Black Robes Speak!

Kentucky Supreme Court Reinsytates $42 Million Phen Fen Verdict Against Now-disbarred lawyers William Gallion, Shirley Cunningham Jr., and Melbourne Mills.

noreply@blogger.com (Unknown) — Fri, 30 Aug 2013 13:54:00 +0000

Court reinstates $42 million verdict in drug case

LOUISVILLE, Ky. — A group of 431 people sickened by the diet drug fen-phen should be allowed to collect a $42 million judgment from their former attorneys who pilfered a massive settlement with the drug's maker, the Kentucky Supreme Court ruled on Thursday.

The unanimous decision moves the group closer to reclaiming the millions improperly kept by now-disbarred lawyers William Gallion, Shirley Cunningham Jr., and Melbourne Mills. Justice Daniel J. Venters, writing for a unanimous court, found that there is enough evidence to back the claims that the trio of attorneys grabbed far more than their contract with clients entitled them to.
"The attorney-client relationship is a fiduciary relationship that subjects the attorney to the duties of honesty, loyalty and good faith," Venters wrote.
Failing to honor a contract with a client violates the "most elementary aspect" of an attorney's duty to the client, Venters wrote.

The former clients sued Gallion, Cunningham and Mills in 2005, claiming they mishandled the settlement and improperly kept a significant portion of the funds for themselves, while keeping clients in the dark about the full amount of the agreement to end the litigation.
Special Judge William Wehr awarded the former clients $42 million in 2007, saying the evidence supported their claims that the attorneys raided a $200 million settlement. Wehr found that Gallion, Cunningham and Mills kept $126 million, more than 63 percent of the settlement, for themselves and took another $20 million in "excess funds." The men distributed about $74 million to their clients, who were never told about the total amount of the settlement or the fees kept by the lawyers.

The Kentucky Court of Appeals overturned the judgment in 2011. The ruling Thursday reinstated the damages award.

Wehr declined to include former class-action specialist Stanley Chesley of Cincinnati in the judgment, even though he had been sued with the others. Wehr ruled that there were genuine issues of fact to be decided when it came to Chesley. The high court upheld that decision.
Any damages or liability on Chesley's part have yet to be determined by the trial court in Boone County.
"Since I believe that Chesley was the chief architect behind the cover up of the fraud, we will be seeking a very large verdict on punitive damages," said Angela Ford, who represents many of the 400 plaintiffs.

The fen-phen case has evolved over more than a decade from a $200 million settlement into a series of criminal, civil and legal disciplinary cases that claimed the careers of at least six of the lawyers involved.

Gallion and Cunningham, one-time owners of champion racehorse Curlin, are serving federal sentences after being convicted of bilking their clients out of millions from the settlement. Both resigned from the bar. Mills was acquitted at a federal criminal trial, but disbarred for his role in the scheme.

Gallion, 62, is serving a sentence in a federal prison in Oakdale, La., and is not scheduled to be released from federal prison until 2029; Cunningham, 58, is being held in a federal prison in Yazoo City, Miss., and won't get out until 2025. A federal appeals court upheld their convictions in January 2012.

Federal prosecutors have seized hundreds of thousands of dollars in earnings by Curlin to disburse as restitution to victims in the criminal case.

The high court disbarred Chesley in April for his role in the settlement. Chesley, who has denied any wrongdoing in the settlement, has since retired from the legal profession.

A former associate of Gallion's, David Helmers of Lexington, and retired state judge Joseph F. "Jay" Bamberger, have also been disbarred in connection with the fen-phen settlement. Bamberger, a circuit court judge in Boone and Gallatin counties from 1992 until his retirement in 2004, signed off on a deal that gave attorneys nearly two-thirds of the settlement and didn't disclose to clients the terms of the deal.

The state's high court disbarred Bamberger in 2011, finding he mishandled the settlement and later received money from the settlement.

Kentucky Supreme Court Rules Prison Disciplinary Committee's "Conviction" Must Demonstrate Reliability Of Confidential Informants.

noreply@blogger.com (Unknown) — Thu, 29 Aug 2013 18:09:00 +0000

Court: Info about informants can't be withheld

The Kentucky Supreme Court has ruled that prison officials cannot withhold all information about confidential informants used in prison discipline cases.

The justices concluded that while the full slate of legal rights don't apply to disciplinary cases, an accused inmate cannot lose privileges and good time off their sentences without knowing something about the witnesses against them.

The ruling on Thursday came in the case of 39-year-old Ontario Thomas, who was sent to segregation for 180 days and docked two years of good time for allegedly striking a fellow inmate at the Northpoint Training Center in Burgin.
The disciplinary board relied on the word of a lieutenant, who testified that two confidential informants saw Thomas strike another inmate in a dispute.

Editor's note:You can read the court's opinion here.

New Jersey Court Targets Texters Whose Texts Distract Driver And Cause An Accident.

noreply@blogger.com (Shane) — Thu, 29 Aug 2013 02:42:00 +0000

New Jersey Court of Appeals rules that Third Party Texters could be liable for injuries if they knowingly text someone who is driving and who then gets in an accident.

It will be interesting to see how the New Jersey Supreme Court addresses the issue and to see if other States follow suit. Of course, the issue in a "Negligent Texting" case will be how do you prove someone knew the person that they texted was driving? And is the texter really responsible for a driver who voluntarily takes their eyes off the road to read a text?

To read more, go here.

Federal Appeals Court Panel Rules Police Can't Warrantlessly Get A Doctor To Drug And Sedate An Accused ... Just To Retrieve Drugs From Him!

noreply@blogger.com (Anonymous) — Tue, 27 Aug 2013 00:53:00 +0000

The U.S. court of Appeals for the Sixth Circuit released an interesting new criminal opinion today, which can be viewed and read in its entirety here. The case is United States v. Felix Booker, No. 11-6311.

Booker was a 24-year old black man, who was originally arrested for possession of marijuana, after the car in which he was a passenger was pulled over on a traffic stop in Knoxville, Tennessee. Problem was, he did not have nearly enough marijuana (more than 1/2 ounce) on him to get arrested. Under Tennessee law, the police should only have written him a citation, not arrested him. But the police suspected that he was smuggling drugs in his anus, so following his arrest, they took him to a hospital emergency room in Oak Ridge, Tennessee, to an E.R. doctor who had previously performed digital rectal exams for the police on suspects in two other cases. The doctor said that he was concerned that the defendant might die, if unwrapped drugs were absorbed through his intestines into his blood. Keep in mind that the police did not have a search warrant, and the "patient" did not consent to the procedures.

Because the arrestee clinched his butt cheeks and sphincter muscle, the doctor could not insert his finger in the man's anus. Thus, the doctor intubated the patient, and sedated and paralyzed him with I.V. drugs, rendering him unconscious for 20 to 30 minutes. The doctor then performed a digital rectal exam and removed a 5 ounce (not grams) rock of crack cocaine, which he gave to the police to use as evidence.

A Federal District Judge was reversed on appeal to the Sixth Circuit, which held that he should have granted the Defendant's Motion to Suppress the Evidence. The Defendant's conviction was reversed and he cannot be retried. Interestingly, the Circuit Court found that for 4th Amendment search and seizure purposes the doctor was serving as a state law actor, on behalf of the police. A dissenting Judge disagreed on that point. By now, the Defendant has already served most of his sentence and was at a Knoxville halfway house, due to be released on October 2, 2013.

There can be little doubt that this defendant will have a very good civil rights lawsuit (28 U.S. code section 1983) to file. He should be awarded at least several hundred thousand dollars (a million dollars?) by settlement or judgment because of this ordeal, including the approximately 3 years he spent in jail and prison. The E.R doctor may also be criminally prosecuted for battery under state law, since these procedures were performed without the "patient's" consent. I suspect that the Tennessee State Medical Licensing Board may have something to say to the E.R. doctor about his conduct too.

The facts of this case are truly outrageous. This opinion should be added to a law school case book on search and seizure law. If the police had first taken an X-Ray of the crack rock in the defendant's anus and showed it to a Judge, they might have persuaded a Judge to sign a search warrant, to remove the crack rock, but here they didn't even think of trying that approach first. It is hard to imagine this kind of thing can still happen in America.

U. S. Supreme Court Wraps Up "Blockbuster" Term. Watch Video.

noreply@blogger.com (Unknown) — Sun, 30 Jun 2013 00:37:00 +0000

Breaking U. S, Supreme Court News: As I Expected, Court Invalidates Section 4 Of Voting Rights Act, Formula No Longer Valid For Pre-Clearance,

noreply@blogger.com (Unknown) — Tue, 25 Jun 2013 14:26:00 +0000

Read the 5 to 4 decision here.

