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Court upholds Md. gay marriage ban
Legal Career News | 2007/09/20 10:13

Maryland's highest court Tuesday rejected same-sex marriage and upheld the state's 34-year-old statute defining marriage as a union between a man and a woman. In a case watched closely around the nation, the Maryland Court of Appeals' 4-3 ruling dealt a blow to gay and lesbian advocates who launched their fight to overturn the state's marriage law three years ago. Tuesday, those advocates pledged to take the battle for marriage to the General Assembly, where two lawmakers have already vowed to sponsor legislation to legalize same-sex marriage.

Opponents of same-sex marriage applauded Tuesday's 240-page decision, calling it a victory for traditional families and noting that most appellate courts in other states have reached similar conclusions. They also promised to mount a legislative effort of their own, vowing an aggressive push to explicitly ban same-sex nuptials in the state Constitution.

The court's majority opinion rejected the plaintiffs' claim that the 1973 statute discriminates on the basis of gender. In addition, the court concluded that while marriage is a fundamental right, it is not a right extended to gays and lesbians under current state law.

Within hours of the decision, many of the same-sex couples who had served as plaintiffs in the legal challenge gathered out side a Bolton Hill church to express anger and disappointment with the court's ruling.

Lisa Polyak and her partner of 25 years, Gita Deane, the lead plaintiffs, said they would keep fighting for legal protections for their 11- and 8-year-old daughters -- security they said would only be guaranteed through marriage.

"I feel like this decision is needlessly cruel to gay and lesbian families," said Polyak, speaking through tears during a news conference at Brown Memorial Church. "I wish these judges would have to face our children today because I have to."

David Rocah, staff attorney for the ACLU of Maryland and one of the lawyers representing the plaintiffs, said that the decision, while disappointing, did not mark the end.

"This is not the first time that the courts have not gone our way in this and other civil rights battles and it won't be the last time," he said. "I believe the march of history in this country is indeed a march toward justice."

Though the majority opinion rejected same-sex marriage, lawmakers who have for years made unsuccessful attempts at barring the unions in Maryland's Constitution said a ban was needed now more than ever.

"I assure you the constitutional marriage amendment will be reintroduced this session," said Del. Donald H. Dwyer Jr., an Anne Arundel County Republican and leading same-sex marriage opponent in the House. "Without it, there's nothing to preclude a future legal challenge made on a different argument or a different basis. The legislature ought to have the courage and the desire to publicly vote on the issue of marriage."

Since Massachusetts became the first -- and remains the only -- state to allow gays and lesbians to wed in 2003, an explosive debate over same-sex marriage has played out in courts and state capitals nationwide. Cases are pending in California and Vermont, but Maryland had been eyed as a bellwether state because of its strong liberal leanings.

Twenty-seven states have voted to ban same-sex marriage in their constitutions, while a handful -- Vermont, Connecticut, New Jersey and New Hampshire -- have adopted civil unions, which confer some of the rights of marriage.

Maryland's journey to the national spotlight began in July 2004, when 19 gays and lesbians filed a lawsuit in Baltimore Circuit Court challenging the 1973 statute. In January 2006, Baltimore Circuit Court Judge M. Brooke Murdock held that the law was unconstitutional and discriminatory. The Attorney General's Office immediately appealed the decision. Last December, the Court of Appeals heard arguments.

The bitterly divided court was passionate in its opinions, with four judges supporting the majority, two penning dissents and one concurring in part and dissenting in part.

In the majority opinion, Judge Glenn T. Harrell Jr. wrote that the state has a legitimate interest in promoting opposite-sex marriage. But he also reminded lawmakers that they have the right to consider a law permitting same-sex marriages.

"In declaring that the State's legitimate interests in fostering procreation and encouraging the traditional family structure ... our opinion should by no means be read to imply that the General Assembly may not grant and recognize for homosexual persons civil unions or the right to marry a person of the same sex," he said.

Harrell was joined by judges Dale R. Cathell, Clayton Greene Jr. and Alan M. Wilner. Judge Irma S. Raker concurred in part and dissented in part. Chief Judge Robert M. Bell and Lynne A. Battaglia wrote dissenting opinions.

The majority opinion rejected the plaintiffs' claim that denying gay marriages is a form of sex discrimination. In fact, sex discrimination does not apply to individuals, only to groups, the court stated.

"The court was unusually clear in choosing the side that sex discrimination is only from the point of view of the group," said Julie Shapiro, an associate professor at the University of Seattle School of Law. While Washington's highest court reached a similar conclusion in that state's same-sex marriage case, it did not articulate it so clearly, she said.

"The court seems to be saying that discriminating because someone is lesbian or they are gay is not as big of a problem," she said.

While the court recognized that gays and lesbians face discrimination, it also notes that as a group they are not "politically powerless," and therefore not entitled to protections.

