Polygamous Union Sparks Split

The Utah Supreme Court has upheld the bigamy conviction of a polygamist but split over whether the landmark U.S. Supreme Court ruling in Lawrence v. Texas reaches beyond consensual sex between same-sex couples.

The court rejected the appellant’s argument that a law prohibiting plural marriages violates his constitutional privacy rights. And though lawyers may take opposite sides on the case, several agree that its arguments may have an effect on the legal battle over same-sex marriage.

Utah law defines bigamy as a married person purporting to marry or cohabiting with someone other than his or her spouse. Under Utah law, a union does not have to be legally sanctioned to be considered marriage, so the bigamy statute could also apply to a polygamous arrangement where no unions were legally recognized, say lawyers on both sides of the issue.

The defendant, Rodney Holm, was legally married to one woman at the time of his conviction, and had two "spiritual wives" with whom he was sealed in Fundamentalist Latter Day Saints ceremonies. One of his wives was 16, and Holm was also convicted of unlawful sex with a minor.

In his appeal, Holm argued the state bigamy law should be struck down under Lawrence v. Texas, 539 U.S. 558, the 2003 ruling that found sodomy laws unconstitutional. The majority in Holm’s appeal disagreed, finding that Lawrence only applies to private, consensual sexual acts involving adults of the same sex. The Utah opinion notes that Lawrence specifically exempts minors.

Details here from the ABA Journal. The opinion is State of Utah v. Holm.

Govt. Must Reveal Some Eavesdropping Info

NEW YORK (AP) -- Justice Department employees involved in a lawsuit filed on behalf of Sept. 11 detainees must disclose whether they know of any government monitoring of conversations between the detainees and their attorneys, a judge ruled Tuesday.

U.S. Magistrate Judge Steven Gold ruled in response to a motion by the Center for Constitutional Rights, a human rights group representing the detainees. It filed the motion after the public disclosure in December of a secret government program that allowed investigators to eavesdrop on international communications between Americans and people suspected of terrorist ties.

The class action lawsuit was filed in federal court in New York in 2002 on behalf of hundreds of Arab and Muslim men who were detained and deported as part of the government's investigation into the 2001 terrorist attacks.

The center had asked the judge to order the government to disclose whether telephone, e-mail or other communication between detainees and their lawyers had been monitored or intercepted since the detainees left the country.

The Justice Department said its lawyers and support staff hadn't received any attorney-client communications and that such conversations wouldn't be used in its defense.

But the government would not say whether employees or potential witnesses knew of any monitoring, saying such a disclosure could reveal classified information. It said it would allow witnesses to pick one of a series of statements about what they knew but reserved the right to call witnesses who refused to sign any statement.

The Center for Constitutional Rights applauded the ruling. "Now they have to step forward and answer some tough questions," said the center's legal director, Bill Goodman.

Detailse here from the AP.

Supreme Court Will Hear Case on High Punitive Damages

The Supreme Court on Tuesday signaled its return to the thorny issue of high punitive damages, agreeing to review a $79.5 million verdict against Philip Morris USA for the death of a single Oregon smoker. The Court added the case to its docket for the fall, responding to pleas by the business community for clearer guidance on when punitive damages are excessive.

Details here from Legal Times via Law.com.

Convicted Killer Seeks Sex-Change Surgery

A man serving a life sentence for the murder of his wife is asking a federal judge to order the state to pay for a sex-change operation for him, saying that denying him the surgery amounts to cruel and unusual punishment.

A psychiatrist testified Tuesday that he believes Robert Kosilek will kill himself if state correction officials refuse to allow the surgery and Kosilek is unable to complete his transformation into a woman.

Kosilek, 57, was convicted of strangling his wife, Cheryl, in 1990.

In 2002, U.S. District Judge Mark Wolf ruled that Kosilek — who now goes by the name of Michelle — was entitled to treatment for gender identity disorder, but stopped short of ordering the state to pay for the sex-change operation.

