As most New Yorkers are aware, Mayor Michael Bloomberg has been fighting to implement a ban on the sale of any cup or bottle of sweetened drinks larger than 16 fluid ounces. The proposed law is an effort by Bloomberg and New York City to combat the rapid increase of obesity throughout the city, while opponents deride the effort as an encroachment of civil liberties. On Tuesday, an appeals court upheld a lower court finding that the sugary drink ban was unconstitutional and an overreach in authority by the Mayor and Board of Health. The appellate judges wrote in a unanimous decision that "Like the Supreme Court, we conclude that in promulgating this regulation the Board of Health failed to act within the bounds of its lawfully delegated authority". While the big gulp ban has been found to be unconstitutional, it is important to understand the details of the law and not simply rely on catchy headlines from cable news.
The Facts: The ban is not a law, rather a regulation passed by New York City's Board of Health and was highly touted by Mayor Michael Bloomberg. The ban went into effect in March, but litigation from the beverage industry among others brought about a court ordered injunction while the constitutionality of the ban went through the judicial process. The ban applied to any cup or bottle of sweetened drink larger than 16 fluid ounces BUT there were a significant number of notable exemptions. The drink ban does not apply to diet-sodas, fruit juices, dairy based drinks, or alcoholic beverages. The ban also does not apply to grocery or convenience stores. The Board of Health and Mayor Bloomberg said the ban is an effort to combat the out of control obesity epidemic in the city, and the numbers are startling with 60% of New York City adults classified as obese and 40% of NYC school children classified as obese. Officials and doctors argue, these rapidly rising obesity numbers directly effect all other New Yorkers through rising health care costs and other fees associated with providing care for those individuals.
While the obesity numbers are dire, the courts have found that the ban to be unconstitutional because it came from the executive body of the city, a violation of the state principle of separation of powers. The court found that the Board of Health and Mayor were acting too much like a legislative body through the enactment of sweeping policy change. They also took issue with the large amount of exemptions saying if it were a legitimate ban it would apply to all public and private enterprises, not only the hand selected ones. While the drink ban clearly lacks constitutional merit, the court made sure to clarify nothing in the decision was meant to "express an opinion on the wisdom of the soda consumption restrictions, provided that they are enacted by the government body with the authority to do so". This seems to leave the door open in case the appropriate legislative body took up the issue.
The reality is the Mayor and Board of Health likely overstepped their authority by implementing the sugary drink ban. The further hurt their cause by allowing numerous loopholes and exemptions, which directly contradict the law. If a legislative body like the city council took up the issue and implemented a similar ban, they would have a strong claim it is in the best interest of the public based on the rising costs of health care which is being unfairly passed on to other residents. But the Bloomberg and the Board of Health are part of the executive branch and therefore lack the authority to implement sweeping policy changes, which is the role of the legislature. I predict the ban in its current form likely will not be allowed by the courts, and agree with the appeals court that the effort is unconstitutional. As always, please feel free to share your thoughts!
One of the most recognizable theories from our country's founding documents is the idea of a separation of church and state. The notion of a government that protects the liberties of all religions, while also maintaining a neutral position for the country as a whole is one of the most unique aspects of our democratic dialogues. But where does this ideal originate from? How accurate is this "separation" today? Why is this important? These are key questions often associated with a debate on the separation of church and state, but finding clear answers can prove far more complex than simply checking wikipedia.
When you hear the phrase "separation of church and state" a natural and common assumption is that our founding father's included this proclamation in the U.S. Constitution, however it may surprise some to learn the phrase does not actually appear in the constitution. In fact, "God" also does not appear in the Constitution and there are only two references to religion, one prohibits the use of a "religious test" and the other that allows officials to "affirm" rather than "swear" in taking the oath of office. The reality is, our founders went to great lengths to avoid religious references, even though many were devote men of faith themselves. The idea of a separation between the state and the church does go back to the writing of our constitution and hinges on two clauses from the First Amendment, the Establishment Clause and the Free Exercise Clause. Let's look at what the First Amendment actually says:
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 Establishment Clause is the first portion which states, "Congress shall make no law respecting an establishment of religion". At a minimum, the Establishment Clause was intended to prevent the federal government from declaring or financially supporting a national religion, which was common in many other countries at the time. What is less clear is whether or not the Establishment Clause was intended to also prohibit the federal government from supporting Christianity in general. Those who favor a narrow interpretation point to the fact that the first Congress opened with a prayer, while those favoring a more broad interpretation point to the writings of Thomas Jefferson and James Madison who were the earliest proponents for a "wall of separation" between church and state. It was Thomas Jefferson who first openly wrote and discussed a "wall of separation between church and state" when he issued a "condemnation of the alliance of church and state" in a letter to the Danbury Baptist Association in 1802.
