Entries Tagged as 'Legal'

Due Process Dies

On Monday 17 May 2010 the Supreme Court of the United States of America handed down a 7-2 decision that affirms the ability of the federal government to hold inmates they deem as “sexually dangerous” in the future indefinitely.

Adolf Hitler, Benito Mussolini, and Joseph Stalin surely stir in their graves at the finally winning the wars they started so long ago.

In the last decade American have lost civil right after civil right; legal protection after legal protection — all in the name of making ourselves “safe”… but in fact all we are doing is making ourselves slaves.

Let me point out that in the United States, a person is found guilty by a trial of their peers, and a judge passes sentence for the crime… when the period of internment expires the criminal has paid his “debt” to society.  Apparently we now believe that the United States government [though the Department of Justice] has the ability to adjust the term of a sentence indefinitely.

How long is it until the United States government just dispenses with the formality of a trial all together, and locks away individuals who they say are a threat… oh wait, that’s already happening — at Guantanamo Bay!

NOTES:

Justice Stephen Breyer wrote the court’s majority opinion stating that it is “a ‘necessary and proper’ means of exercising the federal authority that permits Congress to create federal criminal laws, to punish their violation, to imprison violators, to provide appropriately for those imprisoned and to maintain the security of those who are not imprisoned by who may be affected by the federal imprisonment of others.”

The judgment reversed a lower court ruling that said Congress overstepped its authority in allowing indefinite detentions of prisoners considered “sexually dangerous.”

“The Federal Government, as custodian of its prisoners, has the constitutional power to act in order to protect nearby [and other] communities from the danger such prisoners may pose.”

In order to do it, however, the government must prove the following:

1. The individual has previously “engaged or attempted to engage in sexually violent conduct or child molestation.”

2. He/She currently “suffers from a serious mental illness, abnormality, or disorder,”

3. The prisoner “as a result of” that mental illness, abnormality, or disorder is “sexually dangerous to others,” in that “he would have serious difficulty in refraining from sexually violent conduct or child molestation if released.”

A hearing, during which the individual would remain incarcerated, would then determine whether or not he/she could be released.

“If the Government proves its claims by ‘clear and convincing evidence,’ the court will order the prisoner’s continued commitment,”

Justice Clarence Thomas and Justice Antonin Scalia dissented.  Justice Thomas argues that Congress can only pass laws that deal with the federal powers listed in the Constitution (States Right) and stated that nothing in the Constitution “expressly delegates to the Congress the power to enact a civil commitment regime for sexually dangerous persons, nor does any other provision in the Constitution vest Congress or the other branches of the federal goverment with such a power.”

The Supreme Court ruling upholds the Adam Walsh Chile Protection and Safety Act signed in 2006 by George W Bush.

Originally posted 2010-05-19 02:00:33.

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.

Identity Theft

Identity theft is a real problem, and credit bureaus make it all to easy for individuals who get a little bit of information about you to get your entire life’s story — and use your name (and credit) to make their life better and your life a living hell.

While there’s been improvements in legal recourse for identity theft, your best bet is to guard against it.

To make yourself a harder target, try some simple things like:

  • Elect on-line delivery of banking and credit card statements; utility bills; and anything else you can.  It’s safe, it’s good for the environment, and it reduces the likelihood of mail theft.
  • Use on-line bill payment or pay bills with your credit card; it’s safe, convenient, and it reduces the likelihood of mail theft.  Using your credit card may give you additional rights, and cash back.
  • Destroy paper items that have any personal information on them; cross-cut or confettie shreaders are the best, a fire place, or just mark it over and tear it by hand.
  • Destroy old credit cards, drivers licenses, passports, etc — make sure nothing with personal and confidential information on it goes in the trash.
  • Don’t give out your name or address to any one or on any site or on any phone call unless you know who you’re dealing with and there’s some advantage for you to do so.
  • Remove your name from mailing lists, refuse delivery of mail you didn’t request (that will cost the sender money generally and is more likely to get your name expunged from the list they use).
  • Put a “freeze” on your credit report.  Click here for info
  • Report scammers, spammers, and phishers to law enforcement. Click here for info

 

There are lots of great sites online that are free (free of advertising), and full of information… here’s one of them:

          http://www.consumersunion.org/

Originally posted 2008-11-08 08:00:50.

Stonewall

President Obama declared June 2009 Lesbian, Gay, Bisexual, and Transgenders Pride Month, citing the rights that began at Stonewall Inn, 51 &53 Christopher Street, Greenwich Village, New York City, New York, United States of America on 29 June 1969.

Forty years since the event that is generally considered to be the beginning of the gay civil rights movement (though there were previous efforts at gay civil rights) President Obama makes a token gesture of recognition of the inequity individuals who are not part of the heterosexual majority suffer on a daily basis, but fails to mention that their is still no protection of sexual orientation in the United States and that many states have on the books laws which effectively attempt to make illegal same sex relationships (or at least sexual activities between same sex — and some anything considered deviant sexual activities even between legally married individuals).

