You have to admire this description of marriage, from today’s 128-paged 9th Circuit Federal Court of Appeals decision voiding California’s [Proposition 8] gay marriage ban:
'[M]arriage' is the name that society gives to the relationship that matters most between two adults. A rose by any other name may smell as sweet, but to the couple desiring to enter into a committed lifelong relationship, a marriage by the name of 'registered domestic partnership' does not. The word 'marriage' is singular in connoting "a harmony in living," "a bilateral loyalty," and "a coming together for better or for worse, hopefully enduring, and intimate to the degree of being sacred." Griswold v. Connecticut, 381 U.S. 479, 486 (1965). As Proponents have admitted, "the word 'marriage' has a unique meaning," and "there is a significant symbolic disparity between domestic partnership and marriage." It is the designation of 'marriage' itself that expresses validation, by the
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state and the community, and that serves as a symbol, like a wedding ceremony or a wedding ring, of something profoundly important. See id. at 971.
We need consider only the many ways in which we encounter the word 'marriage' in our daily lives and understand it, consciously or not, to convey a sense of significance. We are regularly given forms to complete that ask us whether we are "single" or "married." Newspapers run announcements of births, deaths, and marriages. We are excited to see someone ask, "Will you marry me?", whether on bended knee in a restaurant or in text splashed across a stadium Jumbotron. Certainly it would not have the same effect to see "Will you enter into a registered domestic partnership with me?". Groucho Marx's one-liner, "Marriage is a wonderful institution . . . but who wants to live in an institution?" would lack its punch if the word 'marriage' were replaced with the alternative phrase. So too with Shakespeare's "A young man married is a man that's marr'd," Lincoln's "Marriage is neither heaven nor hell, it is simply purgatory," and Sinatra's "A man doesn't know what happiness is until he's married. By then it's too late." We see tropes like "marrying for love" versus "marrying for money" played out again and again in our films and literature because of the recognized importance and permanence of the marriage relationship. Had Marilyn Monroe's film been called How to Register a Domestic Partnership with a Millionaire, it would not have conveyed the same meaning as did her famous movie,
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even though the underlying drama for same-sex couples is no different. The name 'marriage' signifies the unique recognition that society gives to harmonious, loyal, enduring, and intimate relationships. See Knight v. Super. Ct., 128 Cal. App. 4th 14, 31 (2005) ("[Mjarriage is considered a more substantial relationship and is accorded a greater stature than a domestic partnership."); cf. Griswold, 381 U.S. at 486.
The official, cherished status of 'marriage' is distinct from the incidents of marriage, such as those listed in the California Family Code. The incidents are both elements of the institution and manifestations of the recognition that the State affords to those who are in stable and committed lifelong relationships. We allow spouses but not siblings or roommates to file taxes jointly, for example, because we acknowledge the financial interdependence of those who have entered into an "enduring" relationship. The incidents of marriage, standing alone, do not, however, convey the same governmental and societal recognition as does the designation of 'marriage' itself. We do not celebrate when two people merge their bank accounts; we celebrate when a couple marries. The designation of 'marriage' is the status that we recognize. It is the principal manner in which the State attaches respect and dignity to the highest form of a committed relationship and to the individuals who have entered into it.
Perry v. Brown, U.S.C.A. 9th Cir., Slip Op. 10-16696, (February 7, 2012).
A recent American Bar Association news bulletin indicated the state of Tennessee is experiencing a spike in lawyers disappearing with client funds. Meanwhile, this blogger's quick and unscientific review of recent lawyer discipline by the Virginia State Bar suggests a large number involve the failure to exercise diligence (Rule 1.3) and communicate timely (Rule 1.4). The runner-up category seems to be the mishandling of money.
A surprisingly large number of suspensions are for accumulating an insufficient number of continuing legal education credits annually, or for failure to pay dues. The lesson is to never become so busy or distracted that you fail to update your forwarding address, or ignore correspondence from the State Bar.
+++
Speaking of money, lawyers are falling prey to the cash-back-on-an-oversize-check scam just like members of the public. The con is described in the following manner in the Virginia Legal Register, where they probably meant to use the word “implicated” instead of “implicit” in the second paragraph:
“FBI Warns of Internet Advance-Fee Scam
The Richmond Division of the FBI has issued an alert regarding an advance-fee scam targeting attorneys in multiple states, including Virginia. A person holding himself or herself out as “Bruce Shattock” or “S & J Boring” of Livonia, Michigan, has contacted several attorneys via e-mail requesting assistance in the collection of a business debt, usually about $200,000.
Bruce Shattock is an identifiable person and S & J Boring has been identified as an actual business. It is believed that the perpetrator is impersonating these entities and neither is implicit in the scam.
Several days after engaging the attorney, the perpetrator advises that the debt dispute has been resolved and the attorney receives a fraudulent check from the debtor company to “settle” some or all of the fictitious debt. The perpetrator requests that the attorney subtract a fee for legal services and immediately wire the balance elsewhere, typically to a bank account in China, in an attempt to obtain the funds before the check is discovered as fraudulent.”
http://www.vsb.org/site/publications/reg
I. Reported Cases -- West, Stevens and Cranwell:
West v. West, Record No. 0448-11-3, (December 13, 2011), deals with the finality of court decisions after a final decree and an appeal. In this case, the court of appeals reversed and remanded to circuit court for recalculation of the maintenance cost of easements. Instead of limiting itself to the monetary issue, the circuit court proceeded in the context of the remand to change the easement’s physical dimensions.
The “law of the case” dictates that any issue not appealed from a final order cannot be revisited after 21 days.[1] Metes and bounds were not part of the appeal, so the trial court exceeded its authority in re-opening that issue in the context of the remand.
The “mandate rule” limits trial court jurisdiction on remand to matters specifically addressed and to their antecedents. For example, on a remand to revise a criminal sentence, the trial court cannot dismiss the underlying indictment; since the indictment is an essential prerequisite to the conviction and sentencing. In other words, by dismissing a case, a trial court would be ignoring the appeals court directive to revisit a particular stage of the proceeding; and that is not allowed.
The importance of West for family law practitioners is that material facts arising after the date of the appeal remain within the purview of the circuit court, and can be litigated at any time even if an appeal is unresolved. Those new facts may deal with pendente lite support, custody or visitation. Furthermore, when the trial court revises a temporary support award, it is not required to state the basis for its action.
