Entries Tagged as 'Legal'

Bill of Rights – Amendment I

The past week has made me question if it’s not just the financial future for the United States that is in serious question, but the very founding principles which established this republic.

The framers of the Constitution of the United States were compelled to add the first ten amendments to that document before ratification. Known as the Bill of Rights the first of these amendments (Amendment I) contains precept son which much of the expansion of this country has been based (though this is not the first time it’s principle has been tarnished).

On 17 September 1787 the current United States Constitution was adopted by the Constitutional Convention in Philadelphia, Pennsylvania and ratified by each US state in the name of “The People”.

The United States Constitution is the oldest written (single document) constitution still in use by any nation on our planet, and had for over two hundred years defined law in the United States.

On 25 September 1789 the following was added to the United States Constitution, and enacted in full force on 15 December 1791.

Amendment I

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

The “eviction” of peaceful protestors in a number of cities across the nation was alarming in itself; but the use of pepper spray to clear out a group of peaceful protesters at the University of California Davis, in Davis, California is a travesty.  This incident, caught on video and seen within 24-hours of it happening by over half a million people is truly alarming.

I do agree with University of California Davis Chancellor Linda Katehi that an independent investigation be conducted; but I believe that several investigations need to be conducted, including one by the Justice Department under the direction of the US Attorney General.

While I do not feel Linda Katehi needs to step down; I do believe both her and the commander of the police force, as well as any officer acting outside the bounds of the orders issued, need to be put on administrative leave immediately; and their actions would need to be fully investigated before allowing them to return to their positions of authority.

Points of law, and the legality of actions are determined by the judiciary; but it is the responsibility of the executive branch to insure that potential violations of law (and civil rights) are arraigned.

The Arab Spring was seen as a great movement forward to allowing people to be free(r) and allow them to have a (larger) stake in deciding their future; but now, perhaps the United States needs to request international observers to insure that our government doesn’t continue down this road to infringe on the rights that “we the people” have given so much to secure.


Originally posted 2011-11-21 02:00:40.

Don’t Ask – Don’t Tell

Repeal of ‘don’t ask, don’t tell’ is inevitable
By Christopher Wolf, CNN
22 September 2010

Senate Republicans successful in blocking the repeal Tuesday of “don’t ask, don’t tell,” the military’s discriminatory policy on gays and lesbians in the military, obviously did not read or simply chose to ignore a California federal judge’s ruling several weeks ago that the policy violates fundamental constitutional rights.

Given the opportunity to undo the bigotry that was written into law 17 years ago, the senators chose not to follow the lead of the House of Representatives, which voted in May to repeal the law. Instead the Senate opted to pander to socially conservative voters. For now, at least, the law remains on the books.

But the march to repeal or invalidation must and will resume. The unfairness and wastefulness of the “don’t ask, don’t tell” policy has been demonstrated repeatedly.

Twelve years ago I handled a case that by itself showed the absurdity and mean-spirited nature of the law. In 1998, I represented a highly decorated 17-year veteran of the United States Navy who had served honorably and continuously since he was 19 years old.

Out of the blue, the Navy decided to kick him out of the service because he was gay, and not based on anything he did as a sailor. (I was called into the case the night before the discharge was to take effect.)

At the time of the Navy’s decision to discharge him, he was the senior-most enlisted man aboard the United States nuclear submarine USS Chicago, the sole source of income for his mother and nearing retirement eligibility.

The “offense” triggering the Navy’s witch hunt was an e-mail the sailor had sent from his AOL account seeking donations of toys for the children of his shipmates at Christmas. (His AOL username made the Navy officials suspect the sailor might be gay, but nothing in the contents of the e-mail or anything else in the sailor’s behavior in the service justified what the Navy did.)

The Navy decided to go on a “search and destroy” mission against the service member (those are the words of the judge hearing the case), when it asked AOL to get information about the sailor to confirm he was gay.

Then-Judge Stanley Sporkin–formerly general counsel of the SEC and CIA, so no bleeding heart liberal — found that the Navy had violated federal electronic privacy law by demanding information from AOL to make its case against the sailor, and that it had violated the strictures of the “don’t ask” part of the military policy on gay and lesbian service members. He stopped the Navy from throwing out a distinguished service member in light of its illegal activity.

The case made news at the time. The decision was a courageous one and against the conventional wisdom that Congress had accommodated gays and lesbians just fine with “don’t ask, don’t tell” and it was not up to civilians to tell the military how to operate.

Sporkin wrote in his opinion that “It is self-evident that a person’s sexual orientation does not affect that individual’s performance in the workplace. At this point in history, our society should not be deprived of the many accomplishments provided by the people who happen to be gay.”

He said the court “cannot understand why the Navy would seek to discharge an officer who has served his country in a distinguished manner just because he might be gay” and that the case “vividly underscores the folly of a policy that systematically excludes a whole class of persons who have served this country proudly and in the highest tradition of excellence.”

