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Lawyer for Roman Polanski asks for time served in 40-year-old rape case

Posted by on Mar 22, 2017 in Elder Care | Comments Off on Lawyer for Roman Polanski asks for time served in 40-year-old rape case


Criminal Justice



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Forty years after movie director Roman Polanski fled the United States to avoid penalties for sexual assault, his attorney has asked a judge to sentence him to time served, the Los Angeles Times reported Tuesday.

Attorney Harland Braun told a Los Angeles trial court Monday that Polanski should be allowed to return to the United States and be sentenced to time served for the 1977 sexual assault of 13-year-old Samantha Gailey. Polanski would have served no more than 12 months in prison for the crime he was charged with at the time, Braun said. Between the 42 days he served before fleeing and more than nine months in a Swiss jail in 2009, Braun said, Polanski has done enough time.

“He has actually done nearly eight times the sentence he was promised,” which was 90 days, Braun said.

Deputy District Attorney Michele Hanisee opposed Braun’s request. Her office has said Polanski would face up to two years in prison if he returned to the United States.

“The people simply do not believe it is in the best interests of justice to give a wealthy celebrity different treatment than any other fugitive from justice,” she told the judge.

Polanski was 43 and a successful director in Los Angeles when he approached 13-year-old Gailey and her mother about doing a photo shoot, with an eye toward making her a model. According to Gailey’s contemporary grand jury testimony (posted at the Smoking Gun) he did two photo shoots, which included topless photos. Later, he took her to actor Jack Nicholson’s house, where he took more topless photos. He gave her champagne and part of a Quaalude pill, and asked her to get into a hot tub.

Shortly after she asked to go home, she testified, he forced her to have sex with her, although she repeatedly asked him to stop and started crying. Her mother called the police when she learned what happened.

Polanski later pleaded guilty to unlawful intercourse with a minor. The judge at the time sent Polanski to state prison, where he was to undergo a 90-day diagnostic evaluation. Prison officials were sympathetic and released Polanski after 42 days, saying their work was done. The judge, who the L.A. Times reported was facing pressure from the media, said he’d send the director back to serve the remaining 48 days.

But before he could be returned to prison, Polanski fled the United States for his native France and Poland. He has lived in Europe since.

The case has seen several rounds of activity since the 1990s. Gailey, now Samantha Geimer, settled a lawsuit with Polanski in the 1990s, the Los Angeles Times’ L.A. Now blog previously reported. She said she does not want to see the criminal case pursued. Later in the decade, Polanski came close to a deal with Los Angeles County prosecutors that would have ended the case. But he backed out when the judge said court proceedings would not be closed.

In 2009, Swiss authorities arrested Polanski at the request of the United States. Prosecutors released him from house arrest in summer 2010 after rejecting extradition. That round of legal action also included a decision from a California appeals court denying his request to dismiss the case but calling for an investigation into allegations of improper ex parte communications during the 1977 case. Polish prosecutors questioned Polanski in 2015, but the Supreme Court of Poland ultimately decided against extraditing him.


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Philadelphia district attorney indicted on bribery and corruption charges

Posted by on Mar 22, 2017 in Elder Care | Comments Off on Philadelphia district attorney indicted on bribery and corruption charges


Prosecutors


Seth Williams

Philadelphia District Attorney Seth Williams. Photo by Spark49, via Wikimedia Commons.

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Philadelphia District Attorney Seth Williams is about to learn what life as a criminal defendant feels like.

On Tuesday, the Philadelphia Inquirer reported that the embattled prosecutor was indicted on more than 21 counts, including bribery, wire fraud and honest services fraud. According to the Inquirer, Williams is being accused of accepting expensive gifts—including a luxurious trip to a resort in the Dominican Republic, a custom-made leather sofa, an iPad and a Burberry purse for his girlfriend—in exchange for doing favors for Mohammed N. Ali, a friend and business owner in Philadelphia.

The indictment, which was unsealed in the U.S. District Court for the Eastern District of Pennsylvania, alleged that, in 2012, Williams agreed to try to get a lighter prison sentence for one of Ali’s friends. Three days later, he was offered an all-expenses-paid trip to the Dominican Republic. “I am merely a thankful beggar and don’t want to overstep my bounds,” Williams allegedly wrote in a text message that appeared in the indictment. “But we will gladly go.”

The indictment also accused Williams of setting up a meeting between Ali and law enforcement, so that Ali could bypass security screenings at Philadelphia International Airport. According to the indictment, Williams received a $7,000 check immediately afterward.

Williams has been under investigation concerning his finances since at least summer 2015. In January, he was hit with a record $62,000 fine from the Philadelphia Board of Ethics for not reporting more than $175,000 in gifts he had accepted.

A former rising star within the Pennsylvania Democratic Party, Williams, who’s in the final year of his second term as district attorney, recently announced that he would not run for re-election. “I have made regrettable mistakes in my personal life and personal financial life that cast an unnecessary shadow over the district attorney’s office,” Williams said last month, after he decided not to run.


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Supreme Court rules patent holders may not bar otherwise timely lawsuits with laches

Posted by on Mar 22, 2017 in Elder Care | Comments Off on Supreme Court rules patent holders may not bar otherwise timely lawsuits with laches


U.S. Supreme Court


SCOTUS

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The U.S. Supreme Court ruled today that patent holders may not use the doctrine of laches—that is, may not argue that defendants slept too long on their rights—as a defense to lawsuits filed within the Patent Act’s six-year statute of limitations.

The 7-1 decision (PDF) extended a similar decision on copyrights in Petrella v. Metro-Goldwyn-Mayer to patent law. It also reverses a decision of the en banc U.S. Court of Appeals for the Federal Circuit, which approved the use of laches based on precedent in 2016.

