Defendant Vazquez

[bpayne37 at home.com]

I read your article
____
Vazquez Oversteps Judicial Bounds

By HENRY MARK HOLZER
First Amendment Scholar

 Before a person or object can be unthrottled,
there must first be a throttling. And that’s what
happened in New Mexico last week, when U.S.
District Judge Martha Vazquez throffled the
First Amendment.

A provision of the Albuquerque City Charter
limits expenditures by mayoral candidates arid
punishes violation with fines, reprimand and
even removal from office.

 Candidate Rick Homans overspent. He sued,
claiming that the charter provision violated his
rights under the First Amendment to the Constitution. Homans relied on
the Supreme Courts
decision in Buckley v. Valeo that spending money for electoral purposes
was a form of speech
protected by the First Amendment.

 Although Buckley is quite clear on this point —
and although some years ago, in a case of mine, a
colleague of Judge Vazquez had declared unconstitutional a New Mexico
statute providing that
funds raised for a federal election (i.e., Congress) could not be used
in a state election cam-
paign (New Mexicans for Bill Richardson v. Gonzales) — Vazquez refused
to enjoin enforcement
of the Albuquerque expenditure cap.

 Even though a district judge like Vdaquez is
bound by higher-court precedent, and even
though it is the sworn constitutional duty of federal district judges to
apply those precedents, in
the Homans case Vazquez violated her oath.

 Buckley, decided in 1976, was decades old, she
rioted. One wonders how Vazquez would react to
he argument that Roe v. Wade, decided in 1973,
rias lost its vitality after nearly three decades.

  Then, there were some non-binding statements
from lower courts, whose ideas apparently
impressed Vazquez. There is, she said, an “abundance of judicial
commentary on compelling
governmental interests which fall outside the
ambit of Buckley”’ — on the basis of which she
found that the Albuquerque expenditure cap fostered such interests. How?
By preserving faith in
democracy and reducing the appearance of corruption. In other words;
because there is some
non-binding language in some lower court cases,
despite what the Supreme Court held in Buckley,
it was constitutionally permissible for Albuquerque to punish Homans for
spending more
than the good citizens of that city thought he
should spend — even if it was his own money —
in aid of his mayoral aspirations.

 In addition, Vdaquez claimed that the Supreme
Court was currently divided over the scope of
Buckley. However, in making this claim she
failed to note the distinction that case made
between permissible restrictions on campaign
contributions and impermissible restrictions on
campaign expenditures, the latter being the only
aspect of the Albuquerque cap being challenged
by candidate Homans.

 Finally, Judge Vdaquez — confusing her role in
our constitutional separation of powers system
with that of the elected and politically accountable Legislature —
observed that the public.
favors spending limits because they supposedly
improve the fairness of elections and ensure an
equal playing field regardless of one’s financial
resources, thus eliminating or at least reducing
reliance on “special interests.”

 Homans immediately appealed to the 10th U.S.
Circuit Court of Appeals. That court promptiy
reversed Vaquez, ruling, in essence, that she
had misread and failed to be bound by Buckley, and refuting every one of
the “reasons" she had
offered in support of her refusal to enjoin
enforcement of the Albuquerque charter provision.

 The important point here, however, transcends
Vazquez's refusal to enjoin a patently unconstitutional law. It
transcends the Court of Appeals’
summary reversal of her lawless conduct.

 Why Judge Vazquez refused to enjoin enforcement of a patently
unconstitutional law is the
most important part of this story. She refused
because, like many judges, Vazquez apparently
believes that it is an appropriate function of
courts to make policy decisions rather than to
interpret and apply the Constitution and laws
that judges are sworn, to uphold.

 As a federal judge with lifetime tenure, Martha
Vazquez is not politically accountable. That lack
of accountability too often spawns a judicial
arrogance that can be checked in only two ways.
One, as we have just seen, is through reversal by
a higher court. The other is through the appointment process for federal
judges.

 Those who revere and understand the irreplaceable value of the First
Amendment must
insist that, like the president of the United States,
appointed federal judges take seriously their
duty to “preserve, protect and defend” not only
the First Amendment, but the entire Constitution.


A member of the New York Bar and a First Amendment
Fellow of the National Press Club, Henry Mark Holzer is
professor emeritus at Brooklyn Law School and co-author
of the soon to be published “Aid and Comfort: Jane Fonda
in North Viet. Nam. He may be contacted at HankHolzer at aol.com.
______

in the abq journal on saturday september 16, 2001.

We sued Vazquez some time ago.  This lawsuit is active in both state and
federal courts.  But this is why we are suing again.

http://www.geocities.com/CapitolHill/Congress/8327/

Our september 10 ultimatim was ignored.

Keep up-wind
http://www.geocities.com/CapitolHill/Congress/8327/buehlerpayne.html