U. S. Supreme Court: Accused Pre Miranda Silence Does Not Protect Him Unless He Claims The Priviledge. WOW.

noreply@blogger.com (Unknown) — Mon, 17 Jun 2013 18:10:00 +0000

The case is Salinas v. Texas. You must go and read the opinion here.

The court essentially said, if you do not invoke your Fifth Amendment right, your silence during interrogation can be used against you!.

U. S. Supreme Court Rules Any Fact Which Increases Mandatory Minimum Sentence Must Be An "Element" Submitted To A Jury, Not "Harris" Found By A Judge.

noreply@blogger.com (Unknown) — Mon, 17 Jun 2013 17:53:00 +0000

The case is Alleyne V. United States, and you can read it here.

U. S. Supreme Court Holds That States Are Powerless To Impose Proof Of Citizenship Requirements On Voting Form Before A Person Can Vote.

noreply@blogger.com (Unknown) — Mon, 17 Jun 2013 17:29:00 +0000

Supreme Court says states may not add citizenship proof for voting

States may not require additional proof of citizenship on federal forms designed to streamline voter-registration procedures, the Supreme Court ruled Monday.
The court rejected a requirement passed by Arizona voters in 2004 that potential voters supply proof of eligibility beyond an applicant’s oath on the federal form that he or she is a citizen.

The court ruled 7 to 2 that the National Voter Registration Act of 1993 trumps Arizona’s Proposition 200.
The federal law “precludes Arizona from requiring a federal form applicant to submit information beyond that required by the form itself,” Justice Antonin Scalia wrote for the majority.
Three other states have similar proof-of-citizenship laws, and others have considered the additional requirement.

Justices Clarence Thomas and Samuel A. Alito Jr. wrote separate dissents, although both made the point that the majority ignored the Constitution’s demand that states set the requirements for voter registration.
“I would construe the law as only requiring Arizona to accept and use the form as part of its voter registration process, leaving the state free to request whatever additional information it determines is necessary to ensure that voters meet the qualifications it has the constitutional authority to establish,” Thomas wrote.

The Arizona proposition was immediately challenged after passage. A three-judge panel of the U.S. Court of Appeals for the 9th Circuit — which included retired justice Sandra Day O’Connor, sitting by designation — also held that federal law precluded Arizona’s action.
O’Connor was sitting in the courtroom Monday as her former colleagues upheld the decision.

Scalia noted that the Constitution’s elections clause, which empowers Congress to preempt state regulations governing the “times, places and manner” of holding congressional elections, gives weight to the federal regulation that states “accept and use” the federal form to enroll voters.
The state-by-state battle over who is eligible to vote, what kind of identification or proof may be required and even the hours of voting prompted a host of legal battles leading up to the 2012 elections. In general, Republicans proposed new restrictions as necessary to combat voter fraud, while Democrats said such moves would harm minorities and the poor, who often do not have easy access to the required credentials.

The court’s oral arguments and its decision avoided those partisan battles and concentrated on questions of federalism.
But interest groups that challenged the law claimed a great victory.
“Today’s decision sends a strong message that states cannot block their citizens from registering to vote by superimposing burdensome paperwork requirements on top of federal law,” said Nina Perales, vice president of litigation for the Mexican American Legal Defense and Educational Fund.
“The Supreme Court has affirmed that all U.S. citizens have the right to register to vote using the national postcard, regardless of the state in which they live.”

Groups that supported Arizona called the decision dire.
“The integrity of our nation’s elections suffered a blow today from the Supreme Court,” said Tom Fitton, president of the conservative legal group Judicial Watch. “This issue takes on increasing urgency with the prospect of 11 million illegal immigrants being given amnesty. It is essential that our elections be secured by ensuring that only citizens register to vote.”

Scalia, writing for Chief Justice John G. Roberts Jr. and Justices Anthony M. Kennedy, Ruth Bader Ginsburg, Stephen G. Breyer, Sonia Sotomayor and Elena Kagan, said Arizona is not powerless to protect against noncitizens voting.
He said the state need not register voters when it has other proof that they are not citizens. He also said the state could petition the federal Election Assistance Commission to alter the form to require evidence of citizenship, and go to court if the commission fails to do so.

Alito in dissent pointed out “that prospect does little to assuage constitutional concerns.”
“The EAC currently has no members, and there is no reason to believe that it will be restored to life in the near future. If that situation persists, Arizona’s ability to obtain a judicial resolution of its constitutional claim is problematic.”

Editor's note: The case is Arizona v. Inter Tribal Council of Arizona and you can read the opinion by clicking here.

U. S. Supreme Court: Imposition Of Harsher Sentences Due To Sentencing Guidelines Changes That Post Date Offense Violates "Ex Post Facto" Constitutional Prohibition.

noreply@blogger.com (Unknown) — Thu, 13 Jun 2013 19:35:00 +0000

Harsher Sentencing Guidelines Can’t Be Used for Old Offenses, Justices Say

WASHINGTON — In a 5-to-4 decision that broke along ideological lines, the Supreme Court on Monday ruled that courts violate the Constitution when they rely on current federal sentencing guidelines if those guidelines call for harsher punishment than the ones in place at the time of the offense.

Related in Opinion

Editorial: The Sentencing Guidelines and the Constitution (June 11, 2013)

If such sentencing guidelines were mandatory, as they once were, the case would have been easy. But in 2005 the Supreme Court ruled that the guidelines must be treated as advisory to avoid running afoul of a line of Sixth Amendment cases requiring that juries rather than judges make the factual findings supporting criminal sentences.

The question that divided the justices on Monday was whether the current discretionary guidelines retained enough force to subject defendants to a substantial risk of additional punishment and thus violate the Constitution’s ex post facto clause, which prohibits enhanced retroactive punishment.

The case, Peugh v. United States, No. 12-62, arose from bank fraud committed in 1999 and 2000 by Marvin Peugh, an owner of two farming businesses. When it came time for sentencing in 2010, the trial judge took note of the guidelines then in place, which suggested a sentence between 70 and 87 months. The judge settled on the lower number.

Had the judge instead referred to the guidelines in place at the time of the fraud, the suggested range would have been 30 to 37 months. “The low end of the 2009 guidelines range,” still in effect in 2010, Justice Sonia Sotomayor wrote for the majority on Monday, “was 33 months higher than the high end of the 1998 guidelines range,” which were in effect in 1999 and 2000.

Justice Sotomayor said guidelines imposed significant constraints on sentencing judges even after being made advisory. The guidelines remained, she said, quoting an earlier Supreme Court decision, “the starting point and the initial benchmark.” Trial judges are required to explain the basis for the sentences they impose, she added, with a major departure from the guidelines requiring “a more significant justification than a minor one.”

Appellate review of sentences is relaxed, though it does take account of variance from the guidelines along with other factors. “Common sense indicates that, in general, this system will steer district courts to more within-guidelines sentences,” Justice Sotomayor wrote.

That was enough, she said, to establish a violation of the ex post facto clause in Mr. Peugh’s case under the standard set out in a 1995 decision, California Department of Corrections v. Morales. That decision said the clause bars new laws that create a “sufficient risk of increasing the measure of punishment attached to the covered crimes.”

“A retrospective increase in the guidelines range applicable to a defendant,” Justice Sotomayor concluded, “creates a sufficient risk of a higher sentence to constitute an ex post facto violation.”

Justices Ruth Bader Ginsburg, Stephen G. Breyer and Elena Kagan joined all of the majority opinion, and Justice Anthony M. Kennedy most of it.

In dissent, Justice Clarence Thomas wrote that the guidelines, since they are only advisory, “do not constrain the discretion of district courts and, thus, have no legal effect on a defendant’s sentence.” That means, he said, that there was no violation of the ex post facto clause under the standard announced in the Morales case.

Chief Justice John G. Roberts Jr. and Justices Antonin Scalia and Samuel A. Alito Jr. joined that part of Justice Thomas’s dissent.

Writing only for himself, Justice Thomas added that the analysis both sides had used, derived from the Morales decision, was at odds with the original meaning of the ex post facto clause, which referred, he said, only to “the punishment affixed by law.”

This was, he said, self-criticism. “As the author of Morales,” Justice Thomas wrote, “failure to apply the original meaning was an error to which I succumbed.”

In another development on Monday, the court let stand a court order barring abortion protesters from displaying images of aborted fetuses in places where they may disturb children. As is their custom, the justices gave no reasons for declining to hear the case.

U. S. Supreme Court Allows DNA Swabs Of Arrestees.

noreply@blogger.com (Unknown) — Tue, 04 Jun 2013 20:33:00 +0000

Supreme Court upholds DNA swabbing of people under arrest

Watch below:

The Supreme Court on Monday upheld the police practice of taking DNA samples from people who have been arrested but not convicted of a crime, ruling that it amounts to the 21st century version of fingerprinting.

