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Appeals court again rules against Mojave cross
Lawyer Blog News | 2007/09/07 13:51
A federal appeals court on Thursday invalidated a land-exchange that sought to preserve an 8-foot tall cross in the Mojave National Preserve. The Christian symbol has been at the center of a long-running legal battle, reaching the appeals court three times. It also was the subject of language inserted in a defense appropriations bill that transferred government ownership of an acre of land to the Veterans of Foreign Wars in an effort to end government sponsorship of religious symbols on public land. The VFW said the cross was memorial for World War I veterans.

But the ruling by the 9th U.S. District Court of Appeals on Thursday upheld a lower court's ruling that said the land transfer was a sham. The appeals court had ruled before the land transfer that the cross was unconstitutional.

Judge M. Margaret McKeown, writing for the unanimous three-judge panel, said that "carving out a tiny parcel of property in the midst of this vast preserve—like a donut hole with the cross atop it—will do nothing to minimize the impermissible governmental endorsement" of the religious symbol.

Peter Eliasberg, an attorney with the ACLU, said his organization sued to remove the cross from its remote resting place outside Barstow because it was clearly a religious item being supported by the federal government.

"I hope this stops the litigation and the waste of taxpayers money," Eliasberg said.



D.C. Asks Supreme Court to Back Gun Ban
Lawyer Blog News | 2007/09/05 15:32

The District today asked the Supreme Court to uphold the city's ban on private ownership of handguns, saying the appeals court decision that overturned the law "drastically departs from the mainstream of American jurisprudence." Most legal experts believe the court will accept the case, which could lead to a historic decision next year on whether the ambiguously worded Second Amendment to the Constitution protects private gun ownership or only imparts a civic right related to maintaining state militias.

The District argues in its petition for review that its law--one of the toughest handgun bans in the nation--should be upheld regardless of whether the court sides with the so-called "individualist" or "collective" legal theories.

"It is eminently reasonable to permit private ownership of other types of weapons, including shotguns and rifles, but ban the easily concealed and uniquely dangerous modern handgun," states the petition, filed by District Attorney General Linda Singer. It adds: "Whatever right the Second Amendment guarantees, it does not require the District to stand by while its citizens die."

"We're going to fight to uphold a law that . . . has public support," Mayor Adrian M. Fenty (D) said at a news conference outside D.C. police headquarters. "The only possible outcome of more handguns in the home is more violence. Our appeal will help the District of Columbia be able to continue to reduce gun violence."

A three-judge panel of the U.S. Court of Appeals for the D.C. Circuit split 2-1 last March in throwing out the District's law, which prohibits handgun ownership except by active and retired law enforcement officers. It also struck down a law requiring that rifles and shotguns kept in private homes be unloaded and disassembled or bound by trigger locks.

The court ruled that the Second Amendment "protects an individual right to keep and bear arms" and that "once it is determined--as we have done--that handguns are 'Arms' referred to in the Second Amendment, it is not open to the District to ban them."

The appeals court acknowledged that its decision was groundbreaking; only one other appeals court--the Fifth Circuit based in New Orleans--has recognized an individual's right to gun ownership, and it nevertheless upheld the federal gun-control law at issue. Nine other circuits around the country have endorsed the "collective" right.

That split is what makes it likely the justices will accept the case, and the lawyers who brought the case on behalf of six District residents who wanted to overturn the gun ban also want the court to take the case.

"We support the court granting [review] and plan on responding very quickly," said attorney Alan Gura, one of the lawyers who brought the case.

Singer said the city expects to hear by November whether the high court will hear the case. The District would be represented in court arguments by Alan B. Morrison, special counsel to Singer's office.

"This is more than an intellectual or ideological argument. It's real," Singer said. "For the residents of the District of Columbia, it's a matter of life and death."

The Supreme Court has not specifically addressed the gun rights guarantees of the Second Amendment since 1939, when it upheld a federal gun control law and seemed to side with the "collective" right argument.

The Second Amendment provides: "A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms shall not be infringed."

The appeals court's decision to focus on "the right of the people to keep and bear Arms shall not be infringed"rather than "A well regulated Militia, being necessary to the security of a free State'' reflects a growing trend in the legal and academic community.