The Free Exercise Clause is more straight forward and refers to the idea that Congress shall make no law "Prohibiting the free exercise thereof". While the two clauses were obviously intended to serve a similar purpose, there are inherent differences about the two meanings which can lead to tension. For example, some might view providing a military chaplain to troops overseas as a violation of the Establishment Clause, while others might claim not providing a chaplain a violation of the Free Exercise Clause. This tension between the two clauses exists to this day, however there are several Supreme Court decisions that have helped define the separation of church and state.
Everson v. Board of Education (1947) - The Supreme Court did not begin their interpretation of the Establishment Clause until 1947 in their 5-4 Everson v. Board of Education ruling. At issue was a New Jersey law which allowed parents to be reimbursed for the costs of busing their children to public and parochial (mostly catholic) schools. The Supreme Court held 5-4 that the New Jersey law was not a violation of the First Amendment's Establishment Clause because the statute required the state to reimburse the parents. The reason this case is one of the most important regarding the separation of church and state, is because of the extensive discussion on the Establishment Clause. While the court was divided in their ruling, the justices unanimously agreed and laid forth the court's belief that the Establishment Clause goes much further than simply prohibiting the federal government from establishing a religion. In fact, Justice Black and referenced Thomas Jefferson's letter to the Danbury Baptist Association and the "wall of separation" as a fundamental aspect of the Establishment Clause and the constitution. Although the justices were split in their decision regarding the New Jersey law, they unanimously agreed the constitution outlined an inherent separation of church and state which cannot be abridged. The length and depth of their discussion of the Establishment Clause was a unique deviation the court had really never taken before. Also notable was that the justices also explained that if the state had tried to reimburse the parochial schools they would have unanimously found the law unconstitutional. This case is viewed as an early foundation for the legal theory of a barrier between the church and federal government.
~ Subsequent Supreme Court rulings have established that the wall of separation is flexible with the outcome often hinging on nuanced details of the specific case.
McCollum v. Board of Education (1948)-The high court proved that the details of each case and situation are critical when determining the constitutionality of a legal challenge based on the Establishment Clause. In a 8-1 decision the Supreme Court found unconstitutional the practice of inviting religious instructors into public school classrooms to provide optional instruction. The issue was not the teachings or religious instructors themselves, rather the court held the use of tax-supported property for religious instruction and the close relationship between school authorities and a religious council violated the Establishment Clause. The justices held that since students were legally required to attend school and the religious classes applied to their required curriculum, the Champagne Illinois system was "beyond question a utilization of the tax-established and tax-supported public school system to aid religious groups and to spread the faith".
Engel v. Vitale (1962)- This is perhaps one of the most famous cases pertaining to the separation of church and state, and is still debated to this day. At issue was a New York State requirement for public school classrooms to begin each day with the voluntary reading of a nondenominational prayer. In a 6-1 ruling the court held neither the "nondenominational" nor "voluntary" aspect of the prayer saves it from unconstitutionality. This was one of the first cases where the Establishment Clause was applied to remove religious activities from public schools and other government related forums.
While I have outlined some early critical Supreme Court cases and interpretations, it is important to note that the debate over a separation of church and state is not limited to the courtroom. There has always been a vigorous dialogue from politicians, citizens, and throughout the public sphere. Here is then Senator Kennedy giving a speech during his presidential campaign which addresses concerns with his Catholic faith, but he also provides his opinion on the theory of a separation between church and state.
JFK's speech was a landmark moment for presidential candidates, and illustrates the connection faith has always had with our elected officials. However, many viewed Kennedy's speech in a negative light and continue to argue against his articulated opinion on the separation of church and state.
While I have provided a recap on how Thomas Jefferson's "wall of separation" and the Establishment Clause were historically interpreted by the Supreme Court, I wanted to lastly provide two more recent cases which illustrate the ongoing discussion on how exactly this ideal should be applied to the country as a whole.
McCreary County v. ACLU (2005)- The ACLU sued three Kentucky counties in federal court for displaying the Ten Commandments in courthouses and public schools. The ACLU argued that the Ten Commandments on display violates the Establishment Clause of the First Amendment, while McCreary County argued the commandments display was part of a presentation on the "Foundations of American Law". The Supreme Court ruled 5-4 it was unconstitutional for the Kentucky counties to erect the Ten Commandments in courthouses and public schools because any observer would be under the assumption the government was endorsing religion. The court held that displaying the Ten Commandments in isolation, displaying them with other passages, and displaying them as part of the "Foundations of American Law" presentation were all unconstitutional. The court even explained that the courthouse exhibit was merely an effort where the county reached "for any way to keep a religious document on the walls of courthouses". The justices found that the erection of the Ten Commandments by the county in courthouses and public schools was a form of endorsement and therefore void and unconstitutional.