The ruling was 5-4. Justice Antonin Scalia, a conservative, joined three of the court’s more liberal members — Justices Ruth Bader Ginsburg, Sonia Sotomayor and Elena Kagan — in dissenting.
The five justices in the majority ruled that DNA sampling, after an arrest “for a serious offense” and when officers “bring the suspect to the station to be detained in custody,” does not violate the Fourth Amendment’s prohibition of unreasonable searches.
Under those specifications, the court said, “taking and analyzing a cheek swab of the arrestee’s DNA is, like fingerprinting and photographing, a legitimate police booking procedure that is reasonable under the Fourth Amendment.”

Scalia’s siding with the liberals reflects his growing concern over the past five years about privacy, said Tom Goldstein, the publisher of SCOTUSblog, who teaches at Harvard Law School and is a Supreme Court analyst for NBC News.
“We’ve seen several decisions where he has joined more liberal justices to find greater privacy rights,” he said in an interview. “It’s not a big surprise in recent years, but it is a surprise in the sense of his general conservatism.”

While a cheek swab does constitute a search under the law, the court noted that it requires “but a light touch” and no surgical intrusion — a critical point, the court said, in determining whether it was reasonable.

At an oral argument in February, Justice Samuel Alito called the question perhaps the most important criminal procedure case the court had taken up in decades. Twenty-eight states and the federal government take DNA swabs from people under arrest before they can be tried.
The case arose from the arrest of a 26-year-old Maryland man, Alonzo King, in 2009 on a charge of second-degree assault. The police took a swab of DNA from his cheek, ran it through a database and matched it to an unsolved rape from six years earlier.
King was convicted of rape and sentenced to life in prison. He pleaded guilty to a misdemeanor for the 2009 assault. The Maryland Court of Appeals later reversed the rape conviction on the grounds that the DNA sample was an unreasonable search.

“Today’s judgment will, to be sure, have the beneficial effect of solving more crimes,” Scalia wrote in his dissent. “Then again, so would the taking of DNA samples from anyone who flies on an airplane.”
In an allusion to the technique of taking a swab from the cheek, Scalia wrote: “I doubt that the proud men who wrote the charter of our liberties would have been so eager to open their mouths for royal inspection.”

The Maryland law restricts DNA swabbing to people arrested for certain violent crimes, but justices, including Chief Justice John Roberts, worried during the oral argument that other laws might not be so restrictive. Roberts wondered why they couldn’t be applied to simple traffic stops.
Roberts voted with the majority Monday, as did Alito, who tipped his hand at the oral argument by saying that DNA sampling “involves a very minimal intrusion on personal privacy.”
Justice Anthony Kennedy, considered the court’s swing vote, delivered the opinion of the court. Justices Clarence Thomas, who usually votes with the court’s conservatives, and Stephen Breyer, who generally votes with the liberals, also voted with the majority.

The court’s majority ruling also said that the government has an interesting in identifying a person under arrest so that a judge can make an informed decision about granting bail. Today, it takes as long as two and a half weeks for DNA tests to come back, but lawyers noted before the court that instant DNA testing is not far off.

As I Predicted, U. S. Supreme Court Rules Law Enforcement MUST Obtain A Warrant Before Drawing Blood Sample From A Driver Suspected Of Driving Drunk.

noreply@blogger.com (Unknown) — Wed, 17 Apr 2013 23:30:00 +0000

Check out the case here.

As an avowed Liberty Lover, I greatly applaud the near unanimous opinion of the court. as wise Justice Sonya Sotomayer told it:

"But the fact that people are “accorded less privacy in . . . automobiles because of th[e] compelling governmental need for regulation,” California v. Carney, 471 U. S. 386, 392 (1985), does not diminish a motorist’s privacy interest in preventing an agent of the government from piercing
his skin".

Concluding she states: "We hold that in drunk-driving investigations, the natural dissipation of alcohol in the bloodstream does not con-stitute an exigency in every case sufficient to justify

conducting a blood test without a warrant."

Yes, indeed!

U. S. SUPREME COURT RULES "PADILLA" IMMIGRATION CASE NOT RETROACTIVE; "REBUTTABLE PRESUMPTION" ATTACHES TO STATE COURT RULING ON ISSUES PRESENTED TO IT.

noreply@blogger.com (Unknown) — Fri, 22 Feb 2013 19:54:00 +0000

Supreme Court Limits Reach of 2010 Ruling on Deportation Warning
By ADAM LIPTAK

WASHINGTON — In 2010, the Supreme Court ruled that criminal defense lawyers must warn their clients if deportation could be a consequence of a guilty plea. On Wednesday, the court limited the reach of that ruling, saying it did not apply retroactively to people whose convictions had become final by the time the justices announced their 2010 decision, Padilla v. Kentucky.

Wednesday’s decision was bad news for the petitioner, Roselva Chaidez, a Mexican woman in Chicago who has been a legal permanent resident of the United States since 1977. In 2003, she was accused of participating in an insurance fraud by falsely claiming to have been a passenger in a car involved in an accident.

She pleaded guilty and was sentenced to four years of probation. The conviction came to light in 2009 when she applied for citizenship and was told she would be deported because of it. Based on the Padilla decision, a federal judge in Illinois set aside her conviction.

Justice Elena Kagan, writing for herself and six other justices, said the federal judge’s ruling was at odds with the Supreme Court’s central precedent concerning retroactivity, its 1989 decision in Teague v. Lane. The Teague decision said that a ruling is retroactive if it applies existing precedent, but not if it announces a new legal principle. New rules count only from when they are announced.

Justice Kagan said Padilla broke new ground and so was of no help to Ms. Chaidez. There was evidence for Padilla’s novelty, Justice Kagan wrote, in the case itself. Justice Samuel A. Alito Jr., in a concurrence in Padilla, said the majority’s approach was a “dramatic departure from precedent.” In a dissent in the case, Justice Antonin Scalia said that “until today” lawyers were required to give advice only about the criminal prosecution itself and not about other consequences of conviction like deportation.

Justice Clarence Thomas, in a separate opinion on Wednesday, said he continued to believe that “Padilla was wrongly decided” and so would have ruled against Ms. Chaidez whether she received bad legal advice before or after 2010.

In a dissent in the case, Chaidez v. United States, No. 11-820, Justice Sonia Sotomayor disputed the majority’s retroactivity analysis, saying it failed “to account for the development of professional standards over time.”

In a second decision issued Wednesday, Johnson v. Williams, No. 11-465, the court ruled that there is “a strong but rebuttable presumption” that a state court has actually ruled on all of the issues before the court even if its decision did not specifically address each of them. The question matters under a 1996 federal law that limits federal court review of state convictions where an argument has been “adjudicated on the merits” by a state court.

In 2011 in Harrington v. Richter, the Supreme Court ruled that a state court decision was “on the merits” even though it offered no reasoning at all. The question in Wednesday’s decision, Johnson v. Williams, No. 11-465, was what to do about a decision that addressed one argument but said nothing about another.

Justice Alito wrote the majority opinion, joined by seven other justices, leaving open one possible line of attack. “If a federal claim is rejected as a result of sheer inadvertence,” he wrote, “it has not been evaluated based on the intrinsic right and wrong of the matter.”

Justice Scalia voted with the majority but objected to the possibility of litigation over whether an argument had been “inadvertently overlooked” as a “newly-sponsored enterprise of probing the judicial mind.”

BREAKING NEWS: KENTUCKY SUPREME COURT WISELY LIMITS GRANDPARENTS' VISITATION RIGHTS WHERE CHILD'S PARENTS OBJECT; OBJECTION NOW PRESUMED TO BE IN "CHILD'S BEST INTEREST" REBUTTABLE ONLY BY "CLEAR AND CONVINCING PROOF" TO THE CONTRARY.

noreply@blogger.com (Unknown) — Fri, 26 Oct 2012 13:08:00 +0000

Kentucky Supreme Court weakens grandparents' rights to see grandchildren

The Kentucky Supreme Court has made it harder for grandparents to win visitation with their grandchildren when the child’s parents object.

In a 6-1 ruling, the state’s high court ruled Thursday that parents who oppose giving a grandparent visitation must be presumed to be acting in the child’s best interests.

The court did not strike down Kentucky’s 1984 grandparent visitation law but said a grandparent must present “clear and convincing” evidence to win the right to visit a grandchild over a parent’s objection.

“Kentucky courts cannot presume that grandparents and grandchildren will always benefit from contact with each other,” the court ruled. “If the only proof that a grandparent can present is that they spent time with the child and attended holidays and special occasions, this alone cannot overcome the presumption that the parent is acting in the child’s best interest.”

Writing for the court, Chief Justice John D. Minton Jr., said “the grandparent must show something more — that the grandparent and child shared such a close bond that to sever contact would cause distress to the child.”

Louisville family lawyers not involved in the case said the ruling will make it extremely hard for grandparents to win court-ordered visitation rights over a parent’s objection.

