#Florida appellate procedure

[andrewjbernhard]

Understanding Florida's Legal Requirements for Appellate Motions: Rehearing, Certification of Conflict, and Written Opinion

Navigating Florida’s appellate process? Learn the rules for filing motions for rehearing, conflict certification, and written opinions. Stay informed on how to challenge or clarify court decisions! #FloridaLaw #AppellateLaw #LegalTips #BernhardLawFirm

When appealing a decision in Florida, the appellate process offers several options for parties to challenge or seek clarification on rulings. Three common motions filed in appellate cases are the motion for rehearing, motion for certification of conflict, and motion for written opinion. While each serves a different purpose, they are governed by specific rules and limitations. Understanding these…

[foreverlogical]

The legal briefs are piling up in Florida. 

In the coming weeks, prosecutors in the Mar-a-Lago classified documents case against former President Donald Trump must provide more information to Judge Aileen Cannon in compliance with her latest orders. The judge has questioned the “legal propriety” of bringing charges into her courtroom using an out-of-state grand jury. 

In a separate setback for special counsel Jack Smith, Cannon struck two filings by prosecutors from the record. These unusual moves generated a torrent of criticism from legal scholars. 

Aside from Supreme Court Justice Sonia Sotomayor, Judge Cannon — who of Cuban American descent — is the most prominent Latina judge in the country. She is overseeing a historic case yet is on track to harm the judiciary system, democracy and her own reputation. Her partisan conduct is an embarrassment. 

To understand why Cannon is unfit to hear Trump’s case, start with her ruling last week. In it, Cannon asked about the legality of using a Washington, D.C., grand jury in a Florida-based case. But this is normal procedure, as grand juries can be convened anywhere crimes may have occurred. As a federal judge, Cannon should know this. 

It’s no wonder that her orders have earned widespread scorn from legal experts. Former Harvard Law professor Laurence Tribe called her approach ��dopey and constitutionally dubious.” On X, the platform formerly known as Twitter, a former assistant U.S. Attorney wrote that Cannon “clearly shows her ignorance (bias? both?).”  And these were some of the kinder reactions. 

This is not the first time Cannon has appeared to favor Trump. After the FBI searched Mar-a-Lago last year, the former president filed a civil lawsuit to stop the Department of Justice investigation. Cannon sided with him, in a decision that was overturned by the 11th Circuit Court of Appeals. In a scathing rebuke, the appellate court found multiple serious errors in Cannon’s initial ruling and decided that she didn’t even have jurisdiction in the first place. 

These controversies matter to the Latino legal community because it is rare for a Latino judge to be in the national spotlight. In fact, Latino judges are rare. Though Latinos account for about 19 percent of the U.S. population, only 8 percent of federal judges are Latino. Of these, roughly one third are Latinas.  

Cannon is part of a long tradition of Latino jurists, from Alonso Perales, who founded the League of United Latin American Citizens (LULAC) in 1929, to civil rights pioneer Gus Garcia, who argued before the Supreme Court in 1954 to Justice Sotomayor. Cannon’s role in a hugely consequential legal matter could have been a source of pride for Latinos. Instead, calls are mounting for her recusal.  

As she tanks her own credibility, Cannon is likewise letting the Latino community down. According to a June Quinnipiac poll, 60 percent of Latinos are following the documents case closely, and 66 percent believe that Trump handled the classified papers in an inappropriate manner. Like other Americans, Latinos want to see the rule of law applied with impartiality. That hasn’t been the case so far, due to Cannon’s emerging pattern of bias.  

Cannon’s apparent fealty to the former president is as troubling as it is unfortunate. Look how that worked out for Alberto Gonzales, whose misplaced loyalty to George W. Bush led the nation's first Latino attorney general to resign. 

Yes, Cannon is a graduate of the University of Michigan Law School who previously worked in a D.C. law firm and as a federal prosecutor in Florida. But in her current role, she is a legal time bomb who could blow up a case with immense implications for national security and democracy. 

Consider that she had no judicial experience before her lifetime appointment to the federal bench by Trump in 2020. Or that as a prosecutor, she worked on only four criminal cases that resulted in trials, for a total of 14 trial days. 

Reuters reports that Cannon made rookie mistakes in a trial in June, such as forgetting to swear in the jury, while the New York Times describes her as a judge “who will be essentially learning on the job.”   

To borrow a catchphrase associated with Justice Sotomayor, Judge Cannon is no “Wise Latina.” She must recuse herself from the documents case, or prosecutors should seek to have her replaced. She is too problematic and inexperienced to preside over a criminal trial of Donald Trump.  

Raul A. Reyes is an attorney and contributor to NBC Latino and CNN Opinion. Follow him on Twitter @RaulAReyes, Instagram @raulareyes1.

[masterofd1saster]

CJ current events 27jun24

Judicial nominations don't work when you lie

Embry Kidd, is or was a magistrate judge in the U.S. District Court for the Middle District of Florida. Magistrates in the federal system don't have lifetime appointments. They don't preside in felony cases. They preside in misdemeanors, and they preside in pre-trial matters in felony cases. Pres Biden has nominated J. Kidd for the 11th Cir - a no-kidding federal appellate court.

Judicial appointments have no effect until the Senate confirms. J. Kidd omitted two important faux pas from the questionnaire he sent to the Senate. This has senators reasonably upset.

“Not only is this becoming a pattern, the content of these belatedly-disclosed cases is concerning,” Sen. Lindsey Graham (R-SC), the Senate Judiciary Committee’s ranking member, told the Washington Examiner. “With all due respect, these cases should have been disclosed. It is hard to provide advice and consent on a judicial nominee when the nominee doesn’t disclose highly relevant cases.”***

Sen Rick Scott noted:

“President Biden continues to nominate judges who are totally unfit for the federal bench in his continued efforts to weaponize our judiciary,” Scott said. “The Biden administration’s decision to advise nominees like Judge Kidd to not disclose bad rulings regarding child sex predators, some of which were later rightfully reversed by the supervising district judge, is disgusting, dangerous, and right on brand for this lawless administration.”

The Senate Judiciary Committee’s questionnaire includes a section asking nominees to provide a summary and citations for any of their prior court opinions “reversed by a reviewing court” or where their “judgment was affirmed with significant criticism of your substantive or procedural rulings.” The purpose of this section is for lawmakers to be able to vet nominees fully, many of whom have past ties that are ripe for scrutiny and, in some cases, lead to rejection from the upper chamber.***

Comments by the Democrats

keyed Republicans in on two cases that, the GOP says, had been wrongfully omitted from Kidd’s questionnaire. Senate staff investigators often use research tools such as Westlaw or LexisNexis to locate information about cases, but U.S. v. D’Haiti and U.S. v. King were oral rulings — meaning they are not indexed in these databases, and Republicans were not previously aware of them. U.S. v. D’Haiti pertained to a case in which the defendant, a male who was a cheerleading coach at a central Florida High school, was arrested in 2022 for possession of child pornography, court records show. The defendant, in one instance, reached his hands up a minor’s sports bra and fondled her. But Kidd, according to the court records, elected in July of that year to release the defendant based on his “high character,” “ties to the community,” and “lack of criminal history.” One month later, a district judge reversed that order based on further evidence and ordered the defendant to pretrial detention.

The teacher, 41-year-old Vigiland D’Haiti, was sentenced in October 2023 to 29 years in prison for coercing a minor to produce sexually explicit content. The second case, U.S. v. King, related to a convicted sex offender charged with receipt and possession of child sex abuse material. In April 2023, Kidd issued an order restricting only some of the defendant’s usage of the internet and devices. “All that’s been presented is that you downloaded images and that you had them on your phone, that you admitted to having them,” Kidd told the defendant. “While that does pose some danger, the danger that’s articulated is that the victims will be revictimized.”

“And I think that those will be sufficient to mitigate any risk of danger that you pose,” he added. In May 2023, a district judge revoked Kidd’s initial order releasing the defendant based on the danger he posed to the community and the “compulsion of pedophilia that he cannot control,” documents show. An FBI special agent later testified about the defendant’s attraction to a child at a restaurant, with the district judge concluding there were no conditions “that can assure the safety of the community, particularly young children.” The defendant was sentenced to roughly 24 years in prison. Both of these cases, no matter how controversial, should have always been included on Kidd’s questionnaire, according to Republicans. In written questions this month, Graham pressed Kidd on the omissions.***

How a judge could think that a child pr0n criminal should have internet access was not disclosed by DoJ or the White House.