The high court said permitting defendants to invoke laches would undermine the statement Congress made by including an express six-year statute of limitations in the Patent Act. In fact, it said, “it would be exceedingly unusual, if not unprecedented,” if Congress had chosen to include both a statute of limitations and laches as an equitable defense.

“Although the relevant statutory provisions in Petrella and this case are worded differently, Petrella’s reasoning easily fits the provision at issue here,” Justice Samuel Alito wrote for the majority. “By the logic of Petrella, we infer that this provision represents a judgment by Congress that a patentee may recover damages for any infringement committed within six years of the filing of the claim.”

SCA Hygiene and First Quality both make adult diapers. In 2003, SCA informed First Quality that its products infringed on SCA’s patent. First Quality replied that its patent was issued before SCA’s, making SCA’s invalid. SCA in 2004 asked the Patent and Trademark Office to re-examine its patent. The PTO affirmed SCA’s patent’s validity in 2007, and SCA sued First Quality in 2010.

The district court granted summary judgment to First Quality on the grounds of both laches and equitable estoppel. But while the case was on appeal, the Supreme Court decided Petrella, permitting the daughter of the screenwriter for the movie Raging Bull to sue film company Metro-Goldwyn-Mayer for copyright infringement. The case said laches doesn’t apply to copyright cases because copyright law already contains an express statute of limitations. The opinion expressly said it wasn’t deciding whether the same would be true in patent law, noting that the issue had not been before the court.

The patent issue arrived before the court just a few years later, after a three-judge panel and then an en banc panel of the Federal Circuit applied its own precedent to SCA. That ruling became one of several recent cases in which the Supreme Court has overruled the Federal Circuit.

The change is likely to be important to patent litigators, who may find their clients eager to pursue lawsuits that might otherwise have been barred—or liable for more infringement than they expected. Patent lawyer Mark Privratsky of Lindquist & Vennum in Minneapolis told the ABA Journal in 2015 that the decision making laches unavailable could be “tipping the apple cart upside down.”


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SCOTUS limits president’s power in making temporary appointments

Posted by on Mar 22, 2017 in Elder Care | Comments Off on SCOTUS limits president’s power in making temporary appointments


U.S. Supreme Court


SCOTUS

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The U.S. Supreme Court ruled Tuesday that a person appointed by the president in an acting capacity in a position requiring the advice and consent of the Senate is prohibited from continuing in that role if subsequently nominated for the permanent position.

Chief Justice John Roberts wrote the 6-2 majority opinion (PDF) in NLRB v. SW General Inc., with a concurring opinion by Justice Clarence Thomas and a dissent by Justice Sonia Sotomayor that was joined by Justice Ruth Bader Ginsburg.

The case concerned an acting National Labor Relations Board general counsel, Lafe Solomon, who was appointed to the acting position while waiting for U.S. Senate confirmation for the full appointment. SW General, an ambulance company fighting a complaint filed by the NLRB, argued that the arrangement enabled the president to advance his agenda without first getting the advice and consent of the Senate.

The Supreme Court disagreed with a decision by the Richmond, Va.-based 4th U.S. Circuit Court of Appeals that sided with the ambulance company, saying the appointment violated the 1998 Federal Vacancies Reform Act’s prohibition against a nominee for the permanent position serving in an acting role if he or she hasn’t previously served as “first assistant” to that position for at least 90 days prior to the temporary appointment.

Justice Roberts wrote that the statute bars any person from continuing acting service in a position requiring the Senate’s advice and consent after being nominated to fill the position permanently.

“The president could have appointed another person to serve as the acting officer in Solomon’s place,” Roberts wrote. “And he had a wide array of individuals to choose from: any one of the approximately 250 senior NLRB employees of the hundreds of individuals in [Presidential Appointments with Senate Confirmation] positions throughout the government.”

Justice Thomas, in his concurrence, wrote that the majority’s interpretation of the act is correct, but he wanted to counter the dissent’s conclusion that it does authorize the appointment in this case. Thomas argues that the Appointments Clause likely prohibited the appointment, which would be concerned with whether the NLRB general counsel is an “Officer of the United States” as pertains to that clause, and if so, whether that is a “principal office” who can be appointed only with the Senate’s advice and consent. He believes both apply to the position.

Justice Thomas wrote that “Courts inevitably will be called upon to determine whether the Constitution permits the appointment of principal officers pursuant to the FVRA without Senate confirmation. But here, the proper interpretation of the FVRA bars the appointment.”

Justice Sotomayor, in dissent, writes that according to the text and history of the statute, the prohibition applies only to non-Senate-confirmed first assistants who did not serve in that position for at least 90 of the 365 days before the vacancy.


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DC lawyer sues Trump over financial disclosure form

Posted by on Mar 22, 2017 in Elder Care | Comments Off on DC lawyer sues Trump over financial disclosure form


Executive Branch



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A Washington, D.C. lawyer has sued President Donald Trump for not specifically identifying his personal debts on his candidate’s financial disclosure form.

Politico reported Sunday that Jeffrey Lovitky, a government contracts and health law solo practitioner, has filed a complaint (PDF) with the U.S. District Court for the District of Columbia. Lovitky, who filed the complaint pro se, alleged that Trump had unlawfully commingled his personal debts with those of his various companies and that the public has a vested interest in knowing which of those debts are personal liabilities.

Trump’s debts take up just one page of his 104-page disclosure form, and his outstanding loans are listed as exceeding $300 million. Lovitky, however, claimed that the loans are much larger since most of them are mortgages that get recorded publicly. He told Politico that it’s impossible to tell, based on available public records, just who is responsible for the loans because Trump utilized limited liability companies.