Van Orden v. Perry (2005) - In the very same term the Supreme Court struck down three Kentucky counties which erected the Ten Commandments in courthouses and public schools, a Ten Commandment monument donated and placed by a private organization on the grounds of the Texas capitol was allowed to stay. In a 5-4 ruling, the justices found that the private donation and erection of the stone Ten Commandment monument was not a violation of the Establishment Clause because it was a private gift and was erected privately with numerous other historical monuments. Unlike the Kentucky case, the court found that no observer would assume there was a government endorsement of religion. As I mentioned earlier, the "wall of separation" has been interpreted to be flexible and the outcome of a case will most likely hinge on the very specific details.
Hopefully these Supreme Court cases illustrate the history of the separation between church and state doctrine, while alos highlighting the debate that continues today. This topic evokes many passions and emotions, but it is important to look at it with the legal ramifications in mind. I would love to hear anyone's opinion on this topic in case you want to share!
In the wake of last month's Supreme Court decision to strike down a key provision of the 1965 Voting Rights Act, the Justice Department and the federal government are making known their revamped approach to combating discrimination and unlawful hinderances in the realm of election voting. At the time of the high court's 5-4 ruling I wrote a post outlining what the Voting Rights Act of 1965 actually was, but now I want to provide a few updates on the current landscape.
On June 25, the Supreme Court struck down section 4(b) as unconstitutional, instructing Congress to determine a new formula for pre-clearance. As I discussed in my earlier post, section 4(b) of the Voting Rights Act is the provision of the law which determined what states and districts needed to obtain a clearance with the Justice Department before changing their election laws. The clearance formula was defined as those districts which had voting tests in place in November 1964 and had less than 50% turnout in that years presidential election. Although, if a district or state was able to prove there had been no cases of voter discrimination for ten years, they would be allowed to apply for pre-clearance removal. It is important to note that while the Supreme Court threw out section 4(b), they upheld section 5, which declares states as determined by a Congressional formula must obtain clearance from the Justice Department when seeking to change any voting law or ordinance. So while the high court removed a key part of the Voting Rights Act of 1965, they upheld the framework and left it up to Congress to develop a new way in determining which states will be subjected to pre-clearance.
The New Front: While the country waits for Congress to determine a new formula to apply section 5 of the Voting Rights Act, the Justice Department is taking steps to continue the fight against voter discrimination. While many might suggest voter discrimination and disenfranchisement is a thing of the past, the facts tell a different story. In the past few years several states have passed sweeping new voter ID laws and state-wide redistricting, which many have argued unfairly affect minorities, the youth, and the poor. Section 4(b) allowed the Justice Department to take a closer look and slow down many of these laws passing through the state legislatures, however, with the Supreme Court's ruling all of the previously covered districts were suddenly free from all of the law's requirements. In fact, the state of Texas took only two hours after the Supreme Court ruling to announce they were implementing their new strict voter ID law and redistricting map. The high court's ruling means the Justice Department would have to take new steps in order to apply section 5 and fight to protect the rights of at risk voters.
Last Thursday, the Justice Department filed a "statement of interest" on a current suit in a federal court in San Antonio, asking the court to impose a ten year mandate of pre-clearance for any voting law change for the state of Texas. The Justice Department claimed in their filing that in Texas, there is a history of "pervasive voting-related discrimination against racial minorities", and the state should be required to get clearance for any voting law changes. The federal court in San Antonio will issue their ruling soon and we will have a better understanding of how the Justice Department can enforce the remaining sections of the Voting Rights Act. Numerous other states have attempted to implement similar redistricting and voter ID laws, while the DOJ has vowed to take the fight to those individual states just as they have done in Texas.
Another summer headline dominating the cable news cycle has been the effort in Washington, D.C. to reform our nation's inept immigration system. The topic of immigration has generally been a hot-button social issue, but there are enormous legal implications at play as well. Our country is a nation of immigrants, yet the topic stokes understandable tensions, passions, and opinions. I wanted to write a post focusing on the current legal aspect of the immigration reform battle taking place across the country. The U.S. constitution delegates exclusive authority to the federal government to control relations with foreign nations, therefore, the courts have consistently ruled the federal government has absolute power with regard to immigration policy and enforcement. In the past several years, a constitutional battle has emerged between state laws aimed at implementing their own immigration policy versus the exclusive authority of the federal government to regulate immigration policy.
