Saturday, September 08, 2007
Ind. Courts - "Ex-Nappanee attorney sentenced"
John Kline reports in the Goshen News, in a story that begins:
Charles Davis Jr., Nappanee, was sentenced Thursday to four years in the Indiana Department of Corrections on two felony counts of securities-related violations.
Davis was sentenced in Elkhart County Superior Court III by Judge George W. Biddlecome.
Thursday’s sentencing serves as the second hit to Davis’ reputation in several years. In 2001, Davis had his attorney’s license suspended by the Indiana Bar Association in an unrelated case.
According to Deputy Prosecutor Charles Wicks, Davis’ current case originated in October 2006 when he was charged with 18 counts of various securities-related violations in connection with the failed creation of a comprehensive Internet-based background search program.
Courts - Continuing saga of Kentucky fen-phen lawyers ordered to jail
"Court won't hear diet-drug lawyers' appeal: Bond hearing set for Monday" is the headline to Andrew Wolfson's story today in the Louisville Courier Journal. It begins:
The three suspended lawyers accused of fraud in Kentucky's fen-phen case will be staying behind bars for a while longer.See background entries list here.
The 6th U.S. Circuit Court of Appeals has decided not to hear their appeal of an order last month in which they were jailed pending their trial in January.
A three-judge panel sent the appeal back to U.S. District Judge William O. Bertelsman, who last month granted Shirley Cunningham Jr., William Gallion and Melbourne Mills Jr. a continuance in their trial but ordered them confined in the meantime, saying they posed a risk to flee or transfer abroad the $46 million they are accused of stealing from their clients in the $200 million diet-drug settlement.
The appeals court ordered Bertelsman to hold a bond hearing within a week, and Bertelsman has set one for 9:30 a.m. Monday.
In an order issued yesterday, Bertelsman found that there is a "serious risk that the defendants will obstruct or attempt to obstruct justice" by fraudulently transferring the missing money.
That finding means the defendants will have the burden of proving they don't pose such a risk and should be released on bond.
Law - Perfect storm hits real estate industry
A story in Friday's NY Times, reported by Katie Hafner, reports:
“It’s a perfect storm for real estate agents,” said Glenn Kelman, chief executive of Redfin, an online brokerage in Seattle. “Not only have unprecedented numbers flocked to the profession, but at the same time you have the mortgage meltdown, the housing bubble bursting, and online competitors attacking the commission structure.”For background, start with this ILB entry from May 11, 2007.
Law - More on: Attorney who represented Seattle parents in a race-based lawsuit aims to recover his pro bono legal costs
More on this ILB entry from July 2, 2007, which included this quote from the Seattle Post-Intelligencer:
Seattle Public Schools, already stung from losing its long-running legal fight over voluntary desegregation measures, now faces a new trial: paying the seven-figure legal fees of the parents who sued the district.The Seattle Times reported Sept. 6th:
Just one day after the U.S. Supreme Court ruled the district cannot use a racial tiebreaker in determining school assignments, the parents' "pro bono" attorney indicated he will try to recover legal costs he estimates will be seven figures.
Technically, the parents group still has to get a U.S. district judge to declare them the "prevailing party," said Seattle Public Schools attorney Shannon McMinimee.For background, see these ILB entries.
McMinimee says it's "disingenuous" for the law firm, Davis Wright Tremaine, to go after money when the firm took the case pro bono. But firm spokesman Mark Usellis said "pro bono" means their clients don't have to pay.
"The thing that's really important to us in a civil-rights case is that Congress specifically and explicitly wrote into the law that if the government is found to have violated citizens' civil rights, then the prevailing party should seek fee recovery," he said.
Most governments can argue, as Seattle Public Schools is, that they don't have much money. But going after the fees helps deter other government bodies from violating civil rights, Usellis said.
The parents who sued the district in 2000 did not seek damages but asked the court to force Seattle to stop using the race-based tiebreaker that prevented their children, who are white, from attending Ballard High School. The district did, in 2002, but continued to fight for the policy in court, eventually making it all the way to the U.S. Supreme Court last year.
The 9th U.S. Circuit Court of Appeals will decide whether to award the fees to the firm. If the firm wins, the fees likely wouldn't be covered by the district's insurance carrier, McMinimee said. So the money would have to come out of the district's $490 million general-fund budget.
Courts - Attorney sanctioned for plagiarizing material for briefs and by unreasonably billing his client for preparation of the briefs
Well, this is an attention getter. This order from an Iowa bankruptcy court, dated August 21, 2007 includes the following:
After reading both briefs filed by Mr. Cannon, and concluding that both contained an extraordinary amount of research, the Court directed Mr. Cannon to certify the author or authors of the two briefs. On December 22, 2006, Mr. Cannon certified that while he had prepared both briefs, he had "relied heavily" on an article written by others. The article upon which Mr. Cannon relied is Why Professionals Must Be Interested in "Disinterestedness" Under the Bankruptcy Code, May 2005, ("the Article") by William H. Schrag and Mark C. Haut, two attorneys of the New York office of Morgan, Lewis & Bockius LLP. The Court located this article on the internet. Mr. Cannon fails to acknowledge or cite this article in either brief.Thanks to The Volokh Conspiracy for its entry, check out the comments following the entry.
