Supreme Court is asked to rule Oregon bakers had a right to refuse to make cake for same-sex wedding

U.S. Supreme Court

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The former owners of an Oregon bakery are asking the U.S. Supreme Court to accept their appeal and decide that they had a First Amendment right to refuse to bake a custom cake for a same-sex wedding.

The Oct. 19 cert petition filed on behalf of Melissa and Aaron Klein says they refused to bake the cake because of their religious belief that marriage is between a man and a woman, report SCOTUSblog and the Oregonian. The Kleins are represented by the First Liberty Institute, which posted a press release and a case summary.

The decision could resolve a broader question that the Supreme Court didn’t settle in its Masterpiece Cakeshop decision involving a Colorado baker who refused to bake a cake for a same-sex wedding. The narrow decision, issued in June, said the Colorado Civil Rights Commission violated baker Jack Phillips’ free exercise rights because it showed hostility to his religious claims.

SCOTUSblog explains the unresolved question: “When can sincerely held religious beliefs like Phillips’ trump neutral laws that apply to everyone?”

The Oregon Bureau of Labor and Industries found that the Kleins had violated the state’s public accommodations law and ordered them to pay $135,000 in compensatory damages in 2015. Their suburban Portland business, Sweet Cakes by Melissa, has closed.

“The State of Oregon drove Melissa and Aaron Klein out of the custom-cake business and hit them with a $135,000 penalty because the Kleins could not in good conscience employ their artistic talents to express a message celebrating a same-sex wedding ritual,” the cert petition says.

The Oregonian said the Kleins are “figureheads for the religious liberty movement,” and crowdfunding has raised more than $500,000 for them.

The case is Klein v. Oregon Bureau of Labor and Industries.


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New York state bar exam results released, pass rate has dropped

Bar Exam

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Out of 9,679 people who sat for the July 2018 New York state bar exam, 63 percent passed.

Results were released Tuesday, according to a press release. Above the Law reports that the July 2018 New York state bar had the lowest number of test takers since July 2004, and according to the New York Law Journal, the pass rate dropped 5 percentage points from 2017.

For the July 2017 New York state bar, 9,932 people took the exam, and the pass rate was 68 percent.

For July 2018 exam, the pass rate for first-time test takers who graduated from an ABA-accredited law school was 83 percent, according to the press release, and out of the first-time test takers who graduated from a New York ABA-accredited law school, the pass rate was 81 percent. The pass rate for test takers in total from ABA-accredited law schools was 74 percent. For graduates of foreign-educated test takers, the pass rate was 41 percent.

The pass rate of first-time test takers who graduated from ABA-accredited law schools was also 83 percent for the July 2016 and 2014 exams, the press release states. The pass rate for graduates of ABA-accredited law schools who were first time test takers in July 2017 was 86 percent.


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Judge slashes $211M from punitive award in Roundup cancer case

Trials & Litigation

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A San Francisco judge has slashed a punitive damages verdict by about $211 million in a lawsuit claiming the weed killer Roundup caused a groundskeeper’s cancer.

Judge Suzanne Ramos Bolanos reduced punitive damages on Monday from $250 million to $39.25 million, the same amount jurors awarded in compensatory damages, report Courthouse News Service, USA Today, the Wall Street Journal and the San Francisco Chronicle. The National Law Journal posted the opinion.

If lawyers for 46-year-old plaintiff Dewayne “Lee” Johnson reject the lower award, Bolanos will order a new trial on the punitive damages issue. Johnson’s case was the first to go to trial among around 4,000 pending suits.

During an Oct. 10 hearing on the award, Bolanos questioned whether Johnson’s lead lawyer, Brent Wisner, had crossed a line when he told jurors that lawyers for Roundup’s maker were waiting for the verdict and, “if the damages number isn’t significant enough, champagne corks will pop.”

Roundup was made by Monsanto, which is now owned by Bayer AG, a German pharmaceutical company.

