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I Can’t Find The Original Last Will! Now What Do I Do?

Posted by on Jun 21, 2018 in Elder Care | Comments Off on I Can’t Find The Original Last Will! Now What Do I Do?

By Fredrick P. Niemann, Esq. of Hanlon Niemann & Wright, a Freehold, NJ Probate & Estate Administration Attorney

Recently, I was required to make an application before the Chancery Court in Monmouth County to file an application to have a copy of an original Will approved for probate.

In New Jersey, it is a requirement that an original Will be submitted for probate and not a copy. But as we all know, originals get lost and what happens if they can’t be found. Does that mean that the Will cannot be probated? The answer is no, there is a procedure which the Court recognizes to address the absence of an original when it is established that the true copy remains the testamentary intentions of its creator.

A last will and testament that contains the necessary elements for it to be valid under N.J.S.A. §3B:3-2 will generally be admitted to probate by the Surrogate of the county in which the decedent was a resident, with no further action needed to be taken by the Superior Court. For a will to be properly executed, the statute requires that the will be:

(1) in writing;

(2) signed by the testator or in the testator’s name by some other individual in the testator’s conscious presence and at the testator’s direction; and

(3) signed by at least two individuals, each of whom signed within a reasonable time after each witnessed either the signing of the will as described in paragraph (2) or the testator’s acknowledgment of that signature or acknowledgement of the will.

But what happens if the executor cannot find the original will, and the original will was last seen with the testator and/or the testator had access to the original will at the time of death. The fact that it cannot be found after a person’s death raises a presumption that its creator destroyed it, meaning it was revoked. Because of this, “a doubt arises on the face of a will that the will has been lost or destroyed”. New Jersey Court rule R.4:82, requires that the Surrogate not admit the will for probate and the Superior Court must review the application and enter a judgment accordingly.

When an original will cannot be found, case law requires that the proponent of the purported will prove by clear and convincing evidence that the will was properly executed under the laws of this state and that the testator did not revoke the will. As to the second element, the “presumption of revocation does not arise unless the decedent had possession of, or at least access to, the original will during their lifetime.” Ultimately, the court must grapple with the question of the testator’s original intent. Finally, if there is no dispute by the parties of interest that the original was lost and that the purported copy “accurately provides the contents of the lost will,” the proponent is not required to put forth other evidence as to the execution and contents of the lost will.

To have a Last Will admitted into probate requires the filing of a Verified Complaint with a copy of the original will that meets all the formalities of a self-executing will as defined by statute. It is in writing and signed by the Decedent whose signature was simultaneously witnessed by two people. It helps if the Decedent acknowledged all pages of the purported will as his by signing his name or initials in the left margin of each page. The testimony of witnesses that the decedent kept heirs and family members aware of all assets, and believed the original will to be in his home, which a Plaintiff has searched to no avail is also probative.

Especially helpful is if the Decedent never told the Plaintiff he wished to revoke the will he had in place. In fact, a Decedent executed a codicil in the same will to change one of the charitable bequests making reference to the earlier original will being still in existence is very helpful.

To discuss your NJ Probate & Estate Administration matter, please contact Fredrick P. Niemann, Esq. toll-free at (855) 376-5291 or email him at fniemann@hnlawfirm.com.  Please ask us about our video conferencing consultations if you are unable to come to our office.

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ABA asylum project attorney describes representing separated families at the border

Posted by on Jun 21, 2018 in Elder Care | Comments Off on ABA asylum project attorney describes representing separated families at the border

McAllen Texas processing facility.

Immigrants are detained June 17 at the Border Patrol’s central processing center in McAllen, Texas. U.S. Customs and Border Protection.

Attorneys representing asylum-seekers from Central America frequently have worked with traumatized clients. But since the federal government began separating families after arresting parents for illegal entry, Kimi Jackson of the ABA’s South Texas Pro Bono Asylum Representation Project says the trauma has gotten far worse.