“Really, the question is concerning the liabilities held by the LLCs, and we just need more information to be able to know whether or not those are personal or business liabilities,” Lovitky told Politico. “If you just look at the statement on its face, all those liabilities are assumed to be personal liabilities, but I just do not think that’s the case. I have information that says otherwise.”

According to Politico, the complaint is unrelated to the several lawsuits Trump is facing accusing him of unfair competition or violating the emoluments clause of the Constitution. Lovitky is seeking a writ of mandamus ordering Trump to refile his form separating his personal debts. “It’s mostly the fact that with this president there are very serious concerns about conflicts of interest in this particular administration, and I think it’s important that those concerns be addressed thoroughly,” he told Politico.

A White House spokesperson did not respond to a request for comment from Politico. A spokesperson for the Trump Organization declined to comment to Politico.


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Arbitrator rules against former executive director of State Bar of California

Posted by on Mar 21, 2017 in Elder Care | Comments Off on Arbitrator rules against former executive director of State Bar of California


Bar Associations


State Bar of California

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An arbitrator has dismissed the last of the claims in a lawsuit against the State Bar of California brought by former executive director Joe Dunn.

The Los Angeles Daily Journal (sub. req.) and the Sacramento Bee reported Monday that arbitrator Edward Infante of JAMS (formerly the Judicial Arbitration and Mediation Services) has ruled for the state bar on Dunn’s allegations that he was fired in retaliation for blowing the whistle on improprieties. The ruling appears to end the contentious and high-profile case.

Dunn had sued the state bar in late 2014, alleging that he was fired for reporting that former chief trial counsel Jayne Kim manipulated the size of the bar’s backlog of discipline cases—a long-standing issue at the bar—and failed to investigate the unauthorized practice of law. He also said he was fired in retaliation for pointing out wasteful spending, and that a former state bar president had retaliated against him and other whistleblowers.

The state bar said Dunn was fired because an outside investigation by the law firm Munger, Tolles & Olson found that Dunn was dishonest with the bar’s board about several matters.

Infante, the arbitrator, found no causal connection between Dunn’s comments about Kim—or anonymous letters he sent to the board—and his firing. Furthermore, he said, the state bar’s board had a legitimate reason to fire Dunn.

Because Dunn had not fulfilled the duties of his contract, the arbitrator said, firing him without severance did not breach his employment contract. Infante found that Dunn hadn’t kept the board informed on “matters of significance,” including the California Supreme Court’s opposition to proposed UPL legislation. He also assured the board that the state Supreme Court supported a plan to move the state bar from San Francisco to Sacramento. Infante found that the chief justice hadn’t spoken with Dunn about it. (The California state bar is a department of the California Supreme Court, making the chief justice its department head.)

The decision comes two months after the same arbitrator threw out Dunn’s related claims against Craig Holden, former state bar president and a partner at Lewis Brisbois Bisgaard & Smith in Los Angeles. Infante said there was no evidence that Holden intentionally interfered with Dunn’s employment. Other claims were dismissed in summer 2016.

The case had originally been filed in the Los Angeles Superior Court but was moved to arbitration per Dunn’s employment agreement. Dunn had sought $4 million in damages plus $190,000 in back pay.

The state bar released a statement from James P. Fox, the current president. “The state bar is pleased with the resolution to this litigation and is happy to move forward,” Fox said in the statement. “We remain focused on the core mission of the bar, which is the protection of 39 million Californians and upholding the highest ethical standards for the state’s legal community.”

Dunn ran unsuccessfully for a congressional seat in Orange County, California, last year.


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Army veteran asks senators, appeals board for help to stop his deportation

Posted by on Mar 21, 2017 in Elder Care | Comments Off on Army veteran asks senators, appeals board for help to stop his deportation


Immigration Law


Deportation

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A Chicago Army veteran is asking his senators and filing an appeal to stop his deportation, CBS Chicago and WGN reported Sunday.

An immigration judge ordered Miguel Perez Jr. deported last week because of a conviction for selling cocaine. Perez was a green card holder who had lived in the United States since he was 8 years old. Both his children, ages 12 and 18, are U.S. citizens.

Perez, 38, served two tours in Afghanistan, which left him with post-traumatic stress disorder and a brain injury from an explosion. Perez’s attorney, Chris Bergin, said Perez began to self-medicate with alcohol when he got home from his tours. His family and friends said the injury and his PTSD made it difficult for him to find work when he returned to Chicago. They said he then started to sell drugs.

Perez served seven years in prison for his crime. He thought he became a U.S. citizen automatically because of his Army service, according to ABC7 Chicago. But that wasn’t true, and there are numerous crimes that can revoke the lawful permanent residency of a green card holder.

Perez had argued in immigration court that he could be killed if he returned to Mexico. But that argument failed, and he was ordered to be deported last week. He remains in U.S. Immigration and Customs Enforcement custody pending a decision of the Board of Immigration Appeals, which considers appeals from immigration courts. Bergin expects a response in three to five months, according to CBS.

Sen. Dick Durbin of Illinois, a Democrat, didn’t directly comment on the situation to WGN, but he said it was “a complicated case.”

“We don’t want dangerous people to remain in this country, but we ought to have our eyes wide open,” Durbin said. “Here’s a man who risked his life for this country, maybe he can pay his price for what he’s done wrong here and still get a chance to stay here.”

CNN said Perez’s mother appeared at Chicago’s federal building last week while Rep. Luis Gutierrez, a Democrat, met with ICE officials inside to ask for mercy in several cases. Gutierrez staged a sit-in when it became clear that he wouldn’t get answers, and he was briefly handcuffed.