Stevens v. Stevens, Record No. 0498-11-3, (December 13, 2011), involves a husband who improvidently transferred inherited farm property out of a family trust (where his share was separate property, 100% his alone) into his name and his wife’s name (where it became marital property). The key statutory provision is VA Code § 20-107.3(A)(3)(f), which states that “to the extent the property is retraceable by a preponderance of the evidence and was not a gift, the retitled property shall retain its original classification.”
Husband made mistakes that cost him the “separate property” classification, and resulted in wife receiving part of his inheritance at equitable distribution (“ED”). First, partial consideration for the transfer from the family trust was proceeds of sale of husband and wife’s home, which itself was marital property. And second, nothing in the transaction with the trust mentioned the word “gift”. (If the deed from the trust had said “This is not a gift,” then the result as to the inherited portion of the farm might have been different.)
Cranwell v. Cranwell, Record No. 2677-10-4, (December 13, 2011) is a published decision partially reversing a support modification ruling by Judge Designate J. Howe Brown, in Arlington County (Virginia) Circuit Court.
The parties were divorced in 2007 and wife received alimony and child support. Husband (represented by Robert J. Surovell, Esq., of Fairfax) was seeking a reduction in both support amounts. His attack on the alimony was an attempt to terminate it forever in accordance with their letter agreement, on the basis that wife was engaged in “cohabitation, analogous to a marriage” with a boyfriend she had been sleeping with for years. Judge Brown correctly rejected this argument. The parties had separate homes on opposite coasts of the U.S., no keys to each other’s residence, no assumption of marital duties and obligations, and very little personal property at the other’s home. Bluntly stated, a cabin attendant from Virginia is not cohabiting with her Los Angeles boyfriend by sleeping at his place during her layovers on the West Coast. The court points out that it is possible for two people to each have their own home and cohabit in one of them. But it did not happen here.
The second rationale for adjusting support seems obvious: Virginia Code § 20-108.2(C) specifically includes spousal support in gross income. Yet, Judge Brown excluded husband’s one-time, substantial spousal support arrearage payment from wife’s income because his alimony stream was so unpredictable. The appeals court said that predictable or not, the money was paid; it had to be taken into consideration when calculating child support.
Ironically, the husband may not see any child support reduction on remand, even though he won his argument in the higher court. If Judge Brown includes the lump sum spousal support payment towards the arrearage in re-calculating the presumptive guideline amount; he could then subtract that same amount from wife’s income as being a one-time aberration. A deviation from guideline support, if it were introduced in writing in this two-step manner, would probably withstand appeal!
II. Unpublished Cases – Makoui and Coleman.
Makoui v. Makoui, Record No. 0672-11-3, (November 22, 2011), addresses the validity of a premarital agreement (“PMA”). Wife apparently lost her copy after signing and husband refused to provide her with another one, claiming he had torn it up and “it wasn’t for [wife] anyway.”
When the marriage unraveled, wife discovered husband had substantial stock he had not disclosed in the PMA, so she sought unsuccessfully to have the PMA set aside. The circuit court found the agreement to be valid, and wife appealed.
The court of appeals affirmed, determining that wife had failed to prove by clear and convincing evidence that the PMA was unconscionable within the meaning of VA Code § 20-151(A). Some of the stock listed in the PMA was not valued at trial. Other assets in the PMA, when added to the stock actually valued in the PMA, brought husband’s declared net worth reasonably close the net worth wife proved at trial, so there was no egregious understatement of assets by the husband. Wife failed to establish detrimental reliance on the PMA. And finally, PMA’s can only be rescinded by mutual agreement in writing according to Virginia Code § 20-153, and there was no such writing here. Consequently, it made no difference whether husband had destroyed the only original or not; the PMA was still in effect.
Husband took a long time to produce the PMA in circuit court. While he was delaying, his court-ordered support was higher than the PMA would have allowed. After the court reviewed the PMA, it reduced support going forward but did not credit excess support in prior months. The court of appeals found no abuse of discretion.
Coleman v. Coleman, Record No. 0633-11-2, (November 22, 2011), re-stated the rule that imputed income is within the sound discretion of the trial court and will not be reversed unless plainly wrong or unsupported by evidence. The opinion reversed and remanded a spousal support award because the trial judge did not refer in writing to the specific sections of Virginia Code § 20-107.1(E), as required by § 20-107.1(F). All the judge had said to counsel was for them to run the numbers according to Henrico County guidelines.
III. Circuit Court Opinions
Carter v. Carter, City of Salem Circuit Court, CL 09-524, VLW 011-8-210, (November 16, 2011), is an equitable distribution case nominally involving adultery, but more cogently consisting of an outrageous case of spousal abuse.
This lengthy final decree is noteworthy for how badly husband behaved and how little his misconduct cost him in financial terms. The court describes husband as disingenuous, misleading and self-serving, yet those words seem to understate the severity of his conduct. Wife had set aside her own education to home-school seven children over a period of sixteen years. As a result of her activity in the home, she had no job skills and no gainful employment. Husband voluntarily impoverished himself, cut off wife financially, and caused substantial marital funds to disappear -- in a manner wife was unable to reconstruct -- immediately prior to the ED. Husband reviewed wife’s expenditures and debit card on a daily basis (making her pay back any over-spending), followed her vehicle with a GPS tracker, and checked her cell phone activity. He treated her like a child. When she tried to escape from him by locking herself in a separate bedroom, he picked the lock. He called down biblical admonitions. Terrified, she became – according to the court -- so oppressed, stressed and depressed that she had to flee.
Her adultery came later. However, if you commit adultery in Virginia, you cannot receive spousal support unless there is manifest injustice. The trial judge did not find manifest injustice on the facts presented here, so wife received no spousal support. This is harsh, given her circumstances. But with the court imputing an ability to earn the minimum wage (minus statutory support for her child out of wedlock), it does not appear to be clearly erroneous.
The division of property tipped somewhat in wife’s favor. Husband’s retirement was divided equally. (His imputed income was $100,000.00 a year.) Attorney fees and a $14,000 tax refund were split 50-50; and husband was required to pay the entirety of $3,675.00 in guardian ad litem fees. Husband paid down the mortgage by $9,000.00 from date of separation to date of divorce, so the judge awarded him $9,000.00 of separate equity in the home, effectively reducing the marital equity by that amount. Wife received 69% of the marital equity of $135,000.00, which came to $93,000.00. This was $25,000.00 more than she would have had if the marital portion of the property had been divided equally. (Presumably, this weighed the 20-107.3 factors, and took into account husband’s living rent-free in the former marital home.)
