Legal Thoughts

We own and live on land that is the development called Terlingua Ranch have tourist problems.  Contrary to popular belief, there is no blanket easement across the separate parcels of property on Terlingua Ranch.  And no owner has a right to give consent to trespass to others.

It has been promoted by those selling property that a property owner has an unlimited right to drive the the thousand or so miles of roads that crisscross Terlingua Ranch. This is not a legal fact. POATRI attempted to memorialize that notion in SECTION II – GENERAL ASSOCIATION POLICIES relying on, apparently, a recorded Assignment of Easements and Rights from TERRAMAR in 2006. The Texas courts have disavowed that concept.

There is an extensive analysis of Texas property law relating to easements at Texas Easement Law.

 

I’ve spent a lot time looking at the question of what does it take to have standing in a judicial proceeding.  Here’s what I decided.

November 28, 2022

The Constitutional Republic that was still left as I was growing up is dead.   This is what I consider the definition of a Constitutional Republic:

A constitutional republic means that it is one in which, rather than directly governing, the people select some of their members to temporarily serve in political office; the constitutional part means that both the citizens and their governing officials are bound to follow the rules established in that Constitution.

I consider the important part is that the electorate and the elected are obligated  to be constrained by the Constitution.  The electorate and the elected are corrupt.  I have no faith this will be fixed without a little nudge from what I think of as “Constitutional Revolutionaries”.  It won’t be fixed by debate of men of good intentions.  We need Che.  Not the Che of the kind killed in Bolivia but the kind who told the King of England ‘no more’.  I suggest a law that is unconstitutional on it’s face is not to be honored by obedience.  Each person must become Che!  UP THE REBEL

 

November 29, 2022

One thought I’ve had is that something has to be done to expand the concept of standing in the courts.  The voting booth won’t do what needs to be done if what is being done is Constitutionally unlawful.  The court of last resort is, literally, the court.

In law, standing or locus standi is a condition that a party seeking a legal remedy must show they have, by demonstrating to the court, sufficient connection to and harm from the law or action challenged to support that party’s participation in the case.  Now what in the hell can this mean?

In our system equal protection means everyone is affected by actions of the government both good and bad.  A citizen cannot bring an  action in federal court, for example, for an illegal tax law merely because the tax law applies to them  if the citizen has not been charged with violation the law.  Why is that?  I don’t know.

A law unconstitutional on its face is not enforceable and should be struck down.  But they are not being struck down and you cannot take the issue to court until it is enforced against you.  You will be told that you have no recourse and you must resolve the matter with the person who has been elected to represent you.  True we don’t have a democracy but have a representative form of government.  What if he blows you off?  Too bad chump.  What if a person is elected with the help of illegal or corrupt elections.  Trump won that election and now he is condemned for complaining and Fox News is throwing him under the bus.  And at the heart of it all is Lack of Standing, a requirement not mentioned in the Constitution as far as I know.

Below is a more detailed of discussion:

The Case or Controversy Clause of the U.S. Constitution, located in Art. III, Section 2, Clause 1, does not mention the word “standing.” Despite this, it is the basis for many important court decisions addressing standing.

One of the first Supreme Court decisions to address standing in this manner was Fairchild v. Hughes, 258 U.S. 126 (1922). The plaintiff in that case sought to challenge the District of Columbia’s ratification of the Nineteenth Amendment, which prohibited the government from denying anyone the right to vote based on their gender. At the time that plaintiff sued, the amendment had not yet been ratified. The court ruled unanimously against the plaintiff, holding that individuals did not have a general right to sue to invalidate a statute or other legislative act. Since the plaintiff’s ultimate goal was to challenge the Nineteenth Amendment itself, his lawsuit was not a “case” that a federal court could hear.

In Massachusetts v. Mellon, 262 U.S. 447 (1923), the Supreme Court ruled against two plaintiffs who sought to challenge certain expenditures by the federal government. The plaintiffs alleged that the Tenth Amendment barred the expenditures in question, but they did not allege that the expenditures would cause them any specific or individualized harm. In ruling that the plaintiffs lacked standing, the court held that it had “no power per se to review and annul acts of Congress on the ground that they are unconstitutional.” Id. at 448. In order to make such a ruling, a plaintiff would need to show that they have “sustained or [are] immediately in danger of sustaining some direct injury” from the challenged law. Id.

Three Requirements for Article III Standing

The rules for Article III standing took their current form in Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992). The case involved a challenge by an environmental organization to federal regulations issued under the Endangered Species Act. In ruling against the plaintiff, the Supreme Court identified a three-part test for establishing standing in federal court. A plaintiff has the burden of proving each element of the test.

1. Injury in Fact

A plaintiff must have suffered “an invasion of a legally protected interest” that meets two additional criteria: (1) it is “concrete and particularized”; and (2) it is “actual or imminent,” as opposed to “conjectural or hypothetical.” Lujan, 504 U.S. at 560. It does not need to be an economic injury, but it needs to be something that has directly affected the plaintiff.

2. Causation

The plaintiff’s injury must be “fairly traceable” to the conduct that is the subject of the lawsuit. Id. It cannot have resulted from actions by someone who is not a party to the lawsuit.

3. Likelihood of Redress

A decision in the plaintiff’s favor must be likely to provide an adequate remedy for the plaintiff’s injuries. The court specified that “redress[] by a favorable decision” must be “likely,” rather than “merely speculative.” Id. at 561.

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