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Live blog of confirmation hearings, Day 1: Gorsuch says judges aren’t politicians in robes

Posted by on Mar 21, 2017 in Elder Care | Comments Off on Live blog of confirmation hearings, Day 1: Gorsuch says judges aren’t politicians in robes


Supreme Court Nominations


Gorsuch PBS

Judge Neil Gorsuch. Screenshot from PBS.org

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U.S. Supreme Court nominee Neil Gorsuch told the Senate Judiciary Committee on Monday that judges are not politicians in robes, and his record on the Denver-based 10th U.S. Circuit Court of Appeals supplies proof.

Gorsuch said he has participated in more than 2,700 appeals, and he has worked with judges appointed by a variety of presidents. Ninety-seven percent of those cases were decided unanimously, and he was in the majority 99 percent of the time.

“That’s my record, and that’s how we do things in the West,” Gorsuch said.

Putting on the judicial robe reminds judges that they occupy an important position in a democracy, Gorsuch said. The idea is for neutral and independent judges to apply the laws. “Ours is a judiciary of honest, black polyester,” he said.

Gorsuch’s statement to the committee capped the first day of hearings in which members of the Judiciary Committee talked about the role of judges, their impact on the “little guy” and the need for judicial independence.

Republicans said Gorsuch had simply applied the law to the facts, without regard to his personal views, while Democrats claimed Gorsuch had interpreted the law to favor corporations over workers.

President Donald Trump was also an invisible presence. Republicans said it wasn’t Gorsuch’s role to answer for the president who nominated him, while Democrats said Trump’s actions point to the need for a justice who can stand up to the executive branch.

Sen. Richard Blumenthal, D-Conn., referred to a “looming constitutional crisis” that could be precipitated by the FBI investigation of potential ties between affiliates of the Trump campaign and the Russian government. FBI Director James Comey had revealed the investigation Monday.

The probe could end up in the U.S. Supreme Court if the government were to seek to enforce a subpoena against the president, Blumenthal said. Blumenthal said he wants to make sure that the judiciary will protect the nation “from overreaching and tyranny, and the constitutional crisis that is now a real danger before us.”

Blumenthal also pointed to President Trump’s “demeaning and disparaging comments about the judiciary,” and said during the confirmation hearings that Gorsuch has a special responsibility to defend the judiciary from those kinds of attacks.

Another unseen presence during the hearing’s first day was Judge Merrick Garland, who did not receive a confirmation hearing after President Barack Obama nominated him to the U.S. Supreme Court. Former acting Solicitor General Neal Katyal opened his introduction of Gorsuch with a reference to Garland, whom he called possibly the most qualified person ever nominated to the Supreme Court.

If Garland had been approved, and another opening occurred on the Supreme Court, it is clear that Gorsuch would be sailing through on a unanimous or near unanimous vote, Katyal said.

There is a reason why Gorsuch has the support of Supreme Court litigators and a well-qualified rating from ABA’s Standing Committee on the Federal Judiciary, Katyal said. Gorsuch is “a fair and decent man” with a “first-rate intellect,” Katyal said.

He also has “humability”—humility and ability, Katyal said.

3:17 p.m. ET. The Judiciary Committee adjourns and will resume hearings Tuesday at 9:30 a.m. ET.

3:14 p.m. ET: Judging is sometimes a lonely, hard job, Gorsuch said in his statement to the Senate Judiciary Committee. But Gorsuch said he has seen how judges work with collegiality, independence and integrity. It is their work that makes the Constitution real, he said.

Some judges are cynically described as politicians in robes, Gorsuch noted. “If I thought that were true, I’d hang up the robe,” Gorsuch said. Over the years he has seen judges and juries working hard, and he has seen his judicial colleagues spending long days worrying about cases.

“Sometimes the answers follow us home at night and keep us up,” Gorsuch said. But the answers are the ones the judges believe are required by the law, Gorsuch said.

Gorsuch said he has participated in more than 2,700 appeals, and he has worked with judges appointed by a variety of presidents. Ninety-seven percent of those cases were decided unanimously, and he was in the majority 99 percent of the time.

“That’s my record, and that’s how we do things in the West,” Gorsuch said.

Putting on the judicial robe reminds judges that they occupy an important position in a democracy. The idea is for neutral and independent judges to apply the laws, Gorsuch said. “Ours is a judiciary of honest, black polyester,” he said.

If judges acted as legislators, those who came to the courts would live in fear, never sure how the law would apply to them, Gorsuch said.

Gorsuch said he has tried to treat all who came before him with respect. He has ruled for disabled students, prisoners, the accused, workers alleging civil rights violations, and undocumented immigrants, he said. He has also sometimes ruled against such people, he said.

As he began his statement, Gorsuch pledged to do all within his powers to be a faithful servant of the Constitution and laws. He said he couldn’t do this without the support of his wife, and he gave her a hug.

He and his wife started off in a tiny apartment, drawing the concern of his wife’s mother, Gorsuch said. Gorsuch recalled family time with his daughters, and the influence of his parents and grandparents. A grandfather practiced law during the Great Depression, and taught him that the law was intended to help people with their problems, Gorsuch said.

2:58 p.m. ET. Gorsuch is sworn in and begins his statement.

2:57 p.m ET. In his introduction, former acting Solicitor General Neal Katyal said he is outraged that Merrick Garland is not on the court today. Garland could be the most qualified nominee ever to be nominated to the court, Katyal said.

If Garland had been approved, and another opening occurred on the court, it is clear that Gorsuch would be sailing through on a near-unanimous vote, Katyal said. There is a reason that Katyal has the support of Supreme Court litigators and a well-qualified rating from ABA’s Standing Committee on the Federal Judiciary, Katyal said.

