Legal Learning Differences

Somebody on the Dallas City Council skipped school the day they taught the U.S. Constitution

I happen to be a lawyer fan. I like them. I actually enjoy watching them. So I have some theories about them. This particular theory is about why very smart lawyers sometimes do very dumb things.

It's not common. Aside from marrying a serial killer or buying a Ford Explorer or adopting a year-old "spirited" Irish setter or something like that, really smart lawyers don't very often do really dumb things. The one circumstance under which you do see smart lawyers do dumb things is when they have really dumb clients.

Case in point: the decision last month by Dallas City Attorney Madeleine Johnson to pay a federal civil litigation lawyer in Austin several grand of our tax dollars to write an opinion about whether the Dallas City Council can get out of obeying the United States Constitution.

No, I'm not kidding. You wish I were kidding. Sorry. This is another Ripley's-Believe-It-or-Not about the Dallas City Council. At the request of some person or persons on the council, as yet unnamed, Johnson asked a lawyer in Austin if the council could sort of ooch out from under the federal Constitution in order to shut down a bunch of Internet Web sites where people are saying bad things about the council.

In particular--BRAINSTORM ALERT!--someone wanted to know if the council could get around the First Amendment right of free speech by going to a foreign country where they don't have any rights and filing suit against a Dallas citizen there.

On the one hand, the person who commissioned the lawyer in Austin to answer this and other related questions was Madeleine Johnson. Johnson told me that the content of the request from the council as well as the specific identity of the asker is a matter of attorney-client privilege and confidentiality--a secret. And I do get that.

But on the other hand, do you and I believe Madeleine Johnson is the one who thought up the question about the foreign country?

Johnson is a former star member of the staff of the U.S. Attorney for the Northern District of Texas. She's a Bryn Mawr graduate with a law degree from Tulane. Do you believe that Johnson is sitting around at her desk one day not doing much--da de-da de-da--and out of the blue she asks herself, "Hey, I wonder if the United States Constitution applies to the Dallas City Council?" Come on. If they ever found anybody that dumb actually enrolled at Bryn Mawr, they would take the person down to Mingo Creek at midnight and no one would ever hear of her again.

You and I can picture this the way it really happened. Johnson works for the city council. She is their employee. She's at her desk. Some Einstein from the city council comes in and asks if there isn't some maneuver the council could pull in order to get out from under the U.S. Constitution. Put yourself in Madeleine Johnson's shoes. What are your choices of ways to respond?

"What grade did you get to in school?"

"Have you been drinking?"

"You do understand that the things Letterman says on the show are jokes, right?"

No. I don't think she responds that way, much as you and I might like her to. I think she says something more like, "That's a very interesting question." Then, because she's quick on her feet, she says, "You know, there's a guy in Austin who deals with the Constitution all the time. I really think it would be worth our while to throw him a few bucks and see if he can come up with any legal tricks that would exempt you from the Constitution. Because, I'll tell you what: If this guy can't come up with a way to do it, nobody can."

So at the end of last year, the City of Dallas paid $3,600 to Max Renea Hicks, a civil lawyer in Austin, to come up with answers to the question of what the council can do about Web sites that say bad things about the council. This expenditure was not of the type or amount that required approval by the full city council. Few council members even knew about it. The only reason you and I know about it is that council member Donna Blumer eagle-eyed it on a list of everyday expenditures and demanded the details.

Blumer got her hands on the report that Hicks, the Austin lawyer, made to Johnson. Exercising her own right as a council member to do so, Blumer released Hicks' report to the owners of three Web sites, the Fort Worth Star-Telegram, and myself. The Dallas Morning News never asked for it (more on that later).

I called Hicks, as did the Star-Telegram, and he hasn't responded to me or to them.

In his report, Hicks explains at some length that the Constitution actually applies to American citizens no matter where you sue them, as far as American courts are concerned. And let's all think about this for a minute. Let's say the Dallas City Council goes to court in Afghanistan and gets a verdict ordering not only that the Web sites critical of the city council be shut down but that their proprietors' right arms be hacked off in front of City Hall. Do we see federal Judge Barefoot Sanders upholding that one?

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