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Supreme Court Declines Pollution Case
Legal Career News | 2008/01/14 10:48
The Supreme Court declined Monday to hear industry complaints that the Environmental Protection Agency should have dropped some old clean air safeguards when it imposed a more stringent air quality standard for ozone.

EPA concluded that its existing standard for ozone exposure was inadequate to protect public health and the agency has estimated it will cost $9.6 billion a year in increased costs for polluters to comply with the new one.

When regulators relax a standard as opposed to imposing a tougher one, the Clean Air Act contains a section designed to ensure that air quality won't deteriorate in an area.

Safeguards, which regulators refer to as "anti-backsliding" requirements, call for control measures on polluters.

Industry objected in the case of the revised ozone standard when EPA concluded it could use the "anti-backsliding" requirements, even though the agency was imposing a tougher standard rather than easing one.

In raising the ozone standard, regulators had dropped a few of the requirements, but they were reimposed by the U.S. Court of Appeals for the District of Columbia Circuit, which ruled against industry.

The EPA is imposing requirements, regardless of whether they are needed to attain the new, more stringent ozone standard, industry lawyers wrote in asking the Supreme Court to take the case.

Petitioning the court were the National Petrochemical & Refiners Association, the American Chemistry Council, the American Petroleum Institute and the Utility Air Regulatory Group.

Separately, businesses in Baton Rouge, La., also asked the Supreme Court to hear their objection to EPA's position on the new ozone standard.

Lawyers for the businesses said that if Louisiana is forced to revise its pollution control plan, over 150 Baton Rouge businesses will be forced to pay $65 million to $100 million a year, threatening thousands of jobs in an economy still overwhelmed by the impact of hurricanes Katrina and Rita, local business groups told the court.



High court to hear TV judge's case
Court Feed News | 2008/01/13 16:51
For 10 years, Judge Alex E. Ferrer decided criminal cases in the Florida courts. Now, as "Judge Alex," he arbitrates petty disputes on his syndicated television show -- and his decisions are final.

Sometimes, though, people who agree to arbitrate disputes do not like the result. Ferrer is one of them.

This morning, the Supreme Court will hear his claim that he should not have to abide by a contract he signed six years ago with a manager in Los Angeles, calling for a 12% commission on any work the manager got him and requiring arbitration if any dispute arose.

Ferrer says that Arnold M. Preston, a lawyer, was not licensed as a talent agent, nor did he actually help him obtain his TV job. That came more than a year after an initial meeting with several television executives, Ferrer said.

The TV judge says the California Talent Agencies Act protects performers -- and he is one -- from crafty agents. It gives the state's labor commissioner the power to void unfair contracts with managers or agents.

"He didn't know anything about the entertainment industry when he got into this," said Robert M. Dudnik, a Los Angeles lawyer who represents Ferrer. "He was a criminal lawyer from Florida. This contract was faxed to him in a hotel room in Reno, and he signed it and faxed it back."

But Preston's attorney, Joseph D. Schleimer of Beverly Hills, says a deal to arbitrate is a deal that must be honored. Ferrer, he said, is "the arbitrator who refuses to arbitrate."

"If people sign an arbitration agreement, that deal is binding. Even his TV show works that way," Schleimer said.

This seemingly petty dispute over where to decide this issue -- not what to decide -- has bounced around the courts in Los Angeles for three years.

In 2005, soon after "Judge Alex" went on the air, Preston pressed for his fees to be paid. And when Ferrer refused, Preston invoked the arbitration clause in the contract.

"Arbitration is quick, easy and final," Schleimer said. (Or at least it can be. This ongoing litigation, he added, "is probably the least efficient way of resolving a dispute.")

Dudnik, Ferrer's attorney, filed a motion in Los Angeles County Superior Court to block arbitration until the California labor commissioner could rule on whether the contract should be voided. A Superior Court judge agreed with Ferrer, and said the dispute over the contract should go first to the labor commissioner.

Preston appealed, but a state appeals court, in a 2-1 decision, agreed the labor commissioner should consider the matter.

In dissent, Justice Miriam A. Vogel wrote: "This is not how it supposed to work. . . . When a former judge and a lawyer enter a contract in which they agree that that any dispute about that contract will be resolved by arbitration, I think they ought to be bound by that agreement."