The ED award is arguably within the realm of judicial discretion, yet wife did not fare well under the circumstances. She had quit college in her third year when she became pregnant with the parties' first child and never went back. Sixteen years made it a medium-length marriage. The marital abuse by husband should have weighed heavily in the destruction of the marriage, while wife’s adultery after having been constructively driven out of the home should have counted less. The marriage was already over. Wife’s non-monetary contribution in home-schooling seven children should have fully counterbalanced husband’s earned income. The $25,000.00 differential wife received in marital home equity could be earned back by Husband in three months; while at wife’s subsistence rate of pay (assuming she could find work), earning that amount would take over two years.
This blogger is disappointed the Carter wife did not receive more of the marital estate. But he recognizes the reality that Virginia has a Draconian spousal support forfeiture statute. For abused, economically disadvantaged, adulterous parties to receive spousal support from a Virginia court despite their adultery will require changing the law. However, if the Virginia General Assembly considers adultery to be a greater fault than the spousal abuse that may have led to it, don't look for change any time soon.
Birchfield, Record Nos. 0938-11-3 and 0940-11-3, (November 29, 2011) is an unpublished per curiam opinion of the Court of Appeals of Virginia affirming termination of both parents’ parental rights. Each parent had issues impacting their ability to raise children, and each failed to remedy the situation within a reasonable time. Dad failed to remain in contact with the Department of Social Services when he was the sole parent at home. Mom failed to complete her anger management class. In this case it seems fair to say that the parents lost their kids at least in part due to reasons – unlike addictive behavior – that were entirely within their control.
[1] This is the “21-day rule” delimiting revisory power over a judgment. It appears at Rule 1:1 of the Rules of the Virginia Supreme Court. If a trial court is to revise a final order, then the revised order -- and not just the motion requesting it -- must be filed within the 21 days.
Twenty years after the crime and after discharge from an exemplary military career, Hennis was recalled to active military duty, tried in a military tribunal, convicted, and sentenced to death based on newly-acquired evidence of his DNA in the victim’s vagina.
The Fifth Amendment to the U.S. Constitution says in pertinent part “No person shall be … subject for the same offence to be twice put in jeopardy of life or limb.” And a U.S. Supreme Court case has held that criminal trials for crimes committed during a tour of duty can only occur before the service term expires.
Tim Hennis, whose case is on appeal, should walk free based on either or both of those legal precepts.
Mom, the primary physical custodian, had relocated. Dad moved to transfer custody to himself.
After mom presented her evidence, the trial court granted dad’s motion to strike. The court found the 7-year-old faced no harm in living with dad, and derived no benefit from moving to Pennsylvania. A motion to strike is the jury trial equivalent of a motion for a directed verdict, or the baseball equivalent of a no-hitter.
If it were baseball, one might say there were as many as 18 hits for mom – facts she proved that favored her child living in Pennsylvania rather than Virginia. This was more than adequate to meet her burden of establishing a prima facie case. The Court of Appeals said that the trial court erred in granting the motion to strike, and further erred in applying an “actual harm” instead of a “best interest” standard.
The motion to strike is a drastic remedy. It is surprising the circuit court would have granted it after the mother proved so many facts in support of her case. (For example, dad had been an irregular child support payor, drug abuser, and convict. He lived with a girlfriend and had not consistently addressed the child’s needs.
Some of mom’s evidence pre-dated the parties’ final decree of divorce awarding her primary custody. This blogger questions the admissibility of such evidence in support of a material change in circumstances; as it appears to violate the "law of the case" doctrine. But in any event, there was enough new evidence to support mom’s relocation.
[Virginia Lawyers Weekly ran a front-page story about this decision on December 5, 2011.]
Here are some examples:
| Cause | Result |
| In physics, surface tension of heated ethanol or acetone causes the liquid to levitate on the tiny teeth of a micro-saw, propelled upwards by a net of escaping gas. This is according to David Quéré, writing in the November 22, 2011 issue of Europhysics Letters. | These drops of liquid appear to defy gravity in their vertical climb. The discovery is potentially useful for cooling microprocessors, according to Le Monde (29 November 2011). +++ |
| People have a natural tendency to reinforce their existing beliefs and to conform those beliefs to the ones maintained by others in their social network. | Adding new information tends to reinforce bias, rather than prompting someone to reconsider their position. Thus, the greater someone’s formal education or pool of data, the more strongly they defend their opinion. Conspiracy theorists, nay sayers as to global warming, Democrats refusing to cut entitlements, and Republicans who believe economic recovery is simply a matter of reducing taxes are all unlikely to be influenced by facts challenging their position, no matter how overwhelming the evidence happens to be. This research conclusion is counter-intuitive. It suggests that being smarter or more educated does not necessarily make you more critical, more circumspect, or more likely to be right. +++ |
| The strength of the identity of an individual is fundamentally based upon the degree to which they feel socially connected. | Humans are more social than any other mammal. Individuals of our species define themselves by group membership, whether it be their nation (for example, by displaying a flag), their religion (wearing a symbol of faith on a necklace), their race, or their ethnic origin. National, racial, religious and ethnic groups have characterized human competition throughout history. The degree of competition among groups ranges from discrimination to war and extermination. There are many examples. Recently, rival groups that have sought to kill each other include Protestants and Catholics in Northern Ireland, Shiites and Suniis in Afghanistan, and Armenians and Azerbaijanis in the Near East. +++ |
| Cognitive dissonance is the theory of psychology that seeks to explain why we gravitate around preconceptions, and why they are so hard to modify once they are formed. | The further a dissonant viewpoint is from our existing belief, the less likely we are to acknowledge or understand it, or modify our own our position. Inconsistent facts get discounted or ignored. For example, a prosecutor is told that DNA on bedsheets -- first obtained post-trial -- does not match the man convicted of rape. The prosecutor then speculated that the DNA might have been left by movers -- third parties unrelated to the crime -- who had installed furniture a few days earlier. “The Prosecution’s Case Against DNA,” by Andrew Martin. New York Times, November 22, 2011. +++ |
| Force of habit. | We manage life’s complexity by doing things in patterns; placing them on auto-pilot, if you will. This frees up our attention for dealing with emergencies. Habit has inestimable advantages. The countervailing disadvantage is that habit – like certain beliefs -- can be hard to change. For example, do you continue to trust a priest after they are accused of being a pedophile? Chemical dependency in the brain, which we call addiction, is often impossible to escape. Addiction is our most extreme habit. +++ |
