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SCOTUS 2012 News & Views

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October 24, 2012 -- October 26, 2012


Appeals court in Chicago reinstates white supremacist's conviction for threatening juror

Michael Tarm, Associated Press | The Republic   

10-26-12 -- An appellate court ruled Friday that a white supremacist solicited violence against a juror in another trial by revealing his personal details online, rejecting a lower court's finding that the neo-Nazi's posts were protected by the First Amendment. . . . The 7th U.S. Circuit Court of Appeals said the posts by William White — who also threatened then-presidential candidate Barack Obama during the 2008 election — weren't subject to the shield the U.S. Constitution extends to most speech. . . . "White rightfully emphasizes that the First Amendment protects even speech that is loathsome," the three-judge panel in Chicago said in its unanimous, 30-page ruling. "But criminal solicitations are simply not protected by the First Amendment." . . . The judges also said White shouldn't get a new trial and should proceed to sentencing. A sentencing date will be set later.

Wells Fargo Loses Bid to Force Arbitration on Overdrafts

By Sophia Pearson, Bloomberg 

10-26-12 -- Wells Fargo & Co. (WFC), the biggest U.S. home lender, lost a bid to force the arbitration of customer disputes about overdraft fees. . . . The bank can’t force arbitration after twice waiving its right to do so, the U.S. Appeals Court based in Atlanta ruled today, denying the bank’s motion to dismiss a class-action lawsuit. . . . The court found that the bank put the customers through a litigation process that lasted years and yielded about 900,000 documents before asserting its right to force the customers to arbitrate their dispute.

Court OKs huge contempt award against Marcos estate

By Leigh Jones, The National Law Journal   

10-25-12 -- The U.S. Court of Appeals for the 9th Circuit has upheld a $354 million contempt judgment arising from a human rights case against the estate of the late Philippines President Ferdinand Marcos. . . . A three-judge panel affirmed the judgment on October 24 amid efforts to collect a $2 billion damages award won in 1995 in a class action filed on behalf of nearly 10,000 Filipinos who claimed that the Marcos regime committed summary executions, torture and other human rights violations. . . . The judgment was the largest contempt award ever affirmed by a federal appeals court, according to attorney Robert Swift, lead counsel for the victims and their families.

Court upholds ban on handgun sales to people under 21

By Jonathan Stempel, Reuters         

10-25-12 -- The United States may ban federally licensed firearms dealers from selling handguns to people under age 21, an appeals court ruled on Thursday, in a defeat for the National Rifle Association. . . . The 5th U.S. Circuit Court of Appeals in Houston rejected the NRA's argument that 18- to 20-year-olds had a right to buy the guns under the Second Amendment to the U.S. Constitution, as well as the equal protection clause of the Fifth Amendment. . . . A unanimous three-judge panel said Congress, in a law dating from 1968, adopted the sales ban to help curb violent crime. It also said that the nation's founders and 19th-century courts and commentators believed that disarming specific groups did not trample on the right to bear arms.

Gupta Gets 2-Year Prison Term Over Inside Trade Scheme

By Mark Hamblett, New York Law Journal 

10-25-12 -- Former Goldman Sachs director Rajat Gupta caught a huge break yesterday as Southern District Judge Jed Rakoff sentenced him to two years in prison for feeding inside information to Galleon Group hedge fund founder Raj Rajaratnam. . . . Rakoff rejected a guidelines range of 78 to 97 months as an irrational result because it was driven by the amount of money involved in Rajaratnam's trades and it was Rajaratnam, not Gupta, who made money on both bad and good news coming from within the secret confines of Goldman Sachs' boardroom. The judge said two years was enough to send a message of deterrence to would-be insider traders.

9th Circuit: Casinos can be liable for seizing card counters

Reporting by Alison Frankel, Thomson Reuters News & Insights        

10-24-12 -- Laurie Tsao, a crackerjack card counter and one of the MIT students depicted in the book "Bringing Down the House," has a tough time plying her trade. Tsao, who also goes by her married name of Laurie Chang and several other monikers, is not welcome at casinos. In fact, according to a ruling Tuesday by the 9th Circuit Court of Appeals, Tsao has been tossed out of Desert Palace properties, including Caesar's Palace, at least five different times under four different names. Each time, she was warned that if she returned to any Desert Palace casino she could be arrested for trespassing. . . . After her last warning, in September 2007, Tsao received three promotional offers from the Caesar's marketing department, inviting her (under the name Laurie Tsao) to stay free at the hotel and to even bet on sports. Tsao would later assert that she regarded these invitations as an indication that the earlier trespass warnings had been rescinded. Nevertheless, when she returned to Caesar's in March 2008, she used an alias.

D.C. judge won't let Fast and Furious suit drag on

By Mike Scarcella, The National Law Journal    

10-24-12 -- The Washington judge presiding over the suit that demands access to Justice Department documents rooted in the controversial gun sting Operation Fast and Furious isn't keen on having the case drag on—or, at least, having a wide-open schedule to resolve the dispute. . . . The judge, Amy Berman Jackson of Washington federal district court, on October 24 partly rejected a proposed schedule that U.S. House of Representatives oversight committee's lawyers and the U.S. Justice Department had agreed on. . . . The proposed briefing timeline—to resolve a motion to dismiss and a motion for summary judgment—would have taken the litigation into March 2013. The House sued Attorney General Eric Holder Jr. in August over the department's refusal to disclose certain internal records about Fast and Furious. In June, the House voted on party lines to find Holder in contempt.

Fourth Circuit: Obscenity directed at judge can be contempt

By Mike Scarcella, The National Law Journal  

10-23-12 -- When it comes to bad language in court, a federal appeals court in Richmond has issued a warning: watch what you say and how you say it. . . . A three-judge panel of the U.S. Court of Appeals for the Fourth Circuit on October 23 unanimously upheld the criminal contempt conviction of a man who used obscene language in a federal courtroom in South Carolina last year. . . . The man, Robert Peoples, whose pro se civil rights case had been dismissed moments earlier, told a courtroom official: "Tell Judge (Cameron McGowan) Currie get the f--- off all my cases." Currie had previously warned Peoples that he risked the dismissal of his suit for his continued late arrival to court. . . . Currie wasn't on the bench when Peoples expressed his displeasure with the judge's ruling to throw out the case. The next day, Currie initiated contempt proceedings.

