately to note that there is an antecedent question, one not addressed by the Court, which is “whether the permit condition would be a compensable taking if imposed outside the permitting context.”

Gorsuch wrote separately both to note that the Court’s opinion did not address another question and also to suggest that this question had an easy answer. This was the question “whether the Nollan/Dolan test [i.e. the test that governs the Takings Clause inquiry in this context] operates differently when an alleged taking affects a ‘class of properties’ rather than ‘a particular development.’” The easy answer to this question, implied Gorsuch, was “no.”

If this question was so easy, why didn’t the Court address it? It appears that at least three Justices have a different view than Gorsuch. Kavanaugh (joined by Kagan and Jackson) concurred “to underscore that the Court has not previously decided—and today explicitly declines to decide—whether ‘a permit condition imposed on a class of properties must be tailored with the same degree of specificity as a permit condition that targets a particular development.’” The reason to underscore the limited nature of the Court’s decision, presumably, is to prevent others from reading that opinion to have resolved the issue.

From this brief description of the scope of the opinions, the question naturally arises how the Court decided to calibrate the breadth or narrowness of this opinion. The answer to this question is not something that one tries to answer as a matter of constitutional interpretation. The answer turns instead on the nature of the judicial function within the particular place in the judicial hierarchy occupied by the Supreme Court of the United States, together with a justice’s understanding of how best to carry out that function as a single individual on a multimember appellate court with jurisdiction that is both limited and discretionary. To the extent that these kinds of understanding are informed by a distinctive theory, that would be a theory of adjudication rather than a theory of interpretation or law.

Pope Francis’s Remarks to International Federation of Catholic Universities

On January 19, 2024, Pope Francis was scheduled to deliver “a lengthy address” to the International Federation of Catholic Universities. Because he was a “bit short of breath,” he instead got right to the point of what he was going to say and then let his prepared text speak for itself. Here’s what he said viva voce:

I was planning to deliver a lengthy address, but I am a bit short of breath; as you can see, this cold is not going away! I am giving you the text so that you can read it for yourselves. I thank all of you for this meeting and for all the good that our Catholic universities do by communicating knowledge, the word of God and an authentic humanism. Never tire of persevering in the splendid mission of Catholic universities. It is not their confessional status that gives them their identity: that is one aspect, but not the only one. It is perhaps that clear humanism which makes people realize that human beings have values and that these need to be respected. This is perhaps the finest and greatest thing about your universities. Thank you very much.