Simply put, it is time for the United States of America to recognize and provided equality to each and every American regardless of their age, sex, creed, national origin, ancestry, race, color, sexual orientation, political affiliations, religion, beliefs, physical limitations, or marital status.

Plain and simple, all Americans are Americans and they deserve to be treated equally.

NOTE: June 1999 the US Department of the Interior designated 51 and 53 Christopher Street, the street itself, and the surrounding streets as a National Historic Landmark.

Let it forever be remembered that here—on this spot—men and women stood proud, they stood fast, so that we may be who we are, we may work where we will, live where we choose and love whom our hearts desire.
· John Berry, Assistant Secretary of the Department of the Interior

Originally posted 2009-06-01 02:00:39.

Voter ID Requirements

Since roughly 1750 the phrase “taxation without representation” has been used in the country as a rallying phrase for action.

In the Revolutionary War, it reflected on the British Crown taxing citizens in the colonies without providing them any voice in Parliament.

In Washington DC it became the motto of citizens pointing out that they had no representation in the House of Representatives of the Senate (and was a slogan used on Washington DC license plates — you may recall President Bill Clinton having those put on the White House limosines, and President George W Bush having them removed).

Now my questions is… if the states who have implements “tough” new voter identification requirements (even though voter fraud has never been shown to be a substantial issue) disenfranchise American citizens from their Constitutional right to vote; should they be required to pay taxes?

People who choose not to vote are one thing; but people who are denied their right to vote is entirely another…

I fear another messy election is going to be on us in 2012, much as it was in 2000 — perhaps it’s time for the United States to use international observers to insure that elections are conducted in a way that insures they comply with not only the letter of the law, but the intent of the law.

Originally posted 2011-11-06 02:00:59.

Privacy Violation

Mid 2006 AT&T, Bell South (soon to be part of AT&T), and Verizon all turned over their phone call database to the National Security Agency just because they ask.  Qwest refused, indicating to the NSA that they were required to obtain a subpoena before such information could be release.

Section 2702 of Title 18, part of the Electronic Communications Privacy Act, provides that “a provider of … electronic communication service [including telephone service] to the public shall not knowingly divulge a record or other information pertaining to a subscriber to or customer of such service … to any governmental entity” without the customer’s consent or a subpoena or court order. Under section 2707, carriers face civil liability, including minimum damages of $1,000 per violation, punitive damages, and attorneys fees. Government employees who participated in a violation also may face administrative discipline.

My questions is, since the NSA obtained such information illegally, why haven’t the telcos been fined, the information obtained by the NSA been destroyed, and the NSA employees who requested (and authorized the requests) been terminated?

I personally am tired of waiting for the restoration of my civil rights; the new administration has been in the White House for a year now, the honey moon is over — let’s stop hearing rhetoric, and start seeing action.

Originally posted 2009-12-31 02:00:15.

Microsoft Office 2007

Today a new version of Microsoft Office 2007 should be available.

One 22 December 2009 Microsoft got an early Christmas present; and injunction on the sale of Microsoft Office 2007 went into effect with the loss of a patent case involving a company named i4i located in Toronto, ON, CA.

The patent in this case, No. 5,787,449, was issued in July 1998.

i4i alleged, and successfully defended the assertion that Microsoft infringed on a patent by including a custom XML feature in Word 2007 which allowed it to open .XML, .DOCX, or .DOCM files.

An injunction issued in August 2009 was delayed until the ruling was issued on 22 December 2009.

Reuters estimated that Microsoft will have to pay about $290 million US ($200 million awarded in damages by the jury, and about $90 million in fees and interest).

Microsoft responded to the court ruling in a public statement:

While we are moving quickly to address the injunction issue, we are also considering our legal options, which could include a request for a rehearing by the Federal Circuit Court of Appeals en banc or a request for a writ of certiorari from the U.S. Supreme Court.

Kevin Kurtz, director of public affairs for Microsoft

In separate announcements, Microsoft confirmed that the code used in Microsoft Word 2007 would be changed, and a new version would be available on 10 January 2010.

Ruling

Originally posted 2010-01-10 01:00:27.

As Kagan Joins, Federal Courts’ Roles Rise In Importance

by Ron Elving

This weekend, Elena Kagan was sworn into the elite club of 112 who have served on the U.S. Supreme Court. The moment was duly noted across all news media, in large part because Kagan is just the fourth woman in the club.

But journalists also pounce on new appointments to the High Court in part to correct our perennial neglect of the judicial system. By far the preponderance of political journalism spilling out of Washington is devoted to the White House and Capitol Hill. As a rule, we pay attention to the courts when they interfere with something the other branches are trying to do.

This summer, federal judges have once again been horning in on issues of great interest and high stakes. Gay marriage. Immigration. The health care law. The post-BP moratorium on deepwater drilling. Each of these decisions will be reviewed by federal courts of appeal and ultimately by the U.S. Supreme Court.

But for that reason alone they will be generating news, inflaming public opinion and determining the direction of our politics, economics and culture.

Although most of the federal judiciary labors in lofty obscurity, at moments such as these one man or woman in a black robe can make an incalculable difference. Governors and senators and others in public life can only dream of such moments of influence.