So while the District argues in its petition that the appeals court decision ignored the "obvious military character" of the Second Amendment's language, it spends more time making the case that its law should be upheld even if a majority of the justices embrace the individual rights theory.

Its legal filing contends that the Second Amendment was meant to protect the states from federal intervention, not to restrict their legislative decisions. "States remain free to regulate arms within their boundaries so long as they do not thereby deprive the United States of the ability to obtain the assistance of an armed citizenry in time of need," the petition states.

And the petition says the high court should recognize that banning handguns, which it calls the criminal's "weapon of choice," was a reasonable response in an urban area marked by high crime rates.

District lawyers argue that the ability to own shotguns and rifles satisfied the desire of the law's challengers for a means of self-protection. The appeals court found that argument "frivolous."

The petition also includes a long list of statistics it says bolsters its claims that the availability of handguns increases the number of suicides and endangers children and police officers. "No other provision of the Bill of Rights even arguably requires a government to tolerate serious physical harm on anything like the scale of the devastation worked by handguns," it states.

Although the case decided by the appeals court was called Parker v. District of Columbia, District lawyers have filed their petition as District of Columbia v. Dick Anthony Heller. That is because the appeals court found that Heller, a security guard, was the only one of the six plaintiffs who had legal standing to challenge the law. His application for a handgun permit was denied by the government.



Ruling triggers a rush to gay marriages in Iowa
Lawyer Blog News | 2007/08/31 14:31

Gay couples lined up before dawn on Friday to apply for marriage licenses after an Iowa judge scuttled the state's law against same-sex marriage. Two Iowa State University students, Sean Fritz, 24, and Tim McQuillan, 21, got their license along with a waiver bypassing the usual three-day waiting period. Then they rushed off to find someone to tie the knot for them in a bid to become the first in the state to do so -- and succeeded when a Unitarian minister united them in a brief ceremony in the front yard of his Des Moines home.

Judge Robert Hanson of the Polk County District triggered the license land rush when he ruled on Thursday that Iowa's law restricting marriage to a man and a woman was unconstitutional. His ruling faces appeals by state officials who want it reversed, but in the meantime the window was open.

The gay marriage issue is a hot one politically at all levels. Twenty-six states have constitutional amendments barring same-sex marriage. Three states allow civil unions for gay couples -- with only Massachusetts permitting full same-sex marriage. New Hampshire will allow gay civil unions beginning in January.

Fritz and McQuillan were among about a dozen couples waiting in a line that formed before dawn at the Polk County Courthouse.

Fritz said he proposed to McQuillan on Thursday night after hearing about the judge's ruling and then went to a store to buy wedding rings.

"He instant messaged me over the Internet that this was going on," McQuillan said. "When he picked me up around 9 o'clock he proposed to me on the spot. Besides the obvious shock, I still haven't recovered. Maybe it'll set in later this week."

Fritz said the two did a "lot of double-checking everything on the Internet to make sure that we got all the paperwork filled out correctly the first time. We didn't want to get refused because we messed up a 't' somewhere." Fritz says he called McQuillan's mother in California to ask permission to marry her son. Not everyone was as happy.House Republican Leader Christopher Rants of the Iowa Legislature called the ruling a "shocking" reversal of the will of the people of the state. He blamed Democrats saying they had refused to back an amendment to the state constitution that would have cemented the ban.

Republican presidential hopeful Mitt Romney, a former Massachusetts governor who has been campaigning in Iowa, called the decision another example of a ruling by an activist court. He said it demonstrates the need for an amendment to the U.S. Constitution outlawing gay marriages.

Michelle Gardner of Ames, a neighbor of Fritz and McQuillan who served as a witness on their marriage application, said "I'm just so happy to be in Iowa for this and so happy to be a part of their wedding."

Her 10-year-old daughter, Esther, clutching a bouquet, was in line to be the couple's flower girl.



