Path: utzoo!hoptoad!well!ptsfa!lll-tis!mcb From: mcb@tis.llnl.gov (Michael C. Berch) Newsgroups: alt.flame Subject: Re: Flamage re Mark Ethan Smith/Netiquette Summary: Legal stuff Message-ID: <21949@tis.llnl.gov> Date: 7 Jan 88 01:15:04 GMT References: <229*manis@instr.camosun.bcc.cdn> <6466@jade.BERKELEY.EDU> Reply-To: mcb@tis.llnl.gov (Michael C. Berch) Organization: Lawrence Livermore National Laboratory, Livermore CA Lines: 100 In article <6466@jade.BERKELEY.EDU> era@killer.UUCP (Mark Ethan Smith) writes: > [...] Here's a ruling from > Anthony "Tony" Kennedy, Reagan's nominee to the United States > Supreme Court, in 9th Circuit Court of Appeals Case _Smith v Bowles_, > Docket Number 83-2727: > > "The single utterance of a profanity is hardly the kind of act > that can give rise to a suit for compensable injury in either > federal or state court." > > In order to get rid of me, federal employees at a base where they > lose millions of dollars in unaccounted for funds every year, not > to mention overruns, waste, fraud and abuse, would simply attack > me the same way this and other pseudos have done on the net. But > since I needed the job, instead of quitting, I filed a lawsuit. > The government removed the suit to federal court, insisting that > telling me to eat fecal matter was an official federal duty. > [...] > You have to know federal law to understand the illegality of > Judge Kennedy's act. The government can only remove a case to > federal court, if the act is entitled to federal immunity. If > the act is not entitled to federal immunity, the case should be > remanded. It was up to a lower judge to decide if I sustained > loss of livelihood from being talked to that way by coworkers. Um, it's been a few years since I dealt with this stuff on a daily basis, but removal (from state to federal court) and remand (from a appeals court to a trial court) don't have a lot to do with each other. "Removal", in US civil procedure, is a procedure whereby one of the parties in a suit in state court invokes Federal jurisdiction in a case where there would have been original Federal jurisdiction in a US District Court. (This would involve parties who are domiciliaries of different states ("diversity" jurisdiction), where the U.S. is a party, suits under various Federal statutes or the U.S. Consititution, etc.) Removal does NOT affect choice-of-law, personal jusridiction, or venue issues, except trivially; it does affect procedural law, as cases removed to District Court will proceed under the Federal Rules of Civil Procedure. "Remand", on the other hand, is where an appeals court sends a case back to a trial court for determination of factual issues or entry of judgment, etc. This can happen in either Federal or state court, and usually follows every completed appeal, when the case is remanded for entry of judgment (affirmed or modified), or a new trial, etc. In short, "removal" should have had no substantive effect on Smith's case, and whatever Judge Kennedy's ruling on the removal issue, it remains a procedural, technical issue, and would have absolutely no bearing on the facts or merits of Smith's charges. In any event, the factual merits of Smith's case would always be decided by a trier of fact -- judge or jury in a trial court, whether originally or after remand -- and whether this transpired in state or Federal court is irrelevant to the merits. I have seen a lot of legal language and various assertions by Mark Ethan Smith about the various litigation she has been involved in, and frankly, most of it doesn't make a whole lot of sense. I would not consider Smith a good source of legal expertise regarding employment law, gender-discrimination law, or any of the other fields involved. Michael C. Berch Member of the California (and U.S. District Court, Northern Dist. of Calif.) Bar mcb@tis.llnl.gov / {ames,ihnp4,lll-crg,lll-lcc,mordor}!lll-tis!mcb ----- And in addition, I sent the following mail to Smith several months ago, and never received a reply. My offer to correspond with the attorney in question stands (correspondence should be sent to the address above, not the one in the appended message). From mcb Wed Oct 21 18:00:29 1987 Return-Path: Received: Wed, 21 Oct 87 18:00:22 pdt by lll-tis.ARPA id AA01175 Date: Wed, 21 Oct 87 18:00:22 pdt From: Michael C. Berch Full-Name: Michael C. Berch Message-Id: <8710220100.AA01175@lll-tis.ARPA> To: ames!cmcl2!cucard!dasys1!msmith, era1987@violet.berkeley.edu Subject: Assertions re pronouns and sexism Newsgroups: soc.women,misc.legal In-Reply-To: <1636@dasys1.UUCP> Status: RO In article <1636@dasys1.UUCP> you write: > [Regarding use of pronouns:] > Any attorney who doesn't know what this is about, can read past articles > in soc.women, or contact me email for the email address of an > attorney friend of mine who can explain it to you. OK, you're on. I can't read the past articles in soc.women, since they are expired at my site (I would certainly read them, if they are not too long, if you mail them to me), so I would gladly correspond with your friend in order to receive an explanation. Michael C. Berch Member of the California Bar ARPA: mcb@lll-tis.arpa UUCP: {ames,ihnp4,lll-crg,lll-lcc,mordor}!lll-tis!mcb