Two jurors told the Wall Street Journal that Wisner’s remarks didn’t influence them. “Obviously he was being theatrical, but that’s what attorneys do,” said juror Gary Kitahata.

Bolanos had earlier indicated she was considering tossing the entire $250 million punitive award because lawyers for the plaintiff had failed to produce clear and convincing evidence of malice or fraud by Monsanto, as required by the California Civil Code.

At least three jurors, including Kitahata, wrote letters to Bolanos expressing concern about her tentative ruling, according to the San Francisco Chronicle. “You may not have been convinced of the evidence, but we were,” Kitahata wrote.

In her decision on Monday, Bolanos said a jury could find that Monsanto’s continued marketing of Roundup, despite a link to the type of cancer suffered by Johnson, could constitute corporate malice for purposes of punitive damages.

But she said compensatory damages of $39.25 million already were substantial, and due-process precedent requires a one-to-one ratio of punitive to compensatory damages in such cases.


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Stanford Law gets $25 million for global program, which will include student travel

Law Schools

William A. Franke, an attorney and founding chairman of an aircraft finance group, has made a $25 million gift to Stanford Law School to fund its global law program, the university announced Monday.

The donation constitutes “the largest gift from an alum in the law school’s history,” the university said in a news release. Law.com also reported on the donation.

Now called the W.A. Franke Global Law Program, its first global quarter, starting in 2020, will focus on business in China, Singapore and Asia, according to the news release. Six weeks of classes will be on campus, and for three or four weeks faculty will take students overseas to meet with lawyers, academics, politicians, students and business leaders.

“No other law school offers the kind of intense immersion overseas that this program will provide our students,” said Robert Daines, professor of law and business and associate dean for global programs, in the release. “With the global quarter, a global foundational course, intensive overseas study trips and greater integration of transnational law into existing core courses, Stanford Law is shaping the future of legal education by ensuring that every student has the opportunity to cultivate a global perspective.”

Franke, who got his undergraduate and law degrees from Stanford, was the founding chairman of Airplanes Group Ltd., a $5 billion aircraft finance business. He also founded Indigo Partners, a private equity firm, and through that was chairman of Singapore’s Tiger Airlines, Hungary’s Wizz Air, Chile’s JetSMART Airlines, and Spirit Airlines in the United States. Also, from 1993 to 2001, Franke was the CEO of America West Airlines (now integrated into American Airlines).

In addition to the $25 million donation, the law school has an endowed chair named in Franke’s honor, held by Joseph Grundfest, and Franke has also been a member of the dean’s advisory council.

“I’m excited by the law school’s vision to make Stanford Law a true incubator for the next generation of global leaders,” Franke said in the news release. “My hope is that this gift will add a layer of global preparedness to the education offered at Stanford and will help continue the tradition of sending SLS graduates into the world able to tackle pressing issues and add value in the global arena.”


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Appeals court rules that Georgia annotated code cannot be copyrighted

Government Law

Georgia Code Annotated binder with state seal.

A bound volume of the Official Code of Georgia Annotated. Georgia Code Revision Commission.

Georgia’s official annotated state code is not copyrightable and belongs in the public domain.

In a unanimous ruling dated Oct. 19, a three-judge panel for the U.S. Court of Appeals for the 11th Circuit reversed a March 2017 decision.

An Atlanta federal judge had ruled that open law advocate Carl Malamud had violated copyright by putting a free copy of the annotated state code on his website. In its ruling, the 11th Circuit panel holds that the annotations carry the weight of state authority. As such, the annotations belong to the people of Georgia and cannot be copyrighted.

“The question is a close one—and important considerations of public policy are at stake on either side—but, at the end of the day, we conclude that the annotations in the OCGA [Official Code of Georgia Annotated] are sufficiently law-like so as to be properly regarded as a sovereign work,” U.S. Circuit Judge Stanley Marcus writes in the opinion. “In short, the annotations are legislative works created by Georgia’s legislators in the exercise of their legislative authority. As a consequence, we conclude that the People are the ultimate authors of the annotations.”

