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Old April 9, 2013, 12:17 AM   #261
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Join Date: February 1, 2011
Posts: 345
I was quite surprised that Gura filed for en bancm as indications were he was going straight to SCOTUS. Then again, one of the fundamental errors of the court of appeal was, as Gura points out here, that the judgment arose on summary judgment. The rule on summary judgment is that disputed issues of fact cannot be resolved by the court; that is for the trier of fact. The judge can only resolve questions of law. Here, the court of appeal adopted one set of facts--the declarations of governmental employees--as meeting the State's burden of proof, even though contrary evidence was presented by Plaintiffs that demonstrated the falsity of the facts assumed by the government declarants. The CA swept aside the dispute in the evidence merely by concluding that it had no power to judge the legislative "facts"--even if they are wrong--only if the right magic phrases are invoked of a substantial governmental interest.
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