“We’ve served these two populations for years, but never have we seen anything like what’s going on now with these family separations,” Jackson, the director of ProBAR, tells the ABA Journal. “The children who are separated from their parents obviously are very traumatized. And [the parents are] in acute distress because they don’t know where their children are.”

ProBAR is based in the Rio Grande Valley of Texas, where the Mexican border, U.S. Customs and Border Protection stations and multiple immigrant detention centers are located. The project connects volunteer attorneys with both adult and child clients seeking asylum. Central America is a region wracked by violence, as the Council on Foreign Relations explained in January.

As Jackson describes it, recent federal policy changes have made every step of the asylum-seeking process more difficult. That starts at the border, where, under U.S. and international law, foreign nationals are supposed to be able to present themselves to a CBP agent to request asylum. But Jackson says CBP has been turning them back.

“They started stationing an officer at the middle of the bridge, right on the international border, just on the U.S. side, and not allowing the asylum seekers to set foot in the United States at all,” says Jackson. “People are flat-out being denied access to the legal way to request asylum. Denying people the right to request asylum is not permitted by law. So instead, the only way to come is without inspection [illegally].”

En masse hearings

Those caught entering outside of an official crossing are arrested and taken to CBP stations for processing. This is where parents and children are separated, she says. Minors may be kept up to 72 hours before being turned over to the Office of Refugee Resettlement, part of the U.S. Department of Health and Human Services. Adults generally spend about two days at the CBP station before they are taken—still in the street clothes they crossed in, and shackled at the waist and wrists—to federal court.

There, the adults are asked to plead to unlawful entry—a misdemeanor on first offense, which it is in most cases. These are hearings en masse, Jackson says—up to 100 people at a time may enter pleas on the busiest days. Because there are so many, they are asked to stand or sit to indicate answers to questions.

Marjorie Meyers, the federal public defender for the Southern District of Texas, says the mass hearings predate the Justice Department’s “zero tolerance” policy that is separating families. Her attorneys explain the basics to the entire group and meet with each defendant individually. But because the facts are usually not in dispute, it generally doesn’t make sense to fight the charges, and most people plead guilty.

“So does it violate due process? Arguably,” she says. “Is the result any different if it was individualized? I don’t think so, because they’re getting time served.”

The San Francisco-based 9th U.S. Circuit Court of Appeals has ruled that these mass hearings violate due process, Meyer notes, but the New Orleans-based 5th Circuit, which includes South Texas, has not weighed in. Some of her colleagues in the Western District of Texas have argued that taking the children has a coercive effect that violates their clients’ due process rights, but that claim was rejected by a magistrate and a judge, according to the Houston Chronicle.

The sentence after these pleas is generally time served—the two days or so defendants spent in CBP custody—and they’re sent directly to immigration detention centers. There, they’re put into “expedited removal”—deportation without a court hearing—unless they pass an interview that permits them to claim asylum. This means they don’t appear on immigration court dockets, which means ProBAR is not able to provide them with services unless they happen to call.

“Many will be deported without ever seeing any attorney,” Jackson says.

Representing underage clients

Meanwhile, the children stay in HHS custody unless they can find an adult sponsor in the United States—a relative or family friend who has been evaluated by the government. Younger children may not know how to reach any such person, Jackson says, and the federal government has no provision for families to communicate or reunite while in detention.

This makes proving their asylum cases difficult, Jackson says. She says the separated children are more likely to be under age 12 than truly unaccompanied minors. They may not know all the facts of their cases because parents have shielded them, she says. That’s in addition to the difficulties created by their age and any trauma they’ve experienced—from the conditions in their home countries, the difficult journey or the policy of family separation.

Jackson is skeptical of federal officials’ claims that family separation is a deterrent to further immigration. She works directly with asylum seekers from Honduras, El Salvador and Guatemala, where criminal street gangs are in control and are ignored or even assisted by police. If you’re the mother of a 12-year-old girl that a gang member has claimed as his “girlfriend,” she says, even the prospect of being incarcerated for seeking asylum may be better than the alternatives.