Since then, Kosilek has received psychotherapy, female hormone treatments and laser hair removal. Kosilek, who wears his hair long and tucked behind his ears, has developed larger breasts since beginning hormone treatments.

Kosilek sued the Department of Correction for the second time last year, saying that numerous psychiatrists who had examined him — including two of the DOC's own experts — had determined that a sex-change operation is "medically necessary."

Details here from the AP via the San Francisco Chronicle.

Defendant Slaps Attorney in Court

A man who was to be tried for assault smacked his court-appointed lawyer during jury selection, stunning the potential jurors and forcing the judge to declare a mistrial.

Justin Jacobson, 21, and his lawyer W. Larry Jefferson had been whispering back and forth during proceedings Wednesday in Thurston County Superior Court, witnesses said.

Jacobson, whose eyes were focused elsewhere, backhanded his attorney without warning, said Undersheriff Neil McClanahan, who was in the courtroom because he had received a summons for jury duty in the case.

"Not only did you see it, you heard it," McClanahan said.

Details here from the AP via the San Francisco Chronicle.

High Court Clerks: Still White, Still Male

The luster of Supreme Court clerk jobs seems brighter than ever, and not just because a former high court clerk has succeeded another as chief justice. But, even as law firms offer former clerks hiring bonuses of $200,000, pushing clerkships ever upward into the stratosphere of rewards to which young lawyers can aspire, one stark reality persists: Recipients are overwhelmingly white and male. It appears that only three of the 37 clerks currently serving at the Court are minorities.

Details here from Legal Times via Law.com.

Calif. Supreme Court Reinstates Exit Exam

SAN FRANCISCO (AP) -- The California Supreme Court on Wednesday reinstated the state's high school exit exam as a graduation requirement, but it was not immediately clear whether the decision means tens of thousands of high school seniors who failed the test won't graduate this year.

The high court ordered a state appeals court to hold hearings in the case.

Details here from the Associated Press.

"Procedural Morass"

A new unpublished case from California's Fourth Appellate District, Division Three, begins:

We sometimes see lawsuits by disgruntled clients who are disappointed when they lose a lawsuit and blame their attorney. But it is a rare client who pursues his attorney all the way to the appellate court after winning two lawsuits. That is what is buried beneath the procedural morass that is this case.

Father Flanagan's Boys Home v. Morrison & Foerster, No. G035251 (Cal. Ct. App., 4th App. Dist., Div. 3, May 24, 2006) (Bedsworth, J.).

Ninth Circuit Provides Movie Trivia

In an interesting new Ninth Circuit case considering whether "the mailbox rule" applies to cases brought under the Federal Tort Claims Act (it doesn't . . .), Judge Sidney R. Thomas begins his concurring opinion as follows:

This case provides fresh meaning to James M. Cain’s “The Postman Always Rings Twice.”¹ Anton Vacek was first struck by a Post Office truck, and then had his damage claim stamped out because the Post Office lost it in the mail.

¹ JAMES M. CAIN, THE POSTMAN ALWAYS RINGS TWICE (KNOPF, 1934); See also THE POSTMAN ALWAYS RINGS TWICE (WARNER, 1981); THE POSTMAN ALWAYS RINGS TWICE (MGM, 1946); LE DERNIER TOURNANT (LUX PRODUCTIONS, 1939). The title is ironic because there is no reference to a postman either in Cain’s book or in the subsequent film adaptations. When asked for an explanation, Cain purportedly explained that his manuscript had been rejected by 13 publishers prior to being accepted for publication on his 14th attempt, so that when the publisher asked him what he wanted the work to be entitled he drew on this experience and suggested The Postman Always Rings Twice. Like Vacek, Cain apparently had come to associate the postal service with dark disappointment.

Vacek v. United States Postal Service, No. 04-15961 (9th Cir. May 24, 2006).

F.B.I. Raid Divides G.O.P. Lawmakers and White House

After years of quietly acceding to the Bush administration's assertions of executive power, the Republican-led Congress hit a limit this weekend.

