Prosecutor fired for going to "white preservationist" conference

Jonathan Miller jmiller at swlaw.edu
Fri Mar 3 13:18:22 PST 2006


The state's interest is in the prosecutor being able to carry out his 
functions -- which is why disqualification is especially relevant.  If 
the prosecutor has indicated that he is not willing to carry out his 
obligations as an officer of the Court or as a person charged with 
ensuring unbiased enforcement of the law, then you have a point, but 
otherwise the situation is no different from any other case where the 
prosecutor has strong political views that are contrary to the legal 
regime he or she is obligated to enforce.  I assume that you have no 
problem with a prosecutor who campaigns for allowing assisted suicide or 
decriminalization of narcotics.  Why treat a prosecutor who would like a 
constitutional amendment to eliminate the protection of property any 
differently.  The key is the individual's willingness to perform his 
functions within the system -- which is not something that attendance at 
Communist Party meetings and study groups should automatically place in 
doubt.  By contrast, as you agree, the disqualification issue makes it 
impossible for a public racist to act as a prosecutor.  -- In short, 
both the racist and the Communist are in a similar position when it 
comes to trust in their willingness to perform their public functions 
generally, if they are willing to divorce their personal views from 
their public functions.  However, publicly held personal views cannot be 
divorced from the function exercised by the racist once we look at the 
disqualification problem.

Jonathan Miller
Southwestern Law School

Volokh, Eugene wrote:

