Smithfield Crossing Law Blog

Archive for the ‘general law’ Category

By Carlyn Kolker

NEW YORK |
Tue Jul 26, 2011 6:39pm EDT

NEW YORK (Reuters) – Goodwin Liu, a University of California law professor whose confirmation to a federal appeals court was blocked in the U.S. Senate, has been nominated to serve as a justice on the top court in California.

California Governor Jerry Brown, a Democrat, announced Liu’s nomination to the California Supreme Court on Tuesday.

Liu, 40, must be approved by the state’s commission on judicial appointments, a three-person panel that will hold a public hearing on the nomination.

Supreme court justices in California serve 12-year terms, at which point they can face retention elections.

Liu, a constitutional law professor, experienced a lengthy nomination saga in the U.S. Senate. He was first nominated by President Obama to serve as a judge on the 9th U.S. Circuit Court of Appeals in September 2010. Obama was twice forced to re-nominate him when earlier nominations expired.

Conservatives opposed Liu, whom liberal groups had championed, saying his judicial philosophy was outside the mainstream.

In May Senate Republicans effectively blocked Liu’s nomination when he failed to get the 60 necessary votes to end debate on his nomination in the full Senate.

Liu withdrew his name a week later, saying he wanted to “regain the ability to make plans for the future.”

Brown faced pressure to appoint a Latino nominee to fill a spot vacated by Associate Justice Carlos Moreno, a Latino justice who retired earlier this year. Latinos comprise more than one-third of the population in California, according to U.S. Census figures.

Liu is of Chinese descent, but Chris Arriola, an attorney in San Jose who has been active in Latino bar associations, said: “Latinos are thrilled with the appointment of Goodwin Liu.”

“We are very hopeful for a Latino appointment on the Supreme Court in the future,” Arriola added.

(Reporting by Carlyn Kolker; Editing by Jerry Norton)

NEW YORK |
Tue Jul 26, 2011 6:36pm EDT

NEW YORK (Reuters) – Two days after same-sex marriage became legal in New York, the state’s attorney general has taken legal action challenging the constitutionality of the U.S. law which defines marriage as between a man and woman.

In court papers filed on Tuesday in U.S. federal court in Manhattan, New York Attorney General Eric Schneiderman said the Defense of Marriage Act, or DOMA, violates same-sex couples’ right to equal protection under the U.S. Constitution.

The 1996 law prohibits same-sex couples from receiving marriage-based benefits such as Social Security survivor benefits, health benefits and the right to file taxes jointly.

Schneiderman argued the law intrudes on the state’s right to regulate marriage. On Sunday, gay couples began to marry in New York after it was made legal.

New York is the sixth and largest U.S. state to allow same-sex marriage. Connecticut, Iowa, Massachusetts, New Hampshire, Vermont and the District of Columbia also do so.

“By discriminating among married couples based on sexual orientation and sex, DOMA deprives New York of the ability to extend true equality to all marriages valid in the State,” Schneiderman wrote.

Schneiderman made his arguments in support of a case brought by Edie Windsor, a woman who sued the United States last year after an inheritance from her former partner was taxed. Windsor, who was married in Canada in 2007, said she had to pay $350,000 in inheritance tax in 2009 after the federal government refused to recognize her marriage.

Windsor argued she “was forced to pay in violation of the constitutional guarantee of equal protection of the law.”

In February, the Obama administration announced it would no longer defend the Defense of Marriage Act’s section which defines marriage as between a man and woman.

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The initial $634,000 bill for the unsuccessful defense of a Vermont law limiting access to prescription drug databases hints that legislators may need better advice on the constitutionality of controversial legislation they consider.

In June, the U.S. Supreme Court struck down a Vermont law that prevented pharmacies from selling information about the prescription writing habits of doctors to companies that want to use the information for marketing.

State Auditor Tom Salmon, who released a report on the cost of litigation this month, says the total price tag could reach as high as $2 million after court assigns costs to Vermont as the losing party in the suit.

What a tremendous waste of money in support of a hollow principle.

As the Legislature was considering the bill in 2007, a federal judge stuck down the New Hampshire law that had been copied for the Vermont legislation. Rep. Thomas Koch, R-Barre, in 2008 unsuccessfully sought to repeal the law arguing the information was “constitutionally protected commercial free speech.”