“That is an awful high legal standard,” said former Jefferson Family Court Judge Louis Waterman, adding that it gives “near-total authority” to parents.

The court reversed an order from Jefferson Family Court Judge Dolly Wisman Berry, giving visitation to Donna S. Blair for her grandson B.B., who is now 8, over the objection of his mother, Michelle L. Walker.

Blair said she had baby sat for the boy since he was born, took him to the zoo and the movies, gave him bubble baths and hosted his birthday parties.

But Walker said that, after the boy’s father killed himself, she feared for his safety and emotional well-being, because Donna Blair and her former husband blamed Walker for the suicide.

The court ordered Berry to conduct a new hearing, following the rules set down in its 20-page opinion.

The court said grandparents may win court-ordered visitation if they can show that the child would be harmed by denying it or where the grandparent and child lived in the same household for some time or the grandparent regularly baby sat the child.

The court directed judges to consider eight factors, including the nature and stability of the relationship between the child and the grandparent; the amount of time they had spent together; the effect that granting visitation would have on the child’s relationship with the parents; and the wishes and preferences of the child.

In a dissenting opinion, Justice Will T. Scott said he would have required grandparents to rebut the presumption in favor of parents based on a preponderance of the evidence, which is an easier burden to meet.

“It is beyond dispute that there is a societal presumption that it is usually healthier when a child has a loving relationship with a loving grandparent,” wrote Scott, who is seeking re-election against former Court of Appeals Judge Janet Stumbo.

The case marked the first time in 20 years that the state Supreme Court had tackled the issue, and the first time since the U.S. Supreme Court held in 2000 that parents have a constitutionally protected interest in raising their children without government interference.

Upholding the right of grandparents in a 1992 case from Boyle County, the state Supreme Court put parents and grandparents on equal footing in assessing the best interest of the child.

It also cited the benefit of visitation to the grandparent, who “can be invigorated by exposure to youth” and “avoid the loneliness that is so often a part of an aging parent’s life.”

But the court on Thursday said it was compelled by the U.S. Supreme Court’s decision to reverse its Boyle County ruling, which “is no longer good law.”

“So long as a parent is fit, there will normally be no reason for the state to inject itself in the private realm of the family,” the court said.

Blair’s lawyer, Denise Helline, said she found it troubling that "they set the bar too high." Walker’s lawyer, Mitchell Charney, said he hadn’t read the decision and couldn’t immediately comment.

No one tracks how many motions for grandparents’ visitation are filed in Kentucky, but Jefferson Family Court Judge Stephen George estimated in August that they are filed in about 5 percent of divorce and custody cases.

Waterman predicted that fewer will be filed now because attorneys will advise grandparents that it is less likely they will prevail.

Family lawyer Diana Skaggs, publisher of the blog “Divorce Law Journal,” who had predicted that if the court ruled Kentucky’s grandparent’s law unconstitutional it would mean “grandparents have no rights,” said she was glad the court didn’t do that.

But she agreed that the ruling means grandparents will have a tougher time getting courts to order visitation. “A loving relationship alone now is not enough.”

Editor's note:YOU CAN READ THE OPINION HERE (NOTE: REQUIRES PDF).

EDITOR'S COMMENT:I FIND IT PARTICULARLY INTERESTING THAT CHIEF JUSTICE JOHN MINTON, A DEMOCRAT, DISPLAYED REMARKABLE CONSERVATIVE PRINCIPLES HERE, WHILE JUSTICE WILL SCOTT, A REPUBLICAN, WENT THE OPPOSITE WAY DELIGHTING LIBERALS BY HIS DISSENT.

BREAKING NEWS: KENTUCKY SUPREME COURT RULES STUDENTS HAVE NO STATUTORY RIGHT TO ATTEND NEIGHBORHOOD SCHOOLS.

noreply@blogger.com (Unknown) — Thu, 20 Sep 2012 16:03:00 +0000

COURT: Ky students have no statutory "right" to attend neighborhood schools

LOUISVILLE, Ky. (WDRB) -- The Kentucky Supreme Court has ruled that Kentucky public school students have no statutory right to attend a particular school.

The ruling goes on to say that, "student assignment within a school district in Kentucky is a matter that the legislature has committed to the sound discretion of the local school board."

The decision comes as a serious blow to proponents of so-called "neighborhood schools."

Ted Gordon, the attorney for the plaintiffs' in the case, released the following statement after the ruling:

"While we will always respect the decision by the majority of the justices at the Kentucky Supreme Court, we have to wonder at the obvious attempts by JCPS to influence this decision by JCPS ever-changing student assignment plans," Gordon said. "With each new plan, JCPS has inched closer to neighborhood schools, which they realize that parents want and children need to improve the horrendous education that our children are now getting."

"All the parents in this case were courageous to take on the school system, and even though they did not win this round, they have made JCPS turn the corner, away from the outdated social experiment of busing," he continued. "Now these parents are hopeful that JCPS will start improving the education outcome for all our children."

JCPS officials have maintained that letting students attend the school closest to their home would return the community to segregation.

The court heard arguments from both sides in April, but the issue really boils down to one thing -- what does the word "enroll" mean?

Byron Leet of JCPS, said nowhere does the word "enroll" also mean "attend."

"We went to three different dictionary definitions of what it means to enroll. Not a one of those definitions, whether Black's Law Dictionary, the Oxford English Dictionary or the Merriam Webster Dictionary, tells us that the words enroll and attend mean the same thing," he said.

But Gordon, argued that it's clear what the legislature intended: "The common sense meaning applicable here is that enroll, there's no 'in,' there's no 'at,' enroll in that school is the contemplation that these children go to school where they enroll."

School district supporters warned of dire consequences should they lose.

"The schools in Jefferson County will resegregate," said Louisville NAACP president Raoul Cunningham in April. "There's no doubt. if you go back to a neighborhood concept of schools, there's no question, the schools will resegregate."

EDITOR'S NOTE Click HERE to read the ruling.

IN A CASE OF FIRST IMPRESSION IN KENTUCKY, FEDERAL BANKRUPTCY JUDGE ALLOWS GAY COUPLE TO FILE JOINTLY IN BANKRUPTCY COURT.