| We evaluate things in ways that are consistent with what we know and what we are told. | If it is disclosed that someone confessed to or witnessed a crime, jurors are more likely to validate that story regardless of reliability. Thus, everyone involved in a "tainted" case has a desire to conform their conduct, perceptions and recollections to the evidence already in place: Investigators are less likely to search for alternate perpetrators of the crime. Eyewitnesses mold their testimony to create a consistent theme in defiance of what they may have actually observed. The percentage of wrongful convictions in these cases of mis-handled evidence climbs dramatically. This risk of prejudicial outcome is the reason why witnesses are not allowed to listen to testimony of other witnesses before testifying themselves. Subtle cues can influence recollection. Examples include the McMartin pre-school case (children describing sexual abuse that never occurred), Clever Hans (a horse apparently able to count), and the biased selection of defendants out of police line-ups (much worse accuracy in identifications if the person communicating with the victim about the line-up knows which individual in the array is thought to be the suspect). Memory is an inherently unreliable method of recalling the past. "The Certainty of Memory Has its Day in Court," by Laura Beil. New York Times, November 29, 2011, p. D1. +++ |
| We over-generalize based upon personal experience, anecdotal reports, or emotion. | This is called economic psychology. People act based upon a distorted, subjective perspective rather than the actual odds they are facing. For example, "On 11 September 2001 terrorists killed 3,400 people. But the very same day, a larger number of people died from preventable and curable diseases. In fact, 5,200 Americans die unnecessarily every day through a lack of access to modern medical care." The Insider, based on BBC News, "War on terror 'causing US deaths'", 9 September 2005. The point of this 9-11 example is that more people die from substandard health care than from terrorists. But as between the two, Homeland Security is a far greater spending priority. +++ |
| Fear of failure often causes us to remain with a known quantity rather than gambling on a change that is statistically likely to provide a greater return. | People usually stick with the job they have, rather than leaving it for something with a good chance of turning out better, according to a recent study. |
Same-sex marriage receives close scrutiny in a University of Virginia Law Review article published in October 2011.[1] After painstakingly laying out alternative decisional pathways for an eventual U.S. Supreme Court opinion, Cornell University Law School professor Michael C. Dorf concludes that there is no scholarly basis for banning gay marriage under the U.S. Constitution.
The stated purpose of Professor Dorf’s monograph is to explore how same-sex marriage bans and civil union statutes might be deemed to violate the Establishment Clause or Equal Protection Clause of the U.S. Constitution.
The article drives home the message that restricting the right to marry based on gender is at the very least a policing and stereotyping of sex roles in a manner inferring that gays and lesbians are second-class citizens. At worst, it is homophobia.
Professor Dorf focuses on two analogies: state-sponsored display of the Confederate flag, and the public school teaching of evolution to the exclusion of creationism. But this blogger finds those examples less relevant to the issue of gay marriage than the opinions of the Supreme Court in granting blacks and whites the right to marry each other, Loving v. Virginia[2]; and in requiring blacks and whites be taught in the same classroom, Brown v. Bd. Ed.[3]
The Supreme Court declared it unconstitutional to create second class citizens based on the color of one’s skin. By the same token, it is the view of this blogger that preventing same-sex couples from marrying -- or relegating them to separate but equal civil unions like our formerly separate but equal segregated classrooms -- makes second class citizens out of gay and lesbian couples. If states were truly interested in promoting the institution of marriage, they would confer the status based on celebrants’ committed relationship, their love for each other, their cohabitation, and their desire to have children and raise a family. States should not be focused on the gender or sexual anatomy of couples seeking to marry.
by Michael C. Dorf, 97 Va. L. Rev. 1267 (2011).
The mother in Gibson had virtually no facts in her favor. She had declined a primary role in her daughter’s life every time the issue had arisen. She gave the father primary custody when they separated. She gave physical custody to the grandparents when the girlfriend of the dad was found to have used crack cocaine, and the girlfriend’s son was found to have sexually abused Gibson’s daughter. When mother and grandparents first went to court, mother consented to the grandparents having temporary custody. By the time the juvenile court order became final, this 9-year-old had lived with her grandparents for a year and a half. At the custody trial, the daughter’s therapist had been treating her for two years, while the mother’s expert had only been hired the day before trial!
Gibson’s case was hopeless; she should never have appealed. Although Virginia law favors parents over grandparents, significant facts and circumstances rebutted the parental-preference presumption: The grandparents had addressed daily needs for a considerable time. The mother had shown lapses in judgment, a failure to address needs, and disinterest in caring for her child. The guardian ad litem testified the parties could not communicate, and the child needed protection from the impact of their “resentments, behavior and conduct.” This mother apparently presented no evidence that might have helped her meet her burden of proof.
+++
Mr. Pacot had a business before the marriage. Wife claimed the business had become hybrid property – part marital and part separate – because husband’s personal efforts increased its value during the marriage. But wife offered no evidence as what the business was worth when she married. The trial judge awarded wife 40% of the business, and husband appealed.
Do you see any problem with the circuit court giving wife part of husband’s company on these facts?
Sure you do! Even someone who does not know the legal standard that is set forth at Virginia Code § 20-107.3 (A) and is not a lawyer should be able to recognize the problem here: You cannot determine how much something increased in value if you don’t know the value that you are starting from! The wife and the trial court did not see this. The court of appeals saw it, reversed the decision, and remanded for “reconsideration and refashioning”.
Studies suggest people miss things in plain view all the time, so it is unfair to fault anyone involved in these proceedings. Maybe these cases are like the recent experiment with people concentrating on a basketball: They did not notice when someone in a gorilla suit ran through the players.
Schools and hospitals require your physical presence in order for you to benefit from their services. I understand that. But courthouses are different -- They may not need to exist in so many places. Here’s why:
There are only two (2) situations when individuals absolutely need to be in court: criminal trials (so defendants can be incarcerated if found guilty), and matters of witness credibility (think juries). Everything else can be handled electronically, from wherever lawyers, judges, witnesses and support personnel happen to be. Much demonstrative evidence is already digitized in the courtroom. At the courthouse yesterday, most prisoners did not leave jail to be arraigned; they appeared on closed circuit TV.
Each state could have one mega-courthouse, and satellite hearing rooms scattered among the smaller towns with tables, chairs and Webcams, perhaps in post offices. (The Postal Service could use the revenue.)
