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Stewart, Lingamfelter and the Cooch Battle It Out

By Greg L | 28 November 2010 | Illegal Aliens, Virginia Politics, Crime | 35 Comments

While the public debate between the Attorney General’s office, members of the House of Delegates and Prince William Chairman Corey Stewart regarding proposed legislation to help reduce the number of illegal aliens unlawfully residing in Virginia has been occasionally contentious, this nearly unprecedented public policy debate should give plenty encouragement to residents who have waited so long for effective action by the General Assembly.  We never see this kind of open discussion about proposed legislation before the session starts and we certainly don’t see so much effort put into making sure what results is effective, constitutionally sound, and narrowly tailored to address specific issues.  I’ll take this situation any day.

Just think back a few years when a transportation solution was making it’s way through the sausage mill.  It seemed that every few days there was another proposal coming out of the blue with little if any analysis and review, and subjected to a vote so quickly few had any time to ponder what the results would be.  Ultimately that poorly constructed HB3202 got thrown out by the State Supreme Court as a result by a challenge by Delegate Bob Marshall, and we pretty much ended up with nothing but adding the term “abusive driver fees” to our political lexicon for a while.  That kind of approach - ready, fire, aim - unfortunately characterizes a lot of the legislation that gets considered by the General Assembly.  When proposals are drafted among a very few people without any transparency in the process, and refined little beyond what only the attorneys with Legislative Services recommend, oftentimes the results aren’t quite, well, optimal, to put it kindly.

Instead, on this issue we have Corey Stewart trying to promote the “Rule of Law Act” which was crafted with the help of the Immigration Reform Law Institute (IRLI), and a number of separate bills being drafted by veteran legislators such as Delegate Scott Lingamfelter who spent some time down in Arizona talking to those on the front lines and learning from their experience.  Both of these approaches have a lot of merit, but likely neither of the initiatives alone suffice to adequately address the issue while keeping carefully within constitutional bounds.  With Attorney General Cuccinelli being drawn into the debate, the debate has dramatically shifted into a very detailed legal discussion that will ultimately inoculate whatever results from the most serious charges of constitutional prohibitions.  It’s starting to get difficult for laypeople to follow, but the more tough homework done up front, the more likely we are to pass the test that will almost certainly arrive.

Stewart’s proposals draw heavily from the work of IRLI which can be rather creative in their approaches to drafting public policy alternatives.  IRLI has a pretty mixed record in terms of having their proposals survive court challenges, but in their defense most of the cases in which they are involved haven’t even made it through the appellate process, so their record might turn out to be a lot better than it looks right now.  Some of the creative approaches to the issue they’ve invented have gotten mired down in litigation in Farmers Branch, TX and Hazleton, PA.  When their solutions have gotten plenty of review and perhaps some modifications before getting proposed as law, such as here in Prince William, the results can be excellent, however. Even though the folks at IRLI are formidable experts in federal constitutional law, they’re not experts in state law, so from thei start their proposals are a first cut, at best.

The members of the House of Delegates have a much firmer grasp on what Virginia law in this regard, and to plus up their understanding they took the approach of visiting border states to get a firmer understanding of the problem as manifested there, learn how those states drafted legislation, and measure what effect that legislation had.  While talking to the legislators who worked on SB 1070 is undoubtedly helpful, those states don’t always have a perfect track record in litigation either, although those cases haven’t even started the appellate process.  Lacking from their perspective often is extensive heavy lifting in terms of federal constitutional law, although they rarely try to bite off really big chunks of legal precedent, which lowers the risk.

Now we’ve got Attorney General Ken Cuccinelli weighing in, and his legal track record is probably the best of the bunch, although he is absolutely not someone to try to push legal limits despite what his detractors say about him.  “Cooch” has always been very legally cautious about the legislation he’s proposed as a Senator, and almost maddeningly so (to many conservatives who would like a little more legal problem solving out there) in his legal opinions.  As a strict constructionist, there are often times conservatives get answers they don’t want to hear from “Cooch”, but not only are the opinions fair, they’re also rebuttable without any resulting personal vindictiveness.  If only our Commonwealth’s Attorneys tended to be so professional.

So within conservative ranks we’ve got plenty of folks out there who want to get the job done, and they’re fighting pretty hard and pretty publicly to get their solutions through the General Assembly.  Competition like this is good.  It not only gets the best proposals through, but having conservatives fighting amongst each other to some degree to address this serious issue is a real novelty.  During the past three sessions, we had to do a fair amount of arm-twisting to get proposals like these moving.  This time the elected officials are fighting to get public support for their initiatives.  I’ll take that kind of progress any day.