noreply@blogger.com (Unknown) — Tue, 07 Aug 2012 14:21:00 +0000

Gay married couple allowed to file joint bankruptcy in Kentucky

(PICTURED ABOVE ARE Joey Lester, left, and Bob Joles lost their $200,000 investment in a downtown market). Written by Andrew Wolfson | Despite living together for 16 years, Bob Joles and Joey Lester of Louisville could not legally marry in the state of Kentucky. Even after they wed May 9 in Buffalo, N.Y., the state of Kentucky wouldn’t recognize their union. But that didn’t stop them in June from becoming the first gay married couple to file jointly for bankruptcy in Kentucky. Nor did it prevent a federal bankruptcy judge from confirming their reorganization plan July 24. Kentucky voters amended the state constitution in 2004 to say that “only a marriage between one man and one woman shall be valid or recognized as a marriage.” But Joles and Lester were allowed to file a joint Chapter 13 bankruptcy in federal court because the Obama administration has decided it will no longer contest such filings by married same-sex couples. Joles and Lester, who lost more than $200,000 they invested in a downtown market — The Bodega at Felice — say the administration’s change was a blessing. It allowed them to save $306 on a second filing fee and let Joles, who managed the store and is now unemployed, keep his car. And it kept them from having to divide the stuff they had accumulated during their lives together, which Joles said would have been like going through a divorce. But the couple, who live in Clifton, said the real advantages of filing jointly were intangible. “It made our marriage seem more real,” said Joles, 48. “And it forced the court to recognize us as a married couple.” Lester, 47, a senior sales trainer for Verizon Wireless, said that while the couple regretted having to file for bankruptcy, it made sense to do it together. “We have been together for 16 years, and our money is our money and our debts are our debts,” he said. But opponents of gay marriage, including Martin Cothran, a policy analyst for the Family Foundation of Kentucky, said the Obama administration’s policy change is a “backdoor way of establishing same-sex marriage in the state” — violating the constitutional amendment his group helped get on the ballot. State Rep. Stan Lee, R-Lexington, agreed, saying, “For a bankruptcy trustee and judge to allow this to go forward in the commonwealth of Kentucky is an affront to the citizens of this state who spoke very loudly in 2004 when they passed the marriage amendment.” Lee, who has unsuccessfully fought to end partnership benefits for gays at Kentucky universities, also said he thinks it is “troubling that the Justice Department, at the direction of this president, would decide to choose what laws they enforce and not enforce. He is charged with enforcing all the laws, not just the ones he likes.” Change in direction Attorney General Eric Holder told Congress in February 2011 that the Justice Department would stop defending the Defense of Marriage Act, which bans recognition of gay marriages by the federal government. Holder said that President Barack Obama decided that treating gay married couples differently violates the Constitution’s guarantee of equal protection under the law. In July 2011, the Justice Department announced that the U.S. Trustee, the department’s division charged with enforcing the bankruptcy code, would no longer oppose joint bankruptcy filings by married gay couples. Previously, it had done so vigorously. The Justice Department and the U.S. Administrative Office of the Court do not track how many bankruptcy cases have been filed jointly by gay married couples. But bankruptcy court officials in Louisville and Lexington confirmed that the Joles-Lester case is the first in Kentucky. The couple’s lawyer, Shannon Fauver, who said she plans to file a bankruptcy petition for a married lesbian couple in the next few weeks, said the court’s acceptance “gives them protections they didn’t have before. It is a big deal.” Chris Hartman, director of the Fairness Campaign, a civil rights group, said the change “is good news,” adding that there are more than 1,400 legal privileges, many of them money-saving, that are automatically afforded heterosexual couples yet almost universally denied to same-sex ones. Fauver said after she filed the Joles-Lester petition June 5 in U.S Bankruptcy Court in Louisville, she received an email from the court asking if she had meant “to file for two guys.” Her legal word-processing software gave her no choice but two list one of the two men as “wife.” “I said ‘yes’ — would you like to see their marriage license?” Fauver recalled. William Lawrence, who was assigned to the case as the creditors’ trustee, said such a petition had never been filed in the Western District of Kentucky. Jerry Truitt, bankruptcy clerk for the Eastern District of Kentucky, said none have been filed there. Lawrence said he asked Assistant U.S. Trustee Joseph Golden if he could accept it, and Golden informed him about the Justice Department’s new policy. Upholding the law Joles and Lester said they had no choice but to file after their banks declined to consolidate loans for their store at 829 E. Market St., which they ran from 2006 until it closed May 2009. They said they feared that creditors would come after their home and other assets. They filed a business bankruptcy as well. The couple’s petition listed assets of $414,443 and liabilities of $474,767, including loans from PNC, US Bank and Stock Yards Bank. Under their plan, which was confirmed by Bankruptcy Judge Alan Stout, they must pay secured creditors $398 every two weeks for five years. Unsecured creditors will get about 5 cents on the dollar. Justice Department spokeswoman Nanda Chitre said that while the department is no longer defending the Defense of Marriage Act when it is challenged in lawsuits, executive branch agencies are continuing to enforce it because it was enacted by Congress and it is the judiciary’s job to decide if it is constitutional. She said the department decided not to contest filings by married gay couples in bankruptcy court because House Republican lawyers, who have stepped in to defend the act in some litigation, chose not to challenge those filings. A spokesman for House Speaker John Boehner, R-Ohio, has said that would be too expensive and that bankruptcy cases are “unlikely to provide the path to the Supreme Court, where we imagine the question of constitutionality will ultimately be decided.” Two cases involving the constitutionality of the Defense of Marriage Act appear headed to that court. A spokesman for Mitt Romney’s presidential campaign, Christopher Walker, said in an email that “as president, Gov. Romney has pledged to appoint an attorney general who will defend the Defense of Marriage Act.” For now, however, gay married couples may file bankruptcy jointly, which Joles said he appreciates. “We live here and pay taxes here,” he said. “It is nice to know we have the same rights as other Americans.” EDITOR'S NOTE: The federal Defense of Marriage Act “In determining the meaning of any Act of Congress, or of any ruling, regulation, or interpretation of the various administrative bureaus and agencies of the United States, the word ‘marriage’ means only a legal union between one man and one woman as husband and wife, and the word ‘spouse’ refers only to a person of the opposite sex who is a husband or a wife.” Kentucky Constitution Marriage is prohibited and void: (a) With a person who has been adjudged mentally disabled by a court of competent jurisdiction; (b) Where there is a husband or wife living, from whom the person marrying has not been divorced; (c) When not solemnized or contracted in the presence of an authorized person or society; (d) Between members of the same sex; (e) Between more than two persons Kentucky constitutional amendment, 2004: “Only a marriage between one man and one woman shall be valid or recognized as a marriage in Kentucky. A legal status identical or substantially similar to that of marriage for unmarried individuals shall not be valid or recognized.” Jurisdictions that permit same-sex marriage Connecticut, Iowa, Massachusetts, New Hampshire, New York, Vermont, Washington and Washington, D.C. EDITOR'S COMMENT: I WONDER IF THIS CASE WOULD MAKE IT TO THE SUPREME COURT SO THE COURT CAN CLARIFY IF GAY COUPLES CAN FILE JOINTLY IN BANKRUPTCY COURT.

IN ANOTHER CASE OF EQUAL IMPORTANCE, U. S. SUPREME COURT FINDS CRIMINALIZING FALSE CLAIM OF MILITARY VALOR, MEDALS OR DECORATIONS VIOLATES FREE SPEECH. RULING INVALIDATES KENTUCKY'S LAW ON SUBJECT

noreply@blogger.com (Unknown) — Thu, 28 Jun 2012 14:51:00 +0000

THE CASE IS UNITED STATES v. ALVAREZ. YOU CAN READ THE OPINION HERE. IN ESSENCE THE COURT'S SYNOPSIS IS BELOW: The Stolen Valor Act makes it a crime to falsely claim receipt of military decorations or medals and provides an enhanced penalty if the Congressional Medal of Honor is involved. 18 U. S. C. §§704 (b), (c).Respondent pleaded guilty to a charge of falsely claiming that he had received the Medal of Honor, but reserved his right to appeal his claim that the Act is unconstitutional. The Ninth Circuit reversed, finding the Act invalid under the First Amendment. WE AFFIRM

SHOCKER: U.S. SUPREME COURT UPHOLDS OBAMACARE!

noreply@blogger.com (Unknown) — Thu, 28 Jun 2012 14:45:00 +0000

STAY TUNED. I'LL POST THE OPINION HERE. WHAT A SHOCKER! UPDATE: CLICK HERE FOR THE COURT'S OPINION. READ IT AND WEEP.

U. S. SUPREME COURT HOLDS "The Eighth Amendment Forbids A Sentencing Scheme That Mandates Life In Prison Without Possibility Of Parole For Juvenile Homicide Offenders."

noreply@blogger.com (Unknown) — Mon, 25 Jun 2012 16:39:00 +0000

THE CASE IS MILLER V. ALABAMA, AND YOU CAN READ THE COURT'S OPINION HERE. EDITOR'S NOTE: THE GIST OF THE COURT'S OPINION CAN BE READ BELOW: "In each of these cases, a 14-year-old was convicted of murder and sentenced to a mandatory term of life imprisonment without the possibility of parole. In No. 10−9647, petitioner Jackson accompanied twoother boys to a video store to commit a robbery; on the way to the store, he learned that one of the boys was carrying a shotgun. Jackson stayed outside the store for most of the robbery, but after he entered, one of his co-conspirators shot and killed the store clerk. Arkansas charged Jackson as an adult with capital felony murder and aggravated robbery, and a jury convicted him of both crimes. The trial court imposed a statutorily mandated sentence of life imprisonment without the possibility of parole. Jackson filed a state habeas petition, arguing that a mandatory life-without-parole term for a 14year-old violates the Eighth Amendment. Disagreeing, the court granted the State’s motion to dismiss. The Arkansas Supreme Court affirmed. In No. 10−9646, petitioner Miller, along with a friend, beat Miller’s neighbor and set fire to his trailer after an evening of drinking anddrug use. The neighbor died. Miller was initially charged as a juvenile, but his case was removed to adult court, where he was charged with murder in the course of arson. A jury found Miller guilty, andthe trial court imposed a statutorily mandated punishment of lifewithout parole. The Alabama Court of Criminal Appeals affirmed,holding that Miller’s sentence was not overly harsh when compared to his crime, and that its mandatory nature was permissible under the Eighth Amendment. Held: The Eighth Amendment forbids a sentencing scheme that mandates life in prison without possibility of parole for juvenile homicide offenders. Pp. 6−27. —————— Held: The Eighth Amendment forbids a sentencing scheme that mandates life in prison without possibility of parole for juvenile homicide offenders. Pp. 6−27."