The savings in human capital (notably travel and waiting time), and in physical capital would be enormous. We have fifty states with different laws, yet within each state the laws are the same in all courthouses. Why have so many multiples of things that are functionally identical if we want to cut costs?
There is one federal body of law for the whole country, applied in more than a dozen circuits. Each circuit has local rules. It is possible to continue labeling decisions by circuit, selectively apply local rules, and utilizing technology to centralize brief-filing and oral argument with fewer staff and lower overhead nationwide.
In Korea, billboard scan codes enable you by smart phone to place an order from a laundry list of stores, and receive home-delivery. After we consolidate our courthouses, we should try to to replace shopping centers with regional warehouses like Amazon’s.
According to this ruling, even if blog statements are true and the court decision being promoted is a matter of public record, Rule 1.6 of the Professional Guidelines requires that a client agree to become the subject of their attorney’s advertising.
Attorneys in Virginia have a duty to protect more than just client confidences. Counsel cannot reveal information the “disclosure of which would be embarrassing or would be likely to be detrimental.” In this particular case, the lawyer’s blog gloated about the acquittal of a client who had tested positive for cocaine.
In nineteen pages, the appellate court credited some of the mother’s arguments, but then declared they were not consequential enough to disturb the trial court’s ruling. On one of the Virginia Code’s ten (10) custody factors[1], the trial judge was wrong. but since nothing in the record suggested the factor was pivotal, the error was deemed harmless. When addressing another factor, the trial judge failed to mention the “particularities of father’s mental condition,” but that was deemed to be of “no moment.” In connection with a third statutory criterion, the mother had failed to present a sufficiently specific objection in the trial court. Therefore, her argument on that point was not even considered. (Va. Supreme Court Rule 5A:18).
Overall, this case repeats an all-to-familiar theme: If substantial evidence supports a paragraph of Virginia Code Section 20-124.3, and the lower court judge has identified that paragraph as a primary element of their decision, then no comprehensive analysis needs to accompany the opinion; and the ruling will not be reversed despite error in the handling of a non-primary statutory factor.
One has to admire the tenacity of a mother who spent $150,000.00 on a custody trial, $8,000.00 for an expert to merely review the report of the custody evaluator, and untold fees on her appeal. But spending prodigiously and showing determination are not necessarily related to the presentation of sufficient credible facts at trial – or adequate legal authority on appeal.
In my professional opinion, if disputed facts depend on credibility, it is a waste of money to appeal unless the court made a significant mistake.
One element of this unpublished decision – involving expensive visitation travel -- may raise a question of fundamental fairness for litigants in Fairfax County, Virginia. In Fairfax County, local rules require that custody trials be scheduled at least 30 days in advance of equitable distribution (“ED”) trials. As a result, a disappointed custody litigant would normally have to appeal before ED issues were decided.
Part of the reason the Gudino opinion affirms apportionment between the parents of the children’s travel cost is that the Court of Appeals had no evidence of the parties’ respective shares of the marital estate:
Gudino, at 14. In Fairfax County, absent a motion to delay the appeal deadline until after the ED trial, it may be logistically impossible to make ED data available in a custody determination. Furthermore, unless there is evidence of assets and debts, attorney fees seem unrelated to how much more a party could afford. We do not know, for example, if this mother was a millionaire or had already spent her last penny.
1. Did the support modification proceeding require proof of a material change of circumstances? The parties’ original agreement said no such change had to be established if support were “set” by a court. That contract was incorporated by reference in a “pendente lite” agreement, which itself was incorporated by reference in the final decree. Driscoll argued no change needed to be shown by him based on the original waiver. [Logically, this argument sounds like a lose-lose proposition: The absence of change would leave support exactly the same. What was Driscoll thinking?]
2. The trial and appellate courts both found that material change did have to be shown. The original waiver had been superseded by the support set forth in the final decree. This ruling appears correct, since if Driscoll disliked the original support amount he could have challenged it in the divorce proceeding. Moreover, the parties’ own language, “spousal support to be set,” clearly described an initial determination; it did not contemplate a permanent waiver of the “changed circumstances” standard.
3. The trial court found no material changed circumstances that impacted ability to pay. The appellate court agreed, pointing out that it made no difference whether or not the retirement was a material change; for the reason that Driscoll had plenty of unearned income from investments to pay support even without a job.
4. Interestingly, the Court of Appeals states in dicta that having to switch to paying support from principal is not a material change for a payor. Having to tap principal only matters for a support recipient, and then only in an initial support determination.
5. After divorce, wife worked briefly and voluntarily quit. What about her voluntary impoverishment, asks Driscoll? It does not matter, says this opinion: Support modification is a three-step process, and the trial court never needed to reach the third step.
The three steps in spousal support modification are (1) Was there a material change of circumstances; (2) Did it substantively affect need or ability to pay; and (3) What is the weight to be accorded each of the thirteen statutory factors set forth at VA Code Section 20-107.1(E)? Driscoll was unable to make the case for step two. He had so much income available – or potentially available – from his assets that step three never arose.
6. The Court of Appeals cut the trial judge a break. The Circuit Court judge had taken into consideration Driscoll’s potential receipt of $200,000 for his medical practice, though the amount and timing were undetermined. This was deemed harmless error -- if it was an error. Driscoll had so much cash flow that supporting his former spouse was not going to present a problem whether he had that particular asset in hand or not.
It is true that longer sentences and mandatory minimums have increased the motivation of criminal defendants to plead guilty in exchange for lesser charges or a shorter sentence.
Plea bargaining has been around for a long time and is not about to disappear. Even in civil cases, arbitration, mediation and settlement negotiation have a positive effect in diminishing the judicial caseload. Our judicial system would collapse if we did not have pre-trial settlements.
The problem with plea bargaining is not the process itself, and it is not the prosecutors. Rather, it the pressure placed on prosecutors to deal with a docket that has grown faster than their budget, leaving them without the resources to try every case.
As a result of this financial squeeze, the DA’s office has to reduce the number of trials by increasing the number of guilty pleas. In effect, their ultimatum is “Accept this deal or we are going to throw the book at you.” I understand that, and I do not blame them.
What does it mean for defendants?
1. Unfortunately, some plead guilty even though they are innocent. They may not have the money to put on a defense. Their court-appointed lawyer may not have the time or the funds for such things as experts, to present a good enough case to get them acquitted. The eyewitnesses may be mistaken, or even lying. And,
2. Others will plead guilty to avoid the risk of facing more serious charges or being hit with a mandatory minimum sentence if convicted. Again, there may be doubt about whether than can beat the charge. For example, the case might depend whether the jury believes them or a more sympathetic victim. And they may not be willing to take a chance, rolling the dice if you will; especially if they will not make a good witness themselves or there is a chance the jury may be biased against them because of their race or other factors.
