Legislation and Lobbying
Posted Nov 09, 2016 03:44 pm CST
Proponents for legalized marijuana, increased minimum wage and stricter gun control provisions had a good Election Night.
On Tuesday, voters in seven states approved various marijuana-related ballot initiatives. According to the Wall Street Journal (sub. req.), California, Massachusetts, Maine and Nevada will now allow recreational use of marijuana. Arkansas, Florida and North Dakota have expanded access to medicinal marijuana. In Arizona, on the other hand, a recreational-use initiative failed.
The California initiative could bring in up to $1 billion in revenue to the state, although the Wall Street Journal reports that it’ll take a while to hit that number as California begins issuing licenses to sell marijuana.
Meanwhile, voters in Arizona, Colorado, Maine and Washington all approved minimum wage hikes. Washington will raise its wage to $13.50 per hour while the other states will go to $12. “The minimum wage wins tonight show that progressive values live at the state level and at the ballot box,” said Justine Sarver, executive director of the left-leaning Ballot Initiative Strategy Center, to the newspaper.
Several gun control measures were approved by voters on Election Day. In Washington state, voters enacted a measure that would allow law enforcement or family members to petition the state to deny a high-risk individual access to firearms. In the meantime, California voters approved a ban on high-capacity magazines and will require background checks for ammunition purchases. According to the Wall Street Journal, background-check expansions in Maine looked likely to pass (the vote is still too close to call) while the Las Vegas Sun reports that a provision to close a background-check loophole has been successful in Nevada. The National Rifle Association came out against all of the gun control measures, saying that they hurt gun owners’ rights.
According to the Wall Street Journal, most of the state initiatives on the ballot Tuesday were backed by Democrats frustrated at making little headway with their state legislatures.
Posted Nov 09, 2016 02:55 pm CST
Donald Trump’s campaign manager Kellyanne Conway on Wednesday refused to rule out the prosecution of Hillary Clinton for using a private server to send emails, though Conway did say the president-elect is seeking to unify the country.
Will there be a prosecution? And could President Obama pardon Clinton in advance of any prosecution? Politico and the Washington Post consider the possibilities.
During the Oct. 9 debate, Trump said he would seek a special prosecutor to look into Clinton’s situation. At Trump rallies, “Lock her up,” has been a frequent refrain.
Conway said in a TV appearance Wednesday on MSNBC that “we haven’t discussed [prosecution] in recent days, and I think that it’s all in due time,” report Reuters and MassLive.com. She made similar comments in other TV appearances.
Obama could head off a prosecution. Experts told Politico that Obama could pardon Clinton for any federal offenses she may have committed, even if she doesn’t seek a pardon. The pardon could extend not only to any offenses committed as secretary of state, but also to any statements she has since made and any conduct in connection with the Clinton Foundation.
Politico notes possible political repercussions. A pardon “would surely trigger charges of unfairness and political favoritism, while seeming to some to be an admission of guilt,” the article states.
But there is precedent for pardons in advance of charges. President Nixon was pardoned, as were Vietnam War draft dodgers. And President Clinton granted clemency to former CIA Director John Deutch in a case involving the handling of classified information stored on his home computer, Politico says.
If no pardon is granted and Trump decides to prosecute, he couldn’t just “snap his fingers and throw his political rival behind bars,” the Washington Post notes. Trump would have to order his attorney general to appoint a special prosecutor; the attorney general would have to comply; Clinton would have to be charged with an offense; a trial would have to be held; and she would have to be found guilty.
Posted Nov 09, 2016 02:00 pm CST
Voters in Colorado overwhelmingly rejected a proposed law that would have established a single-payer health care system in the state.
On Tuesday, the proposed Amendment 69, or “ColoradoCare,” lost in a landslide at the polls. According to The Denver Post, nearly 80 percent of voters voted against the measure. The proposed law would have gotten rid of most private insurance in the state in favor of a public health co-op funded through a 10 percent payroll tax. According to the Denver Post, the Amendment’s defeat was comprehensive—even the relatively liberal city of Denver voted it down by a two-to-one margin, based on early returns.