Court says FirstEnergy cost deferrals problematic
Lawyer Blog News | 2007/08/30 18:14

An Ohio court has ruled that state regulators violated the law by allowing FirstEnergy Corp to raise future distribution rates to offset more than $150 million of fuel costs, the company said on Thursday. In a filing with the Securities and Exchange Commission, FirstEnergy said the Supreme Court of Ohio ruled that the Public Utilities Commission of Ohio (PUCO) violated certain provisions of the Ohio Revised Code because fuel costs are a component of generation service, not distribution service.

In January 2006, PUCO approved the recovery of some of FirstEnergy's fuel costs through a fuel rider and allowed them to recover other fuel costs over a 25-year period beginning Jan. 2009 through distribution rates.

The court also found that said it did not believe PUCO addressed whether the deferral of recovery was anticompetitive. It sent the issue back to the commission for further consideration.

FirstEnergy said it plans to contest the court's interpretation and ask it to reconsider the ruling. It also intends to file a concurrent application with the PUCO, laying out a new plan for recovery of the fuel costs.

It said it would continue deferring the fuel costs until the court hears its motion to reconsider the case.



Ex-Goldman Sachs Worker Pleads Guilty
Lawyer Blog News | 2007/08/29 15:35

A former Goldman Sachs analyst pleaded guilty Tuesday to conspiracy to commit securities fraud and insider trading, admitting he participated in a scheme that helped earn more than $6.7 million. Eugene Plotkin, 28, entered the plea in federal court in Manhattan and apologized for his actions.

"Words can't express how sorry I am for the harm I have caused to others, especially my family," Plotkin said.

Plotkin was charged in 2006 in a scheme that involved David Pajcin, another Goldman Sachs analyst, and Stanislav Shpigelman, who met Plotkin in college and worked as an analyst at Merrill Lynch & Co. Inc.'s mergers and acquisitions division.

Assistant U.S. Attorney Helen Cantwell said the trio conspired on some of the most innovative and complicated insider-trading schemes since those of the 1980s.

In one instance, a New Jersey grand juror leaked information so Plotkin and Pajcin could learn details of an investigation of accounting fraud accusations against Bristol-Myers and several of its executives.

In a second plot, Pajcin and Plotkin arranged for a man to become a forklift operator at a printing plant so he could steal early copies of a market-moving column in BusinessWeek magazine.

Prosecutors say Shpigelman provided Plotkin and Pajcin with information on deals to give them an advantage in their trading.

In exchange for information on six different pending mergers or acquisitions, Shpigelman received cash and promises of future payments based on a percentage of profits, authorities said.

Although the charges carry a potential maximum prison term of 165 years, Plotkin signed a plea agreement in which he promised not to appeal any sentence between four years and nine months and five years and 11 months in prison.



Storm builds around Idaho senator's arrest
Lawyer Blog News | 2007/08/29 13:30

Idaho Sen. Larry Craig isn't sticking to the script about how sex scandals play out in the nation's capital. In fact, he's following it backward. The rich history of powerful figures accused of misbehavior shows they tend to deny it indignantly, try to ride out the storm with tortured explanations, then give in to contrition if cornered. Not Craig. First, an admission of guilt; now, a defiant protestation of innocence.

Seeking to salvage his reputation and quell a media storm stirred by his guilty plea to disorderly conduct charges, the Republican senator Tuesday denied making a sexual advance to an undercover officer in a Minneapolis airport men's room two months ago.

"I am not gay and never have been," Craig declared at a Boise news conference with his wife, Suzanne, at his side.

But even as he denied making an advance, the case sent shock waves through Republican circles. Senate Republican leaders called for an ethics investigation and vowed to consider other sanctions.

Former Massachusetts Gov. Mitt Romney, whose Idaho presidential campaign was headed by Craig until the charges came to light, compared the senator's behavior to former President Clinton's encounter with a White House intern and to former Rep. Mark Foley, R-Fla., who resigned last year in a scandal involving male House pages.

The charge grew out of a June 11 incident at Minneapolis-St. Paul International Airport in which an officer investigating lewd-conduct complaints about activity in the restroom arrested Craig for allegedly making a sexual advance. The arrest and the senator's Aug. 1 guilty plea became public Monday, when they were reported by the Capitol Hill newspaper Roll Call.

Craig, 62, was ordered to pay $575 in fines and fees and given one year's probation. A sentence of 10 days in the county workhouse was stayed.