>     If the state's only strong interest was avoiding disqualification 
> of prosecutors, perhaps the interest would be stronger as to racists 
> than as to Communists.  But surely that isn't the state's only strong 
> interest, no?  Among other things, as to both prosecutors and 
> policemen, the state has a strong interest in making sure that 
> prosecutors and police enforce the law, protect property, protect the 
> rich and poor alike, and more.  That someone believes in violent 
> revolution, class warfare, collective punishment of a class, and 
> proletarian justice as opposed to the bourgeois morality on which our 
> legal system is generally founded seems to me to bear on his likely 
> efficacy (and complaince with the law) as much as his belief in white 
> separatism.  That someone believes that the regime for which he's 
> working should be violently overthrown and replaced by a dictatorship 
> seems not irrelevant, either.  And even if property owners can't 
> disqualify a prosecutor for cause on the grounds of his hostility to 
> them as an economic class, it seems to me that the prosecutor's 
> superiors -- which indirectly means all of us -- have an interest in 
> making sure that such hostility doesn't influence the state's actions 
> or inactions.
>  
>     Eugene
>
>     -----Original Message-----
>     From: Jonathan Miller [mailto:jmiller at swlaw.edu]
>     Sent: Friday, March 03, 2006 12:22 PM
>     To: Volokh, Eugene
>     Cc: conlawprof at lists.ucla.edu
>     Subject: Re: Prosecutor fired for going to "white preservationist"
>     conference
>
>     I am not an expert on when a prosecutor can be disqualified for
>     cause because of bias concerns, but I suspect that an openly
>     racist prosecutor can be subject to far more attacks than a
>     Communist one, even if the Communist is one who believes that
>     ultimately the U.S. government should be overthrown.  Every
>     defendant has a race, but unless you could show the prosecutor
>     believed in taking immediate steps to undermine governmental
>     institutions, the conflict should be rare.  Of course you can
>     reply that this just goes to the degree of racism and the degree
>     the prosecutor is truly committed to the Communist cause -- but I
>     suspect with roughly equal level of commitment, the level of
>     disquiet a racist causes defendants and the court is greater. --
>     So yes, the State's interest is much greater in the racist context.
>
>     As for religion, it is probably a stretch to say that those who
>     support Communism will feel a bias against religious people as
>     opposed to simply regarding them as deluded.  Though I will admit
>     it depends on the Communist.
>
>     Jonathan Miller
>     Southwestern Law School
>
>     Volokh, Eugene wrote:
>
>>	Communists were also quite prominently anti-religious, not just
>>anti-wealthy / anti-property; discrimination based on religion is just
>>as unconstitutional as discrimination based on race.  But beyond this,
>>surely the government has very strong interests in more than just
>>preventing the appearance of race discrimination:  For instance, I take
>>it the government would have a very strong interest in preventing people
>>from thinking that prosecutors would take it easy on violent
>>revolutionaries, or would refuse to protect constitutionally secured
>>property rights.  More broadly, I assume the public would generally have
>>reason to distrust a prosecutor who believed that the government whose
>>laws he was enforcing should be overthrown in a violent revolution, no?
>>
>>	Eugene
>>
>>  
>>
>>>-----Original Message-----
>>>From: Jonathan Miller [mailto:jmiller at swlaw.edu] 
>>>Sent: Friday, March 03, 2006 10:28 AM
>>>To: Volokh, Eugene
>>>Cc: conlawprof at lists.ucla.edu
>>>Subject: Re: Prosecutor fired for going to "white 
>>>preservationist" conference
>>>
>>>
>>>A prosecutor enjoys enormous discretionary authority which cannot be 
>>>used in a race-based fashion, but which in practice cannot be 
>>>monitored.  While a leftist prosecutor might use his 
>>>discretion in favor 
>>>of the poor and against the wealthy, wealth is not a suspect 
>>>class while 
>>>race is.  The societal concern that those coming into court 
>>>not receive 
>>>or perceive differential treatment because of race is greater 
>>>than with 
>>>the case of wealth.
>>>
>>>Jonathan Miller
>>>Southwestern Law School
>>>
>>>Volokh, Eugene wrote:
>>>
>>>    
>>>
>>>>   Any thoughts on the First Amendment issues?  The natural 
>>>>      
>>>>
>>>analogy, 
>>>    
>>>
>>>>of course, is whether it was proper for prosecutors to be fired for 
>>>>similar Communist-related activities.
>>>>
>>>>   Eugene
>>>>
>>>>
>>>>>From the Hornell Evening Tribune
>>>>March 3, 2006 
>>>>http://www.eveningtribune.com/articles/2006/03/03/news/news03.txt
>>>>
>>>>
>>>>Allegany DA fires 'white preservationist' prosecutor: 
>>>>      
>>>>
>>>Firestorm erupts 
>>>    
>>>
>>>>downstate, with call for investigation of DA's office; 
>>>>      
>>>>
>>>Alfred U. will 
>>>    
>>>
>>>>still allow Michael Regan to serve as adjunct professor
>>>>
>>>>
>>>>
>>>>
>>>>>From Wellsville Daily Reporter and Associated Press reports
>>>>
>>>>BELMONT - Allegany County Assistant District Attorney 
>>>>      
>>>>
>>>Michael Regan was 
>>>    
>>>
>>>>fired from his job as a county prosecutor Thursday over his 
>>>>      
>>>>
>>>attendance 
>>>    
>>>
>>>>at a conference of "white preservationists."
>>>>
>>>>Regan was terminated following an investigation by his boss, 
>>>>      
>>>>
>>>Allegany 
>>>    
>>>
>>>>County District Attorney Terrence Parker, who said he had received 
>>>>numerous e-mails expressing concern about the assistant district 
>>>>attorney's presence at a meeting of the New Century Foundation in 
>>>>northern Virginia last week....
>>>>
>>>>"It has become clear that his recent activities will continue to 
>>>>significantly disrupt and impair his effectiveness as an assistant 
>>>>district attorney and the operations of the entire district 
>>>>      
>>>>
>>>attorney's 
>>>    
>>>
>>>>office," Parker said.
>>>>
>>>>Regan was quoted in Saturday's Washington Post as calling 
>>>>      
>>>>
>>>participants 
>>>    
>>>
>>>>at the conference "white preservationists" rather than white 
>>>>supremacists, and saying U.S. policies on immigration, trade and 
>>>>demographics have put the country on the wrong path. He declined to 
>>>>comment in the days that followed....
>>>>
>>>>Wellsville Attorney Bill Gunner said he has opposed Regan in 
>>>>      
>>>>
>>>court and 
>>>    
>>>
>>>>has never seen any "bigotry or bias toward any particular ethnic or 
>>>>religious group." ...
>>>>
>>>>The Anti-Defamation League characterizes the New Century 
>>>>      
>>>>
>>>Foundation's 
>>>    
>>>
>>>>ideology as "intellectualized, pseudoscientific white supremacy" and 
>>>>said the group promotes "genteel" racism.
>>>>
>>>>The ADL's regional director for New York was among those who 
>>>>      
>>>>
>>>wrote to 
>>>    
>>>
>>>>Parker, noting the article also quoted Regan as saying: "You can see 
>>>>European Christian Americans are an endangered species." ...
>>>>
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>>>>
>>>    
>>>
>>_______________________________________________
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>>  
>>
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