The real problem with our criminal justice system is not prosecutors’ clout. It is these things:
1. Eyewitnesses are often wrong. You might be innocent and still be condemned. Look what happened to Troy Davis.
2. In these trying economic times, less money is available for prisons, vocational training, mental health treatment, alcohol and drug de-tox, and alternative dispositions like probation and the half-way house. Prisoners rot in prison.
3. Many prosecutors are elected, and have to show they are “tough on crime” if the want to keep their jobs. Because voters reward legislators who enact new criminal laws and lengthen criminal sentences, we are constantly in need of more prison cells and more prisons at a time when we are unwilling to pay for them.
4. Mandatory minimum sentencing is largely ineffective at protecting society, deterring criminal conduct or punishing criminals. It eliminates judicial discretion based upon such things as aggravating or mitigating behavior and the risk (or unliklihood) of recidivism. It substantially increases the cost to society in housing more prisioners without delivering us any significant added benefit. And,
5. Despite popular perception, punishment is not a major deterrent of crime. Better deterrents are education, a job, a stable family, and a sense of belonging to a community. Most criminals don't know anything about criminal law. If they did consider consider consequences, they would only be confirming an irrational belief that they will never be caught.
Instead of creating more prisoners who get educated in crime by fellow inmates, we should offer an opportunity for rehabilitation. We should at least give non-violent, first-time offenders a chance to become productive members of society. That involves our helping them manage addiction or mental illness, and our providing an opportunity for them to acquire job skills. Not doing this costs more in the long run. We cannot afford to not even try.
There are parallels:
An aircraft that has lost lift spins towards earth at increasing speed.
A weight-loss diet requires a daily reduction in calories larger than the number of excess daily calories that caused the weight to be gained.
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Pig farmers in Iowa and Minnesota who are suffering from a rash of thefts should install “LoJack” –type devices in selected hogs. This is the farm equivalent of banks utilizing exploding dye-packs in bundles of paper currency.
Tattoos on pig ears won’t work if stolen hogs go straight to a "chop" -shop. And of course, if farmers do not count their hogs until they are big enough to be sold, or the couple hundred purloined from a “finishing barn” are not ones carrying tracking devices, then LoJack won’t work, either.
+++
Small donors who made 25% of Obama’s campaign contributions in 2008 are largely absent from the rolls in his re-election bid. Interviews indicate frustration with his being too conciliatory with Republicans, or failing to obtain results. This may also reflect what I call a psychological phenomenon of “blaming the messenger”.
There are smaller examples of this, as well. In Brattleboro, Vermont, the wine adviser at the co-op shot his manager to death for giving him a poor performance evaluation. The accused apparently had no criminal record and displayed no overt signs of stress prior to the incident.
A woman who had difficulty finding a romantic mate learned she was not the issue; it was finding someone compatible despite her imperfections. http://www.nytimes.com/2011/09/25/fashi
The failure to post the mandatory notice may be the basis for an unfair labor practice charge and can be used to toll (extend) the normal six month statute of limitations for filing unfair labor practice charges. The notice must also be in languages other than English when at least twenty per cent of the workforce is not proficient in English. The final rule retreated from the proposed rules requirement that the notice be e-mailed or sent by other electronic means to employees. Employers are not required to send the notice by electronic means unless the employer customarily communicates with employees in this manner.
The Board based its action on a finding that many employees were not aware of their statutory rights. The proposed rules were greeted with a barrage of criticism from employer groups who claimed that the NLRB had no authority to mandate postings of this nature, that mandatory posting was unconstitutional, and that the intent was to increase union density.
The mandatory posting requirement is an important step towards informing workers of their rights. It is likely that the inevitable legal challenges will fail. The end result will not be a rush to form unions, but it is a positive step, long overdue.
You may also access https://www.nlrb.gov for further information on this mandatory posting requirement.
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* This posting is guest-authored by Brian A. Powers. Mr. Powers is a partner in the law firm of O’Donoghue & O’Donoghue, L.L.P., in Washington, D.C. He practices labor and employment law.
1. If a dad wants the court to impute income to mom, it is a two-step process. First, dad must establish that he is not currently, voluntarily underemployed. Second, the burden of proof is on dad to show that mom is voluntarily underemployed.
2. Voluntary unemployment or underemployment needs to be re-proven in each modification proceeding, based on facts as they exist on the day of the hearing. This is a refinement of the general rule that support modification proceedings begin with the incomes established in the last agreement or court order.
3. A disbarred attorney may be considered voluntarily underemployed if he earns less than a lawyer’s income.
4. Dicta is unavailing in support of an appellate argument.
5. The law of the case doctrine is defined.
6. Reasonable business expenses are disallowed on a rental property that is not rented.
7. Gifts are income: The trial court discounted a cash recipient’s intent to pay money back that she received from her parents. Mom’s oral testimony about her intent to reimburse was insufficient to establish a loan, when the donor testified their intent was to make a gift. This is what often happens when a loan is not documented in writing.
After deciding the money was a gift, the trial court erred in failing to include it in mom’s income for purposes of child support. (There is no discussion of amortizing a one-time gift over twelve months or some other time period.)
8. Stepchildren are irrelevant for purposes of calculating child support.
9. Parties risk an attorney fee award in a child support appeal when they waste the other’s litigant’s time and money. Here, a pro se dad is ordered to reimburse mom’s reasonable attorney fees on appeal because he prevailed on only one assignment of error out of 27.
From an economic perspective, the dad’s cost of appeal included the hourly value of his own time multiplied by his hours devoted to the appeal, plus the mom’s counsel fees that he had to reimburse.
Illustrating the adage “penny wise and pound foolish,” unless dad’s time had no economic value and mom’s attorney billed below-market, it cost dad more to represent himself than he would have spent hiring counsel! Furthermore, if dad had benefitted from competent representation he likely would not have seen 26 of his 27 arguments tossed aside or had to pay mom’s attorney to refute them!
The concurring and dissenting opinion is a persuasive restatement of the rule that with any given set of facts you only get to appeal one time.
