Category: Legal Issues

Equal Rights Under the Law

The New Jersey Supreme Court today:

We will not presume that a separate statutory scheme, which uses a title other than marriage, contravenes equal protection principles, so long as the rights and benefits of civil marriage are made equally available to same-sex couples. The name to be given to the statutory scheme that provides full rights and benefits to same-sex couples, whether marriage or some other term, is a matter left to the democratic process.

In other words, civil union rather than marriage is OK as long as the rights and benefits are equal (but you cannot deny the equal rights).

Someone agrees; can you guess who said this (in 2004)?

And I strongly believe that marriage ought to be defined as between a union between a man and a woman. Now, having said that, states ought to be able to have the right to pass laws that enable people to be able to have rights like others.

George W. Bush said that. It will be interesting to see the political fallout from the New Jersey decision.

Medical Privacy

Have you noticed that medical records privacy form you have to sign or initial whenever you fill out any medical paperwork? Freakonomics author Steven D. Leavitt wonders why the big deal:

“So let me pose the question another way: why do people think that absent stringent rules there would be such demand for access to their medical records when there is no demand for looking through other people’s garbage?”

Read what Leavitt has to say.

ABC’s ‘9/11’ Libel By Fiction Exposure

Michael Froomkin thinks ABC/Disney might want to be in discussions with their attorneys:

“[I]t seems to me that one aspect of ABC/Disney’s position has been missed: if the public descriptions of the show are accurate, then the people who made it and those who plan to show it have some serious libel exposure.”

According to Froomkin, while it’s difficult to libel a public figure, it’s not impossible. He explains.

More on Red Light Cameras

Santa Fe County Sheriff Greg Solano addresses the red light cameras again, linking to an interesting, if long-winded, post by a retired Albuquerque law enforcement officer that Albuquerque car owners (and voters) should read, and to studies suggesting that intersections with the cameras tend to have an increase in accidents.

The Albuquerque cameras are at Montgomery and San Mateo, Montgomery and Wyoming, Montgomery and Eubank, Eubank and Lomas, and Paseo Del Norte and Coors.

Think I’ll stay off Montgomery.

So, dear, how was your day in court?

Before proceeding further, the Court notes that this case involves two extremely likable lawyers, who have together delivered some of the most amateurish pleadings ever to cross the hallowed causeway into Galveston, an effort which leads the Court to surmise but one plausible explanation. Both attorneys have obviously entered into a secret pact–complete with hats, handshakes and cryptic words–to draft their pleadings entirely in crayon on the back sides of gravy-stained paper place mats, in the hope that the Court would be so charmed by their child-like efforts that their utter dearth of legal authorities in their briefing would go unnoticed. Whatever actually occurred, the Court is now faced with the daunting task of deciphering their submissions. With Big Chief tablet readied, thick black pencil in hand, and a devil-may-care laugh in the face of death, life on the razor’s edge sense of exhilaration, the Court begins.

— From an actual proceeding in U.S. District Court via Lawyers, Guns and Money who got it from Unfogged.

Indian trust case to be reassigned

The United States Court of Appeals for the District of Columbia Circuit today ordered the chief judge of the district court to reassign the Indian trust case, Elouise Pepion Cobell, et al., v. Dirk Kempthorne, Secretary of the Interior, et al., to a new judge.

In short, in case after case the district court granted extensive relief against Interior, and in case after case we reversed, even under highly deferential standards of review. To be sure, repeated reversals, without more, are unlikely to justify reassignment. But here there is more. For one thing, on several occasions the district court or its appointees exceeded the role of impartial arbiter by issuing orders without hearings and by actively participating in evidence-gathering. For another, the July 12 opinion levels serious charges against Interior and its officials, charges that not only bear no relationship to the issue pending before the court, but also go beyond criticizing Interior for its serious failures as trustee and condemn the Department as an institution.