***

Marlon Wayans interviews Nathan Wade for Daily Show

This is vulgar, but hilarious. https://youtu.be/-RFeOlxYxN4

***

Maybe if they labeled the money they paid to lawyers "legal expenses"....

Nearly all the protesters charged with storming and occupying Columbia University’s campus during heated anti-Israel demonstrations won’t face criminal charges, Manhattan prosecutors announced Thursday — drawing outrage from law enforcement and Jewish advocates. District Attorney Alvin Bragg’s office dismissed cases against 31 of 46 people charged with trespassing in the Ivy League school’s Hamilton Hall after a dramatic April 30 NYPD raid rounded up protesters on the Morningside Heights campus. Prosecutors largely cited lack of evidence, such as security video footage, that could tie the students or staff to the building takeover for leaving them free and clear without even a slap on the wrist. The dismissals quickly drew fury from rank-and-file NYPD officers, higher education officials and Jewish leaders who spoke with The Post.*** Several police sources could barely contain their disbelief to The Post. “Lack of evidence?” one said. “Apparently body-worn camera wasn’t enough?” *** Jeffrey Wiesenfeld, who served 15 years as trustee on the governing board for CUNY, said it strained belief that authorities couldn’t identify anyone.***

+++

One person baffled by the decision was Lester Wilson, one of the janitors inside Hamilton Hall that night, who previously told The Free Press he thought he “could have been killed in there.” He called the prosecutor’s decision to dismiss the cases “wrong.”  “If they got dismissed and no charges were being brought, I feel it’s wrong, I feel it’s wrong, I feel it’s wrong,” he said. “Somebody should be charged. Somebody should be held accountable. I'm not saying jail time, but not dismissed. You should be found guilty.”  “We as the workers, y’all violated us,” he added. “Y’all really violated us, keeping us in that building, by taking over that building, you affected all our lives.” Some fourteen additional protestors, who had no affiliation with Columbia at the time of arrest, also had a hearing for their charges on Thursday. James Carlson, a 41-year-old heir to millions who the NYPD previously called a “long-time anarchist,” was one of them. Carlson—who was captured in a now-viral photograph getting in a physical altercation with Columbia janitor Mario Torres the night of the break-in—was arrested alongside the student protestors on April 30. He was charged with criminal trespass, criminal mischief, and arson—the last charge stemming from an incident a week before, in which he allegedly lit an Israeli flag on fire. As the prosecutor discussed Carlson’s arson incident with the judge, the keffiyeh-clad crowd whispered and laughed, before being scolded to be quiet by a court officer.  Carlson declined to take a plea deal of community service for his trespassing charge. The thirteen other people who weren't affiliated with the university were also offered dismissals pending good behavior; they also refused. ***

***

Sad case - mentally ill vic

The USC student who fatally stabbed a man allegedly breaking into cars on Greek Row is free after Los Angeles County District Attorney George Gascón declined to file charges against him on Thursday. Ivan Gallegos, 19, was arrested after the confrontation with Xavier Cerf, 27, at about 8:15 p.m. Monday in the 700 block of West 28th Street. Gallegos and two friends were walking down the street when they spotted Cerf, who was homeless, allegedly breaking into a vehicle, and when they confronted him, an altercation began, according to the Los Angeles Times. Gallegos claims he acted in self-defense and that Cerf claimed to have a gun, though police said no firearm was found. Gallegos’ friend Rafael Cardenas added that Cerf “gestured, put his hands in his pants, [indicating] that he had a gun.”*** Yema Jones, Cerf’s mother, has not commented since the decision to release Gallegos was made, but before that, she told the Los Angeles Times that Cerf suffered from mental illness and was “a peaceful person.”

Police ventilate a lot of people with a lot less reason. Does the name Daniel Shaver ring a bell?

***

Sad & angry

2 men accused of strangling 12-year-old in Houston are charged with capital murder

***Johan Jose Martinez-Rangel, 22, and Franklin Pena, 26, were charged Friday with capital murder of a child between 10 and 15 years old, according to authorities and court records. Jocelyn Nungaray was found about 6:15 a.m. Monday, and the Harris County Institute of Forensic Sciences determined she died by strangulation, according to Houston police.***

Of all the places on earth to rape and murder, these rapist-murderers chose Texas?

***

BB -

***

Way too easy

Alex Rosen, the founder of the Houston-based vigilante organization Predator Poachers, has uploaded a new video of Maryland’s Democrat LGBTQ Diversity Council Chair meeting up with a man he believed was 14 years old. Rosen wrote on X, “We just busted the head of the LGBTQ Dems of Maryland going after a 14-year-old.” According to Rosen, Michael Knaapen, chair of the Maryland Dem’s LGBTQ Diversity Council, attempted to meet up with a 14-year-old decoy after exchanging sexually inappropriate messages with the decoy, who told Knaapen he was 14. In Rosen’s stings, he usually uses both men and women who pose as minors in order to catch predators. Journalist Andy Ngo further reported on the bust and reported, “A leader in the Maryland Democratic Party was allegedly caught in a child s—x predator sting. Michael Knaapen, chair of the Maryland Dem’s LGBTQ Diversity Council, allegedly talked about wanting to r—pe a 14-year-old.”***

is really ugly

+++

https://www.thegatewaypundit.com/2024/06/white-house-visitor-logs-reveal-maryland-lgbtq-leader/

***

Prolly should have fixed yourself three years ago

Federal prosecutors have recommended to top Justice Department officials that airline manufacturer Boeing be criminally prosecuted, CBS News has learned.  While the recommendation to the Department of Justice's senior leadership is not a final decision, it is the latest development in the ongoing back-and-forth over Boeing's alleged violation of a 2021 deferred prosecution agreement. The exact nature of the newly recommended charges was not immediately clear. News of the recommended charges was first reported by Reuters. The Justice Department earlier this year found Boeing had violated the deferred prosecution agreement and indicated in court filings it might proceed with charges against the company for conduct tied to two deadly 737 Max crashes in 2018 and 2019 and beyond.  The Justice Department has until July 7 to notify the federal court of its plans. *** The agreement stated Boeing would pay a $2.5 billion settlement and make certain organizational changes in exchange for the Justice Department dropping a fraud conspiracy charge after a period of three years. That three-year period would have ended in July, at which point the Justice Department would have closed the case against Boeing if it was determined the company had upheld its end of the agreement. But in May, federal prosecutors wrote that Boeing "breached its obligations" and allegedly failed to "design, implement, and enforce a compliance and ethics program to prevent and detect violations of the U.S. fraud laws throughout its operations." ***

***

Mostly peaceful riot redux

One person was arrested on misdemeanor charges Sunday during an altercation between pro-Palestinian protesters and counterdemonstrators supporting Israel outside a Los Angeles synagogue Sunday.  Police spokesman Tony Im told The Los Angeles Times that the person who was arrested was carrying a "spiked flag," which is prohibited at a protest. Im said the pro-Palestinian protesters started gathering near the Adas Torah Synagogue in the  Pico-Robertson neighborhood of Los Angeles at about 11 a.m. local time and were quickly met by the counterdemonstrators.  The synagogue is located about four miles from the UCLA campus, where there have been Gaza encampment protests. ***

https://www.newsmax.com/newsfront/protests-israel-palestinians/2024/06/24/id/1169879

***

54 years in office?

CHICAGO - Former Chicago Alderman Ed Burke was sentenced Monday to two years in prison and fined $2 million following his conviction on 13 political corruption charges last December. A federal jury convicted Burke on 13 corruption counts after hearing allegations that the longest-serving City Council member in Chicago history with a 54-year tenure had used his power to win private law business from developers. The corruption schemes occurred in 2016, 2017 and 2018. The jury of nine women and three men deliberated for 23 hours over four days before returning its verdict after weighing the testimony of 38 witnesses and hearing more than 100 recordings. Burke was found guilty of racketeering; corruptly soliciting, demanding, accepting, or agreeing to accept things of value; using an interstate facility to promote unlawful activity; and attempted extortion. He was acquitted on one count of conspiracy.***

The corruption sounds like the typical "hire my private business for your problem, and a lot of your problems will disappear."