“Your daughter can either say yes, in which case she’s going to get involved with gangs. Or she can say no, in which case she’ll be gang-raped and killed,” says Jackson. “Nothing is going to deter you from leaving and protecting your child.”

Attorneys interested in helping represent the separated minors or their parents can volunteer through ProBAR, either in South Texas or in their home cities, or donate through the ABA’s Fund for Justice and Education. ProBAR is also adding South Texas staff positions to meet the new demand, and is actively seeking applications from immigration lawyers fluent in Spanish.

See also:

ABA Journal: “Along the Texas-Mexico border, immigration lawyer Kimi Jackson deals with life and death”
ABAJournal.com: “Immigrants illegally entering the country experience ‘rapid-fire justice’ in federal courts”
ABAJournal.com: “Want to stop separation of immigrant families? ABA plans grassroots effort, while new group forms”
ABAJournal.com: “Separating families violates civil rights, won’t work and is inhumane, ABA president says”
ABAJournal.com: “Trump signs an executive order to end family separations; will it spur lawsuits?”


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Judicial board seeks to remove Illinois judge who won’t step down after conviction

Posted by on Jun 21, 2018 in Elder Care | Comments Off on Judicial board seeks to remove Illinois judge who won’t step down after conviction

Judiciary

ESB Professional/Shutterstock.com.

A judicial board has taken a first step to remove an Illinois judge convicted of mortgage fraud who refuses to resign.

The Illinois Judicial Inquiry Board filed a complaint on Tuesday against Judge Jessica Arong O’Brien of Cook County, report the Chicago Tribune and the Chicago Sun-Times. The complaint asks the Illinois Courts Commission to suspend O’Brien’s pay until a hearing on her removal.

The complaint says the Illinois Constitution bars O’Brien from judicial office because she is not currently licensed to practice law.

O’Brien’s law license has been temporarily suspended pending further disciplinary proceedings. Yet she has filed paperwork to seek retention as a judge in the November election, according to the judicial board.

O’Brien is paid more than $195,000 a year. She was switched to administrative duties after her April 2017 indictment, but a spokesperson for Cook County’s chief judge says O’Brien is no longer doing that work, according to the Sun-Times.

O’Brien was convicted in February based on allegations that she defrauded lenders a decade ago. She was accused of making $325,000 by selling two homes in 2007 to straw purchasers who later defaulted on mortgage payments, according to prior coverage by the Chicago Tribune.

O’Brien’s lawyer, Steve Greenberg, told the Tribune and Sun-Times that the courts commission doesn’t have jurisdiction because the conviction was for conduct that occurred before O’Brien became a judge. He also said there are post-trial motions pending and the court has not entered a final judgment.


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How do you deal with difficult clients?

Posted by on Jun 21, 2018 in Elder Care | Comments Off on How do you deal with difficult clients?

Question of the week

Antonio Guillem/Shutterstock.com.

It’s inevitable that you’ll encounter a difficult client at least once in your career. Knowing the best way to deal with such an individual may help keep things calm all around.

Writing for Law Practice Today, Matt Potempa of Martin Heller Potempa & Sheppard in Nashville, Tennessee, notes three key tips for dealing with such people:

  • Listen: “Matching their vitriol will only worsen the encounter.”
  • Educate without being condescending: “Explain your world.”
  • Know when to confront and how to deal with difficult realities: “Evaluate and choose the appropriate medium of communication for the situation.”

Screening potential clients is also crucial, Potempa writes. Assessing an individual “is a huge way to reduce the stress of working with a difficult person on a regular basis,” he says.

This week, we’d like to ask you: What are your tips for dealing with a difficult client or any difficult person? Answer in the comments.

Read the answers to last week’s question: Should job interviews be phased out?