The initiative was controversial from the start and engendered opposition from the business community, health insurance companies and politicians from both sides of the aisle, including state governor John Hickenlooper, a Democrat. The co-op’s budget, which stood at a proposed $36 billion, would have made it the largest agency in Colorado and would have more than doubled the state’s budget. “We’re grateful to the people of Colorado for carefully considering Amendment 69 and voting overwhelmingly against a measure that was clearly risky, untested, and fiscally irresponsible,” Kelly Brough, president and CEO of the Denver Metro Chamber of Commerce and chair of opposition group Coloradans for Coloradans, said in a statement to the Denver Post.
Meanwhile, supporters of ColoradoCare vowed that they would try again. “We learned a lot,” said author T.R. Reid to the Denver Post. “And we’ll definitely be better next time.”
Posted Nov 09, 2016 01:54 pm CST
A law clerk/staff attorney accused of donning a judge’s robes and ruling in cases has won a judicial election in Cook County, Illinois, despite a state supreme court order temporarily barring her from the bench.
Rhonda Crawford had at least 74,000 votes with about 85 percent of the precincts reporting, defeating a write-in candidate who said she had “several thousand votes,” the Chicago Tribune reports.
Crawford was accused of ruling in three traffic court cases in August as part of a shadowing process. She was indicted in October on a felony charge of official misconduct and a misdemeanor charge of false impersonation.
The Illinois Supreme Court has suspended Crawford’s law license and banned her from taking the bench “until further order of the court.” The judgeship will remain unfilled unless she is permanently banned from the bench and the Supreme Court appoints a replacement, according to the Tribune.
The write-in candidate, Maryam Ahmad, told the Tribune that, when talking to voters, she was shocked by how many were unaware of Crawford’s legal problems. “It’s very sad given the awesome responsibility that judges have,” Ahmad said.
The Wall Street Journal Law Blog (sub. req.) noted the Tribune story. Crawford’s lawyer, Victor Henderson, told the Law Blog that they would “address the charges head-on” and his client “looks forward to having the full story told and clearing her name.”
Business of Law
Posted Nov 09, 2016 01:15 pm CST
The legal industry stands to benefit when Donald Trump takes office. That’s the conclusion of legal consultant Peter Zeughauser.
Zeughauser tells Law360 (sub. req.) that “we’re going to see a legal industry on steroids” with Donald Trump in office. A Trump administration “would be the biggest thing in the legal industry since the enactment of the U.S. Constitution,” he declared.
Trump could begin changing immigration law immediately with executive actions that repeal President Barack Obama’s deferred deportation program, according to the article. Changes in immigration law would mean work for immigration lawyers asked to advise businesses on how to keep their workers, immigration lawyers told Law360. Trump could also increase corporate audits to make sure companies are complying with record-keeping requirements to prove their employees are eligible to work here.
Lawyers working in the area of international trade would “have a field day” if Trump acts on his pledges to renegotiate trade deals and impose protectionist measures, according to the article. Some of his actions could bring legal challenges before the International Trade Commission.
Changes to the Affordable Care Act could also affect the legal industry. Whether or not Congress adopts Republican ideas to change the health care law, “the legal industry expects the jockeying over health policy to continue to benefit it,” the story says.
Trump’s pledge to increase spending to rebuild infrastructure could also “steer a lot of work to the legal sector,” according to the story. “Any effort to strengthen roads or speed up railways inevitably runs up against a range of property concerns and regulatory hurdles.”
By Fredrick P. Niemann, Esq. of Hanlon Niemann & Wright, a Freehold, NJ Estate Administration Attorney
Occasionally I have clients who are NJ residents but one spouse is an illegal resident meaning he or she is undocumented. Recently I read about a case where the husband died leaving his entire estate totaling $4 million to his wife. Three months later the wife died leaving her entire estate – the same $4 million – to their children, all adults. Both husband and wife are New Jersey domiciliaries, meaning New Jersey is their home state.