Environmental groups win challenge to gene-altered crops on National Wildlife Refuges in South

By Associated Press | Washington Post  

10-23-12 -- A federal judge sided on Tuesday with environmental groups that challenged the planting of genetically-modified crops on National Wildlife Refuges in the South. . . . U.S. District Judge James E. Boasberg rejected the federal government’s argument that the environmental groups’ lawsuit was moot because the Fish and Wildlife Service had already agreed to stop the practice after this year. . . . “Plaintiffs allege harms that are currently occurring and will continue throughout 2012,” wrote Boasberg, an appointee of President Barack Obama. “Waiting for 2013 is not good enough.” He set a hearing for Nov. 5 to determine appropriate relief, but also encouraged both sides to meet to see if they could agree on at least some remedies.

'Lone Wolfing': Judge Kozinski Disagrees With Everyone

Posted by Bruce Carton,, Legal Blog Watch      

10-23-12 -- I was interested to see recently on the WSJ Law Blog that Judge Alex Kozinski of the Ninth Circuit, who most recently appeared on LBW when it was revealed that he "does not read block quotes" in appellate briefs, had again thought outside the box in the case of Gorfias-Rodrigues v. Holder. . . Usually, the menu of options for an appellate judge participating in an opinion is limited: You either write the opinion, concur with it, dissent from it, or concur in part and dissent in part. But not so for Kozinski, who ordered off the menu when he broke out the following as a preface to his opinion in the case: "Chief Judge KOZINSKI, disagreeing with everyone." Nice! 


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Alabama justice ousted over Ten Commandments may reclaim post

By Kaija Wilkinson, Reuters    

10-26-12 -- The Alabama Supreme Court chief justice who was removed from office for refusing to take down a Ten Commandments monument appears well-positioned to regain his post in the November 6 election. . . . Republican Roy Moore became a hero for many conservatives after he was booted from the state's high court in 2003, and political observers say he has a solid chance at another victory in the heavily Republican state known for its Christian electorate. . . . The controversy over his previous ouster by a state judicial court does not appear to have hurt, political analysts say.


Will Trademark Ruling Haunt Winchester Mystery House?

By Robyn Hagan Cain, FindLaw   

10-23-12 -- It's unusual to find a case that combines both haunted houses and a trademark lawsuit. Whether frightful or delightful, we stumbled across such a case today. . . . In 1862, Sarah "Belle of New Haven" Pardee married William Wirt Winchester, of the famous Winchester repeating rifle family. The couple was the toast of New England society. In 1866, their infant daughter died, and Sarah fell into a deep depression. After William died in 1881, Sarah supposedly spoke with a medium who claimed that the Winchester family was being haunted by the victims of Winchester rifles. . . . The medium's solution was for Sarah to move west and build a great house for the spirits. As long as construction of the house continued, the medium claimed Sarah would be safe. . . . Sarah took the medium's advice, and began building a house in San Jose. Construction continued 24 hours a day, 7 days a week, 365 days a year for the next 38 years, and only stopped when she died in 1922. Today, the 160-room Victorian-style mansion is a tourist attraction and the subject of a trademark lawsuit.


'Change of Appearance' Instruction Upheld in Case of Defendant Wearing Eyeglasses to Court

Posted by Bruce Carton, Legal Blog Watch 

10-25-12 -- The cat-and-mouse game between defendants who want to wear eyeglasses so that they look less threatening, and the prosecutors who don't want them to do so, goes on. You may recall that back in March 2012, I noted a trend in D.C. courthouses involving non-prescription "hipster" or "personality" glasses. In short, many criminal defendants and inmates facing hearings have begun wearing the glasses to court, for reasons that are in dispute. . . . Defense lawyers say that the glasses are simply part of the "professional look." Prosecutors, however, say that the defendants are dishonestly misrepresenting their appearance and that the glasses are "masks" designed to influence the jury. Defendants are "putting on a schoolboy act," one prosecutor complained to The Washington Post.

Feds sue Bank of America for mortgage fraud against Fannie Mae and Freddie Mac

By Zoe Tillman, The National Law Journal   

10-24-12 -- The Manhattan U.S. attorney's office has announced a civil mortgage fraud lawsuit against Bank of America Corp., accusing the company of defrauding government-backed Fannie Mae and Freddie Mac to the tune of more than $1 billion. . . . The October 24 complaint, filed in U.S. District Court for the Southern District of New York, accused Bank of America and Countrywide Financial Corp. (before Bank of America bought it in 2008) of selling mortgages to Fannie and Freddie through a high-speed process that failed to include "quality checkpoints." As a result, according to prosecutors, Fannie Mae and Freddie Mac bought thousands of defective residential mortgage loans that eventually defaulted. . . . "Countrywide and Bank of America systematically removed every check in favor of its own balance – they cast aside underwriters, eliminated quality controls, incentivized unqualified personnel to cut corners, and concealed the resulting defects," U.S. Attorney Preet Bharara said in a statement.


Judge hearing Athens cop-killing case removed

By Christopher Seward, The Atlanta Journal-Constitution

10-26-12 -- The Clarke County Superior Court judge originally hearing the case of Jamie Hood, accused of killing a Athens-Clarke County police officer two years ago, will be removed, according to Channel 2 Action News. . . . Hood has argued that Judge Lawton Stephens admitted to knowing the slain officer, Elmer “Buddy” Christian, and attended his funeral in 2010. As a result, the murder suspect said Stephens would not be impartial in the case. . . . Clarke County Superior Court Judge David Sweat has been hearing motions in the case since Stephens stepped aside while his fate as the judge in the case was decided. Sweat ruled Friday that Stephens should not hear the case, according to Channel 2.


Planned Parenthood wins fight over funding

Niki Kelly | The Journal Gazette   

10-23-12 -- A federal court has upheld an injunction on behalf of Planned Parenthood of Indiana against a law that would have denied funding to health care providers that offer abortions. . . . The American Civil Liberties Union of Indiana prevailed in the U.S. Court of Appeals for the Seventh Circuit in the class action on behalf of Planned Parenthood of Indiana and others, including two patients.