Featured answer:

Posted by TAGLAW: “Interviews in their current format should ABSOLUTELY be phased out. First of all, people can pad their resumes with all sorts of artful nonsense that fits the job description and technology provides ways to help them talk their way through the few job related interview questions that arise. The rest is all salesmanship. What happens if you have a brilliant candidate that isn’t a salesman? The fake person presenting themselves as the person they think the recruiter wants them to be is not at all the real person they could potentially hire. The best way to get a gauge of whether a person will fit into an organization is to speak to them in a more natural setting about more natural things. Most recruiters are not trained psychologists so asking how they acted under pressure in one situation in their lives isn’t really enough information for an employer to judge whether or not a person can function in a “fast paced environment” whatever that means.”

Do you have an idea for a question of the week? If so, contact us.

See also:

ABAJournal.com: Have you ever felt you had to limit contact with a difficult client?


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Trump signs an executive order to end family separations; will it spur lawsuits?

Posted by on Jun 21, 2018 in Elder Care | Comments Off on Trump signs an executive order to end family separations; will it spur lawsuits?

Immigration Law

Trump

President Donald Trump/Albert H. Teich (Shutterstock.com).

Updated: President Donald Trump has signed an executive order to end the separations of immigrant families at the border.

Trump signed the order Wednesday afternoon, report CBS News and a tweet by the Associated Press.

The order says it is the policy of the administration to “rigorously enforce” immigration laws, and it is also administration policy to to maintain family unity.

The order says the Department of Homeland Security should house immigrant families while criminal or immigration proceedings are pending, “to the extent permitted by law and subject to the availability of appropriations.”

The order says the Defense Department should provide available housing for immigrant families and should construct such facilities “if necessary and consistent with law.” The order also directs the heads of all executive departments and agencies to make appropriate facilities available to house the immigrants.

The order also directs Attorney General Jeff Sessions to ask a federal court to modify a 1997 consent decree to allow DHS to detain the immigrant families together the entire time that criminal or immigration proceedings are pending. The consent decree, and a subsequent federal appellate decision interpreting it, require immigrant children to be released or transferred to a licensed facility within a reasonable period, set presumptively at 20 days.

Families were being separated because the parents were being transferred to federal criminal custody pending a court hearing for illegal entry, which is a misdemeanor for a first-time offense. The Trump administration had instituted the prosecutions as part of its zero-tolerance policy.

ABA President Hilarie Bass applauded the president’s decision to sign the order and called on the government to quickly reunite families. “The ABA pledges its full support in working within the legal community to make this happen,” Bass said in a statement.

Bass called the executive order “a first step” and said comprehensive and just immigration reform is still needed. The ABA opposes detention of noncitizens except in extraordinary circumstances and favors the least restrictive alternative to ensure appearance in immigration proceedings, she said. Families should not be detained, she said, absent an individualized determination of flight or security risk.

If families are detained, visits should be allowed by independent observers, friends and families, Bass said. Detainees should also receive legal information explaining the process and rights.

The ABA also supports government-funded counsel to represent indigent people in removal proceedings.

Bass is directing lawyers who want to volunteer to this resource page.

News about the executive order developed throughout the day.

The first reports, which relied on anonymous sources, said DHS Secretary Kirstjen Nielsen was drafting the executive order, in consultation with White House lawyers. The Associated Press broke the news. More news coverage followed, including stories by the New York Times and Politico.

Nielsen has previously said there is no policy to separate families, but it is required by the federal court decisions. Parents were separated from their children and transferred to criminal custody for prosecution for illegal entry.

White House aides told the Times that Trump was aware his actions could lead to court battles over alleged violations of the consent decree.

The American Civil Liberties Union had previously filed a suit seeking to prevent family separations. ACLU executive director Anthony Romero indicated the organization wasn’t satisfied with Trump’s plans.

“This executive order would replace one crisis for another,” Romero said in a statement before details of the order were made public. “Children don’t belong in jail at all, even with their parents, under any set of circumstances. If the president thinks placing families in jail indefinitely is what people have been asking for, he is grossly mistaken.”