As it turned out, that’s how the Supreme Court ruled, with Justice Anthony Kennedy writing in an opinion, “The state may not burden the speech of others in order to tilt public debate in a preferred direction.”

How appropriate that even the Supreme Court challenges the state’s tendency to snub free speech and open government.

A mere threat of a lawsuit must not deter lawmakers from passing legislation they feel is on sound legal footing and in the best interest of Vermonters. At other times, the Legislature may seek to push the boundaries of existing law, fully conscious of the legal challenges the state is likely to face and what it would cost to defend the law.

Yet the state can hardly afford to ignore legal precedent that might give credence to a charge that a proposed law is likely to be struck down. Being on the wrong side of a constitutional challenge can be costly.

In 2006, the Supreme Court struck down Vermont’s campaign finance law saying the limits on campaign contributions were too low while limits on campaign spending restricted a candidate’s free speech rights. That lost fight cost the state $1.4 million in legal fees.

That leaves Vermont with two losses in five years on challenges to state law that have reached the U.S. Supreme Court. Vermonters must be wondering, are lawmakers getting bad advice or are they failing to heed sensible warnings? Are we, as a state, so out of step with prevailing views on basic constitutional rights as to misread what the courts will allow?

Vermont needs to take more care in crafting legislation that’s likely to be challenged — especially when a law seeks to limit constitutionally protected speech.

Losing the case before the Supreme Court is more a political issue rather than legal one. The politicians pushed a law that ended up costing taxpayers a bundle.

Iowa’s Supreme Court has suspended the law license of an Osceola attorney who repeatedly engaged in “deceit and self-dealing” as he and his wife handled the affairs of an elderly woman who died in 2004.

Lawyer Richard Murphy “knew his conduct was wrong, and he sought to keep it from the scrutiny of others, including the district court,” Supreme Court Justice Mark Cady wrote in the court’s decision to suspend Murphy’s license for 18 months. “No other honest assessment of the facts and circumstance can be drawn.”

Past coverage: Investigating the state’s lawyer discipline practices

The court’s sanction went further than earlier recommendations by its prosecutorial arm, the grievance commission, which suggested he receive a public reprimand. Cady found dishonesty and moral turpitude in the actions of the longtime lawyer, who had never been disciplined before.

Murphy is one of 16 lawyers whose licenses have been suspended in Iowa in the first half of this year.

Despite the court’s findings, Murphy was never charged criminally. The case was investigated in 2008, but a forensic accountant gave “a mixed report” on whether prosecutors could prove theft, said Thomas H. Miller, deputy attorney general.

“We declined criminal prosecution,” he said. “We concluded it was borderline as a winnable case.”

A Clarke County attorney decades ago, Murphy’s daughter is the current county prosecutor. His wife, Patricia Murphy – who died recently, according to county officials – sometimes worked in his Osceola practice along with his son, who is also an attorney.

The board found Murphy had acted as an attorney for a friend named Helen Doss and his wife when Patricia Murphy was acting as Doss’ guardian, conservator and executor of her estate.

“After the conservatorship was established, Murphy actively assisted his wife in arranging the financial affairs of Doss so that Patricia would become the sole owner of a substantial portion of her financial accounts upon her death,” the court found.

Murphy did not disclose in reports to the court that he had become a beneficiary of a life insurance policy owned by Doss or that his wife and Doss were joint account holders at Great Western Bank. The two received numerous financial gifts from Doss, including some $125,840 in proceeds from bond sales, which were placed in an A.G. Edwards account controlled by Patricia Murphy.

The case was settled after Doss’ relatives hired a private investigator to find out what had happened to her estate, and the Murphys were ordered to return funds to the estate.

Murphy could not be reached for comment.

While Murphy received a suspension, two Kansas lawyers convicted in a similar case lost their ability to practice in Iowa.

David and Kathryn Polsley, who were convicted in Kansas of misdemeanors for using Social Security money sent to Kathryn’s mother after she died of a rare terminal degenerative neurological disorder, are among three attorneys whose Iowa law licenses were revoked this year.

The Supreme Court board also decided to suspend for 18 months the law license of Waterloo attorney Clovis Bowles, even though a majority of grievance commission members recommended a three-year suspension.