Ky. Senate President Williams appointed judge

Roger Alford, Associated Press | San Francisco Chronicle   

10-26-12 -- Gov. Steve Beshear got rid of his chief political rival in the Legislature on Friday by luring him out of Frankfort with a higher-paying job as a circuit judge in southern Kentucky. . . . The Democratic governor appointed Republican Senate President David Williams to the judicial position Friday afternoon, ending a long and stormy legislative career. Williams accepted. . . . "Sen. Williams is an experienced lawyer and is familiar with the district, having represented the area in the Legislature for more than 20 years," Beshear said in a brief statement about the appointment that is effective Nov. 2.

Kentucky Supreme Court upholds convictions of Amish men who refused to put orange triangles on buggies

No extra religious protection seen in state constitution

Written by Peter Smith, The Courier-Journal      

10-26-12 -- The Kentucky Constitution doesn’t grant any more religious liberty than the U.S. Constitution, even though it says more on the topic, a divided Kentucky Supreme Court ruled Thursday in upholding the convictions of nine Amish men on road-safety violations. . . . The court voted 5-2 to uphold the 2008 convictions in Graves County of the members of the conservative Old Order Swartzentruber Amish sect. They had refused to display orange-red triangles on their horse-drawn buggies because they said it would violate their religious beliefs. . . . The ruling has little practical effect on the men because most of them served jail sentences last year — and state legislators earlier this year overwhelmingly voted to change the law to accommodate their beliefs.

Kentucky Supreme Court weakens grandparents' rights to see grandchildren

Written by Andrew Wolfson, The Courier-Journal      

10-26-12 -- 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.


SMART can reject anti-Islam ad, 6th Circuit says

by Brian Frasier, The MiLW Blog   

10-25-12 -- The Suburban Mobility Authority for Regional Transportation (SMART) can reject an anti-Islam bus side ad, the 6th U.S. Circuit Court of Appeals ruled, reversing a district court injunction against the authority’s decision. . . . The court said the ad was different in nature than a pro-atheism ad that was accepted by the authority, a distinction which allowed the court to find it didn’t discriminate against the American Freedom Defense Initiative’s anti-Islam ad. . . . SMART has a policy against accepting political advertising on its buses. The AFDI’s ad read: “Fatwa on your head? Is your family or community threatening you? Leaving Islam? Got Questions? Get Answers!” . . . The AFDI claimed it was discriminated against because SMART had previously accepted advertising from an atheist group. The atheist ad read: “Don’t believe in God? You are not alone.” . . . Judge John Rogers, joined by Judge Raymond Kethledge and USDC Judge Algenon Marbley, looked beyond the ads to the websites they advertise to find a clear distinction between the two.

Wayne County judge reprimanded for shirtless photo, flip remarks

By Gina Damron, Detroit Free Press Staff Writer   

10-24-12 -- A Wayne County Circuit judge has been reprimanded for sending a shirtless photograph of himself to a Wayne County Sheriff’s Office employee and, subsequently, not taking the matter seriously while being interviewed by a TV news reporter. . . . The Michigan Supreme Court accepted a recommendation from the Judicial Tenure Commission and publicly censured Judge Wade H. McCree. . . . According to the order, McCree — who, while discussing the photograph with a news reporter, said, “There is no shame in my game” — consented to the public censure.


DOJ Suit Claims Miss. Town Runs ‘School-to-Prison Pipeline,’ Says Flatulence Can Net Jail Time

By Debra Cassens Weiss, ABA Journal

10-25-12 -- The U.S. Justice Department has filed a lawsuit claiming students in Meridian, Miss., are arrested on the recommendation of school officials and jailed for days at a time without a probable cause hearing, regardless of the severity of the alleged offense. . . . The suit claims authorities in Meridian and Lauderdale County are running a “school-to-prison pipeline” that mostly affects African-American and disabled children, according to the Associated Press, Reuters and a Justice Department press release. The police department acted as little more than a “taxi service” between schools and a juvenile detention center, the suit alleges. . . . The suit claims violations of the Fourth, Fifth and 14th amendments.


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Elmwood Park man sues N.J. over custody of son

By Peter J. Sampson, The Record Staff Writer    

10-26-12 -- An Elmwood Park man is suing New Jersey's child protection agency for $60 million, claiming officials violated his constitutional right to raise the son he fathered with his twin brother's estranged wife. . . . A 32-page civil suit, filed in federal court in Newark, portrays Dennis Mazzetti as a victim of malicious fraud, harassment and retaliation at the hands of the New Jersey Division of Child Protection and Permanency. . . . Named as defendants are the agency, formerly known as the Division of Youth and Family Services, and seven people, ranging from caseworkers to the commissioner of the Department of Children and Families, which oversees the child protection division.

Court: A woman with no genetic connection to baby is not the mother unless she adopts

By MaryAnn Spoto/The Star-Ledger The Star-Ledger     

10-24-12 -- A woman who arranges for a surrogate to give birth by using someone else’s eggs cannot be considered the mother unless she adopts the child, a sharply divided state Supreme Court ruled today. . . . In the first big test of New Jersey’s laws governing surrogate parents since the 1988 Baby M case, the court said women need to have a genetic or biological connection to a child in order to be considered the mother prior to adoption. . . . The decision drew instant criticism from those who said New Jersey has two sets of rules for men and women, noting that an infertile man is immediately considered the father even if someone else’s sperm is used to conceive a child.

Now a Defense Lawyer, Rivera-Soto Still Contests Judges Hopping Court to Court

By Charles Toutant, New Jersey Law Journal   

10-24-12 -- Justice Roberto Rivera-Soto, who left the state Supreme Court last year following a blaze of dissent over the temporary assignment of Appellate Division judges to that tribunal, is asserting his views on judicial administration just as poignantly as a private lawyer. . . . Representing a convict suing Atlantic City police for alleged civil rights violations, Rivera-Soto, now of Ballard Spahr in Cherry Hill, argued that the conviction was invalid — and should be excluded — because a Tax Court judge, temporarily assigned to the Superior Court, presided in the case. . . . He asserted the assignment is ineffectual because Superior Court is a constitutionally created court of general jurisdiction, whereas the Tax Court is a statutory court of limited jurisdiction.