Story updated at 1:10 p.m. to include more information on possible lawsuits and the ACLU statement; updated at 2:20 p.m. to report that Trump has signed the order; updated at 3 p.m. to report on directives in the order. Story updated at 4:40 p.m. to include the ABA statement.


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Judge tosses suits over background check of Dylann Roof, calls FBI explanation ‘nonsense’

Posted by on Jun 21, 2018 in Elder Care | Comments Off on Judge tosses suits over background check of Dylann Roof, calls FBI explanation ‘nonsense’

Trials & Litigation

A federal judge in Charleston, South Carolina, says the FBI provided a “nonsense” explanation for its failure to quickly discover a key fact in a gun background check of mass shooter Dylann Roof, but the judge nonetheless tossed 16 lawsuits against the agency for the misstep.

U.S. District Judge Richard Gergel said he dismissed the suits Monday because the law creating the background system, the Brady Handgun Violence Prevention Act, generally gives the government immunity for failing to prevent gun purchases by wrongdoers, report the Post and Courier, the New York Times and Courthouse News Service.

Gergel nonetheless said the lawsuits had revealed “glaring weaknesses” in the background check system.

The system “is disturbingly superficial, excessively micromanaged by rigid standard operating procedures, and obstructed by policies that deny the overworked and overburdened examiners access to the most comprehensive law enforcement federal database,” Gergel said.

The FBI did not learn before expiration of a three-day waiting period that Roof had formerly told police he used drugs—a fact that would have barred the avowed white supremacist from buying the gun he used to kill nine people in June 2015 at a historically black church in Charleston.

The FBI had learned of the drug arrest, but the background check unit was not able to use an agency database with a police report about Roof’s prior arrest. The FBI says its background check unit doesn’t have a criminal justice purpose, which prevents it from accessing the database.

Gergel said the argument “is simple nonsense” and the FBI does not have to wait to change a regulation to allow access to the database.

Roof was sentenced to death in January 2017.


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Immigrants entering the country illegally experience ‘rapid-fire justice’ in the federal courts

Posted by on Jun 20, 2018 in Elder Care | Comments Off on Immigrants entering the country illegally experience ‘rapid-fire justice’ in the federal courts

Immigration Law

Brian A. Jackson/Shutterstock.com.

Seventy-four immigrants who entered the country illegally pleaded guilty in groups of seven on a recent Monday in a federal courtroom In Tucson, Arizona, where the New York Times observed their cases.

Most of the immigrants experiencing “rapid-fire justice” were sentenced to time served in jail—usually just a few days—and transferred to Immigration and Customs Enforcement, the Times reports. They will stay in detention until they are deported, unless they file an asylum application that is deemed sufficient for a hearing.

The cases of all 74 immigrants were handled within about 90 minutes.

Thousands of new defendants are entering the federal court system as a result of the Trump’s administration’s new zero-tolerance policy. The administration is prosecuting people who cross the border illegally, a misdemeanor that was not a priority for the previous administration.

The Times cites data from Syracuse University’s Transactional Records Access Clearinghouse, or TRAC. It found nearly 60 percent of federal criminal prosecutions in April were for immigration violations.

The multiple-immigrant hearings are known as “Operation Streamline,” a process that began with President George W. Bush and is ramping up under President Donald Trump. The federal court in Tucson has handled 6,519 cases in Operation Streamline hearings so far this year, compared to 10,869 in all of 2017, the Times reports. In the Southern District of Texas, the caseload is double the number two months ago. Operation Streamline will begin in California next month.

Lawyers are given a list of the immigrants on the day of the hearing. The lawyers spend about 20 minutes with each immigrant to explain the charges and the process, before appearing at the hearings.

U.S. Magistrate Judge Bernardo Velasco presided over the Tucson cases. “If the executive branch wants to concentrate on illegal entry, that is what they do,” he told the Times.

“As a nation, we should all be thinking about what we are doing and how effective it is,” he added. “What are we doing as a country?”