S.B. 1070: While the tension between state and federal authority in the realm of immigration has long been an area of contention in our country, the effort by Arizona to pass S.B. 1070, a strict law which made it a state crime not to carry immigration papers among other measures, reignited the discussion of immigration reform across the country. Currently, federal law requires all aliens over the age of 14 who remain in the United States for more than 30 days to register with the federal government and to carry their registration documents on them at all times; failure to do so is federal misdemeanor crime. The Arizona law additionally made the failure to carry documents a state crime, while also allowing law enforcement officials to determine a person's immigration status during a lawful stop, detention, or arrest. The Arizona law also allowed for the police to arrest an individual based on "reasonable suspicion" the person may be in the country illegally and had committed a crime that was punishable with deportation. The law also made it a crime for illegal immigrants to work or apply for jobs in the state and allowed the police to check an individual's immigration status with any legal contact, which could be as simple as walking past someone on the sidewalk. The provisions of the Arizona law sparked numerous protests across Arizona and throughout the country, with the primary concern being how a police officer would determine "reasonable suspicion" of someone being of illegal immigration status without resorting to racial profiling or other discriminatory tactics. The Supreme Court ruled in 2012 to strike down 3 of the 4 provisions of the Arizona law, citing the federal government's absolute authority over immigration policy across the country. The court also used the Arizona ruling as a direct warning to other states attempting to enact strict illegal immigration laws, saying their attempts will meet the same fate of the Arizona law. The Justices also rejected Arizona's claim that their law was an attempt to help the federal government. The provision the court allowed to stand, the section allowing police officers to check a person's immigration status during a lawful stop or detention, was only upheld because it had not yet gone into effect and therefore the court could not rule on something that was not yet in existence. However, the majority had a stark warning for that provision as well, indicating a likely court challenge will come before them again with possibly similar outcomes. The Court's Warning: When the Supreme Court struck down most of the Arizona law, they issued a direct warning to other states attempting to impose similar immigration laws: their laws will be voided as well. Several states apparently did not heed the high court's warning and a string of judicial defeats have proven the Supreme Court right. The single and primary reason state immigration laws are found to be invalid is because according to the U.S. Constitution, the federal government has the exclusive authority and jurisdiction as it pertains to immigration policy. Arguments that the federal government is not doing its job or the laws are too weak may have merit, but legally the states cannot assume a power that has already been enumerated to the federal government and they will lose this legal battle every single time. Monday, July 22: The Fifth U.S. Circuit Court of Appeals in New Orleans struck down an ordinance of a Dallas, Texas suburb that sought to bar landlords from renting to immigrants living in the U.S. without documentation. Farmers Branch, Texas passed the ordinance in 2006, citing an unwelcome influx of undocumented immigrants, but court fees and legal battles since then have cost upward of $6 million dollars with some residents wondering if the fight is worth it. The ruling by the court of appeals struck down the Texas suburb's ordinance, with the judges citing the Supreme Court's rationale that the law would infringe on the federal government's exclusive authority to dictate immigration policy. The appeals court additionally raised concern as to how the ordinance would be enforced and upheld. Tuesday, July 23:The Fourth U.S. District Court of Appeals in Virginia struck down a South Carolina law that would have made it a crime for illegal immigrants to "shelter" themselves from detection and a crime for anyone participating in the sheltering. The Fourth U.S. District Court of Appeals ruled the South Carolina law was pre-empted by federal law and was therefore unconstitutional. The court also expressed concern as to how the law would have been enforced and carried out. Friday, July 26: The Third U.S. Circuit Court of Appeals in Philadelphia struck down a small Pennsylvania town's ordinance that would have denied permits to businesses that hire people in the country illegally and fined landlords who rent to them. Like the previous cases, the Third U.S. Circuit of Appeals found the Pennsylvania town's law was pre-empted by federal immigration law and raised issue with how the ordinance would have been enforced. There is a clear pattern at work in all of these cases and the Supreme Court gave warning to the states when they ruled on S.B. 1070. Federal authority with regard to immigration policy will always usurp state attempts to regulate immigration. I fully understand the concerns with those who believe states should have the right to govern themselves, however, we are a nation of laws and according the the Constitution the federal government's authority as it pertains to immigration is exclusive. States are free to continue writing their own immigration laws, but they will undoubtedly meet the same fate as the cases above. As always, if you have any comments or opinions please feel free to share!