Skimming From Mom-and-Pop Shop May Cause Mom To Forfeit Alimony

By David Gialanella, New Jersey Law Journal  

10-22-12 -- It's a general rule in New Jersey that fault is not a bar to alimony. Even if the recipient spouse has caused a significant economic impact on the couple, the remedy is only an alimony reduction. . . . But when that spouse has committed "extraordinary, flagrant economic misconduct during the marriage," a court may shut her out completely. . . . Such may be the fate of Denise Clark, who allegedly embezzled $350,000 from a family business she shared with her husband. A state appeals court on Oct. 19 reversed her alimony award, finding her actions "smack of criminality and demonstrate a willful and serious violation of societal norms." . . . As such, the judge below should have considered whether the conduct "warrants severing all economic bonds between the parties by precluding an alimony award," the Appellate Division held in Clark v. Clark, A-1147-11,


Husband can sue woman counselor for alleged affair with ex-wife

By Joel Stashenko, New York Law Journal   

10-22-12 -- A suit filed by a man who claims his marriage fell apart after a female counselor he and his spouse retained to patch up their differences had an affair with his wife may go forward, a Supreme Court judge ruled. . . . Supreme Court Justice Patrick NeMoyer in Erie County declined a motion to dismiss brought by the counselor, Amy Remmele, who is the defendant in a suit claiming breach of contract, breach of fiduciary duty, negligence and fraud. . . . NeMoyer found that plaintiff Charles Airey has sufficiently pleaded that Remmele may have held out her Buffalo company, Peak of Success, as offering marriage counseling to Airey while she, as Airey put it in his papers, exploited her position of "highest trust, integrity, and discretion" with the couple to have an affair with Airey's wife.


State bar association chastises Supreme Court justice for campaign ad

By Jim Provance, Toledo Blade Columbus Bureau Chief 

10-26-12 -- An ad-monitoring committee of the Ohio State Bar Association today blasted a new commercial financed by the Ohio Republican Party that accuses the challenger of a GOP incumbent Ohio Supreme Court justice of sympathizing with rapists. . . . The bar, which has rated Republican Justice Robert Cupp as “highly recommended,’’ said the ad impugns the integrity of the judiciary and judicial candidates. It reminded Justice Cupp that he signed the bar’s pledge to run a clean campaign and said his prior disavowal of the GOP ad was insufficient. . . . “Therefore, the committee now calls on you to go beyond publicly disavowing this ad as per your agreement in the above pledge, and demand that the Ohio Republican Party remove this ad and cease its airing and use in any form,’’ the committee's letter reads.


State judicial board files charges against Philadelphia judge

By Mark Fazlollah, Philadelphia  Inquirer Staff Writer  

10-25-12 -- The state Judicial Conduct Board filed disciplinary charges Tuesday against a controversial Philadelphia Common Pleas Court judge with close ties to U.S. Rep. Bob Brady. . . . The board charged in the Court of Judicial Discipline that Judge Thomas M. Nocella violated judicial canons and the Pennsylvania Constitution. . . . Specifically, the board charged that Nocella misrepresented his legal qualifications in 2009 and 2011, failing to report numerous lawsuits and other legal problems he faced to the Philadelphia Bar Association. . . . The bar association was interviewing him at the time to determine whether the association should recommend him for election.

Judge Criticized for Failing to Disclose His Spouse Worked for Defense Firm

By Amaris Elliott-Engel, The Legal Intelligencer   

10-26-12 -- The Superior Court has criticized a Philadelphia judge for failing to disclose that his spouse worked for a law firm representing a defendant in a motor vehicle insurance case. . . . One of the Superior Court judges on the panel hearing the appeal said in a concurring opinion that the trial judge prejudiced the plaintiff by the lack of disclosure. . . . The trial court judge was reversed on other grounds. . . . Philadelphia Court of Common Pleas Judge Allan L. Tereshko did not disclose that his wife, Heather Tereshko, was working in Post & Schell's professional liability department at the time that Post & Schell was representing the defendant in Barnes v. Westfield Group, according to the concurring opinion.


October 20, 2012 -- October 23, 2012


Arrowhead justice of the peace resists call to resign

By Sonu Munshi, The Republic | 

10-23-12 -- A Valley justice of the peace has refused to give up her $100,000-a-year post despite a call for her resignation from the court system’s presiding judge. . . . Maricopa County Justice Court Presiding Judge Steven McMurry made the request after an Arizona Republic investigation found Arrowhead Justice of the Peace Melanie DeForest did not have the education or job history she had claimed. . . . Further review by court officials also showed DeForest had not completed some required new-judge training.


11th Circuit Lifts Execution Stay for Mass Murderer; Defense Cites Insanity

By Debra Cassens Weiss, ABA Journal

10-23-12 -- A federal appeals court has vacated a stay of execution for a Florida inmate who believes he is the “prince of God” and he will return to earth after his lethal injection. . . . In a 2-1 decision, the Atlanta-based 11th U.S. Circuit Court of Appeals said a federal judge abused his discretion when he granted a stay for John Errol Ferguson, the Associated Press reports. Lawyers for Ferguson, who was convicted of murdering eight people in the 1970s, are asking the U.S. Supreme Court for an emergency stay, CNN reports.

Court halts execution of John Ferguson

Miami Herald Staff  

10-20-12 -- A federal court on Saturday put the execution of John Ferguson on hold and scheduled arguments for Friday on whether he is, as he contends, insane. . . . Ferguson, convicted of killing eight people in a 1970s murder spree, had been scheduled to be put to death Tuesday. . . . Saturday’s ruling by U.S. District Court Judge Daniel T.K. Hurley in Miami came just three days after the state Supreme Court upheld a lower-court ruling that Ferguson was sane and eligible to be executed. . . . Ferguson’s lawyers said that he suffers from paranoid schizophrenia and labors under the delusion that he is the “Prince of God.”


Judge charged with DUI to retire in January

Associated Press | San Francisco Chronicle   

10-23-12 -- A state judge who is facing a drunken driving charge says she will retire effective Jan. 4. . . . The Idaho Press-Tribune reports 3rd District Judge Renae Hoff has announced her retirement. Seven candidates have submitted applications for the vacant position. Applications are being taken until Nov. 9 by the Idaho Judicial Council. . . . Hoff was arrested and charged with misdemeanor DUI on Aug. 25. She was removed from presiding over criminal cases until her DUI charge is resolved. She pleaded not guilty and her trial is set for Dec. 4.