Seventeen of the nineteen total pages in the pre-hearing brief are verbatim excerpts from the Article. Mr. Cannon added some introductory material, a one-page section titled "Argument," and a conclusion. In between the introduction and argument, most of the first twenty pages of the Article are reproduced verbatim. The twenty pages Mr. Cannon reproduced appear as they did in the Article, with slight variations in formatting of the type that result when material is copied from one electronic document into another. * * *
While Mr. Cannon's post-hearing brief contains more original material than his pre-hearing brief, it still continues to borrow heavily from the Article. Mr. Cannon wrote much of the brief's text, but reproduced string citations from the Article for supporting authority. The citations he selected are presented in the same order in which they appear in the Article, with the same parenthetical explanations. Aside from these reproduced citations, Mr. Cannon did not add any case law in support of his position. * * *
Mr. Cannon violated the Iowa Rules of Professional Conduct by plagiarizing material for briefs and by unreasonably billing his client for preparation of the briefs. These violations are sanctionable misconduct under Local Rule 83.2(g). Given the egregiousness of Mr. Cannon's conduct, the Court has determined that the appropriate sanctions include 1) completion of a law school course in professional responsibility and 2) disgorgement of fees charged for preparing the plagiarized briefs. While the sanctions imposed by this Court are not de minimus, they are not as severe as ordered in many Courts. This Court, however, has only the limited jurisdiction allowed by informal sanctions. The Court also recognizes that the U.S. District Court has authority to commence a formal procedure and the Iowa Attorney Disciplinary Board will also review this conduct. As such, the sanctions imposed are adequate at this time.
For background, see this ILB entry from May 27, 2007, headed "'Is It OK for Lawyers to Copy Complaints?' And what about copyrighting briefs?"
Courts - California Chief Judge creates commission to study possible changes in state's judicial election laws
From a story by Bob Egelko in the San Francisco Chronicle that begins:
California's chief justice, citing the increasing influence of money and partisan politics on judicial campaigns elsewhere, has created a commission to study possible changes in the state's judicial election laws.More, from a story in the Inland Press Enterprise:
The study topics will include the timing and financing of elections, as well as campaign ethics in the wake of a U.S. Supreme Court ruling loosening restrictions on judges' public comments.
Members of the new Commission for Impartial Courts include judges, lawyers, government and business officials and public representatives. Among the proposals it may forward to the Legislature, Ronald George said, are taxpayer financing of judicial elections and changes in election schedules for appellate and Supreme Court judges, who now must face the voters at the same time as the first governor's election after their appointment.
George announced the formation of the commission this week in response to what he described as "developments in other states that have changed the tone, tenor and cost of judicial elections."
He pointed to recent multimillion-dollar campaigns largely funded by interest groups for state Supreme Court seats in Ohio, Wisconsin and Washington state, and partisan battles over top judicial posts in Texas, where all judges are elected by political party.
George announced creation of the commission Tuesday.
Its purpose, he said in a statement, was to ensure judicial impartiality and accountability in the face of developments in other states "that have changed the tone, tenor and cost of judicial elections."
Judges have traditionally run restrained, low-budget campaigns.
The code of ethics called judicial canons prevents them from making statements or promises that could be seen as taking sides in issues that might come before them.
But recently judicial elections have become more strident, and spending, especially in television advertising, has increased.
"2006 was the most threatening year yet to the fairness of America's state courts," concluded a report co-authored by the Brennan Center for Justice at the New York University School of Law.
Candidates for an Alabama Supreme Court seat spent a combined $13.4 million in their campaigns.
In Missouri, a trial court judge was defeated when out-of-state interests put $175,000 into the campaign against him, the report said.
Ind. Courts - "New role seen for court referee"
BROWNSTOWN — Jackson County’s judges hope to retain funding for a part-time referee at least through next year.
For the past decade, the courts have made use of a part-time juvenile referee to handle youth-related court matters.
But those issues will be handled by the county’s second superior court when it comes online Jan. 1, 2008. Indiana Chief Justice Randall T. Shepard has ordered that the county’s new court handle family matters such as dissolutions, child custody and visitation issues.
“The idea is to convert that from the juvenile referee to a countywide referee,” Jackson Circuit Judge Bill Vance said this morning. “If we lose that position, we only gain a half position with the third court.”
Vance and Jackson Superior Judge Bruce Markel III hope to create a role where the referee could serve all three courts, spending perhaps four mornings or four afternoons a week handling matters across the jurisdictions, Vance said.
“They could help get the new court started and the influx of cases it’s going to have but also help reduce the backlog of Superior Court with its traffic cases and small claims, and in Circuit Court help handle initial hearings, preliminary motions and that sort of thing,” Vance said. “We’re making real headway of getting the backlog of cases under control. We’d hate to lose that momentum.” * * *
A referee differs from a magistrate in some basic ways. Magistrates can issue orders and are created by the Indiana General Assembly. Referees can issue recommendations for judges to consider and are created by local order of a judge. Those orders are reviewed for approval by the state supreme court.