***

BB -

***

Kill someone for a used car?

OAKLAND COUNTY, Mich. – An Oakland County sheriff’s deputy who was shot and killed on Saturday night was remembered by colleagues as a hard working cop and a dedicated father and husband. Oakland County sheriff Michael Bouchard held a press conference at noon on Sunday, June 23, to provide information about the shooting to the public. Bouchard said that deputy Bradley Reckling was working for the auto theft unit and following a stolen vehicle in Detroit when the suspects opened fire, striking him multiple times and killing him. Reckling was among three deputies from the auto theft unit who were searching for a stolen 2022 Chevrolet Equinox. The vehicle had been stolen sometime between 1 p.m. and 5:15 p.m. from the Red Oaks Waterpark in Oakland County on Saturday, June 22, 2024. Bouchard said Reckling was in an unmarked car when he located and began following the stolen vehicle, which means dashcam footage is not available. The preliminary investigation indicates that the vehicle suddenly stopped, the people inside the stolen vehicle got out, and opened fire on deputy Reckling. He was struck multiple times, including in the head and torso.*** The officer down call went out at 10:50 p.m. Detroit police and Michigan State Police rushed to the scene and set up a perimeter. Three people were arrested within that perimeter. Bouchard said more information about the suspects will come from Detroit police. Remembering deputy Bradley Reckling According to Bouchard, Reckling has a pregnant wife, a 1-year-old child, 4-year-old child, and a 5-year-old child. His family wanted the public to hear from people who worked with Reckling and knew who he was and what he was like. Reckling had been working at the Rochester Hills substation and had just recently moved over to the auto theft unit.***

[wdeft]

“We acknowledged that ‘the Medical Malpractice Act changed the law such that an interlocutory remedy for parties facing claims that fail to satisfy its pre-suit requirements is warranted,’” the court wrote in the rule-change order. “Accordingly, we now amend Florida Rule of Appellate Procedure 9.130(a)(3) to provide for interlocutory review of nonfinal orders that deny a motion to dismiss on the basis of the qualifications of a corroborating witness under subsections 766.102(5)-(9), Florida Statutes.”

[therealmaeel]

Underage teen: Wants an abortion

Florida: Well, you aren't mature enough to know what an abortion would do, so you should have a child.

Like I literally don't understand. If anything, saying someone is not "sufficiently mature" should imply that the person SHOULDN'T have a child. Let alone the fact that:

1. The father is "unable to assist her".

2. She is parentless.

3. She is jobless AND does not currently have a GED.

4. She is a ward of the state, which means her legal guardian was appointed by the state.

5. According to a licensed professional, Dr. Melissa A. Simon, Jane Doe 22-B will most likely need to go through surgical procedures due to the delay to get the help she needs from all of the court issues. In fact, she says that,

"This young girl could have had a medication abortion last week or earlier and the chance of success would have been very high, and thus the chance of needing surgery last week or earlier would have been very low."

Instead, she said, "all of these court battles and rulings are increasing her risk of complications due to the advancing gestational age, and that in my mind is egregious and not fair."

She was only 11 weeks pregnant, and abortions are banned after 15 weeks in Florida. Also earlier in the article, it says that Jane Doe 22-B was very aware of her medical options and what consequences came with it. She also said that her appointed guardian was "fine" with her decision.

Here is also a quotation legal document, of which Jane Doe 22-B is her own attorney (by choice).

The trial court noted that the minor “acknowledges she is not ready for the emotional, physical, or financial responsibility of raising a child” and “has valid concerns about her ability to raise a child.”

The trial judge denied the petition but explicitly left open the availability of further proceedings by saying that the “Court finds [the minor] may be able, at a later date, to adequately articulate her request, and the Court may re-evaluate its decision at that time.” (Emphasis added).

Jane Doe 22-B, pro se, Appellant

--------

Sources:

[brownstonelawfederal-blog]

Federal Appeals Lawyer Florida

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Interestingly, redrafting courts don't have any juries. The judges in these courts are just keen on observing complex yet suitable legitimate thinking in composed structure. While discourse and ability to entertain is a more grounded suit for preliminary attorneys. Numerous legal advisors are either great at a certain something or the other. Consequently, Federal Appeals Lawyer Florida  uncommon legitimate thinking and composing abilities are what make redrafting lawyers in Georgia more qualified for recording advances.

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In the event that you are as yet befuddled regarding why redrafting lawyers are critical, here's a similarity. You won't go to a dental specialist or a dermatologist for a mind medical procedure albeit in fact specialists as well. You would go a mind specialist for a cerebrum medical procedure as they are had some expertise in it. Additionally, Nashville common redrafting lawyers are represented considerable authority in recording advances. In the event that you need to record an intrigue effectively, locate the best Tennessee redrafting law office you can.

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[aquajust]

Florida vote totals

Retained Pivot Counties accounted for 2.1% of both Trump's and Biden's total vote in the state. Click beneath the table to view vote totals.įlorida presidential election results by county category, 2016-2020įlorida presidential election vote totals by county category, 2016-2020 Figures were calculated by combining the vote totals across all counties of a given category and may not equal 100% due to rounding. The "Percentage point change" section shows changes in vote share and in margins. The overall winner of a given category can be found under the "2020" data. Margins and changes are shown as changes in percentage points. Percentages show the share of the vote received by a candidate. The table below compares margins in the 20 presidential elections. Biden narrowed Trump's margin in all county categories-including Retained Pivot Counties-except for Solid Democratic counties where Trump narrowed Biden's margin by 7.2 percentage points compared to Clinton's margin in 2016. Trump expanded his margin of victory statewide by 2.2 percentage points, winning the state for the second time in a row. In 2020, Florida had three Retained Pivot Counties, one Boomerang Pivot County, nine solid Democratic counties, 52 solid Republican counties, and two counties with other voting patterns. Trump's median margin of victory was 13.2 percentage points in those 181 counties, while Biden's median margin of victory was 3.4 percentage points among the 25 he won. Trump won 181 Retained Pivot Counties across 32 states to Biden's 25 Boomerang Pivot Counties across 16 states. Media and political observers sometimes refer to these counties as swing counties.īallotpedia defines Pivot Counties Trump won in 2020 as Retained Pivot Counties and those Joe Biden (D) won as Boomerang Pivot Counties. Pivot Counties are the 206 counties nationwide Ballotpedia identified as having voted for Barack Obama (D) in the 20 presidential elections and Donald Trump (R) in 2016. Pivot Counties in Florida See also: Election results, 2020: Pivot Counties' margins of victory analysis 12.2 Presidential election voting record in Florida, 2000-2016Ĭandidates and election results General election.12.1 Presidential election voting record in Florida, 1900-2016.11 Presidential statewide margins of victory of 5 percentage points or fewer, 1948-2016.9.2 Independent presidential candidates.6.1 Summary of changes to election dates and procedures.6 Government response to coronavirus pandemic in Florida.Government response to coronavirus pandemic in Florida.This page includes the following sections: Bush (R) failed to win the presidency after winning Florida's electoral votes. In nine of those 10 elections, the candidate that won Florida ended up winning the presidential election. In the previous 10 presidential elections, Republican candidates had won Florida seven times and Democratic candidates had won Florida three times. Former Vice President Joe Biden (D) won the presidential election with 306 electoral votes to Trump's 232 electoral votes.īiden won the Democratic primary on March 17, 2020. Florida was one of 13 battleground states. Primary election U.S.President Donald Trump (R) won the presidential election in Florida on November 3, 2020. Florida intermediate appellate court elections, 2020Ĭlick on the following links for local election results:.Florida state legislative special elections, 2020 (Senate District 20)Ĭlick on the following links for state court election results:.Florida House of Representatives elections, 2020.Florida Amendment 6, Homestead Property Tax Discount for Spouses of Deceased Veterans Amendment (2020)Ĭlick on the following links for state legislative election results:.Florida Amendment 5, Extend "Save Our Homes" Portability Period Amendment (2020).Florida Amendment 4, Require Constitutional Amendments to be Passed Twice Initiative (2020).Florida Amendment 3, Top-Two Open Primaries for State Offices Initiative (2020).Florida Amendment 2, $15 Minimum Wage Initiative (2020).Florida Amendment 1, Citizen Requirement for Voting Initiative (2020).Click on the following links for state ballot measure results:

[scholarshipja]

A Florida appellate court on Monday blocked a 16-year-old teenager from getting an abortion, saying that she is not "sufficiently mature" to choose to end her pregnancy. Driving the news: The teenager, who court documents say is "parentless," had sought court approval to bypass a Florida law that requires that a minor get parental consent in order to get an abortion. The teen said in her petition to bypass parental consent that she was "not ready to have a baby," she does not have a job, she is "still in school" and the father is unable to assist her. Additionally, she argued that her legal guardian "is fine" with her decision to get an abortion. Context: Under the law, a health provider cannot provide an abortion to a minor unless they receive written consent from a parent or a legal guardian. Exceptions exist if the health provider believes there is a "medical emergency." A minor can petition a "judicial waiver" to go around the parental consent requirement. A court has to find them "sufficiently mature" to let them move forward with the abortion. The big picture: At least 36 states require parental involvement in a minor’s decision to have an abortion, according to the Guttmacher Institute, a research organization that supports abortion rights. Florida is one of the six states that require that a parent or guardian be notified of a teen's intent to get an abortion, as well as that they consent to the procedure. 🔗 Tap the link in @axios bio to read more. (at ScholarshipJamaica.com) https://www.instagram.com/p/ChpitJmuVEZ/?igshid=NGJjMDIxMWI=

[clarkelawpa]

Destruction of Evidence in Florida Courts

Destruction of vital evidence commonly occurs in litigation.  Evidence may be lost, or carelessly or intentionally destroyed.  Whatever the circumstances of its destruction, the deprivation of access to vital physical evidence and documents can sink a  case.

Courts in all states have fashioned procedures for dealing with  destruction or spoliation of evidence by litigants as well as third parties in different ways.

Spoliation Inference Against Litigants

The theory of the spoliation inference is that, when a party destroys evidence that it knows is needed to prove the opposing party’s case, it is reasonable to infer that "consciousness of guilt" motivated his actions. Therefore, the factfinder may conclude that the evidence would have been unfavorable to the spoliator.

Spoliation of evidence most often shows up in lawsuits in which a defendant is accused of negligently causing a plaintiff’s personal injury.  It is common practice for a personal injury attorney that represents the plaintiff to send a letter to the defendant that instructs him to preserve evidence.   If that defendant, after receiving this letter,  allows videos, photos or physical evidence to be destroyed, spoliation of evidence becomes an issue. Spoliation of evidence is also an issue where a plaintiff claims he has been injured by a defective product which he then discarded or lost. In this case, a defendant may be entitled to have the court dismiss plaintiff’s claim.

Spoliation by Third Parties

Finally, some states have laws that allow parties to recover civil damages for the act of spoliation itself. Some states, including Florida, only allow it against third parties, where, for example, an insurance company allows a car involved in litigation to be destroyed.

 Spoliation of Evidence in the Florida Courts

When a Florida litigant destroys, whether willfully or carelessly, evidence that it knows is necessary to prove opposing party’s case, courts may impose sanctions and evidentiary presumptions  against the offending party. 

Florida state courts have consistently held sanctions to be appropriate when there is a showing that spoliation occurred.  Pursuant to Florida Rule of Civil Procedure 1.380(b)(2), sanctions against a party for failing to permit discovery can include the striking of pleadings ,the  exclusion of expert testimony, and the entering of a default on the issue of liability. The Florida Supreme Court has held that this rule applies in a situation where a litigant destroys evidence vital to an opposing party’s case after it has been instructed to preserve such evidence by the opposing party.

It is important to note that Florida courts have declined to recognize a common-law duty to preserve evidence.  So a party’s duty to preserve evidence may arise from an order by the opposing party not to destroy this evidence or a party’s actual knowledge of the value of evidence.  Therefore, it behooves a personal injury plaintiff to promptly send anti-spoliation letters instructing all parties to preserve evidence that may prove his case.

The first appellate court ruling that imposed sanctions for spoliation of evidence was  DePuy, Inc. v. Eckes, 427 So.2d 306 (Fla. 3rd DCA 1983), the 3rd District Court of Appeal held that, when a defendant destroys critical evidence that it has been instructed to preserve,  severe sanctions are appropriate.   This ruling reasoned that whether the defendant’s destruction of evidence was accidental or intentional was irrelevant to the defendant’s liability for sanctions.

In the DePuy holding, the 3rd DCA  also expanded the remedies for spoliation of evidence in several important ways.  It created an independent first-party spoliation tort that would lie against a party in a lawsuit that destroyed evidence in violation of a duty to preserve it.  At the same time, it affirmed the validity a spoliation tort against a third party who destroyed evidence in violation of a duty to preserve it.

Other Florida courts also applied sanctions for spoliation of evidence, but in a more cautious manner. In Federal Insurance Co. v. Allister, 622 So. 2d 7348, 7357 (Fla. 4th DCA 1993), the Fourth District set forth five factors to consider before imposing sanctions for spoliation of evidence: "(1) whether there is prejudice; (2) whether the prejudice can be cured; (3) the practical importance of the evidence; (4) the good faith or bad faith surrounding the loss of evidence; and (5) possible abuse if the evidence is not excluded."

In Martino v. Wal-Mart Stores, Inc., 835 So. 2d 1251 (Fla. 4th DCA 2003) the 4th DCA split with the 3rd DCA on the existence of a separate first-party spoliation tort.  The Supreme Court, reviewing the case on appeal, affirmed that a separate tort for spoliation of evidence was unnecessary and will not lie where the alleged spoliator and the defendant in the underlying litigation are one and the same.  It's holding, however, affirmed that rule-based (such as the test propounded by Federal Insurance Co. court cited above)  and evidentiary-based methods should be used by courts to handle claims of spoliation by first-party defendants. 

Analysis of Spoliation Claim

The most important factors in deciding a remedy against a spoliator of evidence are the importance of the evidence and whether it was destroyed in bad faith.   In general, Florida courts begin the analysis by considering the importance of the evidence that was destroyed and then considering whether the destruction was willful. If a defendant  destroyed video surveillance that was critical to proving its liability for a plaintiff’s injury , for example, , severe sanctions (such as a default judgment on liability for the plaintiff) would be appropriate.  If the spoliated evidence were of secondary importance, then the court would consider whether it was intentionally destroyed in deciding whether to impose a punishment and the severity of the sanction.

Summary

In summary, spoliation of evidence is a common problem faced by litigants everywhere.  Florida courts have fashioned several remedies for a litigant  when others destroy evidence that they know to be vital to prove its case.  

1.       When evidence is destroyed by opposing party: the court is empowered to impose sanctions, including rendering a default judgment of liability for the victim.

2.      When evidence is destroyed by a third-party (non-litigant):  the victim may sue for spoliation of evidence and the third-party is liable for damages consisting of the value of its claim that was frustrated by the destruction of evidence.

 If you have been injured by someone else’s negligence, it is important to hire an experienced attorney to represent you.  Call John Clarke at (305)467-5560 for a free consultation today!

[keywestlou]

MINIATURE PET GOAT STOLEN.....RETURNED DRUNK

A Big Pine story. A miniature pet goat named Billy Bob Thornton. Knee high. Four years old.

A homeless drunk stole Billy Bob. His owner notified the Sheriff’s Department. A Deputy found Billy Bob and the thief asleep on the grass next to a bicycle.

Billy Bob’s owner opted not to have the drunk arrested. She knew him. He knew her and Billy Joe. He had done odd jobs for her the past 10 years.

One problem. Billy Bob was drunk when he was returned home: “His eyes were so dilated…..They didn’t look normal at all.” Billy Bob was a “little tipsy.”

The drunk had fed Billy Bob beer during their time together.

Political insanity continues to prevail in Florida. Especially with friends of Governor DeSantis and drugs to treat coronavirus.

Neil Combee is a Polk County Commissioner. It appears a friend of Governor DeSantis. He sent a letter to DeSantis recommending that Ivermectin be made widely available. Ivermectin the dewormer given to horses and cows. In recent weeks, it has become widely known as a drug to fight COVID infections in humans.