Buoyed by that strong dissent, Preston appealed his case to the California Supreme Court. Without comment, that court refused in February to hear the matter.

The U.S. Supreme Court looked to be a long shot. In May, Schleimer petitioned the justices to hear the case of Preston vs. Ferrer to decide whether an "interstate arbitration agreement" can be ignored if it conflicts with California's special protection for performers. To the surprise of the lawyers on both sides, the justices in late September voted to hear the case.

Dudnik, who has been in Washington for several days to prepare for today's session, said he was surprised the high court wanted to hear this dispute.

"I wouldn't have given it one chance in a hundred. This is a very narrow issue," he said. The only question is whether the California labor commissioner can rule on the validity of the management contract before the dispute goes to arbitration or to a judge, he said.

Along the way, however, the spat between the TV judge and his manager has taken on added importance. The legality of binding arbitration is a recurring dispute in many industries.

Major employers prefer to avoid costly battles in court, and they like arbitration as a way to settle disagreements with workers and suppliers. The U.S. Chamber of Commerce and Macy's have filed friend-of-the-court briefs on Preston's side, urging the high court to rule squarely that arbitration deals must be honored.

The Screen Actors Guild and the American Federation of Television and Radio Artists have joined the case on the side of "Judge Alex." They say the high court should not undercut California's legal protection for those in the entertainment industry. By overseeing the licensing of talent agents and by reviewing contracts, the state labor commissioner "regulates a creative industry where individuals are vulnerable to abuse," they told the justices.

No matter how the Supreme Court rules, Dudnik said, the dispute will be far from settled. "If this is a 100-yard race, we are now about the 20-yard line," he said.

This phase of the case will decide where the dispute between Ferrer and his manager will be decided. "Even if we win in the Supreme Court," Dudnik said, "there's a good chance we'll end up back in arbitration."


Elections don't do justice to state's Circuit Court judges
U.S. Legal News | 2008/01/13 16:50

The great Federalists from Virginia and New York, James Madison and Alexander Hamilton, didn't agree with the anti-Federalist views of Maryland's Jeremiah Chase on the organization of American government. However they all saw eye-to-eye on one matter: the selection of judges.

The founders would likely be appalled at Maryland's judicial system today. It has degenerated into a partisan free-for-all, with impartial judges forced to raise campaign cash in ever-larger amounts while locking out the fastest-growing political group in the state: independents. It's time to change this system and make it fair for all citizens of Maryland.

The founders understood that courts and judges were special institutions in a democracy that needed to be insulated from "intemperate" political influence. Madison argued that the "primary consideration ought to be to select that mode of choice which best secures" a well-qualified jurist.

Maryland's 143 Circuit Court judges must enter an election that is nominally "nonpartisan." Electing judges this way runs counter not only to Madison and Hamilton's advice, but also to the counsel of the national and state bar associations, the recommendations of the Commission on the Future of Maryland's Courts and a host of other watchdog groups.

Most judges in Maryland are appointed using a reasonable democratic process. The governor (with the consent of the Senate) has ultimate say over the Court of Appeals, Court of Special Appeals and District Court. Judges on the appeals courts face voters in retention elections every 10 years. This method has served Maryland well for more than two centuries. But in 1970 the law was changed over concerns that the judicial appointment process didn't give women and minorities a fair chance.

Since then, Circuit Court judges have faced contested elections against any lawyer who is a member of the state's bar association. It doesn't matter if the judicial nominating commission has found the lawyer "unqualified" to serve. Candidates can make the nominating commission irrelevant. They just skip the interview process and go right to the election. And that's where political mud-wrestling takes place.

The 2004 and 2006 St. Mary's County judicial elections are prime examples of everything that is wrong about Maryland's system. Several well-funded, partisan challengers publicly hurled personal invectives or outright falsehoods in bitter campaigns. Others attacked "liberal activist judges" who would carry out agendas that included partial-birth abortion on demand, gay marriage, and a ban on the pledge of allegiance in schools. The challengers had the luxury of spelling out specific judicial platforms, taking set positions on issues such as bail bonds, work release programs, and truth in sentencing. (Disclosure: The authors are friends with one of the judges on the Circuit Court in St. Mary's County.)

Sitting judges are disadvantaged under this system. They have to campaign on their record while maintaining the difficult balancing act of politicking, raising money from lawyers, and making decisions every day in court. Studies show that voters have very little information about sitting judges and their record on the bench.