"It is clear that homosexual persons, at least in terms of contemporary history, have been a disfavored group in both public and private spheres of our society," the decision reads. "This court nevertheless finds that a history of unequal treatment does not require that we deem suspect a classification based on sexual orientation."

"I don't think that's true," said Jana Singer, a law professor at the University of Maryland who was among the 58 professors from the University of Maryland and University of Baltimore law schools who filed friend-of-the-court briefs supporting the plaintiffs. "I think the fact that same-sex couples are excluded form the hundreds of protections of marriage indicates they are not politically powerful."

In his dissenting opinion, Bell said the majority underestimates the societal barriers facing gays and lesbians. He compared denying them the right to wed to the bans on interracial marriage, which were struck down 40 years ago in the landmark U.S. Supreme Court case Loving v. Virginia.

"To be sure, there are important differences between the African American experience and that of gay men and lesbians in this country, yet many of the arguments made in support of the antimiscegenation laws were identical to those made today in opposition to same-sex marriage," Bell wrote.

In her dissent. Battaglia said her fellow judges offer no "principled basis" for denying the plaintiffs' sex discrimination claim. "In reaching this result, the majority breathes life into the corpse of separate but equal," she wrote.

Raker, meanwhile said she fa vored decision similar to that of New Jersey's highest court, which last year required the state to extend the rights and benefits of marriage to gay couples within 180 days, but left it up to the state legislature whether to call such unions "marriage."

The court's ruling -- coming on the heels of similar conclusions reached by the high courts of many other states -- suggests that advocates of same-sex marriage are going to need to turn to legislative action, said Carl Tobias, the Williams Professor at the University of Richmond School of Law.



Canada court action presses Ottawa to obey Kyoto
Legal World News | 2007/09/20 09:19

A legal action launched yesterday urges the Federal Court of Canada to force the federal government to live up to its obligations to reduce greenhouse-gas emissions under the Kyoto Protocol. The application alleges that an emission-reduction plan filed by the government last month fell so far short of meeting Canada's Kyoto commitments that it flouts previous legislation binding the government to strict targets.

"The Plan explicitly does not aim at complying with the Kyoto Protocol, and therefore does not conform to the requirements of the Act," lawyers Chris Paliare and Andrew Lokan wrote in the application, filed on behalf of Ecojustice Canada and Friends of the Earth Canada.

"On its terms, the Plan provides that emissions of greenhouse gases will far exceed the levels required by the Kyoto Protocol," they said.

A Federal Court judge could theoretically respond to the application by ordering the government to file a new plan that is in keeping with the Kyoto Protocol.

"In this particular case, even though the Act is highly complicated, there are key aspects of the fudged implementation plan that does indicate a 'thumbing of the nose' against the law," University of Ottawa law professor Errol Mendes said in an interview. "If the Ecojustice lawyers can keep it simple, there is a sound basis for seeking a declaration that the government is not complying with its own Act," Prof. Mendes said.

He said the case is particularly interesting because the country may be on the verge of a succession of minority governments. "If we have legislation on more than one area passed by the combined numbers of the opposition, can the minority government just ignore the law passed by Parliament or fudge any mandate to implement it by regulation?" Prof. Mendes said.

Several legal precedents exist in which courts forced provinces or the federal government to respect its own environmental legislation, according to Albert Koehl, a lawyer for Ecojustice.

"The court is not going to be stepping into the shoes of the Minister of the Environment or the Prime Minister," Mr. Koehl said in an interview. "It would simply look at whether the plan complies with the Act."

Mr. Paliare said the case boils down to whether a government can blithely ignore its own legislation: "This case is about being accountable to the will of Parliament," he said.

Garry Keller, director of communications for federal Environment Minister John Baird, said in a statement the department would have no comment on cases before the courts.

The Conservatives have consistently maintained that years of inaction on the part of their Liberal predecessors makes it impossible to meet the targets without serious consequences for the economy.



Senate rejects bid to let detainees protest in court
Lawyer Blog News | 2007/09/20 08:18
The Senate rejected legislation Wednesday that would have allowed military detainees held at Guantanamo Bay, Cuba, the right to protest their detention in federal court.

The 56-43 vote fell four shy of the 60 votes needed to cut off debate on the bill, co-sponsored by Sens. Patrick Leahy, D-Vt., and Arlen Specter, R-Pa.

The vote was a blow for human-rights groups that say a current ban on habeas corpus petitions could lead to the indefinite detention of individuals wrongfully suspected of terrorism.

President Bush and conservative Republicans counter that the ban, enacted last year, was necessary to stem the tide of legal protests flooding civilian courts.

Most Republican senators backed the administration. Besides Specter, the other Republicans who voted with the Democrats were Chuck Hagel of Nebraska, Richard Lugar of Indiana, Gordon Smith of Oregon, Olympia Snowe of Maine and John Sununu of New Hampshire.