He acknowledged that the case specifically did not reach any of the constitutional issues underscoring the “don’t ask, don’t tell, don’t pursue” policy, but he felt compelled to note that “the defenses mounted against gays in the military have been tried before in our nation’s history — against blacks and women.” Sporkin concluded: “Surely, it is time to move beyond this vestige of discrimination and misconception of gay men and women.”

Twelve years later, a successor of Sporkin’s on the federal bench in California decided just that — that it is time to eliminate discrimination, as a matter of constitutional law. In the meantime, scores of qualified and committed service members have been ousted based solely on a policy whose foundation is unconstitutional bigotry.

They did not have a Sporkin to take up their cause of justice. They will never get their careers back, or purge the trauma of being labeled second-class citizens, and neither will our country be able to recover their valuable lost service.

Although the Senate stopped repeal of “don’t ask, don’t tell” in its tracks yesterday, the California ruling will work its way through the appellate process. In the end, this will turn around and the day will come when gay and lesbian service members and their allies can say we were right all along, and just as in the days of segregation, the country was wrong.

Repeal of ‘don’t ask, don’t tell’ is inevitable on CNN

Originally posted 2010-09-25 02:00:31.

Brink’s Pill Heist

On the 17th of March in what could well become the basis of the next Hollywood crime caper movie, $75 million worth of pharmaceuticals was stolen from a warehouse in Enfield, MA from Eli Lilly & Co.

The thieves disabled the alarm system, scaled an exterior brick wall, cut a hold in the roof, rappelled inside, loaded pallets of merchandise onto an awaiting vehicle, and left with a semi-truck full of stolen goods.

Prozac, Cymbalta, Zyprexa according to Eli Lilly no narcotics or painkillers were stored in this ware house.

Why worry about drugs from abroad when it seems the drug trade is very much alive right in our own back yard.

Originally posted 2010-03-19 02:00:13.

Bush v. Gore

At a law school Supreme Court conference that I attended last fall, there was a panel on “The Rehnquist Court.” No one mentioned Bush v. Gore, the most historic case of William Rehnquist’s time as chief justice, and during the Q. and A. no one asked about it. When I asked a prominent law professor about this strange omission, he told me he had been invited to participate in another Rehnquist retrospective, and was told in advance that Bush v. Gore would not be discussed.

The ruling that stopped the Florida recount and handed the presidency to George W. Bush is disappearing down the legal world’s version of the memory hole, the slot where, in George Orwell’s “1984,” government workers disposed of politically inconvenient records. The Supreme Court has not cited it once since it was decided, and when Justice Antonin Scalia, who loves to hold forth on court precedents, was asked about it at a forum earlier this year, he snapped, “Come on, get over it.”

There is a legal argument for pushing Bush v. Gore aside. The majority opinion announced that the ruling was “limited to the present circumstances” and could not be cited as precedent. But many legal scholars insisted at the time that this assertion was itself dictum — the part of a legal opinion that is nonbinding — and illegitimate, because under the doctrine of stare decisis, courts cannot make rulings whose reasoning applies only to a single case.

Bush v. Gore’s lasting significance is being fought over right now by the Ohio-based United States Court of Appeals for the Sixth Circuit, whose judges disagree not only on what it stands for, but on whether it stands for anything at all. This debate, which has been quietly under way in the courts and academia since 2000, is important both because of what it says about the legitimacy of the courts and because of what Bush v. Gore could represent today. The majority reached its antidemocratic result by reading the equal protection clause in a very pro-democratic way. If Bush v. Gore’s equal protection analysis is integrated into constitutional law, it could make future elections considerably more fair.

The heart of Bush v. Gore’s analysis was its holding that the recount was unacceptable because the standards for vote counting varied from county to county. “Having once granted the right to vote on equal terms,” the court declared, “the state may not, by later arbitrary and disparate treatment, value one person’s vote over that of another.” If this equal protection principle is taken seriously, if it was not just a pretext to put a preferred candidate in the White House, it should mean that states cannot provide some voters better voting machines, shorter lines, or more lenient standards for when their provisional ballots get counted — precisely the system that exists across the country right now.

The first major judicial test of Bush v. Gore’s legacy came in California in 2003. The N.A.A.C.P., among others, argued that it violated equal protection to make nearly half the state’s voters use old punch-card machines, which, because of problems like dimpled chads, had a significantly higher error rate than more modern machines. A liberal three-judge panel of the United States Court of Appeals for the Ninth Circuit agreed. But that decision was quickly reconsidered en banc —that is, reheard by a larger group of judges on the same court — and reversed. The new panel dispensed with Bush v. Gore in three unilluminating sentences of analysis, clearly finding the whole subject distasteful.