At the news conference, Craig, a leading voice on issues affecting the West and a consistent opponent of gay-rights legislation, apologized for his handling of the incident, saying he regretted his guilty plea.

He said he had retained a lawyer to review the plea, although he signed court papers declaring he had read the police report and understood the nature of the crime and paid the fine — which defense experts said would make a challenge difficult.

Craig said he pleaded guilty because his hometown newspaper, The Idaho Statesman, had been conducting an eight-month investigation into his sexual orientation. He said he hoped that resolving the case quietly — without telling his family, friends, staff or colleagues — would settle the matter without bringing it to light for what he called the newspaper's "witch hunt."

"I overreacted in Minneapolis, because of the stress of The Idaho Statesman investigation and the rumors it has fueled around Idaho," said Craig, who took no questions.

Craig has confronted sexually related accusations before. In 1982, he denied involvement in a congressional-page sex scandal.

The Statesman on Tuesday reported on rumors that Craig had engaged in restroom sexual encounters with other men. The newspaper began its inquiry after a gay activist blogger, Mike Rogers, published a claim that Craig had sex with men. Rogers cited anonymous sources.

The Statesman quoted an anonymous man who claimed he had sex with Craig in a restroom at Union Station in Washington, D.C. The newspaper, which interviewed 300 people, described other allegations but did not name those who made them.

In a May interview that the newspaper published Tuesday, Craig denied having had gay sexual encounters and specifically denied restroom encounters.

"I'm going to have to leave it up to other people to weigh the care we took. I'm a bit disappointed" with Craig's complaints, said Vicki Gowler, the newspaper's top editor. "We were quite responsible, and we took great care with the story."

Craig already was under pressure from Republicans to give up the seat he has held since 1991 rather than risk handing Democrats what has been a safe seat. He said he'll announce next month whether he will seek re-election.

Pressure accelerated Tuesday. The mug shot from Craig's arrest was broadcast on CNN accompanied by a headline: "Senator's Bathroom Bust." The Drudge Report went with the headline "Brokeback Bathroom." And the detailed arrest report was available on the Internet.

Greg Smith, an Idaho pollster who has worked for Craig, said it was "almost certain" the senator would not seek re-election.

David Adler, a political-science professor at Idaho State University, noted that GOP leaders would be unlikely to support any interest Craig might have in trying to hold his seat "since they would fear losing a seat that has been safe for so long."

Adler said Craig's swift resignation as co-chair of Romney's presidential campaign in Idaho provides a "good measure of the fever that has been inflicted."

Patrick Sammon, president of the Log Cabin Republicans, the largest organization for gays in the GOP, said Craig's ability to continue serving is "in serious doubt."

If Craig resigns, Republican Gov. C.L. "Butch" Otter will appoint a successor, most likely a Republican, to serve the remainder of the term.

A former Democratic congressman, Larry LaRocco, is campaigning to replace Craig. LaRocco was elected to the House in 1990 but lost the seat in the 1994 GOP takeover.

LaRocco said he believes a Democrat can win even though none has been elected to the Senate from Idaho since Frank Church, who lost the seat in 1980. "People are in a plate-throwing mood out here, regardless of what happened with Larry Craig," LaRocco said.

Craig now is fighting a multifront battle, first and foremost a longshot bid to undo his guilty plea and the likely ethics probe, while also trying to shore up support among constituents should he decide to seek a fourth six-year term.

In his guilty plea, according to court records, Craig acknowledged engaging in physical "conduct which I knew or should have known tended to arouse alarm or resentment of others." Criminal-defense lawyers said it would be difficult for the senator to have the case reopened.

Successful motions to withdraw guilty pleas usually meet a high threshold, such as showing the person was misled into entering the plea, his constitutional rights were violated or there was wrongdoing by prosecutors, Minneapolis criminal-defense lawyer Peter Wold said.

But Craig's written plea specified the charges related to the airport incident, that he knew the judge couldn't accept a guilty plea from a person who felt he was innocent and that he was making no claim of innocence.

If he's successful in overturning his plea, Craig likely will have to face a public trial, Wold said.



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