InnerChange Litigation

Thu Dec 6 11:06:50 PST 2007

On Dec 6, 2007, at 10:22 AM, Paul Diamond wrote:

> I must admit that I am with Professor Lund on this.
>
[snip]
> 3.  Has anyone thought of the prisoner First Amendment rights!   
> What is prisoners are so willing to find a new life and answer to  
> their problems,- that they want to volunteer for the pfm programme  
> and request the Ohio State to facilitate (not endorse) their  
> rights.  What is the interest of the State in denying such a request?

The problem is a state paying for them and not facilitating, but  
doing essentially a sole-source proselytization.

I don't see a constitutional bar to letting religious-based groups  
provide services upon individual prisoner request -- indeed one could  
have a free exercise violation at some point if the requests were  
denied under some circumstances.  But that is a far cry from this case.

But here, we have endorsement and direct payment.  Those seem to  
still be more than one step over the wall.

>
> Paul Diamond, barrister.
>
> ----- Original Message -----
> From: Vance R. Koven
> To: Law & Religion issues for Law Academics
> Sent: Wednesday, December 05, 2007 2:03 PM
> Subject: Re: InnerChange Litigation
>
> There are several ways of looking at how PFM might or might not be  
> liable for money damages here. The first thing that leapt to mind  
> was as an agent for an undisclosed principal--since had it been  
> known PFM was acting on behalf of the state, which was under a  
> prohibition, then its acts would be immediately perceived as  
> wrongful. However, the liability of an agent in this case is, so  
> far as I know, limited to those with whom it transacts downstream.
>
> A taxpayer suit might be analogous to a derivative action by  
> shareholders, in which the shareholders act in the name of the  
> corporation to recover damages caused by the wrongful acts of  
> corporate fiduciaries and agents. As others have pointed out, PFM,  
> though, did not do anything inherently wrongful, they were only  
> wrongful because committed willy-nilly in the name of the state;  
> the inherently wrongful acts were committed by *other* state agents  
> who appointed PFM to undertake its activities in the prisons. It  
> would be highly salutary, though as far as I know it is  
> unprecedented (other than by specific statute), for state officials  
> to be personally liable to taxpayers for waste/misuse of state  
> funds pursuing unlawful objectives; but that's not PFM's problem.  
> If you take the old hoary approach of tracing the duties of the  
> different parties, it seems as though the only party with any duty  
> to taxpayers/citizens is the state itself. The state officials owe  
> duties to the state to act within the scope of their engagement,  
> and you can say the same for PFM, but its scope is radically  
> different from theirs, and nobody has suggested (at least in this  
> discussion) that PFM did not comply with its (ultimately invalid)  
> mandate.
>
> Another route might be the doctrine of ultra vires, since plainly  
> the state had no authority to appoint PFM as its agent to do what  
> the state could not do directly. Modern corporate law has  
> essentially eliminated actions on the ultra vires theory, but if I  
> remember correctly, contracts ultra vires are void, not just  
> voidable. On that theory PFM might have to give the money back, but  
> I confess this is just theory-spinning on my part without examining  
> any cases. It's been a *long* time since I needed to know this,  
> either for teaching or practicing!
>
> Vance
>
> On Dec 5, 2007 12:45 AM, Christopher Lund <lund at mc.edu> wrote:
> The points by Profesors Lupu, Green & Lederman make a lot of sense,  
> and
> I'll check out Brentwood Academy, which sounds helpful.  Maybe it's  
> just
> recoupment here that I have trouble understanding.  Recoupment  
> seems to
> have little value here except as a way of punishing PFM.  Recoupment
> means that PFM now has to pay Iowa for the constitutional violation  
> they
> committed together.  I don't think that makes much sense.  Maybe  
> PFM is
> as culpable as Iowa -- but is there really an argument that PFM is  
> more
> culpable, that the Establishment Clause applies more to PFM than it  
> does
> to Iowa?  By virtue of the taxpayer theory, Iowa suddenly gets to flip
> sides in the litigation.  It doesn't have to pay the plaintiffs.  It
> instead gets to become the plaintiffs and take PFM's money back on  
> their
> alleged behalf.
>
> Now I understand the theory -- that the injury was taxpayer dollars
> going to PFM, that the remedy, if there is to be one, means the money
> has to go back, and that Iowa this time could spend it on something
> constitutional.  But it seems like the remedy of recoupment means  
> we've
> moved full circle from (1) Iowa being responsible, to (2) Iowa and PFM
> being jointly responsible, to (3) PFM being chiefly (or even solely)
> responsible.  Maybe I'm missing something, but I find this  
> problematic.
>
> Best,
> Chris
>
>
> Christopher C. Lund
> Assistant Professor of Law
> Mississippi College School of Law
> 151 E. Griffith St.
> Jackson, MS  39201
> (601) 925-7141 (office)
> (601) 925-7113 (fax)
>
>
> -- 
> Vance R. Koven
> Boston, MA USA
> vrkoven at world.std.com
>
>
> _______________________________________________
> To post, send message to Religionlaw at lists.ucla.edu
> To subscribe, unsubscribe, change options, or get password, see  
> http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw
>
> Please note that messages sent to this large list cannot be viewed  
> as private.  Anyone can subscribe to the list and read messages  
> that are posted; people can read the Web archives; and list members  
> can (rightly or wrongly) forward the messages to others.
> _______________________________________________
> To post, send message to Religionlaw at lists.ucla.edu
> To subscribe, unsubscribe, change options, or get password, see  
> http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw
>
> Please note that messages sent to this large list cannot be viewed  
> as private.  Anyone can subscribe to the list and read messages  
> that are posted; people can read the Web archives; and list members  
> can (rightly or wrongly) forward the messages to others.

-- 
Prof. Steven D. Jamar                               vox:  202-806-8017
Howard University School of Law                     fax:  202-806-8567
2900 Van Ness Street NW                   mailto:stevenjamar at gmail.com
Washington, DC  20008	                         http://iipsj.com/SDJ/

"The modern trouble is in a low capacity to believe in precepts which  
restrict and restrain private interests and desires."

Walter Lippmann

-------------- next part --------------
An HTML attachment was scrubbed...
URL: http://lists.ucla.edu/pipermail/religionlaw/attachments/20071206/1b14d19d/attachment.htm 