April 1, 2006
Ethics Complaints Fly in Minnesota Over Whether State Senator Discussed Marriage Laws with Members of Supreme Court
Two Minnesota attorneys filed separate ethics complaints Friday against members of the Minnesota Supreme Court and a former Chief Justice regarding comments a state Senator made about them. The complaints, filed with the Board on Judicial Standards and the Lawyers Board of Professional Responsibility, question whether the justices violated a Supreme Court canon by allegedly talking to the state senator about the 1997 marriage law. The state senator said in January that he received assurances from justices that they would not "touch" the 1997 law, which defines marriage as one man and one woman. Later he said that he had conversations about the law with justices but received no guarantee about its fate. Source. Pioneer Press, Twincities.com. For the complete story, please click here (last visited April 1, 2006, reo). A copy of the ethics complaint to the Board of Judicial Standards and the Lawyers Board of Professional Responsibility may be downloaded here in PDF format.pdf A copy of the second complaint to the Board of Judicial Standards may be downloaded here in PDF fomat.pdf
Evidence Sufficient to Force New York Judge Accused of “Fixing” Certain Divorce Cases to Stand Trial
The New York Court of Appeals ruled Friday that there was sufficient evidence to warrant a criminal action against a Brooklyn Judge to proceed. The judge is accused of accepting a box of cigars worth 272 dollars for privately advising a lawyer on how to handle a divorce case being heard by the judge. He is also accused of accepting cash payments for referring clients to the same lawyer. The judge is apparently among a group of Brooklyn judges being investigated in a scandal that involves alleged bribery and misconduct.
Evidence presented to a grand jury on the first count of the indictment showed that the judge and an attorney who regularly appeared before him developed a relationship wherein the attorney bought the judge meals and gave him gifts in return for preferential treatment in family court. According to Grand Jury testimony, the lawyer bought the judge lunch three to four times a week and purchased drinks in the evening between three and five times a week.
While a divorce case was before the judge, the County District Attorney's Office began to monitor the judge’s robing room by video and audio surveillance. Among the conversations captured was one in which the judge is heard saying that the lawyer would prevail in the divorce action even though he did not deserve it. The judge also instructed the lawyer to subpoena an expert witness who was unwilling to appear before the court and instructed him what questions to ask of the expert. The lawyer was arrested shortly thereafter and agreed to cooperate with the District Attorney’s office investigating corruption. The remaining five counts involved payments allegedly received by the judge for referring cases to the attorney.
The court rejected the judge’s argument that while he violated the rules of judicial ethics, the violations did not rise to the level of a crime. It held that the “People's reliance on the Rules to support the allegation that defendant violated his official duties was not improper. The Rules set forth a constitutionally mandated duty upon the judiciary and, when combined with the additional factor of receiving a reward, a violation of that duty may serve as a basis for prosecution under Penal Law § 200.25.” A copy of the New York Court of Appeals slip opinion in this case in PDF format may be downloaded by clicking here.pdf (reo)
South African High Court Gives Wives Right to Sue
The South African Constitutional Court has ruled that women “married in community of property” have the right to sue their partners for monetary claims. The action stems from a case where a wife sued the Road Accident Fund claiming compensation because her husband had intentionally run over her with his vehicle. The Road Accident Fund had disputed the claim on the basis that a person “married in community of property” may not sue their spouse for patrimonial damages. Source. SABCnews.com. The story about this ruling may be found by clicking here (last visited April 1, 2006, reo). Additional information regarding this ruling may be found here (last visited April 1, 2006, reo).
Nepal Supreme Court Says Infertility Not Basis for Divorce
The Supreme Court of Nepal Friday ruled that a provision in that country’s 1963 Civil Code that allows men to seek divorce on the grounds of women’s infertility cannot be used because it contravene the constitutional guarantee to equality. The court ruled that the provision was discriminatory and violated women’s rights and declared it inconsistent with the Constitution. Under the Code, a married man could seek divorce after 10 years of marriage if a government medical board proves his wife's infertility. The challengers to the law argued that the provision was discriminatory as it did not allow women to seek divorce if their husbands were impotent. The court asked the government to promulgate an equal law on the Husband and Wife section of the Civil Code. Source. Nepalhumanrightsnews.com. For the complete story, please click here (last visited April 1, 2006, reo).