The end result is going to closely resemble the same sausage grind that all other legislation turns out to be, only with much better ingredients, and hopefully this eventual success with have as many fathers as there are interested elected officials, to mix a metaphor or two.  I don’t care too much about how any of this gets done, but as long as it does and we get fewer instances of the effects of illegal immigration such as drunken illegal aliens killing innocent people on our roadways, I’ll just be satisfied that this time, it does get done.

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  1. Anonymous said on 28 Nov 2010 at 9:36 pm:
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    Our electeds may be thinking about this issue at the wrong level. Maybe It needs to be kept at the state level. Could it be as simple as trespassing in the State. Update the VA code; It is illegal to be in the State of Virginia if you are not legally in the USA. The only way to check would be to check the migration status. You are not enforcing Federal law, it’s a State law. Book them, print, fine them and then release. This would give the state a carrot, pay or a warrant is issued. The real goal is to get them to move out of the State. Point being if you pay you are still trespassing in the Sate and the next fine is more. You don’t want to put them in jail as that would cost the folks of Va more in the long run. This is all based on the fact that if the alien is given to ICE they will be released.

  2. legal2 said on 29 Nov 2010 at 6:07 am:
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    We definitely need more fingerprinting of aliens - their names keep changing. And this goes for no-doc loans, too. (I think I read that CA, at least used to, fingerprint when you applied for a mortgage loan.)

  3. Concerned said on 29 Nov 2010 at 10:36 am:
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    Good luck getting a no doc loan now a days whether you are here legally or not. The problem with this debate is that certain politicians are just jumping on the bandwagon because it suits them politically. We have the Chairman pushing his rule of law proposal and insulting the PW Delegation, when he is the same person who told the newspaper the illegal alien issue is dead after the last election.
    The AG is looking at the issue as requested by Lingamfelter and hopefully is preventing the state from getting tied to a bunch of frivolous lawsuits. Just ask Jackson Miller who was the first to try to attack the situation during his first term as a City Councilman. He tried to institute a practical solution to the overcrowding problem from illegal immigration and he and the city were slapped with lawsuits that took a couple of years and lots of $ to settle and defend.
    Del. Miller is the one elected official who has constantly worked on this issue since day 1. Every year he looks at legislation that should help the issue. John Stirrup in the county is the same way. He looks at creative answers to this problem. They don’t just jump on the latest trend!

  4. Logical Thinker said on 29 Nov 2010 at 10:58 am:
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    Here’s the problem with fingerprints on mortgages. People will be in open revolt on this. Just ask anyone who has a concealed carry how they like communities that finger print for you to enjoy your 1st amendment right!

  5. CompanyStore said on 29 Nov 2010 at 1:25 pm:
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    Logical Thinker,
    Personally, I have no problem with finger printing. My prints have
    been on FBI files since 1966 when I was granted a Top Secret
    Security clearance and I have nothing to hide. I don’t object to
    being finger printed for a CCW even though I don’t have one but
    if the mortgage company wants them, no problem. They already
    have my W-2’s, credit rating, and employers address. If they
    ask for blood I’ll draw the line.

  6. Robert L. Duecaster said on 29 Nov 2010 at 1:38 pm:
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    Requiring all employers in the state to utilize E-verify is the correct answer to the illegal alien problem at the state level. Doing anything else is like pissing into the wind. The problem with passing such an obviously effective bill is that the business owners are against it, because it would disrupt their access to slave labor. Those businesses that use E-verify are in favor of requiring it, so that their traitorous brethren would have to compete for the same legal labor force that they hire. Like most issues, it’s just simple economics, folks. All the other arguments (at the state level) are just window dressing and political grand-standing.

  7. benton said on 29 Nov 2010 at 6:20 pm:
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    E-verify yes - and if schools would just apply knowlege of english as readiness criteira things would move along.
    I have to say this post is well written. Civil debate can often result in sustainable progress. I wonder though if everyone involved was not a Republican if the same high road article would have appeared. Sometimes members of both parties develop a dull roar in their ears when listening to those with other opinions or members of another group preventing this type of good analysis and benefit to the majority. Nicely and tastefully done.

  8. Disgusted said on 29 Nov 2010 at 6:33 pm:
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    Great Post! What is needed is a strong, knowledgeable patron that is savvy enough to guide the bill through the GA. The natural effect will be a watering down of what is originally submitted. Jackson Miller may be the person with enough experience to make the correct concessions to get to an enforceable law.