From all of this evidence, “an objective observer is left with the overall impression,” Microsoft I, 56 F.3d at 1463, that the district court’s professed hostility to Interior has become “so extreme as to display clear inability to render fair judgment,” Liteky, 510 U.S. at 551. What distinguishes this case from one in which a judge has merely become “exceedingly ill disposed towards [a party which] has been shown to be … thoroughly reprehensible,” id. at 550-51, is, most certainly, not any redeeming aspect of Interior’s behavior as trustee. Rather, what distinguishes this case is the combination of the content of the July 12 opinion and the nature of the district court’s actions. Given these seemingly unique circumstances, and given that “justice must satisfy the appearance of justice,” Offutt v. United States, 348 U.S. 11, 14 (1954)—that is, reasonable observers must have confidence that judicial decisions flow from the impartial application of law to fact, not from a judge’s animosity toward a party—we conclude, reluctantly, that this is one of those rare cases in which reassignment is necessary.

Mr. Justice Marshall

It’s the birthday of the first African American to serve as a Supreme Court Justice, Thurgood Marshall, born in Baltimore, Maryland (1908).

He applied to the University of Maryland Law School, but he was rejected on the basis of race, so he enrolled at Howard University instead. The first thing he did, upon graduation, was use his law degree to sue the University of Maryland for racial discrimination, and he almost couldn’t believe it when he won. Thanks to his efforts, the University of Maryland Law School admitted its first black student in 1935. It was the first time that a black student had ever been admitted to any state law school south of the Mason-Dixon Line.

Marshall became the legal director of the NAACP, and of the thirty-two cases he argued for that organization, he won twenty-nine. His biggest case was the landmark Brown v. Board of Education in 1954. He went on to serve as an appeals court judge under Kennedy, and Johnson appointed him to the Supreme Court in 1967.

Thurgood Marshall said, “None of us got where we are solely by pulling ourselves up by our bootstraps. We got here because somebody—a parent, a teacher, an Ivy League crony or a few nuns—bent down and helped us pick up our boots.”

The Writer’s Almanac

The Don’t-Bother-to-Knock Rule

The Supreme Court yesterday substantially diminished Americans’ right to privacy in their own homes. The rule that police officers must “knock and announce” themselves before entering a private home is a venerable one, and a well-established part of Fourth Amendment law. But President Bush’s two recent Supreme Court appointments have now provided the votes for a 5-4 decision eviscerating this rule.

This decision should offend anyone, liberal or conservative, who worries about the privacy rights of ordinary Americans.
…

If Justice Sandra Day O’Connor had stayed on the court, this case might well have come out the other way. For those who worry that Chief Justice John Roberts and Justice Samuel Alito will take the court in a radically conservative direction, it is sobering how easily the majority tossed aside a principle that traces back to 13th-century Britain, and a legal doctrine that dates to 1914, to let the government invade people’s homes.

New York Times Editorial

NewMexiKen believes it is the erosion of our civil liberties that will mark the Roberts Court. And so it begins.

You have the right to remain silent

The Supreme Court handed down the Miranda decision on this date 40 years ago. AmericanHeritage.com has an excellent summary of the case worth reading in full. It includes these essentials:

In the 1963 case Gideon v. Wainwright, the court strengthened the right to counsel by ruling that a man convicted of robbery who could not afford a lawyer had to have one appointed for him by the state. A year later, when Danny Escobedo confessed to a Chicago murder after being denied a chance to see his lawyer, the court overturned his conviction, holding that in such an instance “no statement elicited by the police during the interrogation may be used against him.”

The Miranda case was the culmination of this trend toward, as Time magazine put it, “moving the constitution into the police station.” It evolved out of a growing realization that false confessions were not uncommon and that the police could coerce without resorting to the rubber hose. In the decision handed down on June 13, 1966, Chief Justice Earl Warren, writing for the 5-4 majority, recognized that the “third degree” was a venerable tradition in American law enforcement (the term itself comes from the rigorous questioning of candidates for a high level of the Masonic order). “The very fact of custodial interrogation,” Warren found, “exacts a heavy toll on individual liberty and trades on the weakness of individuals.”

In order for a statement to be assumed voluntary, the suspect had to be informed of four things before being questioned: (1) his right to remain silent, (2) the fact that his statements could be used against him, (3) his right to the presence of an attorney, and (4) the obligation of the state to provide counsel if he couldn’t afford it.

The decision did Ernesto Miranda little good. He was retried without the confession and again convicted. He served almost 10 years before being paroled. He briefly traded on his celebrity by selling autographed “Miranda warning” cards in Phoenix for $1.50 each.