Amazing! The people on the the Ivermectin kick are generally those who refuse to be vaccinated.

The Commissioner wrote, “We’re hearing from many of our citizens that larger hospital chains and some pharmacies are refusing to prescribe…..When a citizen is facing a potentially life-threatening case of COVID-19, he or she should receive the right to try potentially life saving” ivermectin.

A hocus pocus situation. Involves Governor DeSantis. I wrote yesterday about Florida fudging/manipulating death statistics to make Florida’s number of deaths appear significantly lower than they were.

This morning’s Citizens’ Voice referred to Florida’s recording of COVID deaths by the use of the new collection procedure. The procedure withholds data of death figures until death certificates are processed weeks later �� the result is a downward slope re deaths reported.

An inquiry on Redditt this morning.  A Florida resident wrote. He has lived in Florida 26 years, but never made it to Key West. He is planning a soon to occur Key West trip.

His question: “But I don’t want to do and see the usual stuff. I want to see the weird and macab! Spooky sightseeing and curio shops, anyone got recommendations?”

My friend, I have been a Key Wester for close to 30 years. Everything is “odd.” The island is small. Only 1.5 x 4.0 miles. Come down and let your feet discover what you seek. Every block can be a surprise!

Hurricane Larry. Already a Category 3. However still way out in the Atlantic. Doubt it will even come close to the Keys. For that matter, anywhere near the U.S. coast line. It has been turning northwest.

Hurricane season nowhere close to being over. November 30 the date. And even then, we have had a storm or two into early December.

Supreme Court Justice Kavanaugh did not impress me when he was nominated by Trump, during his time before the Senate Committee, and since he has been on the bench. Not a straight shooter. Throws an oddball comment into many decisions. Not the way appellate judging is done.

I feel the same about Trump’s 2 other nominees Gorsuch and Barrett. Their problem is they are too far to the right. Their decisions not in the best interests of the needy and lower economic class.

My thoughts concern Kavanaugh today.

He brings what I would describe as the traits of a political hack to the bench. He may rule one way today. Yet keep the door open to rule the opposite down the road if it helps the impression he wants the public to have of him.

Kavanaugh was one of the 5 deciding Justices in the recent Texas abortion case. Decided last week. Decision came down just before midnight. The decision banning abortions once the fetus’ heart beat could be heard. Generally around 6 weeks. Most women do not even know they are pregnant the first 6 weeks.

Kavanaugh by his vote announced to the world he was anti abortion. Something we already knew.

Some believe Kavanaugh will in the near future be faced with the specific issue as to whether Roe v. Wade itself should be reversed. He wants to be in the position at that time to “reaffirm” Roe.

Such would place him on both sides of the fence. Re the Texas decision, anti abortion. Upholding Rose, pro abortion.

The indication suggests he wants to be in good standing with those on each side of the issue.

The way of a politician, not a judge.

I find Kavanaugh’s motivation process amusing. He is a Supreme Court Justice for life. Never has to run for the seat. He is only 56 years old. His job good for another 30-40 years.

Why is he concerned about keeping both sides happy?

I can remember when everyone smoked. Cigarettes, not pot.

Wherever you were, the smoke was so thick you could cut it with a knife.

Then we became aware smoking was not healthy. Most eventually stopped.

Lets take a step back in time. World War II. Smoking still considered OK. I can recall advertisements saying 3 out of 4 doctors smoke Camels. Doctors smoked in their offices while treating you. Medical staff and patients were permitted to smoke in the hospital and their rooms.

During World War II, our fighting men smoked. The government even supplied them with free cigarettes. Pilots smoked while in battle.

Hard to believe!

I came across an interesting story the other day involving smoking and World War II.

A young man wanted to enlist. His goal to be a flyer.

He could not pass the physical. Low blood pressure. He complained to the doctor examining him. He wanted to fight for his country. Everyone wanted to back then.

The doctor told him to go outside and smoke a cigarette. Return when he was done.

He came back. The doctor took his blood pressure again. It had gone up sufficient for him to pass the physical.

The young man became an Air Force officer and a B-17 navigator flying combat missions over Germany.

Syracuse’s football season opens tonight. Syracuse playing Ohio. Both teams appear to be of similar quality. Either team is favored by 7 points.

Hope Syracuse has a winning season. The last few have been disastrous. If my recollection is correct, Syracuse won only 1 game last year.

I recall my Syracuse years in the late 1950’s. Glorious football seasons! Ernie Davis time. For many years thereafter, Syracuse was one of the top teams in the country. Then it all died! For many years now!

The game begins at 7.

Enjoy your day!

  MINIATURE PET GOAT STOLEN…..RETURNED DRUNK was originally published on Key West Lou

[ericfruits]

Positive Drug Test Lawsuit Judgment Affirmed with Reduced Damages

The New Jersey Appellate Court affirmed a default judgment but reduced the damage award

The following facts are derived from the record on appeal. Plaintiff, a resident of Miami, Florida, is a professional mixed martial arts (MMA) athlete who competed in the Ultimate Fighting Championship (UFC), the highest level of competition in MMA. He is also a former world champion freestyle wrestler who earned a silver medal at the 2000 Olympic Games.

Defendant is a dietary supplement company, doing business as Goldstar Performance Products, having a principal place of business in New Jersey. The president of Gold Star Distribution, LLC is Steven Hankin. According to plaintiff, he consumed one of defendant's products called "SHED RX," relying upon defendant's representation that the product it manufactured, marketed and sold, was free of any substances banned by the World Anti-Doping Agency (WADA). SHED RX is marketed as a fast-acting, maximum strength diuretic water weight loss muscle definition formula and is sold in capsule form. The SHED RX label states it "uses natural ingredients" and that defendant adheres to "strict GC/MS and HPLC testing procedures."

In order to ensure compliance with WADA regulations, plaintiff conducted his own research to confirm SHED RX did not contain any banned substances, including ibutamoren, in order to avoid being disqualified from competitions. Plaintiff also read the SHED RX label and discussed ingesting the product with his colleagues to ensure its compliance with WADA's regulations. Being satisfied SHED RX was safe and not contraindicated by WADA, plaintiff started taking the product. To his surprise, when a random urine sample required by the United States Anti-Doping Agency (USADA) was collected on December 16, 2015, plaintiff tested positive for ibutamoren.

The urine sample was tested by the Sports Medicine Research and Testing Laboratory (SMRTL) in Salt Lake City, Utah, which is accredited by WADA. This was the first time plaintiff ever tested positive for a banned substance in his athletic career. Because of his positive test result, plaintiff was suspended by the UFC for a period of six months, commencing on January 12, 2016. According to plaintiff, he was a "lead contender" for the UFC middleweight title at the time and was denied the opportunity to fight. Plaintiff also claims he was denied other promising career opportunities and was characterized as a "doper" by the press and the public.

(Mike Frisch)

https://ift.tt/3jevbrB

https://ift.tt/3jevbrB

[davidrivkin]

Congress Sowed the Seeds of Jan. 6 in 1887

The Electoral Vote Count Act lets Congress think it can choose the President, but it’s unconstitutional.

By J. Michael Luttig and David B. Rivkin Jr.

March 18, 2021, in the Wall Street Journal

Congress plans to establish a commission to investigate the Jan. 6 storming of the Capitol. We already know one reason for that terrible event. Members of the mob acted in the mistaken belief, encouraged by President Trump, that lawmakers had the power to determine the election’s winner. Congress itself sowed the seeds of this belief when it passed the Electoral Vote Count Act of 1887 and could destroy it root and branch by repealing that law.

The EVCA grew out of another bitterly contested presidential election. In 1876 officials in Florida, Louisiana and South Carolina certified competing slates of electors, one for Republican Rutherford B. Hayes and one for Democrat Samuel J. Tilden ; a single electoral vote from Oregon was similarly contested. The 20 disputed votes were enough to decide the election. A congressional commission ultimately chose Hayes in a political deal. In exchange for the presidency, Republicans agreed to end Reconstruction and withdraw federal troops from the South.

The EVCA was enacted 10 years later, largely to limit Congress’s role in determining which electoral votes to accept. Yet Congress gave itself more authority than the Constitution allows, by establishing a labyrinthine process to resolve state electoral-vote challenges. The most constitutionally offensive provision gave Congress the absolute power to invalidate electoral votes as “irregularly given,” a process that a single representative and senator can trigger by filing an objection.