A United States passport is an American citizen's ticket to the world, and is one of the most important documents and individual can possess. U.S. passports are one of only a handful of documents that can be used as an irrefutable proof of United States citizenship, but most are used primarily to travel abroad. When I saw a headline today about a U.S. Court of Appeals for the District of Columbia ruling pertaining to U.S. passports I was curious, mostly because I couldn't think of any major legal issue that would be relevant. However, the Court of Appeals ruling today was interesting and highlights the important constitutional distinction between the three branches of our government.
The Facts: The facts of the case the Court of Appeals was considering pertains to a 2002 law passed by Congress which required the State Department to list "Israel" as the birthplace for Jerusalem-born U.S. citizens. This law was passed despite the long standing position of the executive branch of neutrality toward the sovereignty of the city of Jerusalem. The United States has recognized Israel since it's inception in 1948, but no executive branch has ever veered from the neutrality stance on Jerusalem because both Israel and Palestine claim the city as a political and/or spiritual capital. However, the real issue under consideration was the fact that Congress passed a law with the sole purpose of forcing the State Department to recognize Israel's singular sovereignty over Jerusalem. Instead of just listing "Jerusalem" as the place of birth, the law required passports to be issued as "Jerusalem, Israel" and thereby dictating U.S. foreign policy. The case centers around the Zivotofsky family, whose son was born in Jerusalem. When Mrs. Zivotofsky applied to have her son's passport list his place of birth as "Jerusalem, Israel" immediately after Congress passed their 2002 law, the consulate only listed Jerusalem. This sparked litigation and the constitutional conflict around whether the President and executive branch (which the State Department is under) has the sole power to recognize foreign nations and dictate U.S. foreign policy. The Ruling: The U.S. Court of Appeals for the District of Columbia unanimously found the 2002 law to be unconstitutional and a direct violation of the enumerated powers to the executive branch. Judge Henderson wrote:
Congress plainly intended to force the State Department to deviate from its decades-long position of neutrality on what nation or government, if any, is sovereign over Jerusalem.
Henderson was joined by two other judges, making it a unanimous ruling from appointees of Republican and Democratic presidents. Presidents since Harry Truman have strictly adhered to the notion of neutrality for Jerusalem in order to avoid damaging prospects for a potential peace deal. However, the real issue before the court was the effort by the legislative branch to dictate U.S. foreign policy, which is almost exclusively a privilege of the executive branch. The court went on to note that "While the president's foreign affairs powers are not precisely defined, the courts have long recognized the president's presumptive dominance in matters abroad". The issue of legislative versus executive authority in dictating foreign policy has always been a constitutional issue throughout our country's history, but from the Supreme Court down, the judiciary have almost always ruled exclusively in favor of the executive branch. If you have any thoughts please feel free to share!
We hear legal terms and news stories of different cases and lawsuits, but how many people actually know how to file a civil lawsuit in your state? One path is to hire an attorney or law firm to represent you and they will take care of all the legal proceedings, but only for a fee of course. While retaining proper council is hands-down the best decision most of the time, it is important to understand how any citizen can file a civil case in your home state. It's probably not a bad idea to look over a previous post I made outlining the difference between civil and criminal cases just as a refresher and to put into perspective what scenarios would qualify as a civil suit. Each case is unique and the process truly is tailored to the needs of that particular suit and there is no way to outline every step that will occur, however there is a basic step-by-step process for all civil suits that I will try to outline. So here is a scenario where an individual might feel compelled to file a civil suit against someone, and for the purpose of this explanation, they do not seek outside counsel representation. Say Jim is driving on the highway and gets into a fender bender with Bob. When the police arrive the issue Jim a traffic citation because they say he failed to maintain his lane, and the two parties exchange insurance relevant information. A month later, Bob calls Jim and says I plan to sue you because your insurance company is not paying for all of the costs I expected to get fixed (he could be telling the truth, or he could just be trying to get that front passenger door fixed from 4 years ago). Regardless, Bob decides to go ahead and sue Jim for the costs of the repairs he wants. If he lives in New York City (and generally anywhere else) these are the steps he would need to take: *legal documents are always in full uppercase* Step 1 - Go to the Courthouse: The Plaintiff (Bob) goes to his local County Civil Courthouse, generally in the county where he resides. Bob lives in NYC so he will go to the Civil Court (which houses Small Claims Court) at 111 Centre Street. Step 2 - File Papers: Bob files a SUMMONS and COMPLAINT. Generally he could file these documents in the county courthouse where either the plaintiff (Bob) or the Defendant (Jim) reside. Filing