Resentment boiled among senior Republicans for a second day on Tuesday after a team of warrant-bearing agents from the Federal Bureau of Investigation turned up at a closed House office building on Saturday evening, demanded entry to the office of a lawmaker and spent the night going through his files.

The episode prompted cries of constitutional foul from Republicans — even though the lawmaker in question, Representative William J. Jefferson of Louisiana, is a Democrat whose involvement in a bribery case has made him an obvious partisan political target.

Speaker J. Dennis Hastert raised the issue personally with President Bush on Tuesday. The Senate Rules Committee is examining the episode.

Representative John A. Boehner of Ohio, the House majority leader, predicted that the separation-of-powers conflict would go to the Supreme Court. "I have to believe at the end of the day it is going to end up across the street," Mr. Boehner told reporters gathered in his conference room, which looks out on the Capitol plaza and the court building.

A court challenge would place all three branches of government in the fray over whether the obscure "speech and debate" clause of the Constitution, which offers some legal immunity for lawmakers in the conduct of their official duties, could be interpreted to prohibit a search by the executive branch on Congressional property.

I'm glad to see the Republicans in the legislature finally standing up to the Bush administration's view that its power is virtually unlimited. Especially when the administration's target was a Democrat accused of corruption. Details here from the New York Times.

Moore Men Defiant, Too

Roy Moore's mantra of defying federal courts is being touted by a slate of Alabama Supreme Court candidates led by former Moore aide and current Justice Tom Parker. The challengers are running on a platform that state jurists should not obey rulings by U.S. Supreme Court justices who don't interpret the Constitution the way they do.

"Alabama has always led the change in the tone and character of judicial races," said Jesse Rutledge, spokesman for Justice At Stake, a Washington-based group that monitors judicial elections. "It looks like Alabama is pushing the envelope to a new extreme."

As candidates in the June 6 Republican primary, Parker and his allies - Hank Fowler, Ben Hand and Alan Zeigler - want to avenge Moore's ouster as chief justice in 2003. Their targets, respectively, are Chief Justice Drayton Nabers Jr. and justices Champ Lyons Jr., Tom Woodall and Lyn Stuart.

But the challengers and their supporters also hope the slate's plank will appeal to enough voters to ensure that the Moore-inspired judicial philosophy of literal interpretation of the Constitution will dominate court doctrine.

The June 6 primary has even broader implications, said David Lanoue, chairman of the political science department of the University of Alabama. "It's a battle for the soul of the Alabama Republican Party," he said. "It's a power struggle between the part of the party associated with the religious right and the more traditional, pro-business wing of the party."

In time, the "religious" right wing of the party will choke on its own hatred and intolerance. These people have no concept of the teachings of Jesus or the principles he stood for, such as tolerance, kindness and forgiveness.

Roy Moore -- in case you missed it -- is the injudicious zealot who had to be removed from office after refusing to remove his 2.6 ton monument to the Ten Commandments from the Alabama Supreme Court building, despite a federal court's order to do so.

Details here from The Birmingham News. (again via How Appealing)

Term Limits For Judges?

This is an incredibly stupid (and reactionary) idea:

Colorado would become the first state to limit the number of terms served by state appellate judges and Supreme Court justices under a ballot initiative proposed by former state Senate President John Andrews.

"We have seen outrageous instances of judicial lawmaking, not only at the federal level but at the state level - really an increasing problem for decades now," Andrews said Monday.

The state Supreme Court signed off Monday on the language of the ballot measure - language that had been contested by opponents who claimed "term limits" is a catchphrase that has been improperly used in political messages and therefore has no place on a ballot initiative.

Supporters of the ballot initiative still must gather 67,829 valid signatures by Aug. 7 to get the measure before voters in November. . . .

[K]en Gordon, a lawyer and majority leader of the Colorado Senate, called the idea of term-limiting judges "crazy" and said judges must be protected from political whims.

"This is anti-judicial sentiment that is stirred up by certain political elements, and I think it is unjustified," Gordon, D-Denver, said. "A judge's job is frequently to protect somebody's rights. And rights are frequently unpopular."