Fortunately, this provision has seldom been invoked—only twice before 2021—and no objection has ever been sustained. But this year Republican lawmakers vowed to contest the results in six swing states that Joe Biden carried. Although the objections had no prospect of success in a Democratic House and those that were filed (for Arizona and Pennsylvania) were voted down overwhelmingly in both chambers, the law put Congress smack in the middle, where it uncomfortably found itself in 1876.

That’s not what the Framers intended. The Constitution’s Electors Clause gives state legislatures plenary authority over the manner of choosing electors and relegates Congress to determining on what day the Electoral College would cast its votes. The 12th Amendment, ratified in 1804, reformed the Electoral College by providing for separate votes for president and vice president. It also reiterates the Article II, Section 1 language that the certified state electoral results are to be transmitted to Washington, opened by the president of the Senate, and counted in the presence of both congressional houses.

No constitutional provision empowers Congress to resolve disputes over the validity of a state’s electoral slate—or for that matter addresses who is to resolve these disputes. Significantly, the 12th Amendment gives Congress no power to enact legislation to enforce its provisions, unlike subsequent amendments expanding the franchise. The Necessary and Proper Clause doesn’t support such legislation either. The constitutional text contains further indications that the Framers chose to exclude Congress from participating in presidential elections. While Article I, Section 5 grants Congress the authority to judge the elections of its own members, no such power is given with regard to presidential elections. And Article II, Section 1 forbids members of Congress from being appointed as electors.

In fact, after much debate, the Framers deliberately chose to deny Congress any substantive role in selecting the president and vice president, except in the rare case that no candidate has an Electoral College majority. This was for compelling separation-of-powers reasons. As Gouverneur Morris explained at the time, “if the Executive be chosen by the [National] Legislature, he will not be independent [of] it; and if not independent, usurpation and tyranny on the part of the Legislature will be the consequence.”

Thus Congress’s prescribed role as audience during the process of opening and counting the electoral votes is ministerial. With electoral college votes coming from all of the states, the counting had to be performed by a federal government entity, and both the executive and judicial branches had potential conflicts of interest. That Congress has no constitutional “skin in the game” of presidential selection made it perfectly positioned for this role of official observer.

Who then does have the power to settle disputes over electoral slates, such as those in 1876 and 2020? Whether electors are validly chosen is a quintessentially legal determination, not a political one. When state legislatures select presidential electors, they exercise power vested in them by the U.S. Constitution, not by state law. As the power to say what federal law is rests with the federal judiciary, it is the federal courts that have the authority and the responsibility to resolve these disputes.

Congress should promptly repeal the Electoral Vote Counting Act. Given the tight constitutional timeline for casting and counting votes and inaugurating a president, lawmakers should enact a statute providing for expeditious federal judicial resolution of all questions relating to compliance with state legislatively established procedures for selecting presidential electors, the validity of elector selection, and the casting of electoral votes—and requiring eventual mandatory Supreme Court review.

By ridding the country of this unconstitutional and anachronistic law, lawmakers would remove themselves from the process for choosing the president and surrender back to the federal judiciary the role Congress unconstitutionally arrogated to itself almost a century and a half ago. That would go a long way toward ensuring that America never witnesses a siege on the National Capitol on a future Jan. 6.

Mr. Luttig served as a judge on the Fourth U.S. Circuit Court of Appeals, 1991-2006. He advised Vice President Mike Pence on the 2020 vote certification. Mr. Rivkin practices appellate and constitutional law in Washington. He served in the White House Counsel’s Office and Justice Department under Presidents Reagan and George H.W. Bush.

Source: https://www.wsj.com/articles/congress-sowed-the-seeds-of-jan-6-in-1887-11616086776

[districofcolumbiaprelawland-blog]

How Sovereign Immunity Shields American Officials

By David B. Arnold, American University Class of 2021

January 12, 2021

On Thursday, amidst political turmoil in Washington D.C. unprecedented since the Civil War, an arrest warrant was issued against President Donald Trump in Baghdad for the “premeditated murder of Iranian intelligence officer Qasam Soleimani last January[1]. This move was part of the American effort to restrict Iranian political influence in the Middle East, however there is at this time no declared war or authorization of the use of force against Iran. Aside from the merits of the case in Iraqi law, which this contributor is especially unqualified to comment on, this case raises questions about what legal restraints there are on presidents who, while executing their duties, commit acts in foreign territory that are crimes in those countries.

Sovereign immunity arises from English Common Law based on the premise that the king’s interest was coextensive with the public interest, so bringing an action against the Crown would be logically impossible [2]. Famously in Blackstone’s encyclopedia the  “king can do no wrong…in him is no folly or weakness”, but there were Common Law remedies like a petition that effectively were suits against the English government [3]. In the United States, the federal government as well as states are presumed to have sovereign immunity, which they can waive in specific instances by statute, for instance the Federal Tort Claims Act[4]. The governing language on this issue in foreign policy is in the Foreign Sovereign Immunities Act. This law generally gives foreign states sovereign immunity against United States citizens, although there are many exceptions for torts involving commercial activity committed inside the United States [5].

The record of the United States in respecting sovereign immunity is generally strong, but there is at least one famous incident in which a foreign national was tried and convicted in federal court as though he did not have sovereign immunity. This is the case of United States v. Noriega (1997). This narcotics trafficking case in the Southern District of Florida of the former Panamanian dictator Manuel Noriega was successful in large part because he was not the official head of state of the Republic of Panama, , Noriega having come to power in a coup[6]. The Appeals Court deferred to the State Department’s call that he did not have the immunity of a legitimate head of state, but the opinion confusingly does not address the problems raised by trying the head of a foreign intelligence service, the job Noriega had previously held in Panama under the government the United States recognized[7].

The lack of an exception for aiding terrorists lead in 2016 to the passage of the very controversial Justice Against State Sponsors of Terror Act, or JASTA. This was a bill, passed over then President Obama’s veto, that would allow the victims and estates of Americans killed by terror sponsored by a foreign state to sue this state for damages[8]. This was passed after extensive activism by 9/11 families as a result of the theory that Saudi Arabia had funded al Qaeda in the leadup to the attacks[9]. The clear primary target of JASTA was Saudi Arabia, and one could argue that Obama’s veto was in part an effort to avoid a geopolitical confrontation with the Kingdom. Additionally, a successful lawsuit against Saudi Arabia for the Kingdom’s role in funding the 9/11 attack would create a bizarre diplomatic problem, as the State Department and Intelligence Community do not believe that these claims have merit[10]. The lawsuit be the families of 9/11 victims is ongoing, but it is in fact complicating the Saudi-American relationship as this summer dozens of officials and member of the Saudi royal family were called to the stand to testify, a court order none of them seem willing to oblige[11].

Foreign indictments against the president of the United States may be attention-grabbing, but they are basically legally void, as the United States has not by statute made the president open to foreign legal proceedings for actions which kill foreign nationals, and it is hard to imagine any Congress of any political sentiment doing this. JASTA in a sense appears to break the implicit standard in international law that countries enjoy sovereign immunity unless they should waive it. The effect may well be that foreign countries start crafting laws worded in ways to implicate American military or intelligence officials for deaths in their countries. Under the Foreign Tort Claims Act these suits would not be valid [12], but a court in a foreign country may be more sympathetic to other countries waiving our sovereign privileges if we are willing to waive theirs.

Ironically, President Obama warned against waiving foreign sovereign immunity for fear that it would involve the United States in endless criminal litigation all over the world for actions by the intelligence community and military, which has now begun to happen to the successor he despises. Obviously, the warrant issued for Donald Trump will never be executed because the United States has not waived the President’s sovereign immunity in military actions, but it is worthwhile to understand why calls to hold Presidents or other officials criminally responsible for fatal foreign policy decisions are in almost all cases procedurally invalid.

______________________________________________________________        

1.      Tawfeeq, Mohammed, and Aqeel Najim. 2021. “Iraqi Judge Issues Arrest Warrant for Trump.” CNN. Cable News Network. https://www.cnn.com/2021/01/07/world/iraq-arrest-warrant-trump-al-muhandis-intl/index.html.