Katyal said Gorsuch is “a fair and decent man” with a “first-rate intellect.” He also has “humability”—humility and ability, Katyal said.

President Trump has displayed open contempt for the courts, and judges he criticized have had to be placed under increased protection. Gorsuch has displayed a commitment to judicial independence and the rule of law, and is willing to rule against the government when it oversteps its powers, Katyal said.

2:45 p.m. ET. Sen. Michael Bennet, D-Colo., said Gorsuch exemplifies some of the finest qualities of Colorado. If Gorsuch is confirmed, he will be the first justice from the West outside of California since Justice Sandra Day O’Connor.

Bennet said he believes the Senate has an obligation to consider Gorsuch, just as it had an obligation to consider Merrick Garland. Bennet disapproved of the failure to consider Garland, but “two wrongs do not make a right,” he said.

Bennet said Trump’s “reckless attacks on the judiciary” hang over the confirmation hearing. Disagreeing with a court’s decision is acceptable, but disparaging a judge is wrong, Bennet said. Bennet said he has no doubt that, unlike the president, Gorsuch has respect for the judiciary.

2:44 p.m. ET. Sen. Cory Gardner, R-Colo., was the first of three people to introduce Gorsuch.

Gardner said Gorsuch is a fourth-generation Coloradan who is a skier and fly fisherman. He will be the only Coloradan to serve on the Supreme Court who did not break the NFL rushing record, Gardner said. The reference is to former Justice Byron White.

Gorsuch “is a mainstream jurist who follows the law as written” and doesn’t try to supplant it with his own policy preferences, Gardner said. Independence, fairness and impartiality are the hallmarks of his career, according to Gardner.

Gorsuch was a consensus pick among Democrats and Republicans in Colorado, Gardner said.

2:35 p.m. ET. Sen. John Kennedy, R-La., said the hearing needs to go beyond politics and the person who lives in the White House. The Senate’s role is advice and consent, he said, and the confirmation hearings should focus on legal philosophy, qualifications and experience.

Kennedy said he has read about 20 of Gorsuch’s opinions, and Gorsuch writes “really, really well.” The opinions are engaging, whether you agree with them or not, and they show concern for the parties by referring to them by name, Kennedy said.

Kennedy said Gorsuch believes in the separation of powers, which won’t allow any single branch of government to bully the others. “I’m looking for a judge, not an ideologue,” Kennedy said. Kennedy said he is also looking for a person who is intellectually curious and willing to fight for his view of justice.

“I guess what I want is a cross between Socrates and Dirty Harry. And I believe you just might be that person,” Kennedy said.

2:26 p.m. ET. Sen. Mazie Hirono, D-Hawaii, said she came to the United States at age 8 with her mother, who was fleeing domestic violence. Back then, Hirono said, there were no religious tests for immigration, and there was no need for special skills to come to the United States.

She said she has heard from thousands of people who are worried about the future of the country under the Trump administration. People are looking to the courts to protect their interests and their rights, she said.

In reviewing Gorsuch’s opinions, Hirono said, she has not seen Gorsuch placing a priority on the rights of minorities and others who need the protection of the courts. She said Gorsuch has gone to great lengths to disagree with his 10th Circuit colleagues to explain why a statute requires a ruling for a corporation, rather than an individual.

This demonstrates a commitment to ideology over common sense, she said. She cited a case where Gorsuch focused on the difference between a floor hole and a floor opening.

The Supreme Court will decide whether America is a land of exclusivity for the few, or the land of opportunity for many, Hirono said.

2:17 p.m. ET. U.S. Sen Thom Tillis, R-North Carolina, said Gorsuch is not President Trump, and the confirmation hearing should focus on the nominee rather than the president.

Tillis said he doesn’t like activist judges, whether they are conservative or liberal. Gorsuch believes judges should apply, rather than alter, the law, Tillis said.

2:13 p.m. ET. U.S. Sen. Mike Crapo, R-Idaho, said Gorsuch understands that a judge is a servant of the law, not a maker of the law. In their meeting after the confirmation announcement, Gorsuch told Crapo that his personal views are irrelevant in court cases. That is the way it should be, Crapo said.

“Law that can change in a moment and capriciously is inherently destabilizing,” Crapo said.

2:03 p.m. ET: Sen. Richard Blumenthal, D-Connecticut, said President Trump has made “demeaning and disparaging comments about the judiciary,” which have “shaken the foundations of respect for judicial rulings.”

Blumenthal said Gorsuch has a special responsibility to advocate and defend the judiciary from those kind of attacks during the confirmation hearings.

Blumenthal also referred to a “looming constitutional crisis” after FBI Director James Comey’s report today that he is investigating potential ties between Trump associates and the Russian government. That could result in the Supreme Court being asked to enforce a subpoena against the president, Blumenthal said.

Blumenthal said he wants to make sure that the judiciary will protect the nation “from overreaching and tyranny, and the constitutional crisis that is now a real danger before us.”

1:58 p.m. ET. U.S. Sen. Jeff Flake, R-Ariz., noted that the teleprompter has labeled Gorsuch as “Judge Grouch,” and said that does not appear to be an accurate description.

The name has also been misspelled on Twitter, apparently due to autocorrect, according to this story by PJ Media.

Flake said Gorsuch believes in the rule of law and has a commitment to service. Gorsuch reveres the separation of powers and supports religious liberties and religious tolerance, Flake said.

Flake also noted a lack of geographic diversity on the Supreme Court and said Gorsuch has “a Western perspective.” Gorsuch’s jurisprudence reflects what westerners know about an intrusive federal government, he said.

Flake said that after Gorsuch was nominated, he called Merrick Garland, a reflection of his good temperament.