Probably won’t put this quote in his résumé

“Your argument makes no sense,” U.S. Circuit Judge Harry T. Edwards told the lawyer for the Federal Communications Commission, Jacob Lewis. “When you go back to the office, have a big chuckle. I’m not missing this. This is ridiculous. Counsel!”

At another point in the hearing, Edwards told the FCC’s lawyer his arguments were “gobbledygook” and “nonsense.”

USATODAY.com

Music industry — idiots or total idiots?

A Rockmart [Georgia] family is being sued for illegal music file sharing, despite the fact that they don’t even own a computer.

A federal lawsuit filed this week in Rome by the Recording Industry Association of America alleges that Carma Walls, of 117 Morgan St., Rockmart, has infringed on copyrights for recorded music by sharing files over the Internet. The lawsuit seeks an injunction and requests unspecified monetary damages.

The lawsuit states, “Plaintiffs are informed and believe that Defendant, without the permission or consent of Plaintiffs, has used, and continues to use, an online media distribution system to download the copyrighted recordings, to distribute the copyrighted recordings to the public, and/or to make the copyrighted recordings available for distribution to others.”

The Rockmart Journal

Red Light Cameras

Santa Fe Sheriff Greg Solano tells us about cameras and red light citations. It’s quite interesting. He begins:

One item that has come up in Santa Fe County recently is the use of Red Light Cameras at Santa Fe County intersections. The use of these cameras to issue official criminal traffic citations is illegal in the state of New Mexico. State Law requires citations to be given by a uniformed certified officer who must witness the infraction. The only exception is in the case of an accident when the officer can rely on evidence at the scene and witness statements to issue the citations. So how does Albuquerque use the Red Light cameras to issue citations? They do this through a civil action.

The Sheriff goes on to note: “In February of 2006 a traffic camera at Coors and Paseo del Norte caught 1,353 motorists driving through the intersection after the light turned red. Assuming that all citations were first time violators the city raised $338,250 in one month at one location.”

Earl Warren

… was born in Los Angeles on this date in 1891.

Among the decisions the Supreme Court made under Warren as Chief Justice were those that:

  • Outlawed school segregation.
  • Enunciated the one-man, one-vote doctrine.
  • Made most of the Bill of Rights binding on the states.
  • Curbed wiretapping.
  • Upheld the right to be secure against “unreasonable” searches and seizures.
  • Buttressed the right to counsel.
  • Underscored the right to a jury trial.
  • Barred racial discrimination in voting, in marriage laws, in the use of public parks, airports and bus terminals and in housing sales and rentals.
  • Extended the boundaries of free speech.
  • Ruled out compulsory religious exercises in public schools.
  • Restored freedom of foreign travel.
  • Knocked out the application of both the Smith and the McCarran Acts–both designed to curb “subversive” activities.
  • Held that Federal prisoners could sue the Government for injuries sustained in jail.
  • Said that wages could not be garnished without a hearing.
  • Liberalized residency requirements for welfare recipients.
  • Sustained the right to disseminate and receive birth control information.

(Source: The New York Times)

Warren’s parents were born in Norway (father) and Sweden (mother). Elected governor of California three times (1942, 1946, 1950), Warren was so popular he won both the Democratic and Republican primaries in 1946. The darkest mark against Warren’s public service was the wartime internment of Japanese Americans.

President Eisenhower appointed Warren chief justice in 1953; he retired from the Court in 1969. NewMexiKen considers Warren the most significant historical figure I’ve ever seen in person (briefly at the 1964 New York World’s Fair) — and I’ve seen four presidents.

Trifecta

Oh, by the way, Governor Kempthorne, welcome to the Indian Trust litigation.

First it was Cobell v. Babbitt. Then it became Cobell v. Norton. After confirmation of Idaho Governor Dirk Kempthorne as the new Interior secretary, it will be Cobell v. Kempthorne.

The judge in this, the individual Indian trust class action lawsuit, has already found both Secretary Babbitt and Secretary Norton in contempt (though an appeals court overturned the latter).

Oliver Wendell Holmes Jr.