U. S. SUPREME COURT POOH-POOHS ARIZONA IMMIGRATION LAWS, AND RE-AFFIRMS ITS RULING ALLOWING CORPORATIONS TO SPEND LIMITLESS AMOUNTS OF MONEY ON POLITICAL CAMPAIGNS. SO LET THE WEEPING AND WAILING COMMENCE FOR SOME FOLKS, BUT NOT ME!

noreply@blogger.com (Unknown) — Mon, 25 Jun 2012 16:25:00 +0000

YOU CAN READ THE ARIZONA OPINION HERE, AND THE CAMPAIGN FINANCE OPINION HERE. EDITOR'S NOTE: IN THE CAMPAIGN FINANCE LAW CASE, THE COURT HAD THIS TO SAY: "A Montana state law provides that a “corporation may not make . . . an expenditure in connection with a candidate or a political committee that supports or opposes a candidate or a political party.” Mont. Code Ann. §13–35–227(1) (2011). The Montana Supreme Court rejected petitioners’ claim that this statute violates the First Amendment. 2011 MT 328, 363 Mont. 220, 271 P. 3d 1. In Citizens United v. Federal Election Commission, this Court struck down a similar federal law, holding that “political speech does not lose First Amendment protectionsimply because its source is a corporation.” 558 U. S. ___, ___ (2010) (slip op., at 26) (internal quotation marks omitted). The question presented in this case is whether the holding of Citizens United applies to the Montana state law. There can be no serious doubt that it does. See U. S. Const., Art. VI, cl. 2. Montana’s arguments in support of the judgment below either were already rejected in Citizens United, or fail to meaningfully distinguish that case." IN THE ARIZONA "IMMIGRATION" CASE, HERE IS THE ESSENCE OF THE COURT'S RULING: "An Arizona statute known as S. B. 1070 was enacted in 2010 to address pressing issues related to the large number of unlawful aliens in the State. The United States sought to enjoin the law as preempted. The District Court issued a preliminary injunction preventing four of its provisions from taking effect. Section 3 makes failure to comply with federal alien-registration requirements a state misdemeanor; §5(C)makes it a misdemeanor for an unauthorized alien to seek or engage in work in the State; §6 authorizes state and local officers to arrest without a warrant a person “the officer has probable cause to believe . . . has committed any public offense that makes the person removable from the United States”; and §2(B) requires officers conducting a stop, detention, or arrest to make efforts, in some circumstances, toverify the person’s immigration status with the Federal Government. The Ninth Circuit affirmed, agreeing that the United States had established a likelihood of success on its preemption claims. Held: 1. The Federal Government’s broad, undoubted power over immigration and alien status rests, in part, on its constitutional power to“establish an uniform Rule of Naturalization,” Art. I, §8, cl. 4, and onits inherent sovereign power to control and conduct foreign relations, see Toll v. Moreno, 458 U. S. 1, 10. Federal governance is extensive and complex. Among other things, federal law specifies categories ofaliens who are ineligible to be admitted to the United States, 8 U. S. C. §1182; requires aliens to register with the Federal Government and to carry proof of status, §§1304(e), 1306(a); imposes sanctions on employers who hire unauthorized workers, §1324a; and specifies which aliens may be removed and the procedures for doing so, see §1227. Removal is a civil matter, and one of its principal features 2 ARIZONA v. UNITED STATES Syllabus is the broad discretion exercised by immigration officials, who must decide whether to pursue removal at all. Immigration and Customs Enforcement (ICE), an agency within the Department of Homeland Security, is responsible for identifying, apprehending, and removing illegal aliens. It also operates the Law Enforcement Support Center,which provides immigration status information to federal, state, andlocal officials around the clock. Pp. 2–7. 2. The Supremacy Clause gives Congress the power to preempt state law. A statute may contain an express preemption provision, see, e.g., Chamber of Commerce of United States of America v. Whiting, 563 U. S. ___, ___, but state law must also give way to federal law in at least two other circumstances. First, States are precluded from regulating conduct in a field that Congress has determinedmust be regulated by its exclusive governance. See Gade v. National Solid Wastes Management Assn., 505 U. S. 88, 115. Intent can be inferred from a framework of regulation “so pervasive . . . that Congress left no room for the States to supplement it” or where a “federalinterest is so dominant that the federal system will be assumed topreclude enforcement of state laws on the same subject.” Rice v. Santa Fe Elevator Corp., 331 U. S. 218, 230. Second, state laws are preempted when they conflict with federal law, including when theystand “as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.” Hines v. Davidowitz, 312 U. S. 52, 67. Pp. 7–8. 3. Sections 3, 5(C), and 6 of S. B. 1070 are preempted by federal law. Pp. 8–19. (a) Section 3 intrudes on the field of alien registration, a field inwhich Congress has left no room for States to regulate. In Hines, a state alien-registration program was struck down on the ground that Congress intended its “complete” federal registration plan to be a “single integrated and all-embracing system.” 312 U. S., at 74. That scheme did not allow the States to “curtail or complement” federallaw or “enforce additional or auxiliary regulations.” Id., at 66–67. The federal registration framework remains comprehensive. Because Congress has occupied the field, even complementary state regulationis impermissible. Pp. 8–11. (b) Section 5(C)’s criminal penalty stands as an obstacle to the federal regulatory system. The Immigration Reform and Control Act of 1986 (IRCA), a comprehensive framework for “combating the employment of illegal aliens,” Hoffman Plastic Compounds, Inc. v. NLRB, 535 U. S. 137, 147, makes it illegal for employers to knowingly hire, recruit, refer, or continue to employ unauthorized workers, 8 U. S. C. §§1324a(a)(1)(A), (a)(2), and requires employers to verify prospective employees’ employment authorization status, Cite as: 567 U. S. ____ (2012) 3 Syllabus §§1324a(a)(1)(B), (b). It imposes criminal and civil penalties on employers, §§1324a(e)(4), (f), but only civil penalties on aliens who seek, or engage in, unauthorized employment, e.g., §§1255(c)(2), (c)(8).IRCA’s express preemption provision, though silent about whether additional penalties may be imposed against employees, “does not bar the ordinary working of conflict pre-emption principles” or impose a “special burden” making it more difficult to establish the preemptionof laws falling outside the clause. Geier v. American Honda Motor Co., 529 U. S. 861, 869–872. The correct instruction to draw from the text, structure, and history of IRCA is that Congress decided it would be inappropriate to impose criminal penalties on unauthorized employees. It follows that a state law to the contrary is an obstacle tothe regulatory system Congress chose. Pp. 12–15. (c) By authorizing state and local officers to make warrantless arrests of certain aliens suspected of being removable, §6 too createsan obstacle to federal law. As a general rule, it is not a crime for aremovable alien to remain in the United States. The federal scheme instructs when it is appropriate to arrest an alien during the removal process. The Attorney General in some circumstances will issue awarrant for trained federal immigration officers to execute. If no federal warrant has been issued, these officers have more limited authority. They may arrest an alien for being “in the United States inviolation of any [immigration] law or regulation,” for example, but only where the alien “is likely to escape before a warrant can be obtained.” §1357(a)(2). Section 6 attempts to provide state officers with even greater arrest authority, which they could exercise with no instruction from the Federal Government. This is not the system Congress created. Federal law specifies limited circumstances in which state officers may perform an immigration officer’s functions. This includes instances where the Attorney General has granted that authority in a formal agreement with a state or local government. See, e.g., §1357(g)(1). Although federal law permits state officers to “cooperate with the Attorney General in the identification, apprehension, detention, or removal of aliens not lawfully present in the UnitedStates,” §1357(g)(10)(B), this does not encompass the unilateral decision to detain authorized by §6. Pp. 15–19. 4. It was improper to enjoin §2(B) before the state courts had anopportunity to construe it and without some showing that §2(B)’s enforcement in fact conflicts with federal immigration law and its objectives. Pp. 19–24. (a) The state provision has three limitations: A detainee is presumed not to be an illegal alien if he or she provides a valid Arizonadriver’s license or similar identification; officers may not consider race, color, or national origin “except to the extent permitted by the 4 ARIZONA v. UNITED STATES Syllabus United States [and] Arizona Constitution[s]”; and §2(B) must be “implemented in a manner consistent with federal law regulating immigration, protecting the civil rights of all persons and respecting the privileges and immunities of United States citizens.” P. 20. (b) This Court finds unpersuasive the argument that, even with those limits, §2(B) must be held preempted at this stage. Pp. 20–24. (1) The mandatory nature of the status checks does not interfere with the federal immigration scheme. Consultation between federal and state officials is an important feature of the immigration system. In fact, Congress has encouraged the sharing of informationabout possible immigration violations. See §§1357(g)(10)(A), 1373(c). The federal scheme thus leaves room for a policy requiring state officials to contact ICE as a routine matter. Cf. Whiting, 563 U. S., at ___. Pp. 20–21. (2) It is not clear at this stage and on this record that §2(B), in practice, will require state officers to delay the release of detaineesfor no reason other than to verify their immigration status. This would raise constitutional concerns. And it would disrupt the federal framework to put state officers in the position of holding aliens incustody for possible unlawful presence without federal direction and supervision. But §2(B) could be read to avoid these concerns. If the law only requires state officers to conduct a status check during the course of an authorized, lawful detention or after a detainee has been released, the provision would likely survive preemption—at least absent some showing that it has other consequences that are adverse tofederal law and its objectives. Without the benefit of a definitive interpretation from the state courts, it would be inappropriate to assume §2(B) will be construed in a way that conflicts with federal law. Cf. Fox v. Washington, 236 U. S. 273, 277. This opinion does not foreclose other preemption and constitutional challenges to the lawas interpreted and applied after it goes into effect. Pp. 22–24. 641 F. 3d 339, affirmed in part, reversed in part, and remanded."