  9. big guy said on 29 Nov 2010 at 6:41 pm:
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    “Effective, constitutionally sound, and narrowly tailored to address specific issues.” That should be the basis for all laws.

  10. Anonymous said on 29 Nov 2010 at 7:09 pm:
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    I’m waiting for some of you so called conservatives to tell me why gay marriage and abortion are hot button issues with the GOP yet none of the big $$ guys seem to care about immigration. What’s up with that? Would the money train quit running?

  11. Bud said on 29 Nov 2010 at 8:13 pm:
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    Corey is right- Allen is dead history, and Marshall is a freak… as his fellows in the General Assembly.
    What are we to do?

  12. Loudoun Insider said on 29 Nov 2010 at 11:54 pm:
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    Anon, because big business could care less about those issues, but really wants cheap labor. Especially the developers and real estate interests, who still give away a lot of money.

  13. USA said on 30 Nov 2010 at 6:20 am:
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    Maybe we could get a “contract with Virginia?” Potential (and incumbent) candidates could promise not to take any money from those who hire illegals. And when they are caught - be forced to resign.

    It would be up to the separate business interests to police their own ranks - or be cut out of the process. Just like the cocaine dealers are.

    Prosecution won’t work, because there is no political will. Getting a republican majority won’t work - been there and done that. Depending on the feds to,,,,, never mind.

  14. Freedom said on 30 Nov 2010 at 7:46 am:
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    Wait if you wish, Anonymous….but I just don’t happen to think there’s a long line of folks panting in anticipation of an opportunity to satisfy your curiosity.

  15. Citizen12 said on 30 Nov 2010 at 11:24 am:
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    DMV Daily: Corey In the Upper House
    Virginia’s Stewart likely to run for Senate


  16. Patty said on 30 Nov 2010 at 12:15 pm:
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    Greg and anyone else,

    I just want to throw this out for discussion. For the sake of this discussion let’s look at the definition of invade - 1. to enter for conquest or plunder 2. a. to encroach upon: infringe 3. to spread over or into as if invading: permeate b. to affect injuriously and progressively…. Syn - Trespass. Websters Collegiate Dictionary Tenth Edition 1996.

    Based on the above it is clear to me that foreign nationals who come into this country improperly, that is without permission, would be considered trepassers/invaders.

    Do we or do we not have the right to protect our property, life and liberty from invasions of foreign nationals? Doesn’t the ninth and tenth amendment of the Constitution protect our natural rights as individuals to protect our property, life and liberty? It would seem to me that States would have some latitude in removing foreign nationals.

    I would like to see a serious discussion of the ninth and tenth amendments. I would like to see Bob Marshall’s comments.

  17. Robert L. Duecaster said on 30 Nov 2010 at 2:46 pm:
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    No question that our country has been invaded by people who have no right to be here, but in answer to your question, “Do we or do we not have the right to protect our property, life and liberty from invasions of foreign nationals?” we should first exhaust all means that are in accordance with our laws. If you and I rented a bus and started rounding up illegal aliens and transporting them to the border (or at least to Arlington), we’d be guilty of kidnapping and probably a whole bunch of other crimes. Unfortunately, our (federal) government is enforcing those laws, but not enforcing laws against encroachment by illegal aliens. As your post insinuates, that abdication of responsibility by our federal government results in such frustration at the local level that people may try to protect their interests, as I said in October 2007, by one way or another. I’m for working within the legal framework, but I’ve always advocated being prepared for the alternative.

  18. USA said on 30 Nov 2010 at 5:37 pm:
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    Unfortunately, our (federal) government is enforcing those laws, but not enforcing laws against encroachment by illegal aliens.

    Also our state government, Robert.

    Everyone gives them a pass.

    Remember Tip Oneil? All politics is local?

    All corruption is local.

    And it can be stopped. Locally.

  19. Kris Day said on 30 Nov 2010 at 7:14 pm:
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    Enjoying this post and the subsequent comments.

    It just bothers the heck out of me that our federal government only cares about deporting illegal aliens with a criminal history - and moreover only the most eggregious offenders of the law. Every person who enters our country illegally should be immediately deported. Tolerating illegal immigration at any level just shows others that we don’t care about our own laws. If it is just too costly to deport every illegal immigrant then we should make it very, very uncomfortable to live here - with no access to drivers licenses, health care, and work.

    A warm welcome to anyone who enters our country by following the legal path to do so, however!