The dispute in the Sixth Circuit is even sharper. Ohio voters are also challenging a disparity in voting machines, arguing that it violates what the plaintiffs’ lawyer, Daniel Tokaji, an Ohio State University law professor, calls Bush v. Gore’s “broad principle of equal dignity for each voter.” Two of the three judges who heard the case ruled that Ohio’s election system was unconstitutional. But the dissenting judge protested that “we should heed the Supreme Court’s own warning and limit the reach of Bush v. Gore to the peculiar and extraordinary facts of that case.”

The state of Ohio asked for a rehearing en banc, arguing that Bush v. Gore cannot be used as precedent, and the full Sixth Circuit granted the rehearing. It is likely that the panel decision applying Bush v. Gore to elections will, like the first California decision, soon be undone.

There are several problems with trying to airbrush Bush v. Gore from the law. It undermines the courts’ legitimacy when they depart sharply from the rules of precedent, and it gives support to those who have said that Bush v. Gore was not a legal decision but a raw assertion of power.

The courts should also stand by Bush v. Gore’s equal protection analysis for the simple reason that it was right (even if the remedy of stopping the recount was not). Elections that systematically make it less likely that some voters will get to cast a vote that is counted are a denial of equal protection of the law. The conservative justices may have been able to see this unfairness only when they looked at the problem from Mr. Bush’s perspective, but it is just as true when the N.A.A.C.P. and groups like it raise the objection.

There is a final reason Bush v. Gore should survive. In deciding cases, courts should be attentive not only to the Constitution and other laws, but to whether they are acting in ways that promote an overall sense of justice. The Supreme Court’s highly partisan resolution of the 2000 election was a severe blow to American democracy, and to the court’s own standing. The courts could start to undo the damage by deciding that, rather than disappearing down the memory hole, Bush v. Gore will stand for the principle that elections need to be as fair as we can possibly make them.

Has Bush v. Gore Become the Case That Must Not Be Named?
By Adam Cohen
Published: August 15, 2006; The New York Times

Originally posted 2010-09-09 02:00:33.

“Honest Services” Law

Last Thursday the Supreme Court greatly narrowed the scope of a federal fraud law frequently used to prosecute white-collar criminals.

And guess who might benefit from the decision…

Enron CEO Jeffrey Skilling among a host of others.

The Supreme Court ruling was the result of an appeal Jeffery Skilling brought before the court.  Skilling actually ask that the “honest services” law be struck down as unconstitutional as well as asking for a new trial since he claimed he didn’t get a fair trial in Houston (I personally don’t recall him requesting a change of venue — so apparently he felt he’d fair better there than most other places people felt he’d defrauded them out of their life savings).

Justice Ruth Bader Ginsburg’s written option stated that prosecutors could continue to seek honest services fraud conviction in cases where their is sufficient evidence to show defendants accepted bribes or kickbacks.  Of course Jeffery Skillings isn’t accused of accepting bribes or kickbacks, just filling his pockets with money at the expense of his investors and customers by knowingly manipulating the energy market.

The court did not specifically throw out any of the nineteen counts against Skilling, nor did they agree to a new trial.

I’m sure former Illinois Gov. Rod Blagojevich, former Alabama Gov. Don Siegelman, and ex-HealthSouth CEO Richard Scrushy, former newspaper magnate Conrad Black, former Alaska lawmaker Bruce Weyhrauch as well as other will be quick to see what this new ruling might do to help them.

Justices Sonia Sotomayor, Stephen Breyer, and John Paul Stevens were the dissenters; and I once again have to ask what box of cereal Justice Ginsberg clipped her law degree from.

I know, this is America, land of the free; but where the more cash you have, the more “equitable” the law.

Originally posted 2010-06-25 02:00:00.

Bait and switch rates?

Yesterday (Monday 6-Jul-2010) at 4:15pm I stopped by Gulf Winds Federal Credit Union to open up an IRA Certificate of Deposit; I’d been in the process of transferring money from one institution to another (and it took much longer than it should have — but since two institutions were involved, it’s hard to know which was responsible for the delay).

Anyway, I ended up having to wait 45 minutes to be helped; that gave me plenty of time to look over the posted rate board — and I’d decided that the 2.09% for a 24-month IRA-CD looked reasonable (I’d have preferred 18 months or less, but I wanted a reasonable return rate, and I don’t really expect the economy to start to rebound for several years).

The customer service representative that helped me (the “Financial Services Representative”) ask me which CD I was interested in and I told him — the 24-month 2.09% APR; he immediately said, that the 24-month IRA-CD was 1.97%, not 2.09% — that it had changed on Friday 2-Jul-2010 and they simply hadn’t gotten around to posting it on their rate board.

WTF?

I’ve long been under the impression that financial institutions understand the importance of posting accurate rate information — and I thought most any ethical institution understands the legal (even if they don’t understand the moral) implications of posting fraudulent information.