Maryland's judicial elections problem is compounded by the disenfranchisement of unaffiliated voters. More than 440,000 people -- more than 14 percent of state voters -- do not get a chance to cast their votes for judge until the general election. The primaries decided the elections in St. Mary's in both 2004 and 2006. More than 6,000 registered unaffiliated voters in St. Mary's never had the opportunity to choose.

Maryland's nonpartisan system actually encourages partisanship and often punishes the more moderate candidates, who fail to rally a partisan base of support.

The separation of powers and the protection of the judiciary from popular "factions" that Madison held dear are undermined when judges must take into consideration the coattail effects of other popular (or unpopular) candidates for legislative or executive branch offices on the ballot.

The framers of the U.S. Constitution never envisioned the judiciary to be chosen directly by the people. Hamilton wrote that "there can be but few men in the society who will have sufficient skill in the laws to qualify them for the stations of judges." It is time for the legislature to get serious about ending the rank partisanship, electoral flaws, and opportunity for unqualified jurists to reach the bench of the state's Circuit Court via contested popular elections.



Britney in court for major hearing
Court Feed News | 2008/01/13 16:46

Britney Spears' effort to regain access to her two small children will go back to court on Monday for what a lawyer described as "the most significant hearing in the case so far".

Police and emergency medical technicians who were summoned to the singer's Los Angeles home on January 3 in a stand-off involving her refusal to return the boys to ex-husband, Kevin Federline, will testify, probably behind closed doors, Mr Federline's lawyer said.

"I don't know if she will be there," Mark Kaplan said, but he suggested she would have to appear in person if she wanted to press her request to see her children.

"You can't phone this one in," he added.

If Spears comes to court, Mr Kaplan said she would be expected to testify. "She will have the opportunity to persuade the court that she can have some visitation under monitored conditions," he said.

Phone and email messages requesting comment from Spears' lawyers were not immediately returned.

Mr Kaplan said he knew it was only a temporary measure when he obtained emergency court orders two weeks ago granting sole physical and legal custody to Mr Federline.

"These are very, very draconian orders," he said. "Because of that the court wanted to have a hearing to give her and her attorneys the opportunity to refute some of the declarations.

"No judge likes making orders terminating a person's involvement with their kids."

Meanwhile, police were preparing for a media frenzy in the downtown Los Angeles civic centre if Spears appeared, issuing warnings that vehicle and pedestrian offences would lead to prosecution.



Appeals Court Rules Against Ex-Detainees
Headline News | 2008/01/12 16:49
A federal appeals court ruled Friday against four British men who contend they were systematically tortured and their religious rights abused throughout their two-year detention at Guantanamo Bay.

In a suit against ex-Defense Secretary Donald Rumsfeld and individual U.S. military officials, the four men argued that the defendants had engaged in criminal conduct.

The U.S. Court of Appeals for the District of Columbia Circuit ruled 3-0 that the men should have invoked a different law when they filed their lawsuit.

"Criminal conduct is not per se outside the scope of employment," a requirement for bringing a claim under the Alien Tort Statute, said the decision by appeals judge Karen LeCraft Henderson, an appointee of President Bush's father.

The four men challenge the methods Rumsfeld and the military officers used, but the former detainees don't allege that the defendants "acted as rogue officials or employees who implemented a policy of torture for reasons unrelated to the gathering of intelligence," the court said.

"Therefore, the alleged tortious conduct was incidental to the defendants' legitimate employment duties," the ruling added.

The four British men also brought constitutional claims and claims under the Geneva Conventions and the Religious Freedom Restoration Act.

Rejecting all of the men's allegations, the appeals court overturned the only part of a lower court decision that hadn't already been dismissed. That was the alleged violation of the Religious Freedom Restoration Act.

"Because the plaintiffs are aliens and were located outside sovereign United States territory at the time their alleged RFRA claim arose, they do not fall with the definition of 'person,'" the court ruled. The law provides that the "government shall not substantially burden a person's exercise of religion."

The ruling came on the sixth anniversary of Guantanamo Bay being used to house detainees gathered from around the world as part of the U.S. war on suspected terrorists.

The other two judges in the case are Janice Rogers Brown, an appointee of President Bush; and A. Raymond Randolph, an appointee of Bush's father.