  20. USA said on 30 Nov 2010 at 9:10 pm:
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    It just bothers the heck out of me that our federal government only cares about deporting illegal aliens with a criminal history - and moreover only the most eggregious offenders of the law.

    That is because that is the least our “courageous” puke in a skin legislators can gin up.

    We need tar, feathers and cojones.

  21. Robert L. Duecaster said on 1 Dec 2010 at 10:51 am:
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    I agree, USA, that most problems can be stopped locally. To some extent, we’ve proven that in PWC. Unfortunately, success at the local level may be interpreted by federal legislators that action at their level is not necessary. Regardless of the number of localities that attempt to address the illegal immigration issue, and regardless of their success, federal legislators like Frank Wolf and Senators Webb and Warner need to be held accountable for avoiding their responsibilities, their principles, and their oaths to the constitution.

  22. Patty said on 1 Dec 2010 at 11:47 am:
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    I understand what you are saying. I also think that the states can do more to protect us from foreign nationals. I believe that is what is intended in the ninth and tenth amendment of the Constitution.

    When we seperated from Britain, it was the states that fought off the British army and navy. I think the ninth and tenth amendment allow states to fight foreign invasions. What would prevent a state from deporting an illegal alien? Wouldn’t the ninth and tenth amendment allow states to do just that?

    Also, of course I know this is drastic but invasion of a state by foreign nationals is drastic, what about militias? Doesn’t the second amendment provide for militias? Suppose MS13 gang violence broke out in a huge way. Wouldn’t state militias have authority to combat gang violence? Why have a Northern Virgina Gang Task Force when a state militia can do the same and cover the whole state?

    I’m just thinking out loud about how our Constitution allows states to protect themselves. I would like to see comments on this.

  23. Jeff said on 1 Dec 2010 at 12:33 pm:
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    “What would prevent a state from deporting an illegal alien?”

    Unfortunately the Commonwealth of Virginia (or any other state) does not have diplomatic releations with other sovereign nations. Article II, Section II of the Constitution empowers only the President (and therefore the Federal Government) to enter into treaties with other countries.

    The states have the power to arrest and incarcerate, but not to deport which is why illegal aliens have to be handed over to ICE for deportation.

  24. Patty said on 1 Dec 2010 at 2:29 pm:
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    I understand about treaties. I do want to discuss deportation. If a foreign national came into the state illegally couldn’t the state return the foreign national to his country (one way ticket) or take them to the border and force them back and/or give them back to their border patrol? Would that really require a treaty? After all wouldn’t the country receive their own citizens? I would think they would have to.

    Just thinking outside the box.

    Food for thought….it’s possible Article I Section 10 could come into play….”actually invaded.”

    Also, I would think that states would have the power to question legal status of anyone……for example those who attend public school and those who receive public assistance.

  25. Robert L. Duecaster said on 1 Dec 2010 at 4:26 pm:
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    VA actually has laws on the books [§ 32.1-325.03 and § 63.2-503.1.] requiring proof of legal residence prior to receiving most state or local public benefits. Unfortunately, there is no penalty prescribed for any state bureaucrat that does not follow those laws. A few years ago, I filed a FOIA with PWC, Fairfax, and Arlington counties requesting any record or policy showing how each respective county implemented the law. No response was received from Fairfax and Arlington. I received something from PWC’s attorney’s office stating that it was the county’s policy to check legal residence, but I got no writtten policy.

    The schools are a different matter. An old SCOTUS case (Plyler v. Doe) is cited for the proposition that school districts are required to provide educational benefits to illegal alien children residing in their districts. That holding has been expanded by the illegal alien supporters to mean that schools cannot do anything that might “deter” an illegal alien child from attending school, or deter its parents from enrolling the child. Consequently, the VA state Board of Ed has a policy that legal status of students will not be checked, under the guise that the mere act of checking whether or not they are legal residents might deter a child from attending school. All state school boards follow that policy.

  26. Patty said on 2 Dec 2010 at 9:38 am:
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    Okay, it’s on the books but it appears it is not being implemented…..WIC and Section 8… one only has to look at Coverstone.

    Also, I truly believe that Plyler v. Doe should be challenged. Show me in the Constitution where the American people are required to educate foreign nationals who are here illegally. In fact because we currently do this the basic principles of our Constitution are eroded…..life, liberty and property.

    I’m tired of my tax dollars supporting foreign nationals who have invaded our country.

    When will Virginia have the guts to challenge Plyler v. Doe? That needs to happen ASAP. Virginia doesn’t seem to be afraid to challenge the Feds on health care.