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Want to stop separation of immigrant families? ABA plans grassroots effort, while new group forms

Posted by on Jun 20, 2018 in Elder Care | Comments Off on Want to stop separation of immigrant families? ABA plans grassroots effort, while new group forms

Immigration Law

ABA President Hilarie Bass says Congress should pass legislation to stop separation of immigrant families, and she is directing like-minded individuals to an ABA Grassroots Action website that helps them make their voices heard.

Bass is calling for action at the same time a new group has formed to oppose separation. It is called Lawyer Moms of America, and it is planning a Day of Action on June 29, the Daily Kos reports.

Twenty-one Democratic attorneys general are also opposing the policy in a letter to Attorney General Jeff Sessions, the National Law Journal reports. Dozens of former U.S. attorneys also wrote to Sessions opposing the policy.

Bass issued a statement on May 30 that called the forced separation of minor children from their parents “unnecessarily cruel.” In a June 12 letter to the U.S. Justice Department, Bass said the policy violates rights to family integrity and due process.

Now Bass is asking lawyers to contact their senators and representatives to pass a law that bars routine family separations at the border. “ABA staff and volunteers who provide legal services to children in border shelters have witnessed first-hand the traumatic effects of separation on these children and their parents,” she writes.

“We can differ on issues of national immigration policy, but don’t we all agree that it is simply shocking that hundreds of young children are separated from their parents just because their parents brought them across the U.S. border illegally?” Bass adds.

Visitors to the ABA Grassroots Action Center can click on “Take Action Now” to connect with their representatives through email or a phone call. Visitors are taken to a new page with arguments that can be used in support of legislation.

Lawyers can stress the due process implications of using family separation in the fight against illegal immigration, she says.

One example: “No court has ever condoned government action that uses law enforcement as a means to intentionally separate children from their parents. The first court to examine the current policy concluded that, as alleged in a pending complaint, the government’s conduct ‘shocks the conscience’ and violates constitutional rights to family integrity.”

Bass was apparently referring to a June 7 decision by U.S. District Judge Dana Sabraw that refused to dismiss a would-be class action suit that challenges the family separations.

Meanwhile, the new group Lawyer Moms of America hopes to hand-deliver a letter opposing family separations to every member of Congress on its Day of Action later in the month. The group was founded by four lawyers who are also mothers, though members need not be lawyers.


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Is it true? Denying family separation policy is ‘Orwellian stuff,’ newspaper’s fact check says

Posted by on Jun 20, 2018 in Elder Care | Comments Off on Is it true? Denying family separation policy is ‘Orwellian stuff,’ newspaper’s fact check says

Immigration Law

Department of Homeland Security Secretary Kirstjen Nielsen/Flickr.

There is no policy of separating children from their parents at the border, according to Department of Homeland Security Secretary Kirstjen Nielsen.

While there are no written regulations that establish a policy of family separations, Nielsen’s claim is “Orwellian stuff,” according to the Washington Post.

The newspaper concludes the spin deserves “four Pinocchios,” the Post’s rating for “whoppers.”

Families are being separated primarily because of the Trump administration’s zero-tolerance policy of prosecuting people entering the country illegally, which is a misdemeanor for a first-time offense, according to the Post and the New York Times. The children aren’t prosecuted, however, they are separated from their parents.

The Immigration and Nationality Act of 1952 makes the first illegal entry into the United States a misdemeanor. Nielsen says the U.S. no longer exempts entire classes of people from prosecution.

The children and parents are initially taken into DHS custody. The parents are transferred to federal criminal custody, and the children are then considered unaccompanied minors. The children are transferred to the Office of Refugee Resettlement, where they spend an average of 51 days at a shelter before being placed with a sponsor.

The zero-tolerance policy is a change from the policy under the Obama administration, which prioritized the deportation of gang members, felons and people who posed a national security threat. Other undocumented immigrants were released and processed through the civil court system, rather than the criminal courts.

Government officials have said they are forced to separate families because of court rulings and laws. The Post and the Times take a look at the legal restrictions. DHS also has information here.