The defendants in the case include retired Gen. Richard Myers, former chairman of the Joint Chiefs of Staff. The four who sued are Shafiq Rasul, Asif Iqbal, Rhuhel Ahmed and Jamal Al-Harith, all British citizens and residents. They were sent back to Great Britain in 2004.

The appeals court ruling comes at a time when the Supreme Court is considering whether other prisoners still detained at Guantanamo Bay have a right to challenge their confinement in U.S. courts.

Rasul, Iqbal and Ahmed allege they traveled to Afghanistan from Pakistan to provide humanitarian relief the month after the Sept. 11 attacks. Al-Harith says he traveled to Pakistan the same month to attend a religious retreat.

All four wound up at Guantanamo Bay. There, they allege, they were beaten, shackled in painful stress positions, threatened by dogs, subjected to extreme medical care and communication. They also allege they were harassed while practicing their religion, including forced shaving of their beards, banning or interrupting their prayers, denying them copies of the Koran and prayer mats and throwing a copy of the Koran in a toilet bucket.

Al-Harith says that he was first imprisoned by the Taliban who accused him of being a British spy. When the Taliban fell, he says he contacted British embassy officials to secure his evacuation, but that U.S. forces in coordination with British officials sent him to Guantanamo.



Mars Chocolate Heir Loses Natural Gas Drilling Fight
Court Feed News | 2008/01/11 17:52
An attempt by the reclusive billionaire heir to the Mars chocolate bar fortune to ban drilling for natural gas on his Montana ranch was defeated in a court hearing late on Tuesday.

A judge ruled that Forrest Mars Jr, the former chief executive of the confectionary giant and the son of Forrest Mars Sr, the man credited with inventing M&Ms and the Mars bar, could not prevent Pinnacle Gas Resources from drilling on a 10,000-acre lease it holds for the land beneath Mars's Diamond Cross cattle ranch in south-eastern Montana.

On Monday, Mars employees at the ranch prevented Pinnacle from entering the property when it tried to force its way on to the ranch. Montana law gives companies the right to drill on private land provided they hold a valid lease. The lease expires tomorrow if the company does not commence exploration. Pinnacle said it expected to begin drilling before the end of the week.

"Who the surface owner is should not make any difference, and it didn't today," a Pinnacle attorney, Bryan Wilson, said after the ruling.

In the Diamond Cross case, Pinnacle Gas Resources and another company, Fidelity, have gas and oil leases on the ranch that predate Mars' ownership, according to public records and company officials.

Mars, who is worth an estimated $14bn, owns 82,000 acres along the Tongue river near Montana's border with Wyoming. He is opposed to the drilling because large amounts of underground water are pumped out to access the natural gas. Many farmers view that water as a precious reserve, given the extended drought in the western US.

Mars began buying land in south-eastern Montana in 2003, at the same time that natural gas exploration in the area was booming. He also has residences in Wyoming and Virginia. Since then he has joined several court actions challenging the natural gas industry.

An attorney for Mars, Loren O'Toole, said the objective was not to prevent exploration but to ensure that the water could be returned. "The point is, we can't lose all that water and at the same time have no provision to put it back," O'Toole said.

"Forrest has a lot of money, but he's in the same boat as anybody else," Beth Kaeding, chairwoman of the Northern Plains Resource Council, told the Associated Press news agency.

"If you don't own the mineral rights, it doesn't matter how huge your ranch is, how politically powerful you are, how much money you have. Mineral rights trump surface rights."

Forrest Mars Jr, who was not in court for the hearing, is in his 70s and is one of three children of Forrest Mars Sr, the son of the founder of the company.

Mars is one of the largest family-owned companies in the US, making confectionery, pet food and other products, from Snickers to Whiskas cat food, with $21bn in annual worldwide revenues and an estimated 40,000 employees. The three Mars siblings all featured in last year's top 20 list of the richest Americans, compiled by Forbes magazine.

Pinnacle sued Mars in December after the gas company's employees were told that they would be treated as trespassers if they attempted to enter the ranch.

In separate cases, Mars is suing Pinnacle over plans to develop coal-bed methane on land near his ranch, and is also seeking to block a new railway line in south-eastern Montana that will facilitate the exploitation of the area's coal reserves.


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