Le Monde presents the hypothesis as fact, that Category 4 and 5 tropical storms are on the increase with global warming. While this is probably going to turn out to be true, and perhaps even with an increase in the number of tropical storms, the scientific jury is still out. The reason for the current lack of clarity lies in the length of the record of accurate global tropical storm observations. This is because the tropical storms occur at sea, and many of them never make landfall. Thus, it is only since the weather satellite era that we actually know when, where and how intense the tropical storms may be. Since this record only goes back to about the 1970s, we only have the past forty years to assess changes in tropical storm occurrence. Although forty years seems like a long time, the occurrence and intensity of topical storms is highly variable from year to year, so in ten more years, we will have better assessed the situation.
Nevertheless, the data from the satellite era pretty clearly show an increase in tropical storm intensity, with a roughly constant number of hurricanes per year; an increase in the proportion of category 4 and 5 storms; and a decrease in the category 1 and 2 storms. The scientists who dispute this finding usually argue that there needs to be a longer record of measurements before this is known.
As for a possible increase in the number of hurricanes, we will have to wait and see. Tropical storms can occur over warm oceans, where the water temperature is at about 82F (= 28 C) or greater. There also needs to be a disturbance to set off or trigger the tropical storm. These disturbances are called tropical waves, and are areas in which there are circulations in the counter-clockwise direction in the northern hemisphere, or clockwise in the southern hemisphere. These circulations create areas for enhanced development of the individual thunderstorms that make up the tropical storm. For the Atlantic ocean, many of these disturbances originate from the diurnal thunderstorm that occurs near the horn of Africa. Although that particular thunderstorm dissipates, the residual circulation is then blown across Africa, and then out across the equatorial Atlantic Ocean. As they move out over the Atlantic, a few of these disturbances can create areas of enhanced storm development that can form into tropical storms. Presently, we cannot forecast which of these disturbances will develop into a tropical storm. One other thing that is needed to have a tropical storm occur and become strong, is to not have strong winds at the storm top level. This is because the strong winds will cause the thunderstorm cells in the tropical storm to be tilted over, and this tilting will weaken the tropical storm circulation. Right now our measurements of the winds at storm top level, way out over the ocean, are not very good. Several NASA proposals will fix this with new wind-measuring satellites, plus use of the research versions of Global Hawk aircraft to fly our to measure these storm top winds. Thus we still have a lot to learn about tropical storms.
Putting all this together, we know that with global warming, the oceans will continue heating, and that this alone may possibly make tropical storms more intense, and more likely to occur. We also can expect that the disturbances that create the tropical storms will likely continue, and possibly about as before. What we do not know is whether the disturbances will become more intense; hence, possibly increasing the number of triggering events that can initiate tropical storms, or possibly grow weaker. And finally, we also do not know if the high level winds are likely to increase (fewer tropical storms), or to decrease (more storms). Hence, for now, the jury remains out.
1. Utilize double-blind line-ups, in which the people conducting the line-up do not know who the suspect is, either;
2. Tell victims the suspect may not be in the line-up at all;
3. Have judges tell juries how error-prone visual recollection can be;
4. Have experts tell juries; and
5. Conduct a hearing without the jury to decide if the testimony is reliable enough to be admitted as evidence.
The U.S. Supreme Court will look at this issue when it decides Perry v. New Hampshire, No. 10-8974.
[Dominique Strauss-Kahn will apparently not be prosecuted for a related reason. When the only witness for the prosecution has made inconsistent statements about whether she planned to profit from the New York hotel incident, her account is not believable beyond a reasonable doubt.]
“Often Wrong But Rarely in Doubt: Eyewitness ID’s Will Get a Fresh Look,” The New York Times, August 23, 2011, p. A14. http://www.nytimes.com/2011/08/23/us/23
U.S. Immigration and Customs Enforcement (ICE) has a program called "Operation in Our Sites," that seizes domain names connected with Internet piracy.
Seizure of a domain name before trial is called prior restraint. That, like banning publication of a book before trial, is generally not allowed in First Amendment cases absent the establishment at a preliminary hearing of a substantial probability of success in proving illegal conduct at trial.
USDC SDNY ruling:
https://www.eff.org/files/RojadirectaOrd
EFF Press Release:
https://www.eff.org/deeplinks/2011/08/co
EFF Outline of Puerto 80 v. US:
https://www.eff.org/cases/puerto-80-v-us
Sample Q & A’s from the survey:
- “Video Memory: 63.0% agreed that “human memory works like a video camera, accurately recording the events we see and hear so that we can review and inspect them later.” All 16 experts disagreed.”
- “Unexpected Events: 77.5% agreed that “people generally notice when something unexpected enters their field of view, even when they're paying attention to something else.” 13 experts disagreed and 3 agreed.”
Should judges allow lawyers to instruct jurors that memory is fallible? Should felony trials require corroboration where the inculpatory evidence comes from only one eyewitness? Probably so, but this is a slippery slope. We already have instructions about credibility, bias, and motivation to commit perjury. And legislation that proposed to decrease the odds of obtaining criminal convictions would have little chance of passage.
[In a curious example of the variability of memory, eyewitnesses diverged recently in their respective recollections of the physical appearance of a murderer. Some accounts of the perp described one identical twin wearing a white beanie, while others remembered seeing the black beanie worn by his brother. Both siblings were present at the shooting but only one of them fired a gun killing the victim. The Long View tweeted: "No #DNA and indistinguishable #Eyewitness ID’s of identical Nembhard twins at #Murder: Both twins should walk free. http://nyti.ms/rnI6uX"]
Facts:
Trisha Conlon marries John P. Cushing, Jr., in 1994 and has two kids. They divorce in 2004.
The following year, 2005, John P. re-marries his first wife, Kristine Cushing, who had shot their two daughters to death in a bout of temporary insanity in 1991.
In 2007, Trisha finds out her kids are being exposed to Kristine, and threatens to change the parenting plan. John says not to worry: Kristine moved out and will be seeking a divorce.
The divorce between John and Kristine is never finalized. In 2008, unbeknownst to Trisha, Kristine moves back in with John. For three years, from 2008-2011, the sons hide the fact that Kristine is living with John, even giving Kristine a phony name.
In 2011,Trisha sees a painting by Kristine on John’s wall dated 2010, and knows Kristine is back. Trisha immediately files a motion to modify the parenting plan.
Issue:
Was John’s cohabitation -- or resumed cohabitation -- with Kristine a change in circumstances?
Ruling:
Commissioner Leonid Ponomarchuk of King County (Seattle, Washington) Superior Court denies Trisha’s motion to modify the parenting plan, finding no change in circumstances for the reason that John and Kristine had been living together for three years at the time of the July 2011 hearing.