The executor of the wife’s estate obtained a Court Order authorizing the disclaimer of $675,000 of assets (see my several blogs & videos on the topic of disclaiming found in the table of contents) otherwise payable from husband’s estate to her that would not have passed to the children. There’s no federal estate tax due on either estate; now soon in New Jersey there will be no estate tax. As of the writing of this article the Governor and State Senate have agreed to gradually phase out the N.J. death tax starting January 1, 2017.
But…and here’s the twist…it turns out that wife may not be a US citizen, so no marital deduction is available in the husband’s estate, thus creating a New Jersey estate tax in husband’s estate and again in wife’s estate. To avoid this result (if indeed she isn’t a US citizen) it seems the options are: 1) establish a QDOT (called a Qualified Domestic Trust) which is used to shelter otherwise payable death taxes when a Non-US Citizen inherits an estate or 2) seek to amend the disclaimer to authorize a 100% disclaimer of all assets in husband’s estate by disclaiming the entirety of husband’s estate. Those assets would then pass directly to the children and avoid inclusion in wife’s estate and still avoid all Federal death tax and a substantial portion of New Jersey death tax.
In this case I think the best solution is to apply for court approval to apply the additional disclaimer in excess of $675,000 threshold. I don’t think you need to amend the previous disclaimer if you get court approval for an additional disclaimer, based on newly discovered citizenship status. But note that you may not even need court approval as N.J.S.A 3B:9-4 was amended in 2004 to permit an executor to disclaim without court approval if the will so permits.
An interesting case indeed!
To discuss your NJ Estate Planning or Administration and Probate matter, please contact Fredrick P. Niemann, Esq. toll-free at (855) 376-5291 or email him at email@example.com. Please ask us about our video conferencing consultations if you are unable to come to our office.
Posted Nov 08, 2016 02:54 pm CST
A judge in Clark County, Nevada, on Tuesday ordered a lawyer for the Donald Trump campaign to sit down and denied his request for an order to preserve polling data at four polling places that stayed open late last Friday.
Judge Gloria Sturman said the Trump campaign had failed to exhaust administrative remedies before coming to court in a bid to preserve and sequester voting data for late-cast votes at the four locations in the Las Vegas area, according to tweets by National Law Journal reporter Zoe Tillman.
The campaign had also sought preservation of information on people working at the polls, according to Tillman, the Las Vegas Review-Journal and the Associated Press. The suit targets polling places with large minority populations, CNN reports.
According to the suit (PDF), the election law violations “were not random and neutral in their effect, but very much appear to have been intentionally coordinated with Democratic activists in order to skew the vote unlawfully in favor of Democratic candidates.”
Nevada law allows polling stations to remain open until everyone in line at closing time has a chance to vote, according to the suit. The Trump campaign says voters who showed up after the scheduled closing time at the four locations were allowed to vote, while voters at other sites who came late didn’t get to vote.
The lawsuit cites tweets about the late poll closings that encouraged people to go vote after the scheduled 8 p.m. closing time. The tweets came from “Twitter accounts supporting Democrats and the press,” according to the suit.
During the hearing on Tuesday, Sturman appeared “exasperated” as she “tore into Trump’s lawyers,” Vanity Fair reported.
Sturman said she didn’t know why a court order is needed when the county registrar is already required to preserve records. “Are [the votes] not to be counted?” she asked. “What are you saying? Why are we here? You want to preserve the poll data? That is offensive to me. Why don’t we wait to see if the secretary of state wants to do this?”
Sturman also said she was concerned about harassment of the poll workers. “I am not going to expose people doing their civic duty to help their fellow citizens vote … to public attention, ridicule and harassment,” she said.
Sturman then told Trump’s lawyer, “Thank you, sit down.”