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Judicial elections require Illinois voters to research and follow the money

By Jayette Bolinski | Illinois Watchdog, Fox News

10-23-12 -- Voters take note: judicial elections matter. . . . That’s according to observers around the country who monitor judicial elections and the influence of campaign spending on the courts. . . . Chances are a judge has touched your life or the life of a loved one in some way, they say, and that’s why it’s important for voters to research judicial candidates — whether they serve on the U.S. Supreme Court or a local circuit court — before heading to the polls. . . . Take, for example, the U.S. Supreme Court’s June ruling that upheld President Obama’s Patient Protection and Affordable Care Act. Or, closer to home, how was your last run-in with a judge over a speeding ticket?

Chicago Will Borrow $80M to Pay Settlement with Black Firefighters

By Stephanie Francis Ward, ABA Journal

10-23-12 -- Chicago will borrow approximately $80 million to settle a discrimination action filed by black firefighter candidates who say that the city’s 1995 entrance exam was discriminatory. . . . Previously, the U.S. Supreme Court nixed the city’s argument that the candidates waited too long to challenge the test. . . . According to CBS 2, officials originally thought the settlement would cost between $30 and $40 million. . . . “We bonded for this back in, I think, the spring or summer of 2012, so it wouldn’t impact the budget, so it could be balanced,” Mayor Rahm Emanuel said. “On the other hand, I made sure we also brought a class of firefighters—African-American firefighters—in, and they’ll be graduating soon, and I want to make sure, again, that the practices and policies of the past don’t ever repeat themselves.”

Judge OKs deal over gender on birth certificates

Associated Press | NECN   

10-23-12 -- A Cook County judge has approved an agreement making it easier for people who undergo sex changes to get a new birth certificate. . . . Judge Michael Hyman signed an agreement Tuesday between the state of Illinois and the American Civil Liberties Union that allows people to change the gender on their birth certificate even if they haven't undergone genital reconstruction.


In vote on Supreme Court justice, backers focus on equality

Associated Press, Mason City Globe Gazette   

10-23-12 -- Supporters of Supreme Court Justice David Wiggins are hoping that a low-key campaign stressing Iowa’s history of equality will convince voters to reject a conservative effort to oust him for approving same-sex marriage. . . . Wiggins’ critics are asking voters to remove him Nov. 6, claiming he and his colleagues abused their power when they struck down Iowa’s ban on gay marriage in a 7-0 ruling in 2009. They are hoping for a repeat of 2010 — when voters took the unprecedented step of firing three of the justices — but acknowledge the state’s legal establishment and liberal groups are mounting a stronger campaign for Wiggins this year. . . . “I think that the retention vote will be much closer than it was two years ago,” said retired psychologist Rich Zeis of Walker, who donated $250 to the group leading the opposition to Wiggins.


Kansas Supreme Court names Malone as new chief judge of Court of Appeals

The Associated Press, The Republic  

10-23-12 -- Judge Thomas Malone is the new chief judge of the Kansas Court of Appeals. . . . The Kansas Supreme Court announced Tuesday that Malone will replace Chief Judge Richard Greene, who died on Oct. 7. . . . Malone has been acting chief judge since Greene became ill during the summer.


Lab scandal fallout: Judge clears path for Fitchburg prisoner's release

By Gary V. Murray, Telegram & Gazette Staff  

10-23-12 -- A judge has stayed the prison sentence of a Fitchburg man whose drug-trafficking conviction has been called into question because of former state chemist Annie Dookhan's apparent involvement in the case. . . . Superior Court Judge James R. Lemire issued a decision today staying Matti E. Thomasian's prison sentence of 3 years to 3 years and a day pending further court hearings and allowing his release from custody upon the posting of $1,000 cash bail. . . . Under the judge's order, Mr. Thomasian is to appear in Worcester Superior Court within one day of his release to sign pretrial probation conditions. He is also to report to the Probation Department by phone once a week while out of custody.


Verdict Of Voters To Determine Missouri Judicial Selection Process

By Maria Altman, KCUR       

In the upcoming election, Missouri voters will decide whether to change how judges are chosen in the Show-Me State. . . . More than 70 years ago Missourians voted for a nominating system that strove to take political influence out of the judiciary. But Constitutional Amendment 3 made it to November's ballot after increased criticism of that plan in recent years. . . . How it all works – now. . . . By now you're probably used to the onslaught of TV campaign ads. . . . Across the river in Illinois that includes election ads for judges. . . . You won't find that in Missouri, at least not for the state's Supreme Court, appellate courts and in urban counties including St. Louis and Kansas City. . . . That's because the Show Me State came up with a unique way of picking judges back in 1940 called the Missouri Nonpartisan Court Plan.


Bergen judge orders 'Roofing Police' contractor to pay $7.7 million to state, customers

By Dan Ivers/       

10-23-12 -- A Bergen County judge has barred a Garwood contractor from ever performing home improvement work in the state again, and ordered him to pay $7.7 million in restitution and penalties. . . . Attorney General Jeffrey S. Chiesa announced the judgement against 41-year-old John Kot, who had ties to 20 contracting companies that operated out of Garwood, Fair Lawn, Maywood and Hackensack. . . . Many of the companies - which used names such as Roofing Police, Roofing Squad and Chimney Squad - were known for vehicles that resembled police cars - which were often used to convince customers that they represented a public agency.

Gov. Christie prods Dems to hold hearing on judicial nominee Joseph Oxley

By Jenna Portnoy/Statehouse Bureau, The Star-Ledger    

10-23-12 -- Gov. Chris Christie today said former Monmouth County Sheriff Joseph Oxley hasn’t gotten a confirmation hearing because Democrats are determined to block the Republican governor’s judicial nominees. . . . “This is the typical games that they’ve been playing at judiciary committee now for three years,” Christie said during a news conference following an unrelated announcement.