Bowles had a sexual relationship with a former crack user and prostitute after her release from the hospital on a suicide attempt. Later, the attorney tried to mislead state authorities who were trying to investigate the ongoing relationship, one that led to marriage.

At least one member of the grievance commission thought he should have been disbarred. A majority of other commission members thought Bowles should be suspended for three years.

Other lawyers disciplined so far this year include:

Kermit Dunahoo – In June, the board suspended his license indefinitely for 10 ethics rules violations in six foreclosure cases.

Dunahoo, of Dexter, was ordered to cease his bankruptcy practice by the U.S. Bankruptcy Court in Iowa’s southern district in March 2008. He had a pattern of disciplinary problems, having been reprimanded in 1999 and 2007 by the board.

According to court documents, Dunahoo failed to inform clients of the bankruptcy court discipline and he botched several bankruptcy and foreclosure cases.

A licensed attorney since 1971, Dunahoo had early onset dementia and had undergone several eye surgeries when he retired in 2009 and his license became inactive. He admitted to the board he “desperately hung on too long” to his court practice.

John Edward Netti Jr. – The board suspended the Dubuque lawyer’s license in April for at least two years after Netti was disciplined for breaking ethical rules with four different clients. The board found he acted incompetently, failed to act in a timely matter, failed to keep a client informed and had conflicts of interest.

Brian Jesse Nelson – Nelson was suspended temporarily in May because he did not respond to a complaint against him. He was suspended previously because of a disability, according to Paul Wieck II, who heads Iowa’s Office of Professional Regulation. Nelson was still suspended as of last week.

Kenneth Dolezal – He was suspended in May for at least a month for neglecting the matters of his Cedar Rapids clients. Wieck said he was still suspended as of last week because he had not paid costs associated with the court’s decision.

Brian Stowe – The Algona attorney was suspended temporarily in April. Police records show Stowe was arrested at his home in Ringsted on Sept. 2 after a search of his car by an Estherville police officer. He was charged with possession of methamphetamine, court records show.

A former Nevada police officer, Stowe practiced at the Thul Law Firm of Whittemore. He took an Alford plea, meaning he did not admit guilt but acknowledged there was enough evidence against him for a conviction, and received a deferred judgment and probation in April.

Stowe was not attending court-ordered drug treatment sessions, which resulted in a new allegation last month of a probation violation, according to the county attorney. A bench warrant was issued for his arrest.

Stephen Hrones – The Massachusetts attorney was suspended in April for at least one year.

Robert Hearity – The Waterloo attorney was suspended indefinitely for a third time in March for failing to respond to a complaint. He was still suspended as of last week. He was previously suspended in September for failing to pay the state Department of Revenue and in January of this year for failing to respond to a complaint.

James Clarity – The Spirit Lake attorney was suspended on a disability in March after appearing to abandon his practice, the court said. His license was reinstated April 29.

Bruce Thomas – The former Woodbury County attorney was suspended in February for 60 days for numerous violations while representing two clients in Sioux City. His license was reinstated in April.

Rolland Eugene Knopf – The Newton attorney was suspended for at least three months after he failed to file a number of tax returns and pleaded guilty of fraudulent practices. He remains suspended, according to Wieck.

View full sizeFederal judges have temporarily blocked most criminal provisions in states that recently passed laws like Alabama’s targeting illegal immigrants, but have allowed state regulations on employing undocumented workers, an analysis of the litigation shows.

The coalition of advocacy and legal groups, unions and individuals that filed suit this month against Alabama’s comprehensive immigration law will seek a temporary injunction from U.S. District Judge Sharon Blackburn on Aug. 24.

Six states — Arizona, Utah, Georgia, Indiana, Alabama and South Carolina — passed or amended laws since 2010 aimed at people in the country illegally. Alabama’s law is considered the nation’s toughest.

Lawsuits are pending in five of those states. Temporary injunctions have been granted on all or part of the new laws in Arizona, Utah, Indiana and Georgia.

A suit is planned in South Carolina, national advocacy groups such as the American Civil Liberties Union have said.

Federal judges have issued temporary injunctions against laws in Arizona and Utah that — like Alabama’s new statute — require immigrants to carry registration papers.

Judges also have temporarily blocked laws in Arizona, Utah, Indiana and Georgia that — like Alabama’s — allow police to detain suspected illegal aliens to check their immigration status.