In A Welcome News, Kentucky Supreme Court Limits Police Use Of "Protective Sweeps" That Do Away With Our Constitutional Right To "Be Secure In Our Homes Against Warrantless Searches And Seisures". There Is A God!

noreply@blogger.com (Unknown) — Thu, 21 Jun 2012 18:16:00 +0000

Ky. court limits 'protective sweeps' by police By BRETT BARROUQUERE LOUISVILLE, Ky. — Lexington police told Crystal Lynn Guzman that, unless she agreed to allow a search of her apartment, an officer would remain with her while another got a warrant. Guzman consented to a warrantless "protective sweep" search in the early hours of Sept. 10, 2008, which turned up cocaine and drug paraphernalia and resulted in Guzman's arrest. But the Kentucky Supreme Court ruled Thursday that the threat of getting a search warrant amounted to an impermissible ruse by officers, who had no probable cause for a warrant. The ruling and threw out Guzman's conviction as well as the evidence seized in the search. The ruling sets new limits in Kentucky on how far police officers may go to gain access to homes and vehicles without a search warrant. "Even when a search is authorized by consent, the scope of the search is limited by the terms of its authorization," five justices wrote in an unsigned opinion. Justice Bill Cunningham wrote in a concurring opinion that using the threat of a search warrant without probable cause to get the document has become a dangerous and much used technique that "could be an exploding land mine." "When you have consent to enter into one's living room, you are not invited into the kitchen, or the bedroom, or the basement," Cunningham wrote. "Here, we are talking about the suppression of drugs. When the issue appears squarely before us in full bloom, it could mean the suppression of a murder weapon. Hopefully, this writing will help us avoid that more critical situation." When making an arrest, police have the right to search and control the immediate area around where the incident happened for their own safety. But, when making an arrest in a home, officers generally need some evidence of criminal wrongdoing in another part of the residence to continue searching. Without consent or an emergency circumstance, officers have to stop the search unless a warrant is granted. In this case, officers went to Guzman's apartment after a neighbor complained about possible drug transactions. Officers found Guzman and a man on the floor having sex when they arrived. Once Guzman turned on a lamp, officers asked if anyone else was in the apartment, to which Guzman responded no. Officers saw a blanket covering a doorway and conducted a "protective sweep" of the apartment. During the sweep, an officer found a spoon in the kitchen sink that had drug residue on it. That's when an officer asked for permission to search the entire apartment. Guzman refused and officers threatened to get a warrant do to so. The justices noted that there was no evidence of criminal wrongdoing seen in the living room and were told that no one else was in the apartment. Without consent, officers should not have conducted the sweep or been in the kitchen, the justices wrote. The justices noted that the "ancient" Fourth Amendment to the Constitution, as well as Section 10 of the Kentucky Constitution, protect citizens from warrantless search and seizures and "do not discern between rich or poor." "This apartment, its occupants, and their unseemly activities may not have measured up to an acceptable standard of decency," the justices wrote, but that didn't give officers the right to search the home. Cunningham noted that the method used by police "is fraught with constitutional problems." "Misinformation or deception by a law enforcement officer for purposes of obtaining consent to search will not be upheld," Cunningham wrote. Read more here: http://www.kentucky.com/2012/06/21/2232923/ky-court-limits-protective-sweeps.html#storylink=cpy Editor's comment; A great win for "We, the people". Editor's note: The case is CRYSTAL LYNN GUZMAN V. COMMONWEALTH OF KENTUCKY, 2010-SC-000415-DG (2012) and can be read here.

U. S. Supreme Court Rules UNANIMOUSLY Only Individuals Can Be Sued Under Under Torture Victim Law.

noreply@blogger.com (Unknown) — Wed, 18 Apr 2012 15:01:00 +0000

High court limits suits under torture victim law

The Supreme Court has ruled unanimously that organizations may not be sued for claims they aided in torture or killings abroad under a law aimed at helping torture victims.

Justice Sonia Sotomayor wrote the court's opinion Wednesday dismissing the lawsuit filed by the family of an American who died in the custody of Palestinian intelligence officers in Jericho in 1995. The family wanted to sue the Palestinian Authority and Palestine Liberation Organization under the Torture Victim Protection Act.

Sotomayor said the 1992 law's use of the word "individual" is persuasive evidence that only people may be sued over claims they took part in torture. ...

Read more here: http://www.kentucky.com/2012/04/18/2155514/high-court-limits-suits-under.html#storylink=cpy

Editor's comment/note: The case is Mohamad v. Palestinian Authority, and you can read the Court's opinion by clicking on the case name link.

U. S. Supreme Court Extends "Qualified Immunity" To Private Lawyers Working For Government.

noreply@blogger.com (Unknown) — Tue, 17 Apr 2012 19:28:00 +0000

Supreme Court reverses 9th Circuit to shield private lawyers
By David G. Savage

WASHINGTON — The Supreme Court has shielded private lawyers and possibly others working for cities, counties and school districts from being sued for violating the rights of citizens and employees.

A UNANIMOUS 9-0 decision in the case announced Tuesday blocks a lawsuit against a Southern California attorney who was accused of ordering an illegal search of a firefighter’s house.

A judge had shielded the fire chief of the Inland Empire city of Rialto and two fire department inspectors from being sued for the allegedly illegal search under the rule that gives public employees a “qualified immunity” from suits when they are doing their jobs. But the U.S. 9th Circuit Court of Appeals said that this governmental immunity did not extend to Steve Filarsky, a private lawyer who advised the city on conducting internal investigations.

Disagreeing with the 9th Circuit, Chief Justice John G. Roberts Jr. said it made no sense to expose private lawyers working for the government to personal liability when public employees doing the same job are shielded. He said many small cities like Rialto cannot afford to have lawyers on their staffs and must rely at times on private attorneys.

“This case is a good example: Filarsky had 29 years of specialized experience as an attorney in labor, employment and personnel matters, with particular expertise in conducting internal affairs investigations,” the chief justice wrote. “The City of Rialto certainly had no permanent employee with anything approaching those qualifications.”

Shielding private lawyers from almost all personal liability is necessary for “ensuring that talented candidates are not deterred from public service,” Roberts said.

The case arose when Nicholas Delia, a firefighter in Rialto, became ill after responding to a toxic spill in 2006, and he missed several weeks of work. The city became suspicious of his extended absence and hired a private investigator to check on him. The investigator observed Delia buying rolls of fiberglass insulation from a home improvement store, and city officials suspected he might be doing construction work at home when he was supposedly recovering.

Filarsky questioned Delia about the building supplies. The firefighter admitted he bought the materials, but had done no work.

In order to put the suspicion to rest, Filarsky recommended the fire chief tell Delia he must show the materials to fire inspectors. Delia objected, and his attorney averred that such a forced search of his house would violate the 4th Amendment’s ban on unreasonable searches.

Undeterred, the fire chief ordered Delia to put the rolls of insulation on his front lawn. Delia did as ordered. The fire inspectors thanked him and left. Delia and his attorney then followed through with their vow and sued the fire chief, the inspectors and Filarsky claiming his constitutional rights had been violated.

A federal judge threw out the claims and ruled all the city officials were immune because they did not violate a “clearly established constitutional right.” In Tuesday’s decision, the Supreme Court said Filarsky deserved to be immune as well.

Editor's comment: read Filarsky vs. Delia by clicking on the link.

In A Move That STUNNED Even A VERY STRONG Conservative, Law And Order Kinda Guy Like Me, The U. S. Supreme Court Has Ruled That Corrections Officers May Strip Search ANYONE For ANY Offense regardless Of How Minor The Offense. SHOCKING!

noreply@blogger.com (Unknown) — Tue, 03 Apr 2012 13:31:00 +0000

Supreme Court Ruling Allows Strip-Searches for Any Offense
By ADAM LIPTAK

Justice Anthony M. Kennedy, joined by the court’s conservative wing, wrote that courts are in no position to second-guess the judgments of correctional officials who must consider not only the possibility of smuggled weapons and drugs, but also public health and information about gang affiliations.

“Every detainee who will be admitted to the general population may be required to undergo a close visual inspection while undressed,” Justice Kennedy wrote, adding that about 13 million people are admitted each year to the nation’s jails.

The procedures endorsed by the majority are forbidden by statute in at least 10 states and are at odds with the policies of federal authorities. According to a supporting brief filed by the American Bar Association, international human rights treaties also ban the procedures.