12;49 p.m. ET. U.S. Sen. Christopher Coons, D-Del., complained that Supreme Court nominee Merrick Garland was shown considerable disrespect because Republicans did not hold a hearing.

It may seem that the Supreme Court is engaged in abstract, intellectual exercises, Coons said, but the decisions have protected the right of gays to marry, the right of women to get reproductive health care, and the ability of Americans to receive insurance under the Affordable Care Act.

Coons said he is looking to Gorsuch to demonstrate his ability to separate politics from constitutional interpretation. Coons said he appreciates that Gorusch is an engaging and careful writer, but he has seen a pattern of Gorsuch going beyond the issues before the court to explore broader issues.

Coons, who has a divinity as well as a law degree, said religious liberty should not be invoked to deny rights under federal law. He also mentioned Trump’s campaign promise of a “Muslim ban” and said religious rights should be preserved for all.

12:38 p.m. ET. After a five-minute break, Grassley orders everyone to take their seats for the hearing to reconvene. But Gorsuch is not there. As soon as he arrives, the hearing starts.

1:29 p.m. ET: U.S. Sen. Ben Sasse, R-Neb., emphasized the job of judges to dispassionately apply the facts and the law in a particular case. He saw the judicial robe as emblematic of the cloaking of judges’ personal preferences and political views.

As all of us learned in Schoolhouse Rock, Sasse said, the judiciary is a co-equal branch of government and the role of a Supreme Court justice is sometimes to uphold the Constitution and thwart the majority.

1:10 p.m. ET. U.S. Sen. Al Franken, D-Minn., criticized Republicans for blocking confirmation hearings on Supreme Court nominee Merrick Garland.

He noted that Donald Trump had pledged during the campaign to appoint a judge in the mold of Justice Antonin Scalia. Franken said he wanted to find out how Gorsuch was similar to and different from Scalia, and said one possible difference was in the area of Chevron deference, in which judges defer to federal agency views.

Scalia had supported Chevron deference, while Gorsuch has questioned it, Franken said.

Chevron deference is the what stands between federal agencies and the so-called deconstruction of the administrative state endorsed by presidential adviser Stephen Bannon, Franken said.

1:08 p.m. ET. U.S. Sen. Ted Cruz, R-Texas, said judges have a more modest role than the left embraces. Judges are supposed to interpret, rather than make, law, Cruz said. If Republicans had allowed Obama to fill the seat of the late Justice Antonin Scalia, there would have been a “profound and troubling shift” on the court, he said.

During the campaign, Donald Trump had promised to appoint judges in the mold of Justice Antonin Scalia and issued a list of 21 people from whom he would pick. That gave Americans a clear view of Trump’s choices, and the American vote embraced Trump’s list, Cruz said.

Gorsuch has “a super legitimacy,” Cruz said, “because of this unique and transparent process, unprecedented in the nation’s history.”

There wasn’t even a “whisper of disapproval” when Gorsuch was approved to be a judge on the Denver-based 10 U.S. Circuit Court of Appeals, Cruz said. Now Democrats are trying to “slander judge Gorsuch” as being “against the little guy,” and that is “absurd,” Cruz said.

Democrats attacked nuns—essentially the little guy—who objected to providing contraceptives under the Affordable Care Act, he said.

Cruz also asserted that Gorsuch should not be asked during the hearings to defend the president who appointed him. Such queries would be “inappropriate political questions that have nothing to do with the record of the nominee before this committee,” Cruz said.

12:58 p.m. ET. U.S. Sen. Amy Klobuchar, D-Minn, noted instances of discrimination and asserted that “the pillars of our democracy and Constitution are at risk.”

Senators want to know what Gorsuch will do on the court, she said. She noted a speech in which Gorsuch said legislators look to their own moral convictions in shaping laws, while judges should strive to apply the law as it is, looking to text, structure and history.

“I want to understand better those views of the Constitution and how they square with modern life,” she said.

12:47 p.m. ET. U.S. Sen. Lindsey Graham, R-S.C., said Gorsuch is the best choice available to a Republican president in terms of someone who is going to keep the conservative philosophy alive and well.

Graham said Gorsuch is highly qualified, and that is what senators should be evaluating. Gorsuch had issued 2,700 decisions and he has been overruled just once, Graham said.

Graham also defended the decision not to hold hearings on President Obama’s Supreme Court nominee, Merrick Garland. He said Democrats would have also refused to act, had the tables been turned.

Graham said he had voted to confirm the Supreme Court nominations of Samuel A. Alito Jr., John G. Roberts Jr., Sonia Sotomayor and Elena Kagan because he thought all were qualified. Confirmation hearings, as they are held today, are “going to destroy the judiciary over time” if the Judiciary Committee does not return to prior days when senators judged qualifications, he said.

12:37 p.m. ET. U.S. Sen. Sheldon Whitehouse, D-R.I., noted 5-4 rulings that interpreted election law and that, he said, helped Republicans win elections. Republican appointees were in the majority, he said. Similarly, Republicans were in the majority in several decisions on behalf of corporations.

The Republican political industrial complex uses amicus briefs to tell Republican appointees on the court what it wants, Whitehouse said. “It’s kind of a machine,” he asserted. Special interests fund front groups that appear as amici, the court rules based on those arguments, and the special interests get more money to fund the front groups, he said.

Studies show the court is the most corporate-friendly court in modern history, Whitehouse said.

“Now, where do you fit in?” Whitehouse asked. By one count, Whitehouse said, Gorsuch had ruled for corporations in 21 out of 23 decisions. “Will you saddle up” with other Republican appointees to support special interests and corporations Whitehouse asked.