2.      George W. Pugh, Historical Approach to the Doctrine of Sovereign Immunity, 13 La. L. Rev. (1953) Available at: https://digitalcommons.law.lsu.edu/lalrev/vol13/iss3/5. 479.

3.      Ibid.

4.      . “Sovereign Immunity.” Legal Information Institute. Cornell University Law School. https://www.law.cornell.edu/wex/Sovereign_immunity.

5.      “28 U.S. Code § 1605.General exceptions to the jurisdictional immunity of a foreign state”. Legal Information Institute. Cornell University Law School. https://www.law.cornell.edu/wex/Sovereign_immunity

6.      United States Court of Appeals, Eleventh Circuit. UNITED STATES of America, Plaintiff-Appellee, v. Manuel Antonio NORIEGA, Defendant-Appellant. Nos. 92-4687, 96-4471.

7.      Ibid.

8.      Mazzetti, Mark. “Senate Passes Bill Exposing Saudi Arabia to 9/11 Legal Claims.” The  New York Times, The New York Times, 17 May 2016, www.nytimes.com/2016/05/18/us/politics/senate-passes-bill-that-would-expose-saudi-arabia-to legal-jeopardy-over-9-11.html.

9.      Ibid.

10.  Enter the Lawyers; Saudi Arabia and 9/11. 2016. The Economist, 421, 43-28. Retrievedfromhttp://proxyau.wrlc.org/login?url=https://search.proquest.com/docview/182474603 1?accountid=8285.  

11.  Katersky, Aaron, and Catherine Thorbecke. 2020. “Dozens of Saudi Officials May Be Witnesses in 9/11 Lawsuit.” ABC News. ABC News Network. https://abcnews.go.com/International/dozens-saudi-officials-witnesses-911-lawsuit/story?id=72949183.

12.  Bullock, Kenneth. 1995. “United States Tort Liability for War Crimes Abroad: An Assessment and Recommendation.” Law and Contemporary Problems 58 (1): 139. doi:10.2307/1192171. 148.

[real-american]

Let me try again with a little bit more time here to explain why Texas is suing four other states. And it is a big case. If the Supreme Court does not take this — well, maybe there’s something I don’t know that would give them grounds not to take it, but this is a very, very serious thing here, because you have four states that violated their own laws in the process of counting ballots and assigning ballots. They are Georgia, Michigan, Pennsylvania, and Wisconsin. And the lawsuit filed by the state of Texas says that changes that these four states made to election procedures among the coronavirus pandemic are illegal. They’re not lawful.

Now, Ken Paxton is the Republican attorney general of Texas. The lawsuit was filed directly with the Supreme Court, as is permitted for certain litigation between states. The Supreme Court currently has a 6-3 conservative majority, including three justices appointed by Trump. Now, the court doesn’t have to take the case. They don’t have to take any case.

But this is a very serious allegation, because in these states, any election, any changes to election law must come from the state legislatures. They have what’s called plenary power over election law. Individual officeholders in these states cannot arbitrarily change election law, whether there’s a pandemic or not, whether there is some kind of a natural disaster brewing out there or not, they just can’t do it.

So people have said, “Well, why does Texas care?” Well, because if these four states are allowed to get away with basically undermining the United States Constitution, then all existing election law is moot. It’s out the window. And that’s why it is thought that the court here almost has to take it. Look, they don’t have to take anything. So it’s risky to put it that way. But the ramifications of not taking the case are pretty high.

This is a piece by Kris Kobach: “Texas Case Challenges Election Directly at Supreme Court – The State of Texas filed a lawsuit that is far more important than all of the others surrounding the presidential election of November 3rd.

“Texas brought a suit against four states that did something they cannot do: they violated the U.S. Constitution in their conduct of the presidential election. And this violation occurred regardless of the amount of election fraud that may have resulted. The four defendant states are Georgia, Michigan, Pennsylvania, and Wisconsin. Texas filed the suit directly in the Supreme Court. Article III of the Constitution lists a small number of categories of cases in which the Supreme Court has ‘original jurisdiction.'”

Meaning they can hear the case the first time it’s presented. Supreme Court’s an appellate court. And you gotta go through a bunch of different appeals stages to even get there. But this case can be heard the first time at the Supreme Court.

Now, “One of those categories concerns ‘Controversies between two or more states.'” Well, that’s what this is. “Texas’s suit is exactly that. The Supreme Court has opined in the past that it may decline to accept such cases, at its discretion. But it is incumbent upon the high court to take this case, especially when it presents a such a cut-and-dried question of constitutional law, and when it could indirectly decide who is sworn in as President on January 20, 2021.

“The Texas suit is clear, and it presents a compelling case. The four offending states each violated the U.S. Constitution in two ways. First, they violated the Electors Clause of Article II of the Constitution when executive or judicial officials in the states changed the rules of the election without going through the state legislatures. The Electors Clause requires that each State ‘shall appoint’ its presidential electors ‘in such Manner as the Legislature thereof may direct.'”

Here is the second constitutional violation that these four states engaged in who Texas is suing. “The second constitutional violation occurred when individual counties in each of the four states changed the way that they would receive, evaluate, or treat the ballots. Twenty years ago, in the landmark case of Bush v. Gore, the Supreme Court held that it violated the Equal Protection Clause of the Fourteenth Amendment when one Florida county treated ballots one way, and another Florida county treated ballots a different way. Voters had the constitutional right to have their ballots treated equally from county to county.”

Now, in these four states there is no question that the ballots were treated differently. That’s part and parcel of what happened here. Some of them were in suitcases. Some of them were under tables. Some of them were dragged out when Republican observers were sent out of the room. Some of them were allowed. Some of them weren’t.

“So when election officials in Wayne County, Michigan, ignored the requirements of Michigan law and denied poll watchers access to vote counting, while other counties in Michigan followed the law, that violated the Equal Protection Clause.” And that’s already precedent now from the Supreme Court. Same token. Wisconsin. “When the Administrator of the City of Milwaukee Elections Commission ignored the requirements of Wisconsin law and directed election workers to write in the addresses of witnesses on the envelopes containing mail-in ballots, while ballots without witness addresses were deemed invalid elsewhere, that resulted in the unequal treatment of ballots in the state.”

Let me go through that again. I want to make sure you understand what happened. The administrator of the City of Milwaukee elections commission ignored the requirements of Wisconsin law and told election workers to go ahead and write in the addresses of witnesses on the envelopes containing mail-in ballots. But other ballots without witness addresses were deemed invalid throughout the state. They threw them out. But not in Milwaukee. The head of the Milwaukee elections commission told observers, go ahead and write in an address on these ballots. Unequal treatment of ballots. Violation of the equal-protection clause.

Now, “Importantly, the Texas lawsuit presents a pure question of law. It is not dependent upon disputed facts. Although these unconstitutional changes to the election rules could have facilitated voter fraud, the State of Texas doesn’t need to prove a single case of fraud to win. It is enough that the four states violated the Constitution.” And that is what this suit attempts to illustrate. They don’t have to prove a single case of fraud. All they have to do is show these four states violated the Constitution, and that’s easy because they’ve already done it.

So “The lawsuit asks the Supreme Court to remand the appointment of electors in the four states back to the state legislatures.” They’re the ones who have the power to name them anyway. “As the Supreme Court said in 1892 in the case of McPherson v. Blacker, ‘Whatever provisions may be made by statute, or by the state constitution, to choose electors by the people, there is no doubt of the right of the legislature to resume the power at any time.'”

Now, “If Texas prevails, the four state legislatures could follow any number of courses in appointing their presidential electors. They could assess the election results and try to exclude those ballots that were counted in violation of state law in order to determine a winner, or they could divide their Electoral College votes between the two candidates, or they could follow a different path. But they have to follow the Constitution in whatever they do.” They have not followed the Constitution to date. This is what Texas is asserting. And they don’t want federal election law rendered moot and pointless and gutless or without any merit because of these four states.

Now, “In the rest of country, the states followed the constitutional rules in appointing presidential electors.” Just these four states where, magically, Plugs Biden ends up getting enough votes in swing-state cities to put him over the top, despite the fact that he attracted fewer votes here and there, among minorities and various other groups. These four states, “the offending states cannot be allowed to violate those same rules.” You can’t have 46 states following the law and four states flouting it. You just can’t. And that’s why it’s thought the Supreme Court is going to take the case. “It’s not just a matter of constitutional law. It’s a matter of basic fairness.”