these documents with the County Clerk lets the defendant know they are being sued and what the lawsuit is about. For New York City, there is also a $210.00 filing fee due at the time of document submission. Step 3 - Decide How to Serve the Papers: Bob decides how to serve the defendant with the Summons and Complaint, either by mail or a third party process server. The plaintiff cannot personally serve the papers and designated registered agent is also allowed to receive the papers on the defendants behalf. Step 4 - Defendant Answer: Bob will then wait the specified time for the defendant to file his ANSWER, which is a court document similar to the SUMMONS and COMPLAINT where the defendant officially responds to each allegation in the plaintiffs papers and is filed in the same court. Step 5 - Discovery: This is the period of time where each party is able to request information from each other, or get answers to questions or documents based on the facts laid forth in the court papers. Failing to respond to Discovery in a timely or efficient manner will result in severe legal consequences. Step 6 - MOTIONS: Typically following Discovery but not always, both parties will have the opportunity to file any and all MOTIONS with the court. A MOTION is a formal written request asking the court to do something. There are numerous MOTIONS on a range of topics like: MOTION to Dismiss (when either party feels the lawsuit is not warranted), MOTION to Compel (filed to enforce a Discovery request), MOTION for Entry of Default Judgement (filed when defendant fails to respond to the original COMPLAINT and the judge can enter the final Judgement) Step 7 - Judgement or Mediation/Settlement: The final step for Bob will be to enter mediation for a settlement (usually the preferred path), or take the case to trial where a judge or jury will enter a judgement. Courts will often require both parties to go to mediation, where an independent mediator will hear and look at the facts and provide a suggestion for a settlement. If both parties agree to the settlement, they are entering into a binding agreement enforced by the court. If you elect to go to trial you better have a very strong claim and be prepared for additional fees and costs associated with going to trial. And that is about it! These are the steps to file an official civil lawsuit and hopefully get some form of remedy to your COMPLAINT. I hope this helps anyone seeking to file a lawsuit (although I hope you never have to actually file a suit in the first place!).
One Supreme Court case from last month that did not get much news coverage was the 5-4 decision in Adoptive Couple v. Baby Girl, which addressed the thorny issue of adoptive parental rights versus biological parental rights. Complicating the case further was the Federal Indian Child Welfare Act (ICWA) which came into play because the father of Baby Veronica was a member of the Cherokee Nation. Family law is almost exclusively in the jurisdiction of state courts, which makes the case even more unique and influential.
The heart of the case is centered around three year old Veronica Brown, who for the first two years of her life was raised by a couple from South Carolina who intended to adopt her. However, her biological father who resides in Oklahoma and is registered with the Cherokee Nation, wanted custody and the right to raise his biological daughter. The story is complex, but the Supreme Court ruled against the father and sent the custody case back to the South Carolina courts.
Background Facts: The biological mother of Baby Girl became pregnant but did not live with the father and he did not provide the mother financial support. Dusten Brown, the father, claimed he tried to provide assistance but the mother refused. Regardless of the why, Dusten Brown did not provide support financially. The mother sent the father a text asking if he would rather pay child support or relinquish his rights, of which he chose the later. However, while in court Brown testified he thought he was relinquishing his rights only to the mother. The mother attempted to verify that the father was a member of the Cherokee Nation but spelled the father's name wrong and misrepresented his birthday on the request so the Nation could not locate the father's registration and therefore the mother listed the baby's race as "Hispanic" rather than "Native American" on the birth certificate (all mistakes were unintentional). The mother decided to put Baby Girl up for adoption because she did not feel she was financially stable to support her new child her other two children she was already struggling to feed.
Adoptive Couple, who resided in South Carolina began adoption proceedings in the state and the girl spent the first two years of her life with the couple as they moved closer to finalizing the adoption. However, the Cherokee Nation eventually identified the biological father and filed a notice of intervention under the Federal Indian Child Welfare Act (ICWA). ICWA was passed by Congress in 1978 with the main purpose of protecting Native American children and to help keep them with their American Indian families in response to an exceedingly high rate of child removal by federal and private agencies. The father then stated he did not consent to the adoption and sought custody, and the trial court in South Carolina denied the Adoptive Couple's petition for adoption and granted custody to the biological father. The trial court based their ruling on the ICWA and said the family did not follow proper procedure, even though the couple was not made aware to any issue with the biological father when they initiated adoption proceedings. Baby Girl was subsequently removed from her home of two years and sent to live with her father in Oklahoma.