The change in law would have applied to the roughly 340 men held at Guantanamo. Many of them have been held for more than five years without being charged. The Bush administration has said that indefinite detention of enemy combatants who threaten the U.S. is necessary in an age of terrorism.

Congress enacted a law last year that establishes tribunals, made up of three military officials, to review such petitions. Sen. Lindsey Graham, R-S.C., a military lawyer who helped write the law, said the military is best able to determine who's an unlawful enemy combatant.

Graham said that under the Leahy-Specter bill, detainees could pick judges from courts around the country and demand the presence of witnesses from the battlefield.

"That's never been done in any other war, and it should not be done in this war," Graham said.

Leahy responded that people being held indefinitely without charges should be able to assert in court that they were mistakenly picked up. If a detainee is being lawfully held, the government can easily overcome the claim by presenting "the preponderance of the evidence," he said.



Lawyer in Plea Deal Was Edwards Bundler
Headline News | 2007/09/20 02:21

Though his former law firm came under indictment more than a year ago and he himself appeared likely to face criminal charges, prominent trial lawyer William S. Lerach slipped past the vetting of John Edwards' presidential campaign and was permitted to raise large amounts of money for the Democrat's 2008 bid. Lerach, his family and members of his new law Lerach Coughlin law firm accounted for nearly $78,000 in donations to Edwards' campaign in the first half of this year, making the trial lawyer one of the North Carolina Democrat's leading "bundlers" of contributions.

In the midst of that fundraising, Lerach negotiated behind the scenes for a plea deal that was consummated on Tuesday and will send him to federal prison for at least 12 months on a conspiracy charge involving his past legal work as partner in the Milberg Weiss law firm.

Through it all, Edwards stood by his fellow trial lawyer and even took an action this spring that was helpful to his longtime financial supporter in a government matter.

In May, Edwards used the bully pulpit of his presidential campaign to publicly pressure the Securities and Exchange Commission not to oppose Lerach's new law firm in a Supreme Court case over whether Lerach's lawsuits could proceed against banks on behalf of investors who lost millions in the collapse of energy giant Enron.

"The question for all Americans is whether their government will be on the side of those big banks or regular families," Edwards said in a statement released by his presidential campaign that was trumpeted on the Web site of Lerach's law firm.

All of this transpired while Edwards campaigned against what he calls a "corroded and corrupt" Washington system in which politicians raise money from special interests who then seek their help on government matters. To make his point, Edwards campaign is refusing any donations from lobbyists registered in Washington.

The latest salvo on that theme came Tuesday -- the day of Lerach's plea deal -- when top Edwards' aide Joe Trippi publicly criticized rival Hillary Clinton's campaign for hosting a fundraiser targeting companies and lobbyists seeking the government's multibillion dollar business.

"Too many in office have fallen under the spell of campaign money at any cost -- and do not see that when they defend the system, they are protecting those that have rigged the game that puts corporate profits ahead of the interests of working Americans," Trippi wrote.

Trippi's attack made no mention of Lerach, the Edwards' bundler, or the fact that Lerach had just reached a plea deal in a scheme prosecutors alleged involved kickback payments to plaintiffs in class action lawsuits he and his former law firm brought.

Lerach and his former law partner Melvyn I. Weiss were notified in the summer of 2005 that they had become targets in that lengthy criminal investigation, meaning they were likely to be indicted, according to lawyers involved in the case.

Court papers say that they employed the scheme for more than two decades in 150 cases that brought their firm more than $200 million in fees.

Milberg Weiss, the New York based law firm where Lerach served as a partner until a bitter parting in 2004, was indicted on conspiracy, mail fraud and money laundering charges in May 2006. Lerach and Weiss were not charged at that time but they were notified by federal prosecutors in Los Angeles that they continued to be the targets of their investigation. The firm is fighting the charges. Weiss himself has not been charged with a crime and maintains his innocence.

Political donations by Lerach and his partners, as well as a former expert witness named John Torkelson, came under investigators' scrutiny but the government has not filed criminal charges alleging they broke election laws.
In Lerach's Tuesday agreement to plead guilty to a conspiracy charge, Justice Department lawyers agreed not to prosecute him over "election, campaign, or other political contributions" related to the fees he and the firm collected as part of the alleged kickback scheme with plaintiffs and expert witnesses including Torkelson.

Edwards campaign said it donated Lerach's personal donations to charity yesterday after his guilty plea, but isn't returning the money he raised from others.

As for the statement Edwards issued favorable to Lerach's lawsuits earlier this year, Edwards spokesoman Colleen Murray said: "This position is consistent with John Edwards' longstanding support for protecting the retirement savings of middle class families and shared by many others, including the New York Times editorial page, Securities and Exchange Commission, Senate Banking Committee Chair Chris Dodd, and a coalition of consumer groups, to name a few."