12:26 p.m. ET. U.S. Sen. Mike Lee, R-Utah, who was on President Trump’s list of potential Supreme Court nominees, said Gorsuch’s “only agenda is getting the law right.”

Some senators will likely claim Gorsuch is outside the mainstream because he is an originalist, Lee said. But even liberal Justice Elena Kagan, during her confirmation hearings, said judges try to interpret the framers and in that way, all are originalists, Lee said.

Some may complain that Gorsuch is refusing to state how he decides future cases. In his view, Lee said, that is a reason to vote for, not against, confirmation. Nor should Gorsuch’s judicial record be interpreted based on who won and who lost, Lee said.

12:17 p.m. ET. U.S. Sen. Dick Durbin, R-Ill., noted that some Republicans are saying politics should not play a part in the confirmation process. But Gorsuch’s nomination is part of a Republican strategy to capture the judicial branch of government, Durbin said.

Durbin said nominees typically try to “dodge” senators’ questions, but it’s nonetheless their job to seek the truth.

Durbin said the Roberts court has expanded its rulings on behalf of corporate America. The court has held that corporations have the same rights as people to spend money on elections and to assert religious objections to withhold contraceptive insurance coverage, he said.

Durbin then cited Gorsuch’s opinions against workers and in favor of corporations.

Durbin also questioned Gorsuch’s involvement, while in the Justice Department, in a presidential signing statement asserting a right to ignore a law restricting the use of torture.

12:06 p.m. ET. U.S. Sen. John Cornyn, R-Texas, said Gorsuch’s jurisprudence “reflects brilliance and humility.” Some senators might ask Gorsuch during the hearings how he will vote in specific cases, but confirmation hearings should not degenerate into such a question-and-answer session, Cornyn said.

Cornyn noted that judges who follow the law and the facts may rule for or against the government, and for or against a corporation. That’s how the law works, and it protects the little guy better than a system rigged to favor one side, he said.

11:58 a.m. ET. U.S. Sen. Patrick Leahy, D-Vt., noted that Republicans had blocked confirmation hearings for President Obama’s Supreme Court nominee, Merrick Garland.

Gorsuch has spent more than a decade on the federal bench and has the type of qualifications that are beneficial for a Supreme Court nominee, Leahy said. Garland had similar qualifications, Leahy said.

Leahy noted that the present and past nominee differ on judicial philosophy, however. Gorsuch is an originalist, and Leahy said he is worried that originalism is an agenda rather than a philosophy.

Leahy said he has yet to decide how he will vote on the nomination. He says Gorsuch, if confirmed, should be a justice for all of America rather than a justice for the special interests of a few.

11:47 a.m. ET. In his statement to the committee, Sen. Orrin Hatch, R-Utah, criticized opponents of Gorsuch who “seem to think the confirmation requires a political agenda and a calculator.”

The opponents tally the winners and losers in past cases decided by Gorsuch and do the math. If they don’t like the results, they oppose confirmation, he said.

Hatch advised Gorsuch to resist efforts to compromise his impartiality by pledging to adhere to litmus tests to decide future cases.

11:40 a.m. ET. In her opening statement, U.S. Sen. Dianne Feinstein, D-Calif., said the hearings were being held because the U.S. Supreme Court has the final word on hundreds of issues that impact our daily lives.

Those issues, Feinstein said, include a woman’s right to control her own body, health care, the influence of money in elections, voting rights, the environment, gun rights and worker protections.

Feinstein referenced the so-called frozen trucker case, in which Gorsuch wrote a dissent finding that federal law did not protect a trucker who abandoned his disabled trailer to find help during cold weather. She also spoke about a Gorsuch opinion questioning Chevron deference, a doctrine that holds that federal courts should defer to federal agency views when Congress passes ambiguous laws.

Among the consequential issues, she said, is Roe v. Wade establishing the legal right to abortion. “The debate over Roe v. Wade and the right to privacy, ladies and gentlemen, is not theoretical,” Feinstein said. Gorsuch has not ruled on a case involving Roe, but Gorsuch’s writings on the taking of a human life have been interpreted to mean he would vote to overturn Roe, Feinstein said.

Feinstein also criticized Gorsuch’s view that judges should look to the original public meaning of the Constitution when they decide meaning. “In essence, it means that judges and courts should evaluate our rights and privileges as they were understood in 1789,” she said. This “limits the genius of what our Constitution upholds,” Feinstein said.

11:24 a.m. ET. Senate Judiciary Committee Chairman Charles Grassley, R-Iowa, said the Senate Judiciary Committee will vote on Gorsuch’s nomination Monday, April 3.

In his opening statement, Grassley quoted the late Justice Antonin Scalia on the importance of separation of powers, which gives power to the Bill of Rights. “The most important feature of our Constitution is the design of the document itself,” he says. This structure “protects against the mischief that results against the concentration of political power,” he said.

Judges play a “crucial but limited role” in resolving cases, Grassley said. Judges are not free to rewrite statutes, to reorder regulations or to rewrite the Constitution, he stated.

Gorsuch’s body of professional work displays an unfailing commitment to the principles of separation of powers and judicial independence, Grassley said.

A ruling doesn’t mean you are for the winner or for the loser, or that it means you are for the big guy or the little guy, Grassley said.

Gorsuch appeared to close his eyes briefly when Grassley discussed a Supreme Court decision against the Obama administration and occasionally took notes. He nodded when Grassley spoke about some of his prior writings.

10:59 a.m. ET.. Gorsuch will be introduced by three witnesses. Two are Colorado’s U.S. senators: Michael Bennet, a Democrat, and Cory Gardner, a Republican. The third is former acting U.S. Solicitor General Neal Katyal.