The Ruling: The Supreme Court ruled 5-4 in favor of Adoptive Couple but remanded the case, which means they struck down the South Carolina ruling based on the rationale used and asked them to look again. The Supreme Court held that the ICWA was intended to stop the alarming practice of removing Indian children from Indian families "due to the cultural insensitivity and bias of social workers and state courts". For this case however, the court found that the biological father had previously relinquished his rights and never had legal or physical custody of the child. Therefore, since he never had custody of any kind and had relinquished his parental rights before birth, the ICWA's goal of preventing the breakup of Indian families did not apply and could not be enforced. Furthermore, the court ruled that the ICWA's preferred path of placing the child in custody of another family members, the tribe or any other Indian family also did not apply because none came forward throughout the process. Finally, the Supreme Court held that if the lower court's rationale was applied any Indian father would be able to play an "ICWA trump card" where he is able to override the wishes of the mother and the best interest of the child simply because of legal technicality.
The Supreme Court's decision did not end the legal battles since they remanded the case back to the South Carolina Supreme Court, and all parties involved had to wait for what the new ruling. Yesterday, the South Carolina Supreme Court ruled in favor of Adoptive Couple based on the new criteria from the Supreme Court, and Baby Veronica will now be officially adopted by the South Carolina family and live out her childhood with them.
Two major news stories about student loans this week caught my attention. The first was the headline grabbing story that federal student loan debt has officially crossed the $1 trillion marker and in fact hit $1.2 trillion in May of this year. The other headline is a much more immediate in its effect on students and that is the doubling of federal student loan interest rates from 3.4% to 6.8% on July 1. As an individual with student loans, these headlines are not simply news stories but real events that will affect my life and the lives of millions of other millennials. This got me thinking about a previous post I had talking about the difficulty of discharging student loans in bankruptcy proceedings and a lower appeals court decision which possibly gave new hope to those drowning in debt.
In my earlier post I discussed how the 9th Circuit U.S. Court of Appeals ruling will help students discharge their loans in bankruptcy proceedings, something that was literally impossible before this ruling. However, I also edited a wikipedia page on student loans and wanted to check in to see if my edited paragraph was still there or had been changed. This was the first time I had ever changed something on wikipedia and it was exciting to find out that the paragraph I added was still there and unaltered!
In case you were curious, here is the original paragraph I posted to wikipedia:
My changes are the different colored text and are still there. The whole purpose of my post however, was to provide an update on something that affects millions of lives across the country. It is up to our current elected officials in Washington, D.C. to provide relief and fix the self inflicted wound of doubling interest rates, which will stifle college aspirations for millions.
Criminal murder cases captivate the public in a manner most news stories can't match. We are a morbid society and are drawn to death for numerous reasons, whether it be rubber-necking on the highway to look at a car crash or picking up the newest murder mystery novel. The OJ Simpson, Jon Bennet Ramsey and Casey Anthony trials all captivated the country and had people on edge for the verdict. But how many people actually know the difference between First Degree Murder and Second Degree Murder, or the difference between Manslaughter and Second Degree Murder? These charges are what the trial hinges on, yet many people may not even know the basic details of the legal terms. First it is important to note that murder is a state crime, unless the act occurs crossing state lines or on federal property, therefore the definition of first degree murder varies slightly from state to state but in general most states use similar standards for defining murder in the first degree are very. However, murder in the second degree and manslaughter can vary only slightly from state to state or there can be significant discrepancies. First, lets just look at the basic definition of murder: Murder - the unlawful killing of another human being with malice aforethought (malice aforethought is what you may know as "premeditation"). It is important to note, however, that while premeditation implies a preconceived plan to commit murder, malice aforethought is a more broad term where the intent to kill can range from the defendant consciously wanting to kill another person to where the defendant wanted to cause great bodily harm to another or displayed blatant disregard for the safety of others. In most states, murder is classified in several "degrees" with the idea being to gradually increase the punishment for each degree. But once you begin discussing second degree murder and manslaughter charges, the details and definitions can vary greatly. The basic definition for each degree of murder and manslaughter below will take you to a legal online dictionary that provides a generalized definition. Also, if you click on the "murder" links in each of the paragraphs below you will be taken to a different state statute so you can compare the differences yourself. First Degree Murder (Capital Murder): Any murder that is willful or premeditated.Murder in the first degree is the most serious form of murder and involves aspects like deliberate planning, premeditation and malice. Deliberate means the defendant makes a clear-minded decision to kill the victim, while premeditation involves showing the defendant thought about the killing before it took place (it is important to note that the time period of thought required to classify a murder as premeditated may be very brief). Malice requires proving the defendant did a harmful act without any just cause or legal justification. Second Degree Murder:A murder that is not premeditated or planned in advance.Second degree murder is the killing of another with malice, doing a harmful act without any just cause or legal justification, but without premeditation. Second degree murder almost always will apply where a form of non-premediatetd assault which the death was a distinct possibility. Third Degree Murder: A killing with the intention of causing bodily harm, but not necessarily death.Third degree murder usually refers to a killing that results from direct negligence, indifference or recklessness. However, it is important to note that third degree murder varies significantly from state to state with a majority of states, like California, not even having murder in the third degree. Also, many states classify voluntary manslaughter as the same standard as voluntary manslaughter in other states.