The distinction between law and annotations has long been clear, Marcus writes. Law cannot be copyrighted because it belongs to the people; annotations can be if created by a private party. In Georgia, however, the line has blurred because annotations in the state code are prepared by LexisNexis but considered part of the official code.

Marcus noted that, unlike most states, the annotated code is deemed Georgia’s official code and the unannotated version (which is available for free) is not considered authoritative.

“[T]he annotations in the OCGA, while not having the force of law, are part and parcel of the law,” Marcus writes. “They are so enmeshed with Georgia’s law as to be inextricable. The annotations are themselves law-like insofar as we examine who made them, how they were made, and the role they play in the legislative and jurisprudential spheres of Georgia’s public life.”

The victory was the second major appellate win for Malamud in 2018.

In July, the U.S. Court of Appeals for the D.C. Circuit vacated an injunction forcing Malamud to remove technical standards from private industry groups, like the American Society for Testing and Materials, that are later incorporated into law.

The Georgia case dates to 2013. Malamud, a longtime advocate for open access to law, purchased the entire Georgia annotated code, scanned each page, and put the contents on his website Public.Resource.Org. The state sued for copyright infringement in 2015, requesting an injunction.

“The State of Georgia has no valid copyright in any portion of the OCGA because the OCGA is in the public domain,” Malamud argued in court papers. Malamud was represented by Alston & Bird, the ACLU of Georgia and Washington, D.C. lawyer David Halperin.

In March 2017, U.S. District Judge Richard Story of the Northern District of Georgia granted the state summary judgment, forcing Malamud to remove the state code from his website. “I fought the law and the law won,” Malamud tweeted at the time, quoting lyrics from a recording by The Clash.

On Oct. 20, he sang a different tune, tweeting, “to the people of Georgia: This law is your law. This law is my law. From the Blue Ridge Mountains to the Savannah River. From Morehouse College to the Vidalia fields. This law was made for you and me.” He also put the annotated state code back online.

The state of Georgia was represented by a team of attorneys at Meunier Carlin & Curfman. When asked whether the state would seek reargument or appeal to the U.S. Supreme Court, Tony Askew, a principal at the firm, declined to comment to the ABA Journal.


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“Navigating Mom’s Final Years” Recap: Tools for Supporting Aging Loved Ones

I was delighted and privileged to serve as a panelist on a seminar sponsored by The Catholic Foundation of Rhode Island on October 4th entitled Navigating Mom’s Final Years.

Expertly organized by Andrea Krupp, Esq. of the Catholic Foundation, the fact pattern presented was honed by my fellow panelist Betsey Purinton, CFP of StrategicPoint. The scenarios developed by Betsey enabled us and our fellow panelist, The Reverend Monsignor John Darcy, to outline the circumstances commonly experienced by aging baby-boomers, elders and their family.

Betsy’s fact patterns, highlighted by the deft skills of our moderator, Nicholas Denice of Hinckley Allen, were an excellent starting point for us panelists to discuss the financial, legal and spiritual issues confronting aging people and their families in these increasingly common situations.

As promised, I am including two links referred in my presentation. The first, Why Am l Left in the Waiting Room? Understanding the 4 C’s of Elder Law Ethics, is a brochure which I assign to the students in my Elder Law class at Roger Williams University Law School. As Betsey pointed out in her presentation, it is important for both legal and financial professionals to focus on who the client is.

The second is a link to the Center for Medicare Advocacy’s FAQ guide on the Medicare “Improvement Standard”. It dispels the persistent myth that a long-term nursing home resident needs to be “improving” in order to continue receiving the skilled nursing home benefit available under Part A of Medicare. This link contains advocacy tools for family members seeking to maximize the Medicare benefits of a loved one in a nursing home.

Thanks to the Foundation, sponsors (listed below), fellow panelists and attendees for an excellent learning experience.

2018 Sponsors:

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