District of Columbia Federal Court Judge Says Discrimination Action by Transgender Veteran May Proceed
A District of Columbia Federal district court judge ruled Friday that an employment discrimination lawsuit brought by the American Civil Liberties Union on behalf of a transgender veteran against the Library of Congress may proceed. The court ruled that federal protections against sex discrimination may also protect transgender people who are discriminated against based on their gender identity. The court rejected the government's argument that discrimination against transgender people is not sex discrimination. In its order, the court observed that the factual complexities that underlie human sexual identity “stem from real variations in how the different components of biological sexuality -- chromosomal, gonadal, hormonal, and neurological -- interact with each other, and in turn, with social, psychological, and legal conceptions of gender." Source: aclu.org. For the detailed story, please click here (last visited April 1, 2006, reo). A copy of the order in PDF format issued in this case may be downloaded by clicking here.pdf
Commentary: Marriage Rites and Wrongs
On Thursday, the Supreme Judicial Court of Massachusetts ruled that a 1913 state law can be used to bar same-sex couples who live in other states from marrying in Massachusetts -- at least when the couples are from states where gay marriage is specifically prohibited. (See yesterday's post on the case here.) Our readers may be interested in this editorial in Saturday’s Boson Globe urging the state legislature to “clean up the confusion” by repealing the 1913 statute. Source. Boston Globe, boston.com. The Boston Globe Editorial Commentary may be found by clicking here (last visited April 1, 2006, reo).
Internet Campaign Asks HBO to Remove Drama Involving Polygamist Family
A chain e-mail without attribution has been circulating on the Internet against the HBO polygamy drama series "Big Love" since it premiered earlier this month. The e-mail contends the series is full of "parodies of The Church of Jesus Christ of Latter-day Saints" and asks for it to be canceled. HBO reports that it has received "hundreds" of complaints since the e-mail began circulating. HBO insists the show “does not demean or misrepresent the LDS Church.” Source. AP, Daily Herald, Heraldextra.com. For the complete story, please click here (last visited April 1, 2006, reo).
Commentary: Will U.S. Senate Tackle Same-Sex Marriage This Spring?
Our readers may be interested in an article to be published Sunday in “Our Sunday Visitor, www.osv.com, ” which is authored by Mr. Russell Shaw. Mr. Shaw predicts that the United States Senate will take up the same-sex marriage issue in June. In his article, he surveys the development of the law in this area and observes that “the decision to bring up the marriage amendment in the Senate has obvious political ramifications, coming in an election year.” Source. Russell Shaw, osv.com, catholic.org. Mr. Shaw’s article may be found by clicking here (last visited April 1, 2006, reo).
March 31, 2006
Case Law Development: Alternating Custody Between Two States Every Two Weeks Not an Abuse of Discretion
Mother, while a junior in high school, became pregnant from a 21-year-old male. She signed a parenting agreement providing for joint custody while she was still a minor. When she later wanted to move to Wyoming, she sought to void the agreement on the ground of her minority when signing it. The court agreed and gave joint custody to Mother and Father, alternating every two weeks, but when the child entered kindergarten Father was to have primary physical custody. The Idaho Supreme Court upheld this custody decision, noting that:
"Doubtless the splitting of custody in the fashion done by the trial court creates issues. Uprooting a child every two weeks to travel and live in alternating locations with alternating people raises serious concerns as to the welfare of the child." However, as there was expert testimony from a mental health professional supporting the decision, the court fount that the trial court did not abuse its discretion."
Nor did the court agree with Mother that the court could not prospectively change custody when the child entered kindergarten. The court noted that a child entering school is a change in circumstances and commented: "Against the background of the parents sharing custody equally it is appealing to say that the trial court should have ordered a further hearing when time elapsed and school became imminent, necessitating that one parent's time with the child be expanded and the other's diminished. However, the trial court did not abuse its discretion in doing otherwise."
