Is there a path through the courts to sue the US government to allow a national referendum? I know there’s not an existing avenue to get a national referendum on the ballot, but is there a path through the court system, the damages being that the elected representatives are benefiting from a system (specifically campaign funding) that actually hurts the democratic processes and all citizens?
This would require a constitutional amendment (overriding the First Amendment), which can be done in two ways. Congress can write an amendment and submit it to the states; or the states can call for a convention. None of these methods can be implemented by any number of courts.
As a comment by @DavidSchwartz notes, this is not wrong. Questions of law but not fact are allowed. It is worth noting that the line drawn is arbitrary. In Colorado, where I practice, jurors issue written questions (pre-reviewed by the judge and counsel for all parties before being presented) to witnesses at the close of the testimony of each witness called by a party to testify. This is very helpful to counsel, as it provides indirect evidence of whether the jury understands what they are being told, and often juries will directly ask questions that for tactical reasons, both parties have refrained from asking that go to the heart of the matter. It also frequently clarifies misunderstandings that trained legal professionals assumed were not made about terminology. This is more problematic in criminal trials, where jury questions could provide evidence pushing a case over the threshold of proof needed to prove beyond a reasonable doubt that the prosecution failed to provide, than in civil cases with a preponderance of the evidence standard. Also, as a matter of reality, when jurors ask questions, counsel often loathe to object even when they have valid grounds to do so, for fear of offending the decision-maker, unless it is really critical to keep certain information away from the jury.
The courts do not supersede your constitutional rights, although you may believe that you have a constitutional right that isn't actually there. This article discusses the position that "due process forbids convicting an individual of a crime unless the government proves the elements of the charged offense beyond a reasonable doubt". This standard is actually not stated anywhere in the US Constitution, but it has been assumed as an implicit meaning of "due process". It sounds like you were charged with a crime, and there is most likely an applicable statute in your state that is analogous to RCW 26.50.110 in Washington. So you have the right to a trial and the prosecution would have the obligation to prove all of the elements of the crime beyond a reasonable doubt. It also appears that you did violate the applicable law and you were willing to plead guilty, as urged by your attorney. You are correct that you don't technically have to prove your innocence, but there is a practical problem that if the prosecution provides some weak evidence that you violated the law, then the jury might decide that your failure to refute the evidence means that there is no reasonable doubt. The problem is that there is a tendency for jurors to think that the defendant has to create a doubt. States differ somewhat in how they explain the burden of proof to jurors, and you might fare better in a state where the instruction is that "you must be firmly convinced". Since the attorney seems to have said that "the constitution doesn't apply to this", this is a puzzle. I would not assume (though it is possible) that the attorney was incompetent. It is possible that he was speaking of a non-criminal matter, and it is possible that you were talking at cross purposes. There is no legal situation where "the constitution doesn't apply to this", but perhaps "that constitutional limitation doesn't apply to this specific situation". Regardless of what the attorney said, your attorney doesn't violate your rights, even if he gives you bad advice. The actual court might, and then you would have a cause for an appeal. Similarly, if the district attorney reasonably believes that you are a danger to society and is prosecuting you, that is not a violation of your constitutional rights. An improper conviction would be a violation of those rights, although it might take an appeal to get the court to recognize that fact.
A lawsuit would be unsuccessful. Prosecutors have discretion to prioritize whichever offenses they think are most important, and they are generally immune from civil liability. This is a political grievance, and it comes with a political remedy; voters can recall the DA or vote for a new one when his term ends.
The government can’t withdraw The government does not have a right to unilaterally withdraw charges once the case is before the court. All they can do is ask the court to dismiss the case as they have done here. It’s up to the court (judge) to decide whether to grant the motion to dismiss or not. It granted, then the case has gone to completion and the defendant is legally not subject to punishment as they were not convicted of the crime, notwithstanding any previous guilty plea. Now, while it would be unusual for a judge to refuse such a motion it’s not impossible and they might do so if they felt that the interests of justice are better served by completing the trial in the usual way. This is possibly more common in civil litigation where a losing plaintiff might not be permitted to settle if the judge doesn’t feel an innocent defendant is being adequately compensated.
Sending a letter to the Governor is legal You can do it, I can do it and the elected officials of Lancaster County can do it. Thanks to the first amendment, that letter can say pretty much anything you like subject to limits that themselves are subject to strict scrutiny - things like threats and defamation. Outlining a course of action that you propose to take is legal even if that course of action is itself illegal. I will also point out that people - sometimes even politicians - have been known to say things they don't mean. However, that just begs the question ... This article explains what's going on and, more importantly, the actual letter is here. I've read it. Twice. I can't see where the county proposes to do anything concrete that might be considered illegal. Apart from the first paragraph, the entire letter appears to be a case for why the county should be permitted to move from red to yellow on May 15 and they are asking for the Governor's support. Even the first paragraph is ambiguous; while it asks the Governor to move the county from "red" to "yellow" and states that they "intend to move forward with a plan" it is by no means clear that that plan is moving from "red" to "yellow" even though you could get that impression on a casual reading. Basically, what they intend to do is so vague that it's impossible to tell if it's legal or not. Of course, just because something is illegal doesn't mean it can't be done. The USA is a free country and the fundamental freedom is to reap the consequences of your actions. If the county does something1 then the state can take them to court - the court will decide if it's legal or not. 1 Or threatens to do something sufficiently concrete that an injunction against it could be issued.
No. The Flag Code is not a criminal law, so the government is not permitted to bring criminal prosecution for violating it, and it therefore cannot secure a proper conviction for such a violation.
In broad terms, in a three pillar democracy, the job of the legislature is to make the law, the job of the executive is to enforce the law and the job of the courts is to interpret the law. The courts may find that a piece of legislation is invalid, either in whole or in part for any number of reasons. The legislature can respond by: Repealing the legislation Changing the legislation to remove the invalidity Doing nothing. Your first question is why would they go for option 3? I can, off the cuff, think of several reasons: Time pressures, a legislature can only deal with so many pieces of legislation per year - it may not be a worthwhile investment of time to "tidy up" the statute books. Possibility of appeal, the precedent may be open to appeal or having an alternative ruling in a higher court. Precedent, unless and until the decision reaches the Supreme Court or equivalent then the decision is only binding on lower courts. Possibility of change to superordinate legislation, in the particular circumstance you cite, the local authority may leave the law on the books in the hope or expectation that the state law may be repealed or overturned - the local law would then be valid. For your second question, the judge is supposed to know. That said, judges make mistakes so a wise plaintiff/defendant will draw the judge's attention to the current state of the law. It would certainly look bad for them on appeal if it emerged that they did know and allowed the judge to make a mistake. Firstly, they are officers of the court and secondly, justice is blind but justices may remember you made them look like a fool! For your third question ... maybe. However, such a claim would be limited to what you actually lost through your lawyer's malpractice. It can't be the case because you couldn't win it anyway - the law was against you! You may be able to argue that the lawyer should be responsible for some of the costs or losses that arose from you failing to settle earlier. Good luck with that.