But the U.S. Supreme Court has upheld a state law similar to Alabama’s requiring employers to use the federal E-Verify system to confirm the legal status of new hires or risk losing their business license.

While injunction rulings in other states address some laws similar to Alabama’s, several elements of the new Alabama law have not been tested in court, said William G. Ross, a professor at the Cumberland School of Law.

They include:

Requirements that schools check students’ and parents’ immigration status.
A prohibition on renting to illegal immigrants.
A ban on courts enforcing contracts with known illegal aliens.
Criminal sanctions for people in the country illegally who make any financial transaction with a government, like paying taxes.

Seeking a temporary injunction is one of the first steps in a constitutional challenge to a law.

Plaintiffs must show they are likely to win the case and that harm would result if the law were to go into effect. They also must show a delay would benefit the public and not hurt the litigants.

“That does not mean the law is unconstitutional,” Ross said. “It just stops things so there is no irreparable harm to people that could not be remedied.”

State vs. fed power
Opponents say the new state laws are preempted by federal authority because the U.S. Constitution gives the federal government broad power to regulate immigration.

When a state law conflicts with a federal law or hinders its enforcement, the federal law prevails, they argue.

But a recent U.S. Supreme Court ruling has given hope to proponents of state laws targeting illegal aliens. A court majority ruled that Arizona could use its state power to license businesses by passing laws banning companies from hiring illegal workers.

State legislators in Alabama and other states have been trying to craft new laws targeting illegal immigrants that fit within the state’s inherent power to protect the safety, health and morals of its people, said Ross, who wrote about Arizona’s immigrant laws in the May 2010 edition of the legal journal, Jurist.

Alabama’s new law requires employers to use the federal E-Verify system after April 2012, and creates licensing penalties for hiring illegal workers. It is likely to be upheld, Ross said.

But the new state requirement for schools to check students’ and parents’ immigration status could be vulnerable if it is proven to discourage children from attending school, he said.

The U.S. Supreme Court has ruled that undocumented children have the same right to a free public education as citizens.

“If a law discourages people from exercising a constitutional right, the Supreme Court has said many times the law is constitutionally suspect,” he said. “I’m not saying that it’s necessarily unconstitutional. But it is something that is likely to be stayed.”

New state crimes
Another boundary limiting state immigrant laws, recent court rulings have indicated, is when states set criminal and civil penalties.

Federal judges have temporarily suspended enforcement of new state laws that either criminalize behavior that is not criminal under federal law, or laws that also could punish people living in the country legally.

Federal judges have temporarily blocked all criminal penalties in Georgia’s and Utah’s new laws, and some of the criminal penalties in Arizona’s legislation.

But federal judges have differed on new laws in Arizona, Utah and Georgia regarding harboring or transporting illegal immigrants, or encouraging anyone improperly in the country to move or live in that state.

Alabama has a similar law.

Separate judges in Utah and Georgia issued temporary injunctions, but a third judge allowed the Arizona version to go into law after ruling the plaintiffs were not likely to prove the state laws were preempted by federal law.

Final rulings by the trial-level federal judges on the constitutionality of the new state immigrant laws could take months or longer.

Ultimately, as the cases wind through federal appeals, they are likely to be bundled for a potential landmark ruling, Ross said.

“An issue that involves such intense political controversy, such difficult legal questions and such diversity of opinion is a very likely candidate for ultimate adjudication by the U.S. Supreme Court.”

Join the conversation by clicking to comment or email Velasco at evelasco@bhamnews.com.

San Francisco, CA (Vocus/PRWEB) July 19, 2011

The Fitch Law Office’s DUI Division promotes the efficient administration of drunk driving cases for the mutual benefit of the courts, litigants, attorneys, jurors and the general public. The law office is now located at 877 Bryant St., Suite 210 in San Francisco. The office is conveniently located across the street from the San Francisco Hall of Justice Courthouse.

The DUI division is overseen by an expert in DUI prosecutions and defense, Angeli R. Fitch, the founder of Fitch Law Office and a member of the California DUI Lawyers Association.

“A qualified attorney can review the case for defects, have blood samples analyzed independently, compel discovery of calibration and maintenance records for the breath machine, suppress evidence, negotiate for a lesser charge or reduced sentence and contest the DMV license suspension,” said Angeli Fitch.