State v. Hart, 2006 Ida. LEXIS 41 (March 22, 2006)
Legislative Development: Michigan Reforms Evidence Law to Support Prosecution of Domestic Violence Cases
While prosecutors await the United States Supreme Court's decisions in Davis v. Washington, 05-5224, and Hammon v. Indiana, 05-5705, (arguments were heard last week) regarding the admissibility of 911 tapes in domestic violence cases, Michigan Governor Granholm has signed into law legislation that allows prosecutors to use evidence of a victim's past statements and a defendant's previous behavior in domestic violence cases. The domestic violence bills are Senate Bills 120 and 263 available at http://www.legislature.mi.gov
Clicke here for the Associated Press article on the legislation (last visited March 31, 2006 bgf)
Maryland Court Allows Gay Father to Retain Custody of Child and Have Partner Live With Him
A gay Maryland father who was forced to choose between custody of his son and living with his male partner has won court permission to reunite the household. On Monday, a Montgomery County judge ended the four-year-old cohabitation ban set in place by an Alexandria, Va., court. The 2002 ruling awarded custody to the father, contingent upon his partner moving out. The couple moved to Maryland, which is considered friendlier to same-sex couples.
Click here to read the Baltimore Sun article about the case, with commentary by family law Professor Jane Murphy of the University of Baltimore. (last visited March 31, 2006 bgf)
Massachusetts Court Restrains Distribution of Book Critical of Family Court
Massachusetts may be placing family court procedures on a collision course with the First Amendment. Last week, a Massachusetts family court judge issued an order restraining the distribution of a book entitled "Exposing the Corruption in the Massachusetts Family Courts." The author, Kevin Thompson, is a non-custodial parent who feels betrayed by a judicial system that he calls "anti-father." Thompson claims that his book is "banned" in the Boston sense of that word. But according to the order, which Thompson received by mail last Friday, impounding the book is necessary to protect the privacy interests of the minor child. In other words, the book includes information about Thompson's 4-year-old son, which violates a minor's privacy in a legal proceeding. Concern for a child's privacy, however, does not explain some of the circumstances surrounding the restraining order. For example, the issuing judge is also the subject of an entire section of Thompson's book: Chapter 17, "Judge Mary McCauley Manzi." Canon 3 of "The Code of Conduct for United States Judges" requires a judge to recuse him or herself when "impartiality might reasonably be questioned."
Click here to read the entire story by Wendy McElroy, FOX News (last visited March 31, 2006 bgf)
Case Law Development: Massachusetts Law Prohibits Marriage to Out-State Residents if Marriage Unavailable in their Home State
The Supreme Judicial Court of Massacusetts has affirmed a trial court's decision that it would not enjoin enforcement of a 1913 state law which prohibits marriage to out-of-state residents in Massachusetts if their union would not be permitted in their home state. The court agreed that judgment for the defendants should be entered against the plaintiffs who reside in Connecticut, Maine, New Hampshire, and Vermont because same-sex marriage is prohibited in those States. As to the New York and Rhode Island plaintiffs, the court directed that their cases should proceed in the Superior Court, on an expedited basis, for a determination whether same-sex marriage is prohibited in their states.
In his concurring opinion, Judge Spina interpreted the 1913 law to require that Massachusetts bar all same-sex marriages by out-of-state residents unless the state affirmatively allows such marriages.