Lerach is the latest bundler in the 2008 race whose background has raised questions about how carefully campaigns are vetting those who collect their checks.

Hillary Clinton's campaign earlier this month agreed to give back all $850,000 raised by bundler Norman Hsu after it was learned he had been a fugitive in a 15-year-old criminal case in California.

And Edwards already has faced question about another trial lawyer who raised money from him. Attorney Geoffrey Feiger was indicted on federal charges he conspired to route more than $125,000 in illegal contributions to Edwards' 2004 White House bid .Feiger, a trial lawyer who became famous for representing Dr. Jack Kevorkian during his assisted suicide controversy, has pleaded not guilty. Edwards' campaign said it knew nothing about the alleged scheme and cooperated with the Justice Department. But the campaign has declined to refund the donations in question, choosing instead to wait for the outcome of Feiger's trial to avoid influencing jurors.

"From Day One, the campaign has taken their lead from and cooperated fully with the Department of Justice," spokesman Eric Schultz told The Washington Post in an email earlier this month. "Once this prosecution concludes, if Geoffrey Feiger is found guilty, the campaign will donate all the money is question to charity."



U.S. court rejects Kerkorian appeal - Daimler
Court Feed News | 2007/09/19 15:12

A U.S. federal court has upheld a lower court ruling that investor Kirk Kerkorian is not entitled to damages over the merger of Daimler-Benz and Chrysler nine years ago, DaimlerChrysler said on Wednesday. "DaimlerChrysler is pleased to announce that the Court of Appeals for the Third Circuit has unanimously affirmed the trial court's judgment dismissing Tracinda's complaint relating to the 1998 merger of Daimler-Benz and Chrysler," the company said.

Kerkorian's Tracinda investment vehicle was not immediately available for comment.

The lower court ruled in 2005 that Kerkorian had not been misled into believing the $36 billion deal was a merger of equals as the two partners had claimed.

A DaimlerChrysler spokesman said the verdict would not have any financial consequences because the company had not set aside any money in case it lost the case. It had, however, made reserves for its legal fees and court costs, he added.

DaimlerChrysler shares rose 1.4 percent to 66.79 euros by 0941 GMT, lagging a 2.1 percent gain in the DJ Stoxx European car sector index.

The transatlantic linkup between Daimler-Benz and Chrysler was one of the biggest deals in automotive history, but never lived up to its potential and was unwound this year when Chrysler was sold to buyout firm Cerberus Capital Management.

Kerkorian was Chrysler's leading shareholder when it signed the deal that former Chief Executive Juergen Schrempp boasted would form the world's first truly global carmaker.

Kerkorian, who had demanded more than $1 billion in damages, contended that Schrempp only billed the deal as a merger of equals to lower the transaction price and avoid paying shareholders a "control premium".



Lerach admits role in kickback scheme
Headline News | 2007/09/19 14:13
William Lerach, the lead attorney in a New York-based law firm that lodged a $1 billion class-action against the CNMI industry, has pleaded guilty to a criminal indictment filed in Los Angeles, California. According to a Washington Post report, the 61-year-old Lerach agreed to plead guilty to a charge of conspiracy to obstruct justice.

Lerach also agreed to pay the U.S. government fines and penalties of $8 million.

The report stated that under the terms of the plea, the lawyer will serve at least one year and no more than two years in federal prison. The plea agreement requires court approval, the report added.

The guilty plea deal ends a seven-year investigation into allegations that Lerach and his former law firm, Milberg Weiss Bershad & Schulman LLP, secretly paid people to serve as plaintiffs.

“I have always fought for my clients aggressively and vigorously in order to hold powerful corporations responsible when their actions harmed people,” said Lerach in a statement that was included in the Washington Post article.

Lerach said he regrettably crossed a line and pushed too far.

“For my actions, I apologize and accept full responsibility for my conduct,” he said.

According to a May 16, 2006 Wall Street Journal article, a New Jersey businessman pleaded guilty of taking secret payments as a plaintiff in Milberg class-action lawsuits between 1991 and 2005.

The businessman's guilty plea reportedly caused two top partners of Milberg to leave the law firm.

Milberg is known for filing shareholder class-action lawsuits in which investors go against corporate management with big money at stake.

In 2005, Milberg reportedly sued at least 75 companies for securities fraud. In 2004 and 2005, the law firm reportedly settled 90 cases and extracted more than $1.5 billion from investors.

In January 1999, Milberg and other law firms, on behalf of some garment workers, sued several garment factories on Saipan, alleging that workers were made to work in sweatshop conditions.

The garment owners branded the lawsuit as “embellished and unreal.”

After a costly litigations, the class-suit was settled in the U.S. District Court for the NMI. The combined settlement fund reportedly reaches close to $20 million. A total of $8.75 million went to plaintiffs' lawyers.


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