  27. NoVA Scout said on 3 Dec 2010 at 7:39 am:
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    An astounding trove of constitutional ignorance crammed into a very small space in this thread. Not very surprising. I have come to realize that the Constitution has very few friends among the citizens of the United States when it’s more fun to go off on rants about the hot vote-vacuuming fads of the moment.

    Patty, what element of the reasoning of Plyler do you contest, and how do you propose to challenge it? Supreme Court dispositions aren’t like coin tosses where you can say, “let’s do it again, three out of five this time, OK?” Once they’re decided, they tend to stay decided for a good long while.

    Getting back to the post, I’m surprised at how muted the reaction of the site is to the Office of the Attorney General’s wrecking ball approach to Mr. Stewart’s latest get-me-elected-to-something playthings. There is a very oblique reference and a link, but I thought virtually everyone here went into ecstasies of anti-constitutional delight on local immigration madness. Is the decision to pretend that the OAG’s raining on the parade didn’t happen or did everyone’s transmissions just fall out when we have a clear Cuccinelli/Stewart conflict on one of the great pol-manufactured hysterias of recent local interest?

  28. Patty said on 3 Dec 2010 at 12:01 pm:
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    Nova Scout,

    Your only arguments are ad hominem attacks which proves you have nothing of substance to add to this discussion. You should go to the anti site. Logic means nothing there.

    “Supreme Court dispositions aren’t like coin tosses where you can say, “let’s do it again, three out of five this time, OK?” Once they’re decided, they tend to stay decided for a good long while.”

    So, are you playing on your errant thinking that people are ignorant of Supreme Court decisions?

    There are many examples of the Court reversing itself. Here is an example (and I remember this one very well): 1972 Furman v. Georgia, death penalty ruled unconstitutional; 1976 Gregg v. Georgia, death penalty ruled constitutional.

    Here is a famous one: 1857 Dred Scott v. Sandford…Chief Justice Taney ruled that prohibition of slavery was an invalid taking of property.

    Nova Scout, you need an education!!! I’m only wondering when you’ll start calling me a racist because you have no logical arguments.

  29. Bartleby said on 3 Dec 2010 at 4:02 pm:
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    I don’t think the Dred Scott case was ever overruled by the Court, but it hasn’t been cited for precedence lately.

  30. NoVA Scout said on 3 Dec 2010 at 10:48 pm:
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    Bartleby beat me to it, Patty. I was going to ask you which Supreme Court decision overruled Dred Scott.

    My point, had you read slowly enough to catch it, was not that the Court does not sometimes change its direction (Plessy v. Ferguson could have been compared to Brown, if you had wanted a good example), but that litigants can’t just say they want a go at a previous decision and tee it up for a new challenge.

    My education in this area was the best that money could buy at the time. Not sure that racism has anything to do with it.

  31. Patty said on 4 Dec 2010 at 8:44 am:
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    It took a civil war and a couple of amendments to overturn Dred Scott. Please use some logic or do you seriously believe that the Court will cite Dred Scott to defend slavery for the current day? I’m sure human traffickers would love that.

    To get back to Plyler v. Doe…it appears that Frederick Maryland is laying the ground work: http://www.fredericknewspost.com/sections/news/display.htm?StoryID=113240

    They want to count students who are here illegally. They make a good case since education is 58% of their budget.

    You go Frederick!!!!! I wish the Commonwealth of Virginia would do the same.

    Are you listening Bob Marshall?

  32. NoVA Scout said on 4 Dec 2010 at 9:38 am:
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    Exactly, Patty. That was my point. Glad you could catch up.

  33. Doug Brown said on 4 Dec 2010 at 10:14 am:
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    NoVa Scout said:

    “My education in this area was the best that money could buy at the time.”

    If your legal education taught you to leave yourself this open, then you got ripped off.

    On the other hand, I do find it interesting that Stewart claiming that AG Cuccinelli stabbed him in the back isn’t getting more comment here. I don’t follow Stewart as closely as I do the AG, but his reaction to the AG makes me wonder if Stewart is ready for prime time, except Cable prime time.
    When I hear him mentioned as a US Senate candidate, I sort of laugh, so I guess he’s qualified to challenge the 2Ws, Allen types.

  34. NoVA Scout said on 4 Dec 2010 at 12:27 pm:
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    How open, DB?

  35. Doug Brown said on 4 Dec 2010 at 12:58 pm:
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    Oh, about one Last Comic Standing episode dedicated to lawyer jokes. :)

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