N.J. Supreme Court to tackle privacy issues in cellphone, GPS case

By Anthony Campisi, State House Bureau The Bergen Record  

10-22-12 -- The New Jersey Supreme Court may help sketch new boundaries for privacy rights in an increasingly plugged-in culture as it considers a case in which prosecutors used cellphone information to track a suspect without a court order. . . . It’s an issue that has far-reaching implications, considering that more than 80 percent of Americans own at least one cellphone. And cellphone companies received more than 1 million requests last year from law enforcement for cell­phone records. . . . Though courts and police departments across the country have yet to come to a consensus on what protections cellphone data should be accorded, privacy rights groups and the court-appointed attorney for defendant Thomas W. Earls hope to build on a landmark U.S. Supreme Court ruling in January that found the warrantless electronic tracking of a suspect’s car unconstitutional.



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New York Judges at Opposite Poles Over Tax Treatment of Nude Dancing

By David Lat, Above the Law (Blog)  

10-23-12 -- Last month, we discussed an interesting case that was pending before the New York Court of Appeals, the state’s highest court. The question presented: whether an adult entertainment club is entitled to a sales tax exemption for admission and lap dance fees under the theory that these dances qualify as “dramatic or musical arts performances.” . . . Flying with the speed of boobie tassels attached to a stripper gyrating furiously around a pole, the court handed down its ruling just a few short weeks after oral argument. Here’s what the court held. . . . The court ruled in favor of the state and against Nite Moves, an Albany-area strip club. Like a stripper’s supple breasts, the court split right down the middle, 4-3. You can access the majority and dissenting opinions here (via How Appealing).



Rating the (judicial) ratings

By Tulsa World's Editorials Writers   

10-23-12 -- In the coming days, the Oklahoma State Chamber will begin publicizing its newfangled judicial rating scorecard for state Supreme Court justices who are up for retention. . . . In two weeks, voters must consider whether to retain Justices Noma D. Gurich, Yvonne Kauger, James E. Edmondson and Douglas L. Combs. . . . The State Chamber-backed Oklahoma Civil Justice Council recently released its evaluation of members of the court based on whether their decisions tended to broaden or restrict civil liability. . . . This is a very strange way to evaluate judges and takes into account their rulings in favor of only one segment of the community - business. We would certainly hope that judges are fair to the business community and fair to other segments of the community. A judge can be fair and obviously still rule against a party.


Our tortured pick for state Supreme Court: Sanders

We would have preferred a different choice for the state Supreme Court.

The News Tribune Editorial        

10-22-12 -- We would have preferred a different choice for the state Supreme Court. . . . Four candidates entered the race for the seat Justice Tom Chambers is leaving. Either of the two eliminated in the primary – former Pierce County Executive John Ladenburg and Judge Bruce Hilyer of King County – would have been better than the two who wound up in November’s runoff. . . . Not that we don’t like Richard Sanders and Sheryl Gordon McCloud. Each is highly intelligent and devoted to the law. It comes down to the role of the judiciary. Either McCloud or Sanders would bring a settled ideological agenda to the cases that reach the high court.


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October 17, 2012 -- October 19, 2012


Ten District Court Judges to Watch

Who are the most notable recent appointments to the federal bench? Top litigators say that these are 10 district court judges to watch.

By Brian Zabcik, The American Lawyer  

10-19-12 -- When presidents get attention for their judicial appointments, it's usually for their U.S. Supreme Court selections, or, more rarely, their circuit court picks. But over the course of a four-year term, the average president makes more than 100 appointments to the federal district courts. Most of these judges rule in obscurity, which is why we were especially curious to find out: Which recent appointments stand out? . . . We didn't try to judge the judges ourselves. Rather, we talked to litigators across the country and asked them to name the federal district court judges who have impressed them the most. Among the questions we asked: Which judges are known for the quality and significance of their opinions? Which judges have handled big cases? Most significantly, which judges are likely candidates for a circuit court nomination? We also wanted to look at roughly equal numbers of Republican and Democratic appointments, so we limited our consideration to judges appointed since 2005 — President George W. Bush's second term, and President Barack Obama's ­administration.

Retired Justice O'Connor to hear 2nd Circuit cases next week

By Grant McCool, Thomson Reuters News & Insights   

10-19-12 -- Retired U.S. Supreme Court Justice Sandra Day O'Connor will make a guest appearance next week on the federal appeals court in New York to hear arguments on cases ranging from corporate fraud to insurance and organized crime. . . . O'Connor previously sat on a panel in the 2nd U.S. Circuit Court of Appeals in lower Manhattan six years ago. . . . The court's website lists O'Connor on two panels at 2 p.m. on Oct. 25 and 26 with Chief Justice Dennis Jacobs and Circuit Judge John Walker. . . . The panel is scheduled to hear four cases each day. The issues on appeal include convictions of two former executives of pharmacy chain Duane Reade for fraud, as well as insurance and employment disputes.

Feds Join Suit Over LSAT Accommodations

By Vanessa Blum, The Recorder   

10-18-12 -- A federal class action accusing administrators of the LSAT exam of discriminating against disabled test-takers just got a lot bigger. . . . U.S. District Judge Edward Chen in San Francisco on Thursday granted a motion by the U.S. Department of Justice to intervene in the suit filed earlier this year by California's Department of Fair Employment and Housing. . . . That means the class of affected individuals will include disabled test-takers across the nation, not just in California. . . . In his order, Chen concluded the lawsuit directly impacts the federal government's interest in enforcing the Americans with Disabilities Act and that the Justice Department should be permitted to seek relief "on a national scale." . . . Last month, Chen fully denied a motion from the Law School Admissions Council to dismiss five causes of action in the lawsuit.

NY Appeals Court Nixes Defense Of Marriage Act

Associated Press   

10-18-12 -- A federal appeals court in Manhattan has become the second in the nation to strike down the Defense of Marriage Act as unconstitutional. . . . The 2nd U.S. Circuit Court of Appeals issued its ruling Thursday. The decision upholds a lower court judge who ruled that the 1996 law that defines marriage as involving a man and a woman was unconstitutional.

Invitation to Sue?

By Scott Jaschik, Inside Higher Ed     

10-18-12 -- A sharply divided federal appeals court on Wednesday refused to reconsider a March ruling that revived a lawsuit by a former graduate student against the University of Oregon. And the dissenting judges on the appeals court say that the refusal could endanger academic freedom and leave faculty members vulnerable to litigious graduate students. . . . The lawsuit charges that the university illegally retaliated against the graduate student after she complained of gender discrimination against female doctoral students in her program. The merits of the case have not been argued, but the full U.S. Court of Appeals for the Ninth Circuit refused Wednesday to rehear the March decision by a three-judge panel of the court to keep the lawsuit alive.