Drunk driving is a serious offense and a competent defense is needed for this highly specialized case. Hiring a DUI attorney can help the accused in the process of providing evidence and mounting a counter attack to the scientific evidence provided by the government. DUI attorneys should also be able to effectively cross-examine the police officer who conducted the field test. Determining what the blood alcohol content was at the time of driving is a complex process and DUI attorneys are needed to provide this assistance to the accused.

People should not take DUI cases lightly because it can lead to serious damages through fines and jail time. Hiring a DUI Attorney can provide a legitimate defense and protect the accused’s constitutional rights.

For more information about the Fitch Law Office, call (415) 240-4435, view them on the web at www.fitchlawofficesf.com or visit their office, located at 877 Bryant Street, Suite 210, San Francisco.

About The Fitch Law Office

The Fitch Law Office is a San Francisco DUI and personal injury attorney firm that specializes in criminal defense, marijuana law and defense litigation, financial elder abuse and elder rights and personal injury civil litigation in San Francisco. Angeli Raven Fitch is the founder of the Fitch Law Office and has tried numerous cases in both state and federal court in the last decade.

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For the original version on PRWeb visit: www.prweb.com/releases/prwebdui-attorney/san-francisco/prweb8652454.htm

Metropolitan News-Enterprise

Tuesday, July
19, 2011

Page 1

Supreme Court Upholds L.A. Grocery Worker Retention Ordinance

By KENNETH
OFGANG, Staff Writer

A Los Angeles
ordinance that generally requires the new owner of a large grocery store to
retain the existing workforce for 90 days is not preempted by state or federal
law, and is constitutional, the California Supreme Court ruled yesterday.

In a 6-1
decision, the justices overturned lower court decisions in favor of the
California Grocers Association. Div. Five of this districts Court of Appeal
ruled two years ago that the city could not enact such an ordinance because the
Legislature occupied the field by enacting the California Retail Food Code.

Los Angeles
Superior Court Judge Ralph Dau had reached the same conclusion. But the city
argued successfully that that the ordinance, enacted in 2005, falls within the
codes exception for health and safety regulations.

The city
contended that requiring retention of the existing work force guarantees that
employees familiar with procedures for safe handling of food products are on
hand to train their replacements during the transition.

Job Protection

The grocery
operators claimed the law, which was enacted shortly after the announcement
that the Albertsons chain was being sold, was solely enacted as job-protection
measure. Dau and the Court of Appeal agreed, and also concluded that the
National Labor Relations Act preempts the ordinancewhich was backed by
organized labor and the Los Angeles Alliance for a New Economybecause it
allows unionized stores to negotiate alternative arrangements through
collective bargaining.

But Justice
Kathryn M. Werdegar, writing for the high court, rejected the state and federal
preemption arguments, as well as the claim that the distinctions between large
and small groceries, and between grocers and other types of businesses that
sell food, violated the plaintiffs equal protection rights.

Noting that a
number of cities around the state have been recently enacting worker retention
ordinances, Werdegar said there is no conflict between the Los Angeles
ordinance and the Retail Food Code.

The Retail Food
Code establishes standards for what certain employees, particularly one
certified owner or supervising food service employee, must know or be taught,
but does not regulate who must be hired; the Ordinance regulates the pool of
nonsupervising, nonmanagerial employees from which a new owner temporarily must
hire, but imposes no standards concerning what the hired employees must know or
be taught about food safety, the jurist explained.

Nor, she wrote,
does the NLRA preclude the adoption of worker retention ordinances.

Congressional Intent

The justice said
plaintiffs failed to meet the burden of establishing congressional intent to
preempt state law. The National Labor Relations Board, she noted, has not taken
a position on the question, which has been before its administrative law judges
in several cases.

The lone
dissenter was Court of Appeal Justice Elizabeth Grimes of this districts Div.
Eight, sitting on assignment. Grimes said the history and intent of the NLRA
supports preemption.

In my view, the
ordinance intrudes on the collective bargaining process in an extraordinary and
fundamental way, at its very source, Grimes wrote.

The case is California
Grocers Association v. City of Los Angeles, 11 S.O.S. 3935.

Copyright
2011, Metropolitan News Company