The two most important features that make a good judge are 1) insulation from politics, and 2) experience. That's why Article III, Section 1 of the Constitution states: "The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behavior . . . ." In other words, for life. John Andrews of Colorado, who I've never heard of before, is clearly more interested in rabble-rousing his narrow-minded conservative constituency than in the greater good of either Colorado or this nation. He should be ashamed of himself.

Details here from The Denver Post. (via How Appealing)

The "State Secret" Privilege

The new secrecy doctrine so secret you don't even know about it.

[D]espite the burgeoning use of this privilege and the way it's been used to gut entire cases, the most disturbing aspect of the Bush administration's expansion of the state secrets privilege may well be this: More and more, it is invoked not in response to run-of-the-mill government negligence cases but in response to allegations of criminal conduct on the part of the government. These are not slip-and-fall cases. They are challenges to the administration's broad new theories of unchecked executive power. By using the state secrets privilege to shut down whole lawsuits that would examine government actions before the cases even get under way, the administration avoids having to give a legal account of its behavior. And if this tactic persists—if the administration continues to broadly assert this privilege and courts continue to accept it—the administration will have succeeded in creating an insurmountable immunity that can be invoked against pretty much any legal claim that the "war on terror" violates the law. The standard and winning response to any plaintiff who asserted such charges would be, quite simply, that it's a secret.

The Bush administration has fought at every turn to limit scrutiny of its conduct since Sept. 11. And, unless courts start to reject its assertion, the administration may have found in the state secrets privilege the ultimate tool for making its actions invisible.

Details here from Henry Lanman at Slate. (via How Appealing)

L.A. Lawyer Pleads Guilty to Felony

LOS ANGELES (AP) -- A Los Angeles attorney admitted he illegally accepted money from a top class-action law firm that was indicted last week on charges of secretly paying more than $11 million in kickbacks to get people to take part in shareholder lawsuits.

Richard R. Purtich, 53, agreed Monday to plead guilty to a felony tax offense in connection with his participation in a scheme prosecutors say involved New York-based Milberg Weiss, Bershad & Schulman, and top partners David J. Bershad and Steven G. Schulman.

Federal prosecutors say that the secret kickback arrangement often allowed the firm to be among the first to file a lawsuit on behalf of shareholders. The indictment alleges that Milberg Weiss's lawsuits against major corporations generated hundreds of millions of dollars in attorneys' fees. The firm denies any wrongdoing.

In court papers filed Monday, prosecutors alleged that Purtich received more than $2.5 million from Milberg Weiss for the financial benefit of Steven G. Cooperman, a former client of his who served as a plaintiff in several class action lawsuits.

Cooperman, 64, was convicted of insurance fraud and other crimes in 1999 in an unrelated case and has been cooperating with the government's ongoing investigation into the secret kickbacks scheme, the U.S. attorney's office said.

This shit is getting ugly. Details here from the AP via the New York Times.

Abuse Trial Opens for 2nd Army Dog Handler

FORT MEADE, Md. (AP) -- Close-up photos of a bloody leg are part of the government's arsenal as it tries to convict an Army dog handler of abusing detainees at Abu Ghraib prison in Iraq.

Sgt. Santos A. Cardona is accused of letting his tan Belgian shepherd, Duco, bite detainee Mohammed Bollendia on the leg badly enough to require stitches, according to charge sheets and investigators' reports. Cardona also is accused of using his dog to harass and threaten another detainee, Kamel Miza'l Nayil, in violation of the Uniform Code of Military Justice.

A jury was chosen Monday for Cardona's trial at Fort Meade, between Baltimore and Washington. Opening statements were set for Tuesday.

Cardona, 32, of Fullerton, Calif., is charged with assault, dereliction of duty, maltreatment of detainees, conspiracy to maltreat detainees and lying to investigators in late 2003 and early 2004. He faces up to 16 1/2 years in prison if convicted on all counts.

Details here from the AP via the New York Times.