Circuit Questions Eyewitness Account, Upholds Reversal

By Joel Stashenko, New York Law Journal  

10-17-12 -- A federal appeals court ruled yesterday that a defendant's constitutional rights had been violated by a robbery victim's in-court identification that "substantially and injuriously" influenced the jury's deliberations. . . . A unanimous panel of the U.S. Court of Appeals for the Second Circuit, relying heavily on an amicus curiae brief from The Innocence Project, concluded that accepted scientific evidence raises significant questions about the reliability of the eyewitness identification of defendant Rudolph Young as the man who broke into the home of a couple and robbed them. . . . See also appellate briefs for Young and the prosecution.

Court asked to weed out restrictive marijuana classification

By Mike Scarcella, The National Law Journal  

10-16-12 -- In the eyes of the federal Drug Enforcement Administration, marijuana is a dangerous substance that's prone to abuse and has no accepted medical use in the United States. But has the agency taken as close a look as possible at the issue? . . . A lawyer trumpeting the apparent medicinal benefits of marijuana is trying to convince a federal appeals court in Washington that the drug agency's classification of marijuana is improper and should be reviewed further. . . . The DEA last summer dismissed a petition that sought the reclassification of marijuana from a highly restrictive "Schedule 1" drug to a lower designation. Marijuana is classified among drugs, including heroin, that have the highest relative abuse potential. Cocaine is lower than marijuana on the schedule list.

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Alleged 9/11 mastermind: America killed more people than hijackers did

By Jane Sutton, Reuters   

10-17-12 -- The alleged mastermind of the September 11 attacks told the Guantanamo courtroom on Wednesday that the U.S. government had killed many more people in the name of national security than he is accused of killing. . . . Khalid Sheik Mohammed was allowed to address the court at a pretrial hearing focused on security classification rules for evidence that will be used in his trial on charges of orchestrating the hijacked plane attacks that killed 2,976 people. . . . "When the government feels sad for the death or the killing of 3,000 people who were killed on September 11, we also should feel sorry that the American government that was represented by (the chief prosecutor) and others have killed thousands of people, millions," said Mohammed, who wore a military-style camouflage vest to the courtroom. . . . He accused the United States of using an elastic definition of national security, comparable to the way dictators bend the law to justify their acts.


Lawsuit by Disabled Vet Claims Debt-Collection Paralegal Told Him He Should Have Died

By Debra Cassens Weiss, ABA Journal

10-17-12 -- A disabled veteran claims in a lawsuit that a paralegal at a debt collection law firm responded with profanities and ill wishes when the veteran asked for release of disability benefits found to be improperly frozen. . . . According to the federal suit by Arizona veteran Michael Collier and his wife, Kim Collier-Dingman, the paralegal responded to Collier with this tirade: “F--- you! Pay us your money! You can't afford an attorney. You owe us. I hope your wife divorces your a--. If you would have served our country better you would not be a disabled veteran living off Social Security while the rest of us honest Americans work our a-- off. Too bad; you should have died.” Stars and Stripes and Courthouse News Service have stories.


After 2,000 Case Files Are Found in a Closet, Prosecutors Recommend Dismissals

By Debra Cassens Weiss, ABA Journal

10-18-12 -- A Georgia judge who discovered that her case manager had hidden more than 2,000 case files in a utility closet began hearing prosecutor recommendations on Tuesday about how to handle them. . . . In the first of five hearings, solicitors in Fulton County recommend dropping nearly all of the first batch of neglected criminal cases, according to the Fulton County Daily Report. Out of 111 cases, at least 18 were reset for trial and the others were dropped, Judge Susan Forsling told the publication.


Is $1,200 Bribe Worth $5K? Zoning Inspector Gets Conviction Tossed on Valuation Issue

By Debra Cassens Weiss, ABA Journal

10-19-12 -- What’s the value of a bribe? A federal appeals court considered the question when it overturned the conviction of a Chicago zoning inspector who accepted two $600 bribes to issue certificates of occupancy for four homes. . . . Dominick Owens was convicted under a federal statute with a $5,000 payment threshold, report the Associated Press, the Chicago Sun-Times and the Federal Criminal Appeals Blog. The government failed to prove the value of the bribes met the $5,000 requirement, according to the opinion (PDF) by the Chicago-based 7th U.S. Circuit Court of Appeals. . . . The federal bribery statute bars agents of federally funded entities from taking anything of value for influence “in connection with any business, transaction, or series of transactions ... involving any thing of value of $5,000 or more.” According to the opinion by Judge William Bauer, the law is ambiguous on how to measure value, and federal appeals courts have adopted a variety of approaches.


Girls’ Hoops to Get Equal Prime-Time Play in Southeast Indiana; 7th Circuit Refused to Toss Case

By Debra Cassens Weiss, ABA Journal

10-18-12 -- Girls who play basketball at 10 high schools in Southeast Indiana will play as many “prime-time” games as the boys because of a consent decree in a Title IX lawsuit. . . . Lawyer William Groth, who represented plaintiff Amber Parker, says the case sets a precedent because of a ruling (PDF) earlier this year by the Chicago-based 7th U.S. Circuit Court of Appeals, the Associated Press reports. In its Jan. 31 ruling, the appeals court refused to dismiss the case, saying the claim was actionable under Title IX. . . . Parker was fired as a coach after filing suit and won a separate $28,500 judgment for retaliation. "As a coach, I feel it has been a long time coming,” she said of the consent decree. . . . The agreement approved on Monday calls for the number of girls’ games played on Friday and Saturday nights to gradually increase until the 2016-17 school year, when they should equal the number of boys’ prime-time games.


New England’s Famous Witch-Hanging Judge


10-17-12 -- On Tuesday night at the New England Historic Genealogical Society, Boston chef Jeremy Sewall, of the restaurants LineageEastern Standard and Island Creek Oyster Bar, and author Eve LaPlante spoke about their common ancestor: Judge Samuel Sewall, the man who presided over the Salem witch trials and who has come to be known as New England’s hanging judge.