[dailynewswebsite]

How state courts – not federal judges – could protect voting rights

A Texas restrict of 1 poll drop-off field per county has been challenged in state and federal courts. AP Photograph/LM Otero

A jaw-dropping deluge of election-related lawsuits is already working its means by way of the nation’s courts, however some legal professionals are taking a distinct tack than common: ignoring federal legal guidelines and as a substitute specializing in state constitutions and state legal guidelines, as interpreted by state courts.

That may very well be a wise transfer: The U.S. Structure provides the states’ main accountability for regulating elections, together with federal elections. Nearly all of the voting procedures at problem are issues of state regulation. And virtually all state constitutions assure a proper to vote.

Federal courts additionally deal with voting rights instances. However in recent times, there was an more and more clear sample of lower-level federal trial courts ruling to increase voting rights, solely to see these rulings overturned by federal appeals judges, a lot of them appointed by President Donald Trump.

The analysis I carried out for my current e book, “Rethinking U.S. Election Regulation: Unskewing the System,” and my expertise with a voting rights lawsuit in my dwelling state of Tennessee, present that the state court docket path could also be more practical at defending voters’ rights – and a current U.S. Supreme Court docket ruling hints that means as nicely.

A brand new dynamic in federal courts

In the course of the civil rights period and for many years afterward, the federal courts had been the guardians of voting rights, a refuge from states’ discrimination. In recent times, although, that has modified.

Now, voting rights instances in federal court docket face uncertainty. For instance, in Texas this 12 months, Republican Gov. Greg Abbott declared that every county – a few of which had already arrange 10 or extra drop bins for voters involved with mail slowdowns to deposit their mail ballots in – may as a substitute have just one drop field. This one-per-county restrict didn’t enable exceptions for counties with giant populations or areas to cowl.

In response to a lawsuit introduced by the League of Girls Voters and different voting rights teams, a federal trial court docket discovered that Abbott’s restrict was an unreasonable barrier to voting – however a three-judge appeals court docket panel, all Trump appointees, overturned the decrease court docket and upheld Abbott’s restrict.

The identical dynamic reveals up in current instances introduced by Democrats in swing states like Wisconsin and Ohio. The Wisconsin case concerned an try to increase deadlines to return absentee ballots. The Ohio case concerned an try and increase the variety of mail poll drop bins. In each instances, early federal trial court docket wins for expanded voting rights had been overturned on attraction.

This sample worries these like me who assume it must be simpler to vote – not tougher – and particularly so throughout a pandemic.

A Texas election employee collects an absentee poll from a driver. AP Photograph/LM Otero

Related instances with totally different outcomes

That’s why I obtained concerned in a state court docket lawsuit in Tennessee, which was one in all solely a handful of states that didn’t increase eligibility for absentee voting at first of the pandemic. States that did so stated they wished to make it simpler – and safer – for individuals to solid their ballots in native, state and nationwide elections, together with presidential primaries that had been slated to occur by way of the spring and summer season of 2020.

In Might 2020, I helped a bipartisan group of voters in Tennessee file a state lawsuit searching for a decide’s order that the state increase mail voting in time for the August main election. Across the similar time, a number of nationwide civil rights organizations filed a federal lawsuit searching for the same order.

Although the instances had been primarily based on comparable rules and sought almost similar outcomes, they proceeded very in a different way. The federal lawsuit was assigned to a Trump appointee and proceeded very slowly over many months. The sluggish tempo prevented the case from increasing absentee voting usually, and the court docket rejected claims to make it simpler to distribute absentee functions and repair issues with absentee ballots. However the decide did problem a ruling in September permitting many first-time voters to vote absentee.

Against this, our state court docket case resulted in a ruling that each one Tennessee voters may solid their ballots by mail for the August election – and the choice got here down inside 30 days of the swimsuit being filed.

As a result of the 2 instances pursued distinct authorized methods, these outcomes didn’t battle with one another.

A technique that’s spreading

The Tennessee Structure, like these of many states, has its personal protections for voting rights. Tennessee State Library and Archives

After we filed our swimsuit, we didn’t make any claims underneath the U.S. Structure or federal regulation. We saved our focus solely on state regulation and the suitable to vote underneath the Tennessee Structure.

We thought our case was sturdy sufficient with out invoking federal legal guidelines, and we knew that invoking federal regulation may enable the state, which we had been suing, to shift the case into federal court docket. We feared – and the end result of the parallel federal case confirmed – that the case could be much less profitable earlier than a federal decide.

In Texas, voting rights advocates are pursuing this similar technique in one other try and overturn Abbott’s restrictions on drop bins, through the use of solely provisions of the state structure and legal guidelines. That means they might keep away from ending up in federal court docket, the place the appeals court docket already dominated in Abbott’s favor.

Judges’ politics might make a distinction

State courts could also be more easy for voting rights instances than federal courts are for the time being. Most federal appeals courts at the moment are dominated by Republican appointees. Greater than 25% of federal appellate judges had been appointed by Trump, a bunch that’s conservative even by Republican requirements.

These Republican-appointed judges present a marked sample of ruling in opposition to voting rights plaintiffs, a current examine reveals.

In fact, Republican appointees not solely management the federal system’s high court docket, however with the swearing-in of Amy Coney Barrett, the Supreme Court docket now has a lopsided 6-Three conservative majority for any post-election litigation.

Against this, in some swing states, like Colorado, North Carolina and Pennsylvania, Democratic nominees take pleasure in a majority of the state supreme court docket. In different swing states, it might be extra blended, or tilted towards the GOP.

However even in these states, the judges are sometimes elected, which can add one other consider a decide’s consideration. Public opinion might constrain judicial enthusiasm for selections that might overturn the clear will of the voters. That contrasts sharply with federal judges, who’ve life tenure.

That common opinion dynamic might have performed a task in my Tennessee case. That was such a high-profile, politically charged scorching potato that the Republican Nationwide Committee filed a short opposing our case, although Tennessee is a decidedly Republican state regardless of how many individuals vote.

When our state trial court docket victory was appealed to the conservative-majority Tennessee Supreme Court docket, that court docket did trim again the scope of our win, however not by a lot. It allowed mail voting in November for anybody who has an underlying medical situation making them susceptible to COVID-19, or who’s a caretaker or co-resident of such an individual. Collectively, these teams cowl greater than two-thirds of Tennessee voters.

The U.S. Supreme Court docket cut up 4-4, and due to this fact didn’t take up a case which may have restricted Pennsylvania’s capacity to just accept mail-in ballots arriving after Election Day. AP Photograph/Matt Slocum

Ending up in federal court docket anyway?

In fact, no technique is foolproof. Even when advocates fastidiously concentrate on making claims about state legal guidelines in state courts, there may be all the time an opportunity the case may find yourself in federal court docket anyway. The opposite facet may complain that the state court docket’s ruling violates federal regulation or the U.S. Structure.

That’s what occurred in Bush v. Gore in 2000, when the U.S. Supreme Court docket dominated the Florida Supreme Court docket’s order for a vote recount violated the Structure. That case ended Florida’s recount, successfully handing the presidency to George W. Bush.

The Pennsylvania GOP tried the same transfer in October 2020, asking the U.S. Supreme Court docket to assessment a Pennsylvania Supreme Court docket choice extending mail voting deadlines. The federal justices declined to take the case by a cut up vote of 4-4, which lets the decrease court docket ruling stand. However new Justice Barrett may conceivably break the tie and produce the state case underneath federal assessment. Maybe sensing this chance, the Pennsylvania Republicans try once more.

And on Oct. 26, the U.S. Supreme Court docket blocked the extension of mail-in voting deadlines in Wisconsin. Chief Justice John Roberts defined that the distinction between the 2 instances was that the Wisconsin case got here by way of a federal court docket, whereas the Pennsylvania swimsuit got here from state courts – which is the place he stated voting rights points must be determined.

Steven Mulroy doesn’t work for, seek the advice of, personal shares in or obtain funding from any firm or group that may profit from this text, and has disclosed no related affiliations past their educational appointment.

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