The latest update on the appeals before the CCA in the Rick Perry matter.
Corndogs, nothing but corndogs
The 3rd Court of Appeals this summer tossed one of two counts against Perry, saying the coercion law underlying it violates the First Amendment. The 3rd Court agreed with Judge Bert Richardson, however, that Perry must face the charge of abuse of official capacity because it’s too early in the case to decide upon the issues he raised.
Perry’s legal team disagreed with the 3rd Court on the remaining charge, arguing in a brief filed with the Court of Criminal Appeals and released Thursday that the count could be thrown out under existing legal precedent before a trial.
And if that’s not so, said the team led by Houston lawyer Anthony Buzbee, the case should be tossed before trial anyway given the issues at stake and to prevent “the irremediable loss of constitutional rights.”
The briefs were filed as a precursor to oral arguments scheduled for Nov. 18 before the state’s highest criminal court.
Among its points, Perry’s defense team cited the separation of powers and argued that allowing “a criminal prosecution of a political decision where there is no allegation of bribery or demonstrable corruption undermines the basic structure of state government.”
The prosecution disagreed, saying the issues raised by Perry can’t be decided at this point in the case.
The defense brief said that even assuming for the sake of argument that Perry’s claims “were not of the type that this Court has already recognized as cognizable, the Court should clarify the law to permit immediate resolution of the merits of his challenges.”
“Governor Perry’s constitutional claims pose fundamental questions about any governor’s authority to exercise one of that office’s core constitutional responsibilities—the review of legislative acts, including the possibility of veto,” said the defense brief.
[…]
State Prosecuting Attorney Lisa C. McMinn said it’s clear that the claims raised by Perry would properly be decided in a trial.
“Whether Appellant’s conduct satisfies the elements of a penal statute is a question of sufficiency of the evidence to be decided at trial, not a pretrial determination that this issue cannot be decided or that he is immune from prosecution because a political question might arise at trial,” she wrote.
“Neither the constitutional separation of powers doctrine nor the political question theory of nonjusticiability creates a right not to stand trial or shields a member of the executive or legislative branch from criminal prosecution,” McMinn wrote.
McMinn also filed a brief urging the state’s high criminal court to rescind the 3rd Court’s decision that the coercion law, at least as applied to public servants, violates First Amendment protections.
She said that “there is no evidence that in the years since the coercion statute was enacted, any public servant … has abstained from any of the valid speech the court of appeals maintains is covered by the statute.”
See here, here, and here for the background. Both sides’ briefs are embedded at the link above – the State Prosecuting Attorney’s brief follows the defense brief and begins on page 127 – so go read them if you are so inclined. I have no idea how the CCA will rule, but I feel pretty confident saying that we won’t get a ruling till some time next year.
The State Prosecuting Attorney, in attempting to save the coercion statute, would appear to be interpreting that statute in a way that exonerates Perry. Her position that coercion requires “communicated intent to inflict harm or loss on another or another’s property” would put Perry’s threat to veto the appropriations bill outside of the statute. All he did was threaten not to give the Travis County DA any new state money–he didn’t threaten to take anything the Travis County DA already had.
If the SPA wins (and I think that she very well might), Perry would have grounds for (yet another) Motion to Quash.