Not All Evil

Judge Sewall was LaPlante’s sixth great grandfather. He oversaw a dark moment in New England history — hundreds were accused of witchcraft, 19 of whom were hanged. Despite the deaths, LaPlante said there is a lot to admire about Judge Samuel Sewall. . . . “He did this terrible thing, hanging innocent people and voting to hang them. But then he repented in public, which was a Puritan thing to do. Nobody else did it at the time; none of the other judges did it,” she explained. . . . It didn’t stop there. Judge Samuel Sewall took up a number of causes.


Appeals Court Backs School in Missouri Student-Speech Case

By Mark Walsh, “School Law blogz” of Education Week   

10-17-12 -- A student web site containing racist and sexist content caused disruption at a Missouri high school and was likely not protected speech under the First Amendment, a federal appeals court has ruled. . . . A three-judge panel of the U.S. Court of Appeals for the 8th Circuit, in St. Louis, on Wednesday unanimously overturned a federal district court's preliminary injunction that had allowed two brothers at Lee's Summit North High School who were suspended for creating the web site to return to the school. . . . The case involves twin brothers Sean and Steven Wilson, who created a web site called NorthPress in December 2011 that contained a blog meant to discuss, satirize, and "vent" about events at Lee's Summit North High, court papers say. The 8th Circuit characterized the blog as containing several racist and sexist comments, including sexist remarks about female students at the high school.


Supreme Court Judge Carl J. Landicino arrested for DWI in Colonie

By Troy Record Staff    

10-19-12 -- A state Supreme Court judge from Yorktown Heights was arrested for DWI. . . . According to the State Police, Carl J. Landicino, 47, was spotted by troopers driving aggressively on I-87 and stopped at 4:06 p.m. . . . Troopers noticed signs of impairment and Landicino failed field sobriety tests.

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Fight ends over early voting in Ohio as US Supreme Court refuses to step in

Ohio had sought to cut short in-person early voting this year, but federal courts ruled it could not, citing potential disenfranchisement of older and low-income voters. On Tuesday, the US Supreme Court declined to enter fray in this key electoral state.

By Warren Richey, Christian Science Monitor Staff writer

10-16-12 -- The US Supreme Court on Tuesday declined an invitation to enter a raging election-year legal dispute in Ohio over the state legislature’s decision to eliminate one form of early voting for most voters in the three days prior to the Nov. 6 election. . . . The action lets stand earlier decisions clearing the way for all Ohio voters to engage in early voting on the Saturday, Sunday, and Monday before Election Day. . . . The high court action comes less than three weeks before Election Day and more than two weeks after voters in Ohio began casting early ballots on Oct 2.


Judicial Conduct Commission scolds Box Elder County judge on pay

By Tim Gurrister, Standard-Examiner staff 

10-17-12 -- A Box Elder County judge is facing discipline from the Utah Supreme Court for making too much money. . . . In its annual report released Wednesday, the state’s Judicial Conduct Commission listed Justice Court Judge Kevin Christensen as recommended for censure by the commission, with final action pending before the Utah Supreme Court. . . . Christensen serves as justice court judge for the county, with its courthouse in Brigham City, as well as the Box Elder cities Willard, Garland and Tremonton.

Amazon is a Victims-of-Law Advertiser

Attorney Barbara Johnson believes:

- Americans should have a common purpose
- Americans do not want bitter partisan debates
- Americans do not want "gender wars" and "culture wars"
- Americans want simple problems solved, without regard to special interests.

In her bestseller, Behind the Black Robes: Failed Justice, Attorney Johnson covers every conceivable topic regarding judges, their decisions, and how Americans are victimized by the judicial system. Some of the subjects she hits on are immunity and the pseudo Eleventh Amendment; quasi-judicial, prosecutorial, and qualified Immunities, which she terms “Protecting Judges, Parasites, the Other Enemies of the People”; legal malpractice or “foxes guarding the chicken coops”; problems with transcription companies; intimidation and insolence of judges; rape and date rape; child protection agency cases and governmental kidnapping; fraud and complicity by the Court; child custody; divorce; immigration fraud, and so much more.

Of greatest concerns to her are the immunity enjoyed by our judicial system, and the federal annual bonuses to the States, of which she believes, if abolished, our judicial ills would be cured immediately.

Barbara Johnson is a graduate of the New England School of Law: J.D., and earned her B.A. from Bennington College, along with attending Massachusetts Institute of Technology (MIT), Center of International Relations, and Middlebury College’s Russian Summer School.

She was awarded the West Publishing Company Corpus Juris Secundum Series Award, 1987, for highest annual scholastic average, and had her papers selected for the Nathan Burkan Memorial Competition (sponsored by ASCAP: "Patent or Copyright Protection for Computer Programs: A Traditional Legal Comparative Analysis Overlayed with a Linguistic Theory" by the Dean of New England Law School to Competition). She has trial and appellate experience in Massachusetts Superior, District, Probate & Family Courts, Appeals Court, Supreme Judicial Court, U.S. District Court for Massachusetts, has appearedd pro hac vice in the U.S. District Courts in Concord, New Hampshire, and Portland, Maine,and U.S. Court of Appeals for the First Circuit.

Mrs. Johnson now lives in Costa Rica.

The Courts:

Rochester resident puts American justice on trial

By Tim Louis Macaluso, rochestercitynewspaper

11-25-09 -- In the opening pages of "Ordinary Justice: How America Holds Court," Amy Bach recounts the story of a Texas defense lawyer, Joe Frank Cannon, who literally fell asleep during the trial of his client, Calvin Burdine. . . . After being convicted of murder for shooting a man during a convenience-store robbery, Burdine was sentenced to death. But in a sadly comical turn of events, a panel of federal appellate judges vigorously debated whether Burdine's attorney had violated the Constitution by repeatedly falling asleep, chin-to-chest, during his client's trial. . . . Burdine's death sentence was overturned and he was granted a new trial. But the real question, Bach says, is how did a defense lawyer sleep through a murder trial without a single objection from the judge, prosecutor, jurors, or courtroom witnesses? . . . After eight years of research, Bach found that such cases are not extraordinary. Instead, she says, they occur with disturbing regularity in courtrooms across the country, and require surprisingly little effort to find.


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INAUGURATED ON: September 26, 2004
Updated on 10/28/2012