Gorsuch laughs as photographers crowd in to snap his photo.

Gorsuch confirmation hearings: Can he overcome Democratic resentment? Confirmation hearings for U.S. Supreme Court nominee Neil Gorsuch begin today at 11 a.m. ET. Gorsuch will seek to overcome Democratic resentment over the failed nomination of President Barack Obama’s nominee.

The hearings, which will be broadcast live at this PBS website, are expected to last four days.

Gorsuch, a judge on the Denver-based 10th U.S. Circuit Court of Appeals, was nominated to fill replace Justice Antonin Scalia, who died in February 2016. President Barack Obama’s nominee, Judge Merrick Garland of the U.S. Court of Appeals for the D.C. Circuit, never received a confirmation hearing.

Gorsuch has received a well-qualified rating from the ABA’s Standing Committee on the Federal Judiciary. He is known for strong academic credentials, clear writing and an originalist philosophy that puts him in the mold of Scalia. In announcing the nomination, President Donald Trump cited bipartisan support for Gorsuch when he was nominated to the 10th Circuit.

Some Democrats have indicated they may oppose Gorsuch. In a press conference last week, Senate Minority Leader Chuck Schumer, D-N.Y., said he has “a strong presumption against” confirmation, report Bloomberg Politics and Reuters. “Judge Gorsuch may act like a neutral, calm judge, but his record and his career clearly show he harbors a right-wing, pro-corporate, special-interest legal agenda,” Schumer said.

Another issue in the hearings may be Gorsuch’s opposition to the doctrine of Chevron deference, which holds that federal courts should defer to federal agency views when Congress passes ambiguous laws. His views on the issue differ from that of Scalia, who had argued that judges are less capable than regulators in interpreting laws.

Sen. Sheldon Whitehouse, D-R.I., said last week that Democratic resentment over Garland’s failed nomination may also be a factor. Gorsuch “does not come into this with the benefit of the doubt in his favor,” Whitehouse said. Democrats must see that he is “a true judicial conservative and not a political conservative.”


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Family court judge rules Obergefell applies retroactively, and women had a common-law marriage

Posted by on Mar 21, 2017 in Elder Care | Comments Off on Family court judge rules Obergefell applies retroactively, and women had a common-law marriage


Family Law


Gay marriage court

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A same-sex couple who split up after about 30 years together had a common-law marriage, a South Carolina family law court judge recently ruled.

It might be the first time in a family law court trial that a judge determined Obergefell v. Hodges, the 2015 U.S. Supreme Court opinion that validated same-sex marriage, applies retroactively, lawyer David Martin told the The Herald.

He represents Debra Parks, who asked the court for a division of property. Her former partner argued that she did not consider their relationship a marriage. The newspaper did not name the woman, who reportedly fears negative repercussions about her sexual orientation.

Parks, 62, is disabled, according to the article. She and the woman became a couple in 1977, when Parks was still married to a man. Judge Thomas White, who sits in York County, found that the common-law marriage began in 1987, when Parks divorced her husband. He will rule on spousal support in a few weeks, Jim Tucker, who is Parks’ other lawyer, told the newspaper.

Parks and her former partner are listed as the owners of a Rock Hill home, according to the article, and they had joint bank accounts. Also, they reportedly presented themselves as a married couple to some family and friends. They split up in 2016.

Eight states, including South Carolina, recognize common-law marriage, according to the article.

“We owned a house together. We were a family, even when society didn’t accept it,” Parks said. “I want people in my situation to know they do have rights and can get help.”


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FBI director confirms probe of Trump campaign and Russia

Posted by on Mar 21, 2017 in Elder Care | Comments Off on FBI director confirms probe of Trump campaign and Russia


Election Law


James Comey

FBI Director James Comey. Phioto by FBI, via Wikimedia Commons.

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FBI director James Comey confirmed that the bureau is investigating whether there was coordination between Russian officials and President Donald Trump’s campaign during the 2016 presidential campaign.

The House Intelligence Committee opened hearings on Monday to determine the extent of Russian interference and whether campaign officials from either side helped. According to the Washington Post, Comey testified that the FBI is “investigating the nature of any links between individuals associated with the Trump campaign and the Russian government and whether there was any coordination between the campaign and Russia’s efforts.”

Comey—who explained that he usually refused to comment on an ongoing investigation but felt compelled to, in this case, because of the overwhelming public interest and because he had been authorized by the Justice Department to do so—also testified that the probe would seek to determine whether any crimes were committed.

The wide-ranging hearings also dealt with President Trump’s allegations, originally published on Twitter, that President Barack Obama wiretapped Trump Tower.

“I have no information that supports those tweets,” Comey testified, referring to Trump’s March 4 statements on Twitter accusing Obama of having his “wires tapped” and that Obama was a “bad (or sick) guy” for daring to “tapp [sic] my phones during the very sacred election process.” Under questioning from the committee’s ranking Democrat, Adam Schiff (D- Calif.), the FBI chief stated, categorically, that the president can never authorize a wiretap against anyone.

Republicans on the panel grilled Comey as to one of Trump’s main concerns: leaks to the media. Under questioning from committee chair Devin Nunes, R-Calif., Comey reiterated that leaking classified information was a crime, as well as a breach of trust with Foreign Intelligence Surveillance Act courts.

Trump, for his part, sent out several tweets before and during Comey’s testimony, calling the entire investigation “fake news” and stating that the real story is about finding and punishing leakers.

Nevertheless, Comey warned that the Russians are probably feeling emboldened by what happened during the election and will probably try and do it again. “They’ll be back in 2020, they may be back in 2018,’’ Comey said. “One of the lessons they may draw from this is that they were successful.”


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