October 24, 2012 --
October 26, 2012
FEDERAL COURTS
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, Law.com, 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
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.
CALIFORNIA
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.
DISTRICT OF COLUMBIA
'Change of Appearance'
Instruction Upheld in Case of Defendant Wearing Eyeglasses
to Court
Posted by Bruce Carton, Law.com 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.
GEORGIA
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.
INDIANA
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.
KENTUCKY
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.
MICHIGAN
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! RefugefromIslam.com.”
. . . 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. DetroitCoR.org.”
. . . 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.
MISSISSIPPI
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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NEW
JERSEY
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,
NEW
YORK
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.
OHIO
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.
PENNSYLVANIA
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.
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ARIZONA
Arrowhead justice of the
peace resists call to resign
By Sonu Munshi, The Republic | azcentral.com
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.
FLORIDA
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.”
IDAHO
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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ILLINOIS
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.
IOWA
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
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.
MASSACHUSETTS
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.
MISSOURI
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.
NEW
JERSEY
Bergen judge orders
'Roofing Police' contractor to pay $7.7 million to state,
customers
By Dan Ivers/NJ.com
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
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).
OKLAHOMA
Beware
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.
WASHINGTON
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.
October 17, 2012 --
October 19, 2012
FEDERAL COURTS
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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MILITARY COURTS
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.
ARIZONA
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.
GEORGIA
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.
ILLINOIS
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.
INDIANA
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.
MASSACHUSETTS
New England’s Famous
Witch-Hanging Judge
WBUR
10-17-12 -- On Tuesday
night at the
New England Historic Genealogical Society, Boston
chef Jeremy Sewall, of the restaurants
Lineage, Eastern
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.
MISSOURI
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.
NEW
YORK
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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OHIO
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.
UTAH
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.
Eyes
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