Real Estate & Property Law
Posted Nov 08, 2016 02:00 pm CST
A lawyer asked a planning board in New Jersey on Monday to allow the owners of the so called “Watcher” house to subdivide the parcel so they can sell it for development.
Lawyer James Foerst said the $ 1.3 million home owned by Derek and Maria Broaddus is “stigmatized” and the house should be torn down to make way for two new houses, NJ.com reports.
The homebuyers refused to move into the home in Westfield, New Jersey, after receiving three letters from a person calling himself “the Watcher.”
The writer said the home had been watched by the writer, his father and his grandfather, and he was in charge of the house. The writer said he had asked for “young blood” and now he is waiting for the day when they “will be mine again.” He also asked if the owners had found what was in the walls.
The homeowners are seeking redevelopment because they have been unable to sell the home. The Westfield Planning Board did not decide on Monday whether to grant the request.
The homebuyers have sued the sellers of the home, who say they received only one strange letter and it wasn’t threatening.
Media & Communications Law
Posted Nov 08, 2016 12:24 pm CST
Federal jurors on Monday awarded $3 million in damages to a former University of Virginia administrator who claimed she was defamed by a Rolling stone article about a gang rape that was later retracted.
Jurors in Charlottesville, Virginia, found that reporter Sabrina Rubin Erdely was liable for $2 million and that Rolling Stone and its parent company were liable for $1 million, report the New York Times and the Washington Post.
Jurors awarded the money to former administrator Nicole Eramo, who claimed she was wrongly portrayed as unresponsive to the rape claim in the article. Eramo had sought $7.5 million.
Eramo testified on Monday that, after the article was published, she lost her title as associate dean and was no longer allowed to counsel students on sexual violence matters. She said she received hundreds of hateful messages and she lost-self-confidence.
A Rolling Stone lawyer said the magazine’s agreement with Erdely obligated it to cover all liability related to the article, according to the Times.
Posted Nov 08, 2016 11:50 am CST
A federal court in Washington, D.C., has rejected a First Amendment challenge to the ban on state and local political parties’ use of unlimited, soft-money political donations for activities affecting federal elections.
A three-judge panel of the district court ruled on Monday in an opinion by Circuit Judge Sri Srinivasan, who was sitting on the district court panel, the Washington Post reports. The decision (PDF) upheld the last major remaining provision of the Bipartisan Campaign Reform Act of 2002, which is also known as McCain Feingold, according to the Post.
The lead lawyer challenging the restrictions, James Bopp Jr., had argued the 2010 decision in Citizens United had called into question a 2003 Supreme Court decision, McConnell v. Federal Election Commission, which had upheld the limits on soft-money contributions to political parties.
Citizens United had struck down restrictions that barred corporations from spending money on campaign ads in the days before an election. It also overturned part of McConnell that had upheld the federal restrictions on independent corporate expenditures.
“Plaintiffs misperceive the reach of Citizens United,” Srinivasan wrote. Citizens United concerned independent campaign expenditures and didn’t concern limits on contributions to political parties, he said.
Srinivasan also said there was “no salient distinction” between the current case and a 2010 case in which a U.S. Supreme Court summary affirmance upheld the soft money restrictions in an as-applied challenge to the law.
Currently, individuals can annually contribute up to $33,400 to any national political party and $10,000 to any state or local political party in what are known as hard money contributions. Funding from individuals above the statutory ceilings or funding from corporations can’t be used by political parties for federal elections, and are known as nonfederal or soft money, Srinivasan explains in the opinion.
The restrictions at issue in the current case ban state and local parties from using soft money for federal election activity. Bopp had argued the restrictions put political parties in a disadvantaged position to super PACs.
The decision can be appealed directly to the Supreme Court, which must decide the case, according to the Post. “We just believe they’re wrong, and we’re certainly appealing to the Supreme Court,” Bopp told the newspaper.
The case is Republican Party of Louisiana v. Federal Election Commission.