When I got home I filed complaints with the State of Florida Attorney General’s office (in Tallahassee, FL) and the National Credit Union Administration, Region III office (in Atlanta, GA) requesting that they investigate the business practices of Gulf Winds Federal Credit Union.



Post Note: The VP of Operations contacted me this morning (7-Jul-2010) and Gulf Winds Federal Credit Union will honor the rate as posted yesterday (for me at least).

Originally posted 2010-07-07 02:00:32.

Free Speech

There’s a story coming out of Missouri about a man who exercised his right to express his views (peacefully)…

Personally, my feeling is his choice was less than tasteful, and certainly doesn’t represent my beliefs — but none the less I defend his right to make his views known, and I believe those who coerced him into removing his display represent a great evil that is swelling in this country.

We Americans pride ourselves on being the land of the free and the home of the brave… but in fact we’re the land of those who must acquiesce to what is politically correct and the home of those who are too ignorant to believe in the principals that truly used to set Americans apart from much of the world.

Racially-driven Halloween display removed at sheriff’s request
By Holly Brantley

NEAR SIKESTON, MO (KFVS) – At the request of sheriff Rick Walter, Scott County homeowner Rick Hoskins removed a Halloween display in front of his home Wednesday that’s the subject of much controversy in the Sikeston area.

The display, which featured a Ku Klux Klan figure alongside an effigy of a black man hanging from a noose, could be seen by drivers on Interstate 55.

Walter said his office had received several complaints about the display, so he contacted the office of prosecuting attorney Paul Boyd to see if it was within the sheriff’s department’s rights to remove it due to the problems it could cause.

Boyd encouraged Walter to discuss the matter with Hoskins and to ask Hoskins to take it down. Hoskins complied, but indicated he would contact his attorney with the intent of putting the decorations back up.

“There’s been a bunch of people that’s stopped by since I put them up,” said Hoskins. “Said they want to shake my hand. They said they’re glad to see a little white pride is still left in this country.”

Hoskins also flies a Confederate flag in his front yard, and says he has for years.

“They’re my Halloween decorations,” Hoskins said. “I think they speak for themselves.”

As for neighbors and others in the county, most found the decorations offensive and inappropriate.

“I thought we were passed that,” said a woman from Sikeston. “I thought we were all friends here.”

“I understand it’s freedom of speech,” said another woman. “But he needs to get over it.”

© 2010 KFVS. All rights reserved.

Originally posted 2010-10-25 02:00:56.

For the good of the many…

BART shutdown power to cellular antennas in and around BART stations in order to prevent individuals from using social media to organize a protest.

BART said basically it weighed the rights and freedoms all American expect against the potential threat to public safety.

How many times have autocrats and dictators used a similar statement to defend their actions in the past.

Freedom has costs associated with it; and unfortunately the right to protest is a fundamental tenant of American society… suppressing that right, even if there is a perceived threat of something possibly going wrong, does harm to all of us.

Since 9/11 this country has been headed down a dangerous road — essential freedoms have been compromised, and now public entities are taking action without any judicial review that severely impact public freedoms.

I say it’s time this stops before we find that “we” didn’t win the Cold War, we simply became the enemy.


Cell Service Shutdown Raises Free Speech Questions by Carrie Johnson NPR.org

Originally posted 2011-08-16 02:00:36.

Can You Hear Me Now?

And who else can hear me or can see my cellular phone records?

Verizon Wireless informed the Obama transition team, the US Secret Service, and law enforcement agencies that a number of Verizon employees had improperly and illegally accessed cellular phone records for a phone belonging to Barrack Obama.

The employees have been suspended without pay while the investigation is conducted.

So it’s great that a high profile individual like the president elect gets swift action from Verizon, but the question in my mind is why aren’t they just as quick to act when I call?

Over all I would say that Verizon’s customer service is better than most companies; but I don’t get this kind of attention when they screw up — and I dont’ recall seeing any clauses in my contract about getting a higher grade of customer service if elected to public office…

Originally posted 2008-11-21 18:00:44.

Federal Express is a SPAMmer

Yesterday evening I received an Unsolicited Commercial Email (UCE, aka SPAM) from Federal Express in violation of the California Professions and Business Code Section 17538.45.

Apparently Federal Express has taken to harvesting email addresses used in requesting tracking services and subscribing them to their marketing mailings lists without obtaining the permission of the owner of the email address (California law prohibits OPT-OUT policies, and requires that advertisers use OPT-IN methods).

Not only have I send a demand to Federal Expresses marketing campaign company and Federal Express demanding immediate payment of the fifty dollar fine specified by California Law; but I will no longer do business with Federal Express PERIOD.  That means I do not ship via FedEx, and I do not accept packages via FedEx, which means I don’t deal with vendors that use FedEx.

Originally posted 2009-02-19 01:00:25.