Involuntary Manslaughter: The act of unlawfully killing another human being unintentionally.Involuntary manslaughter stands out from all of the other acts of killing because the intent to kill is absent. In most states involuntary manslaughter results from an improper use of reasonable care or skill while performing a legal act, or while committing an act that is unlawful but not felonious. Drunk-driving related deaths are usually classified as involuntary manslaughter. I realize this may be a somewhat morbid or depressing post, but I think it is important to at least have some general idea about what these charges mean and the differences between each. If you have any questions or comments feel free to pass along.
Turn on cable news or browse the Internet and you are likely to get a detailed account on the latest developments from the George Zimmerman murder trial. As most people are aware, George Zimmerman is charged with the second-degree murder of Trayvon Martin and pleaded not guilty based on self-defense. Much of the controversy surrounding the case is related to the "stand your ground" law in Florida, which allowed Mr. Zimmerman to initially be released by police on the night of the shooting. The relentless stream of news coverage surrounding the murder trial has meant that the term stand-your-ground is presented to millions watching the coverage, yet I wondered how many actually understood what the term means. Regardless of why you are interested in the trial, understanding the details of the law, as applied in the current context, can significantly assist in a more comprehensive understanding of what is going on in the courtroom.
Stand-your-ground: Florida is among the sixteen states that currently have specific stand-your-ground statutes on the books. The others states with similar laws are Alabama, Arizona, Georgia, Indiana, Kentucky, Louisiana, Mississippi, Montana, Nevada, New Hampshire, Oklahoma, Tennessee, Pennsylvania, Texas, and Utah.
So what is stand-your-ground? Before you can understand what Florida's stand-your-ground law means, we must first look at the broader legal concept of self-defense and the legal theory of duty to retreat. Duty to retreat is a legal doctrine incorporated in some degree by a majority of states and generally means that a person who is under imminent threat of personal harm must retreat from the harm as much as possible before responding with force in self-defense. Essentially state laws want a person who is under imminent threat to retreat or attempt to retreat from the source of harm as much as possible before resorting to force. What about if I'm in my own home? The duty to retreat doctrine only applies when you are outside of your home. The idea being if you are outside of your home and come under an imminent threat, attempting to retreat from harm can avoid an incident where deadly force is needed.
Stand-your-ground laws basically void the duty to retreat doctrine and generally state that an individual can use force to defend themselves without first attempting to retreat from the danger. This leads to a complicated scenario because the burden of proof for someone to use deadly force under stand-your-ground simply requires that person to believe or imagine themselves to be in danger. Chapter 776.013(3) of Florida law states:
As you can see from the wording of Florida's law, the only requirement for an individual to use deadly force is if the person "reasonably believes" the deadly force to be necessary. While every person has a right to feel safe within their community and outside their home, in legally permissible places, the ambiguous nature of the law leaves room for varying degrees of interpretation. Hopefully this helps you understand the nature of all "stand your ground" laws.
The Facts: The ban is not a law, rather a regulation passed by New York City's Board of Health and was highly touted by Mayor Michael Bloomberg. The ban went into effect in March, but litigation from the beverage industry among others brought about a court ordered injunction while the constitutionality of the ban went through the judicial process. The ban applied to any cup or bottle of sweetened drink larger than 16 fluid ounces BUT there were a significant number of notable exemptions. The drink ban does not apply to diet-sodas, fruit juices, dairy based drinks, or alcoholic beverages. The ban also does not apply to grocery or convenience stores. The Board of Health and Mayor Bloomberg said the ban is an effort to combat the out of control obesity epidemic in the city, and the numbers are startling with 60% of New York City adults classified as obese and 40% of NYC school children classified as obese. Officials and doctors argue, these rapidly rising obesity numbers directly effect all other New Yorkers through rising health care costs and other fees associated with providing care for those individuals.