Consider that on one day last week, one federal judge in San Francisco issued an opinion that invalidated the best known voter initiative of recent years: Proposition 8 on the 2008 California ballot, which overturned the state’s recognition of gay marriage.

Presenting extensive findings of fact from the trial before him, U.S. District Court Judge Vaughn Walker noted that defenders of Proposition 8 had scarcely attempted to refute these findings. In fact, the Prop 8 defense in its entirety was so cursory as to suggest its attorneys scarcely thought the trial court level was important. Their eye was on the friendlier venues of the U.S. Court of Appeals for the 9th Circuit and the U.S. Supreme Court.

But if liberals and libertarians were heartened by Walker, they were equally gratified one week earlier by the ruling of U.S. District Court Judge Susan Bolton, who kicked out the key pillars of an Arizona law attempting to crack down on illegal immigration. Bolton found fault in that law’s provisions allowing state and local officials to question the immigration status of people they deemed suspicious — for whatever reason. The requirement that residents who ran afoul of such suspicion produce papers proving their immigration status was also spiked by the judge.

Bolton, like Walker, knew well how every word she put to paper would be scrutinized, analyzed and politicized. No doubt the same could be said for other judges bringing a more conservative viewpoint to bear on equally significant issues in recent days.

First of these was federal District Court Judge Martin Feldman of Houston, who spiked the administration’s six-month moratorium on oil-and-gas drilling in the Gulf of Mexico. The administration may well have thought the argument for shutting down new explorations in the Gulf was open and shut in the wake of the BP Deepwater Horizon debacle. But if the shutdown was a no-brainer for environmentalists and industry critics, business folks in the Gulf states seemed to see it primarily as a short-term job killer and a long-term cloud over the economic future of the region.

Liberals were swift to note that Judge Feldman had a portfolio of stock holdings in the oil and gas sector, one that might well suffer in the event of a long-term slowdown in Gulf energy production. They also noted that the relevant federal appeals court, the 5th Circuit in New Orleans, was dominated by judges with business interests much like Feldman’s.

But the judge’s ruling stands, and is likely to stand longer than the Obama administration stands behind its six-month moratorium.

Similarly, in the same week as the Prop 8 ruling, supporters of the Obama health care law were incensed that U.S. District Judge Henry Hudson in Richmond had approved Virginia’s standing to sue the federal government over the enforcement of provisions in that law. Defenders of the new health law had hoped that Hudson might uphold the historic principle of federal pre-eminence, a central issue since the founding of the Republic.

Many have noted the symbolic power of having this challenge emanate from Richmond, the capital of the Confederacy in the 1860s and the epicenter of “massive resistance” to the school integration decision of the Supreme Court in the 1950s. State’s rights may be a heading in a history textbook for some parts of the country, but they remain a mainstay of current events in the South.

Talk of nullification — the asserted right of states to ignore federal laws as they choose — has re-emerged as President Obama has pursued an activist agenda. In Texas and Tennessee, candidates for statewide office have allowed references to secession to enter their campaign vocabularies.

While no one expects another Civil War, we are clearly heading into the most significant round of state-federal confrontations we have seen since the 1960s. And that struggle has already been joined in courtrooms around the country, where it will largely be fought.

Small wonder then that Republicans in the Senate have made resistance to the judicial nominees of the new president such a salient element of their mission in these past 18 months.

To be sure, the president has seen both his nominees to the Supreme Court approved with little suspense. But the Senate has yet to allow a vote on most of the 85 nominees he has sent up for federal judgeships at the district and appeals court levels.

Same old partisan story? Not quite. The last five presidents, three of them Republicans, have seen four out of five of their appointments confirmed.

Democrats under Majority Leader Harry Reid have not been willing to call the minority’s bluff on this tactic by demanding real-time filibusters with all-night sessions and cots in the lobbies. No one wants the delay, the drama or the indignity.

But as the number of Democrats in the Senate shrinks in the November election, those who remain will need to reconsider what means are necessary to install their president’s choices in the increasingly powerful job of judge.

Original Story on NPR.org

Originally posted 2010-08-21 02:00:48.

Do Not Mail Initiatives

In the United States we have a “Do Not Call” list that’s moderately effective at reducing marketing calls for those of us who don’t want them (though politicians notably made an exception for themselves)… but we don’t have a “Do Not Mail” list… and we should.

Organizations like the Direct Marketing Association lobby congress heavily to keep their mail rates cheap and prevent any legislation from standing in the way of their members from killing millions of trees, littering our mail boxes with “junk mail”, and wasting energy to produce – distribute – collect – and hopefully recycle all that garbage.

For several years now legislation has been pending that would greatly limit direct mail marketing (in much the same way as telephone marketing) — write your representatives in Washington DC and tell them YOU want legislation that will give you control over your mail box.

NOTE:  In all fairness, the Direct Marketing Association does offer a “Mail Preference Service” to consumers, and does require that it’s members use those preferences when mailing materials.  However, they make it difficult for consumers to enter their addresses and there are questions as to how effect self regulation has been.

Originally posted 2008-11-01 12:00:03.

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.