Ind. Courts - Applications open for the Jackson County’s new superior court judge
The Seymour Tribune reports:
The governor’s office will start accepting applications for the county’s new superior court judge on Monday. The application period closes Sept. 21, Brad Rateike of the governor’s office said Thursday.
Interviews will take place in October once the governor’s staff reviews the applications, he said.
“There is no timeframe on making the appointment, but we expect there to be plenty of time for whoever is appointed to transition,” Rateike added. Notice of the application period was to be posted starting today. No early applications have been received, Rateike said.
The court must be up and running by Jan. 1, 2008, according to this year’s state budget law, which included language creating the court, the county’s second superior court and third court overall.
Following an order by Chief Justice Randall T. Shepard, it will serve as a family court, encompassing dissolutions of marriage, child custody and other related issues.
So who’s going to apply?
Most likely Republicans, but Democrats can do so as well.
Anita Samuel, assistant general counsel for Daniels, said Thursday the process is open to anyone interested, regardless of their party affiliation. She added the Republican governor has appointed some Democratic applicants as judges, even when party affiliation wasn’t a requirement as they can be in Marion County.
Law - Gun laws in court
"D.C. Case Could Shape Gun Laws: Supreme Court Is Asked to Uphold Ban" is the headline to a lengthy Sept. 5th story by Robert Barnes and David Nakamura in the Washington Post. Some quotes:
The District asked the Supreme Court yesterday to save the city's ban on handgun ownership, saying an appeals court's decision overturning the prohibition "drastically departs from the mainstream of American jurisprudence."And what of the Indiana's Gary-based gun suit? Here are some quotes from a news release in a Dec. 23, 2003 ILB entry (which contains a lot of valuable information):
If the court agrees to take the case, as most legal experts believe is likely, it could lead to a historic decision sometime next year on whether the Second Amendment to the Constitution protects an individual's right to own a gun or simply imparts a collective, civic right related to maintaining state militias.
It is a question that has been hotly debated in the nation's courts and legislatures for years, and a decision by the Supreme Court to settle the issue could carry broad implications for local governments and thrust gun control as an issue into the 2008 elections.
The District argues in its petition that its law -- one of the strictest in the nation -- should be upheld regardless of whether the court sides with the individualist or collective legal theory. * * *
A three-judge panel of the U.S. Court of Appeals for the District of Columbia Circuit voted 2 to 1 in March to throw out the District's law, which prohibits handgun ownership except by active and retired law enforcement officers. It also struck down a law requiring that rifles and shotguns kept in private homes be unloaded and disassembled or bound by trigger locks.
The court ruled that the Second Amendment "protects an individual right to keep and bear arms" and that "once it is determined -- as we have done -- that handguns are 'Arms' referred to in the Second Amendment, it is not open to the District to ban them."
The court acknowledged that its decision was groundbreaking; only one other federal appeals court -- that of the 5th Circuit, based in New Orleans -- has recognized an individual's right to gun ownership, and it nevertheless upheld the federal gun-control law at issue. Nine other circuits around the country have endorsed the collective right.
That split is what makes it likely that the justices will accept the case. The lawyers who brought the case on behalf of six D.C. residents who wanted to overturn the ban also want the court to take the case.
In an important legal victory against the gun industry, the Indiana Supreme Court today unanimously ruled that the city of Gary may proceed with its lawsuit against gun manufacturers and sellers. The court reversed a lower court ruling dismissing the city's claims and rejected virtually every argument made by the industry against the suit.Here is a link to the Supreme Court's Dec. 23, 2003 opinion in Gary v. Smith & Wesson.
This ruling comes as Congress is considering legislation to ban civil suits by gun violence victims and cities and immunize negligent gun sellers. Currently, 44 states allow suits by victims or cities against negligent gun sellers. The federal immunity bill would override all of these states' laws. Attorneys with the Brady Center to Prevent Gun Violence represent Gary, Ind., in this case.
Fast forward to Oct. 6, 2006, where then Lake Superior Court Civil Division 5 Judge Robert Pete "ruled a year-old federal law shielding gun makers from lawsuits" to be unconstitutional. See this Oct. 30, 2006 ILB entry. Check here for a copy of Judge Pete's ruling. "Gun makers appeal Hoosier's ruling" is the heading to this Nov. 27, 2006 ILB entry.
A check of the Clerk's docket shows that "Case Number: 45 A 05 - 0612 - CV - 00754, SMITH AND WESSON ET AL. -V- CITY OF GARY, Interlocutory" is set for oral argument . The question is whether the federal immunity bill (the Protection of Lawful Commerce in Arms Act of "PLCAA") shields gunmakers from the lawsuit. There are at this count 25 attorneys-law firms, including the U.S. Attorney, listed in the docket.
Oral argument is set for Oct. 1, 2007, in the Supreme Court courtroom, at 10:00 am. The argument will be web-cast. The scheduled panel members are Judges Sharpnack, Friedlander, and Riley.
[More] For more on the DC gun suit, see this Sept. 6, 2007 entry in SCOTUSblog.