A 2016 federal appeals court decision interpreted a 1997 federal consent decree that required the quick release of immigrant children. The 2016 decision said the consent decree applies to children who enter the country illegally with their parents as well as unaccompanied minors. The decision required release of the children or a transfer to a licensed facility within a presumptively reasonable period, set at 20 days.

“Because most jurisdictions do not offer licensure for family residential centers,” DHS says, “DHS rarely holds family units for longer than 20 days.” But the case doesn’t prevent the government from releasing the parents along with their children after the 20-day period, the Post points out.

The Trafficking Victims Protection Reauthorization Act also governs the treatment of immigrant children from Central America. Those children can’t be quickly returned to their countries. Instead, they must be transferred to the Office of Refugee Resettlement within 72 hours and placed in the least restrictive setting possible.

The Post’s conclusion: “Immigrant families are being separated at the border not because of Democrats and not because some law forces this result, as [President Donald] Trump insists. They’re being separated because the Trump administration, under its zero-tolerance policy, is choosing to prosecute border-crossing adults for any offenses.”


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Judge strikes down Kansas voter ID law and orders Kris Kobach to take additional CLE

Posted by on Jun 20, 2018 in Elder Care | Comments Off on Judge strikes down Kansas voter ID law and orders Kris Kobach to take additional CLE

Election Law

Kansas Secretary of State Kris Kobach/Mark Reinstein (Shutterstock.com).

A federal judge has struck down Kansas’ voter ID law and ordered Kansas Secretary of State Kris Kobach to take additional continuing legal education classes for “repeated and flagrant violations” of federal rules requiring disclosure of evidence before trial.

U.S. District Judge Julie Robinson of Kansas City, Kansas, ruled Monday that the law infringes on the right to vote under the 14th Amendment’s equal protection clause and violates the National Voter Registration Act. Courthouse News Service, Politico, the Kansas City Star, the Topeka Capital-Journal and the Lawrence Journal-World have coverage.

The law requires proof of citizenship to register to vote. Robinson said there was little evidence that the law remedied a problem. At most, 67 noncitizens had registered or attempted to register to vote in Kansas over the last 19 years, she said.

Kobach had championed the law and represented the secretary of state’s office at trial. Robinson said there were several instances in which Kobach failed to disclose evidence to opponents before trial or failed to supplement disclosure, as required by the Federal Rules of Evidence. Robinson often excluded the undisclosed evidence, yet in at least one instance Kobach tried to introduce the excluded evidence, the opinion said.

Robinson said it’s not clear whether Kobach violated his discovery obligations intentionally or through unfamiliarity with the federal rules. “Defendant chose to represent his own office in this matter, and as such, had a duty to familiarize himself with the governing rules of procedure, and to ensure as the lead attorney on this case that his discovery obligations were satisfied despite his many duties as a busy public servant,” she wrote.

As a result, Robinson said, Kobach must take an additional six hours of continuing legal education pertaining to rules of evidence or procedure, in addition to any state CLE requirements.

Robinson had previously held Kobach in contempt of court for failing to follow court orders regarding voter notices and ordered him to pay attorney fees to cover the cost of the sanctions motion.

The case is Fish v. Kobach. The plaintiffs were represented by the American Civil Liberties Union, the ACLU of Kansas and Dechert.

Dale Ho, director of the ACLU’s Voting Rights Project, issued a statement after the ruling. The Kansas law “was based on a xenophobic lie that noncitizens are engaged in rampant election fraud,” he said. “The court found that there is ‘no credible evidence’ for that falsehood, and correctly ruled that Kobach’s documentary proof-of-citizenship requirement violates federal law and the U.S. Constitution.”

A Kobach spokesperson, Danedri Herbert, told the Capital-Journal that the decision will probably be overturned on appeal.

“Robinson is the first judge in the country to come to the extreme conclusion that requiring a voter to prove his citizenship is unconstitutional,” Herbert said. “Her conclusion is incorrect, and it is inconsistent with precedents of the U.S. Supreme Court.”


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