Cote-Whitacre v. Department of Public Health, 2006 Mass. LEXIS 110 (March 30, 2006)
Opinion on the web (last visited March 31, 2006 bgf)
COTE-WHITACRE v. DEPARTMENT OF PUB. HEALTH, 2006 Mass. LEXIS 110
March 30, 2006
Sculpture of Britney Spears Giving Birth
"A life-size sculpture of a naked Britney Spears kneeling on a bearskin rug as she gives birth will be on display next month at Brooklyn's Capla Kesting Fine Art gallery. The sculpture is to appear next to a display case filled with materials from abortion opponents. It was created by Daniel Edwards, who said he never spoke to the 24-year-old pop star, and fashioned her face and figure from photographs. "I admire her. This is an idealized figure," Edwards said. "Everyone is coming at me with anger and venom, but I depicted her as she has depicted herself -- seductively. Suddenly, she's a mom."" By Verena Dobnik, Chicago Sun-Times Link to Article (last visited 3-29-06 NVS)
Baywatch Star Ordered to Stay Away
"David Hasselhoff has been ordered to stay away from his estranged wife. The judge has told the 'Baywatch' star not to go within 150 yards of Pamela Bach - unless he is on a court-ordered visit to see their two daughters." By femalefirst.co.uk Link to Article (last visited 3-29-06 NVS)
Michael Jackson & Debbie Rowe
"A judge has ordered lawyers for Michael Jackson and ex-wife Debbie Rowe to submit copies of missing papers from their divorce file. Superior Court Judge Robert Schnider on Monday ordered Rowe’s lawyer, Marta Almli, to submit duplicate copies of Rowe’s 2001 motion to terminate her parental rights to her two children with Jackson, and an emergency motion filed more than two years later seeking temporary exclusive custody and visitation rights." By montgomeryadvertiser.com. Link to Article (last visited 3-29-06 NVS)
March 29, 2006
Missouri Appeals Court Rules State Cannot Use Previous Out-State Domestic-Violence Convictions to Increase Jail Time
A three-judge Missouri Court of Appeals (Western District) panel sitting in Kansas City has ruled that the state cannot use previous domestic-violence convictions in other states to support a sentence of life without parole for a Missouri offender. The decision reversed a lower court sentence of life without parole for a defendant who had two Illionois domestic-violence convictions before he killed his girlfriend.
The court reasoned that the plain language of a Missouri statute “defines prior and persistent domestic violence offenders as people who have committed domestic assault offenses. Likewise, the plain language of section 565.063.1(1) limits the definition of domestic assault offense to four different crimes under Missouri law. The statute does not mention any domestic violence crimes from other states, so the legislature is presumed to have intended to limit the definition of domestic assault offense to Missouri crimes. Therefore, the trial court erred in sentencing [[the defendant] as a prior and persistent domestic violence offender to life imprisonment without the possibility of probation or parole.” News Source: Joe Lambe, The Kansas City Star, kansascity.com. To read a copy of the news story written about this case, please click here (last visited March 29, 2006, reo) To read a copy of the slip opinion of this decision, please click here (last visited March 29, 2006, reo).
Foster Parents Given Custody Over Relatives Objection
In an ongoing custody battle between relatives and the foster parents caring for a 4-year-old boy, Florida's 5th District Court of Appeals awarded custody to the foster parents on Monday. The child's cousin and her husband have been seeking to adopt the boy for more than 2 1/2 years. The case has generated wide-spread debate on whether the state's policy to favor blood relatives over foster parents helps or hurts children. Source: WFTV.com. For the complete story, please click here (last visited March 29, 2006, reo).
Maryland Court Allows Gay Father to Reunite with Partner – Retain Custody of Teenager
A Montgomery County, Maryland county judge ruled Monday that a gay father could cohabit with his gay partner and continue with custody of his teenage son. A Virginia court had ruled in 2002 that the father could not cohabit with his gay partner and continue with custody of the child. After the Virginia ruling, the father’s partner had moved out of the household and then both the partner and the father moved to Maryland. University of Baltimore law professor Jane Murphy is quoted by the Baltimore Sun as observing that "The rule as it has evolved in Maryland is that that kind of arrangement is not automatically ruled out. You would have to show a nexus between the father's living arrangement and harm to the child." Source: Andrea F. Siegel, Nia-Malika Henderson, Baltimore Sun, baltimoresun.com. For the complete story, please click here (last visited March 29, 2006, reo).
Wisconsin Appeals Court says City can Confine Persons with Tuberculosis in Jail until Treated for Contagious Disease
The Wisconsin 1st District Court of Appeals ruled Monday that a city can confine a person with tuberculosis in jail until that person receives treatment for the disease. The court agreed with an argument by the city of Milwaukee that the homeless individual was a danger to herself and the community because the bacterial infection can easily spread through the air. The court ordered the homeless person confined for nine months. Source: WISN-TV, Milwaukee, themilwaukeechannel.com. For the complete story, please click here (last visited March 29, 2006, reo).