… was born on this date in 1841. Three times wounded in the Civil War, Holmes survived to become a prominent legal scholar, Chief Judge of the Massachusetts Supreme Court, and Justice of the United States Supreme Court, 1902-1932. He is considered one of the greatest of the Supreme Court justices.

But the character of every act depends upon the circumstances in which it is done…. The most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic. It does not even protect a man from an injunction against uttering words that may have all the effect of force…. The question in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent. It is a question of proximity and degree.

Justice Oliver Wendell Holmes, Schenck v. United States, Baer v. United States, 249 U.S. 52 (1919).

But when men have realized that time has upset many fighting faiths, they may come to believe even more than they believe the very foundations of their own conduct that the ultimate good desired is better reached by free trade in ideas—that the best test of truth is the power of the thought to get itself accepted in the competition of the market, and that truth is the only ground upon which their wishes safely can be carried out.

Justice Oliver Wendell Holmes, dissenting, Abrams et al. v. United States, 250 U.S. 630 (1919).

Court Allows Church’s Hallucinogenic Tea

The Supreme Court ruled unanimously Tuesday that a small congregation in New Mexico may use hallucinogenic tea as part of a four-hour ritual intended to connect with God.

Justices, in their first religious freedom decision under Chief Justice John Roberts, moved decisively to keep the government out of a church’s religious practice. Federal drug agents should have been barred from confiscating the hoasca tea of the Brazil-based church, Roberts wrote in the decision.

AP via The Washington Post

Praise the Lord.

Erin Brockovich

Pacific Gas and Electric on Friday agreed to pay $295 million to settle claims by more than 1,000 residents in several Mojave Desert towns who said they were harmed by groundwater contamination, a case made famous by the film “Erin Brockovich.”

As part of the settlement, the utility apologized to affected residents in the towns where leaks from gas compressor plants in the 1950s through the 1970s polluted the groundwater basin with chromium.

Los Angeles Times

Federal Judge Blasts Mandatory Minimum Sentences

From TalkLeft: The Politics of Crime:

The defendant is 32, with an IQ of 72. He’s a low level drug dealer. Under the federal mandatory minimum sentencing statutes, the Judge had no choice but to impose a sentence of life without parole. The Judge is angry.

Judge David N. Hurd said child rapists and murderers will go free on parole while Justin D. Powell languishes in prison for life, largely because the defendant was convicted of drug crimes twice during his teenage years, more than a decade before the instant offense. Because of those prior convictions, the sole sentencing option was life, Hurd said.
“The increment of harm in this case bears no rational relationship to the increment of punishment that I must impose,” Hurd said at a sentencing proceeding last week in Utica, N.Y. “This is what occurs when Congress sets [a] mandatory minimum sentence which distorts the entire judicial process… . As a result, I am obligated to and will now impose this unfair and, more important, unjust sentence.”

Read the entire entry at TalkLeft for more on the injustice of mandatory sentencing.

More judicial activism

Unborn children don’t count when it comes to carpool lanes, according to a judge’s ruling.

Even after being fined $367 for improper use of a High Occupancy Vehicle lane, Ahwatukee Foothills resident Candace Dickinson stood by her contention that Arizona traffic laws don’t define what a person is, so the child inside her womb justified her use of the lane.

“To follow her philosophy would require officers to carry guns, radios and pregnancy testers, and I don’t think we want to go there,” said Sgt. Dave Norton, the Phoenix police officer who cited Dickinson on Nov. 8.

Reuters via Yahoo! News

As the police officer noted, the intent of the law is to lessen traffic congestion.

Starbucks: Win some, lose some

In a rare setback for the company that made “Frappuccino” a household word, a federal judge ruled that a small New Hampshire coffee roaster can keep selling its “Charbucks” brand coffee beans, following a nearly decade-long legal battle with Starbucks Corp.

Judge Laura Swain of New York federal court ruled last month that consumers were unlikely to be confused between Starbucks and the “Charbucks” and “Mister Charbucks” coffee blends sold by the family-owned Black Bear Micro Roastery of Centre Tuftonboro, New Hampshire.

Reuters via Yahoo! News

You may remember the Astoria, Oregon, woman who lost her case to preserve the name Sambucks.