The federal appeals courts had been split on the question, though most of them prohibited strip-searches unless they were based on a reasonable suspicion that contraband was present. The Supreme Court did not say that strip-searches of every new arrestee were required; it ruled, rather, that the Fourth Amendment’s prohibition of unreasonable searches did not forbid them.

Daron Hall, the president of the American Correctional Association and sheriff of Davidson County, Tenn., said the association welcomed the flexibility offered by the decision. The association’s current standards discourage blanket strip-search policies.

Monday’s sharply divided decision came from a court whose ideological differences are under intense scrutiny after last week’s arguments on President Obama’s health care law. The ruling came less than two weeks after a pair of major 5-to-4 decisions on the right to counsel in plea negotiations, though there Justice Kennedy had joined the court’s liberal wing. The majority and dissenting opinions on Monday agreed that the search procedures the decision allowed — close visual inspection by a guard while naked — were more intrusive than being observed while showering, but did not involve bodily contact.

Justice Stephen G. Breyer, writing for the four dissenters, said the strip-searches the majority allowed were “a serious affront to human dignity and to individual privacy” and should be used only when there was good reason to do so.

Justice Breyer said that the Fourth Amendment should be understood to bar strip-searches of people arrested for minor offenses not involving drugs or violence, unless officials had a reasonable suspicion that they were carrying contraband.

Monday’s decision endorsed a recent trend, from appeals courts in Atlanta, San Francisco and Philadelphia, allowing strip-searches of everyone admitted to a jail’s general population. At least seven other appeals courts, on the other hand, had ruled that such searches were proper only if there was a reasonable suspicion that the arrested person had contraband.

According to opinions in the lower courts, people may be strip-searched after arrests for violating a leash law, driving without a license and failing to pay child support. Citing examples from briefs submitted to the Supreme Court, Justice Breyer wrote that people have been subjected to “the humiliation of a visual strip-search” after being arrested for driving with a noisy muffler, failing to use a turn signal and riding a bicycle without an audible bell.

A nun was strip-searched, he wrote, after an arrest for trespassing during an antiwar demonstration. So were victims of sexual assaults and women who were menstruating.

Justice Kennedy responded that “people detained for minor offenses can turn out to be the most devious and dangerous criminals.” He noted that Timothy McVeigh, later put to death for his role in the 1995 Oklahoma City bombing, was first arrested for driving without a license plate. “One of the terrorists involved in the Sept. 11 attacks was stopped and ticketed for speeding just two days before hijacking Flight 93,” Justice Kennedy added.

The case decided Monday, Florence v. County of Burlington, No. 10-945, arose from the arrest of Albert W. Florence in New Jersey in 2005. Mr. Florence was in the passenger seat of his BMW when a state trooper pulled his wife, April, over for speeding. A records search revealed an outstanding warrant for Mr. Florence’s arrest based on an unpaid fine. (The information was wrong; the fine had been paid.)

Mr. Florence was held for a week in jails in Burlington and Essex Counties, and he was strip-searched in each. There is some dispute about the details, but general agreement that he was made to stand naked in front of a guard who required him to move intimate parts of his body. The guards did not touch him.
Related

Sidebar: Justices’ Cerebral Combativeness on Display (April 3, 2012)

Related in Opinion

The Loyal Opposition: The Right to Strip (April 2, 2012)

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“Turn around,” Mr. Florence, in an interview last year, recalled being told by jail officials. “Squat and cough. Spread your cheeks.”

“I consider myself a man’s man,” said Mr. Florence, a finance executive for a car dealership. “Six-three. Big guy. It was humiliating. It made me feel less than a man.”

Justice Kennedy said the most relevant precedent was Bell v. Wolfish, which was decided by a 5-to-4 vote in 1979. It allowed strip-searches of people held at the Metropolitan Correctional Center in New York after “contact visits” with outsiders.

As in the Bell case, Justice Kennedy wrote, the “undoubted security imperatives involved in jail supervision override the assertion that some detainees must be exempt from the more invasive search procedures at issue absent reasonable suspicion of a concealed weapon or other contraband.”

The majority and dissenting opinions drew differing conclusions from the available information about the amount of contraband introduced into jails and how much strip-searches add to pat-downs and metal detectors.

Justice Kennedy said one person arrested for disorderly conduct in Washington State “managed to hide a lighter, tobacco, tattoo needles and other prohibited items in his rectal cavity.” Officials in San Francisco, he added, “have discovered contraband hidden in body cavities of people arrested for trespassing, public nuisance and shoplifting.”

Justice Breyer wrote that there was very little empirical support for the idea that strip-searches detect contraband that would not have been found had jail officials used less intrusive means, particularly if strip-searches were allowed when officials had a reasonable suspicion that they would find something.

For instance, in a study of 23,000 people admitted to a correctional facility in Orange County, N.Y., using that standard, there was at most one instance of contraband detected that would not otherwise have been found, Judge Breyer wrote.

Justices Ruth Bader Ginsburg, Sonia Sotomayor and Elena Kagan joined Justice Breyer’s dissent.

Justice Kennedy said that strict policies deter people entering jails from even trying to smuggle contraband.

Chief Justice John G. Roberts Jr. and Justices Antonin Scalia and Samuel A. Alito Jr. joined all of Justice Kennedy’s majority opinion, and Justice Clarence Thomas joined most of it.

In a concurrence, Chief Justice Roberts, quoting from an earlier decision, said that exceptions to Monday’s ruling were still possible “to ensure that we ‘not embarrass the future.’ ”

Justice Alito wrote that different rules might apply for people arrested but not held with the general population or whose detentions had “not been reviewed by a judicial officer.”

Editor's note: The case is FLORENCE v. BOARD OF CHOSEN FREEHOLDERS OF COUNTY OF BURLINGTON ET AL. You can read the case here.

BREAKING News: U. S. Supreme Court Rules Defendants Have Constitutional Rights To Advise Of Competent Counsel During Plea Deals.

noreply@blogger.com (Unknown) — Wed, 21 Mar 2012 19:02:00 +0000

Supreme Court: Defendants have right to an attorney on plea deals
By David G. Savage

The Supreme Court, noting that virtually all criminal cases are settled through plea deals, has ruled for the first time that defendants have a right to competent advice from a lawyer on whether to accept an offer to plead guilty in exchange for a lighter sentence.

At a minimum, the court said, the defendant must be told of any formal offers from a prosecutor that would result in a favorable deal.

The pair of 5-4 decisions handed down Wednesday could have a broad impact on the nation’s criminal justice system because of the importance of plea deals.

"Ours for the most part is a system of pleas, not a system of trials," said Justice Anthony M. Kennedy. The "simple reality" is that 97% of federal convictions and 94% of state convictions result from guilty pleas, he said.

For that reason, it is crucial, he said, that the constitutional right to a competent lawyer is not limited to trials alone, but also to the back-and-forth of plea deals.

The justices ruled in favor of two men who were sentenced to lengthy prison terms, but who could have served less time had they agreed to plea deals offered by the prosecutor.

One case, from Missouri, involved a repeat drunk driver who was offered a deal in writing to plead guilty and receive a recommended 90-day sentence. Galin Frye's lawyer did not tell him of the offer, and he later pleaded guilty and was sentenced to three years in prison.

In Missouri vs. Frye, (you can read the opinion by going here), Kennedy said the lawyer’s failure violated Frye's rights.

"This Court now holds that, as a general rule, defense counsel has the duty to communicate formal offers from the prosecution to accept a plea on terms and conditions that may be favorable to the accused," he wrote. The defendant also has a right to a new hearing or the lower sentence if there is a "reasonable probability" the deal would have gone through had the defendant known of the offer, he added.

Justices Ruth Bader Ginsburg, Stephen G. Breyer, Sonia Sotomayor and Elena Kagan joined to form the majority.

In a second case, from Michigan, Anthony Cooper was charged with attempted murder, but turned down an offer to plead guilty if the prosecutor asked for a sentence of about five to seven years in prison. Cooper relied on bad advice from his lawyer who supposedly said he would not be convicted of murder because he did not shoot the female victim above the waist.

Cooper went to trial, the jury convicted him on all counts, and he was sentenced to between 15 and 30 years in prison.

In Lafler vs. Cooper, (you may also go here to read the opinion), Kennedy and the court agreed that the defendant had been denied his right to a competent attorney, and sent the case back to a Michigan judge to decide on a new sentence.

Justice Antonin Scalia sharply dissented in both cases. "Until today, no one has thought that there is a constitutional right to a plea bargain," he said, predicting the decisions will lead to endless litigation over the details.

He was joined in dissent by Chief Justice John G. Roberts Jr.and Justices Clarence Thomas and Samuel A. Alito Jr.

Editor's comment: while I can see the obvious wisdom of the former case, I can't quite see that same wisdom where a defendant should be permitted to "dance with the Attorney he or she brought to the dance" in a fact scenario where Attorney and defendant chose to "roll the dice".