Comment:
The decision should be reversed on appeal for four reasons:
1. It seems to me that a woman who killed children in her home possesses a greater than random chance of doing so again, regardless of the fact that prior insanity was deemed “temporary” and a California court determined that Kristine posed no threat to herself or others. Courts have an inviolate parens patriae responsibility for protecting children that transcends the “change in circumstances” rule.
2. There definitely was a change in circumstances. The cohabitation of John and Kristine commenced after the court established John and Trisha’s parenting agreement in 2004, when they divorced. On that date, Kristine was not known to be living with John.
3. Even if John was already surreptitiously cohabiting with Kristine in 2004, Trisha cannot fairly be deemed to have consented to a fact that she was unaware of.
4. Between 2004 and 2011 Kristina moved out of John’s home and then moved back in. The departure was a change in circumstances, and so was the return.
[The Conlon custody decision appears in the New York Times of July 31, 2011.
To me, the most serious example of institutions eclipsing individual rights in America is what Ralph Nader calls the “mega-corporate supremacy” of Justices Roberts, Scalia, Thomas, Alito and Kennedy on the Supreme Court. Nearly every decision that involves big business has corporate interests on the winning side.
A New York Times op-ed column by 2011 Yale Law School graduate Alexandra Harwin recommends states provide a more uniform formula for calculating permanent alimony. Harwin praises the Maryland Court of Appeals' 2010 decision in Boemio.[1] She writes that alimony after divorce is so subjective that parties are deterred from divorcing, judges lack adequate guidance, and lawyer fees are excessive.
I share the goals of economy and predictability in setting alimony. But I would add some caveats:
1. A Best Practice in Awarding Alimony Weighs Mandatory, Non-Exclusive Statutory Factors.
An issue in Boemio was whether the trial court had improperly consulted guidelines of the American Academy of Matrimonial Lawyers (“AAML”), in calculating permanent alimony.
The Court of Appeals affirmed the trial court in ruling that Maryland’s statutory factors for calculating alimony are non-exclusive.[2] Moreover, the trial judge had stated explicitly that AAML guidelines were neither authoritative nor subject to the Maryland Code. Maryland’s high court further noted that there is nothing wrong with secondary sources -- including AAML -- so long as they are reasonable and do not supplant or contradict state law.
A judicial roadmap for permanent alimony cannot be made any clearer, in my opinion, than what was set forth in this appellate opinion: Boemio reaffirms the need to consider statutory factors without prioritization. It validates trial judges’ subjective discretion in weighing those factors, considering secondary sources, and determining the length of an award. It surveys non-legislative support formulas throughout the United States (including the one developed by the Bar Association of Fairfax County, Virginia) to demonstrate the flexibility available to Maryland judges, though at the same time it does not recommend one over another. Finally, the Court of Appeals restates the general rule that fact-based decisions will not be reversed unless they are arbitrary or plainly wrong.
2. Triage for the Uncontested.
The fashioning of an alimony award will always be an uncertain science. More than equitable distribution or child support, the process calls for detailed factual analysis. But lack of predictability in advance is a good thing: It is a worthwhile price for fairness and equity in weighing complex, non-economic factors in the dissolution of marriage such illness and abuse – factors that can never be adequately addressed in a formula.
Rather than focusing on the scope of a judge’s latitude in fashioning a support decree -- as Harwin does in her opinion piece -- I believe we should promote public awareness of pre-marital agreements and mediation while at the same time simplifying the uncontested divorce process.
3. Marriage Preparedness.
Stepping back from the debate about end-of-marriage support, I have a more general comment:
States need to do more to educate people up front about what it means to be married, balance a budget, and raise a child. Marriage is more than legislation and a definition. If people were better informed before their weddings about the responsibilities and consequences of their relationship, I expect we would see fewer costly subjective alimony determinations when marriages end.
The issue in both these big-money, high profile cases is whether contracts between spouses can be re-opened to recover stolen money, for the benefit of – it is argued -- the rightful owners with a superior interest. According to the New York Times on June 24, 2011, the question has divided the domestic relations bar of New York State.
I believe the Walsh case was correctly decided based upon the critical fact that the former spouse, Janet Schaberg, was unaware of any crime and was an was an innocent recipient of her share of the marital estate. After 25 years of marriage, she divided marital assets with her husband, Stephen Walsh, who was only later charged with ripping off investors to the tune of over $550 million dollars.
The Court of Appeals explained that Schaberg is like the recipient of funds in an arm’s length business transaction. This might be, for example, an architect of someone’s home, who is paid by the homeowner with money stolen from someone else (without the architect’s knowledge). I would add that in real estate transactions, lawyers use the phrase “bona fide purchaser for value” to describe someone who cannot lose their purchase because of later-discovered defects of title that were neither known nor discoverable from a title report at the time of settlement.
Michael D. Stutman, a Manhattan divorce lawyer who co-authored a friend-of-the-court brief supporting the Government in Walsh, argued that New York’s “strong public policy of ensuring finality in divorce proceedings” is debatable, because custody and child support rulings are modifiable if circumstances change. The analogy is misplaced, in my opinion. The portion of a settlement agreement in which married couples divide assets is final. It is absolutely not modifiable based on subsequent market forces, investor acumen, or a change of heart. In contrast, the part of a marital agreement that handles custody and child support is always subject to the continuing jurisdiction of the court.
When parties divorce and sign an agreement, they need to get on with their lives. They apply their best judgment in determining a fair split of assets and debts, and they sign off on it. They are not accepting – for the rest of their lives – the risk of discovery that their former spouse was less than honest about the way a marital asset was acquired.
The majority opinion of Justice Breyer correctly, I believe, vacates the South Carolina Supreme Court and remands for further proceedings. But in my view, the majority does not go far enough in establishing the right to counsel in a support collections proceeding where incarceration may be the outcome.
Ability to pay is the critical factor in a child support contempt proceeding. The payor in this case, Turner, was never told that was the issue. The judge who put him away never mentioned it, and failed to mark on the commitment form whether Turner did or did not have the ability to pay the arrears.
The majority opinion tacitly concedes that if an alleged contemnor lacked the ability to pay support, jail would be a violation of the Due Process Clause, since they would be deprived of “liberty” without “due process of law”. The majority explains that if the trial court had announced the legal standard and marked its form, it could have locked Turner up without the assistance of a lawyer. Deciding otherwise, the Court continues, would be unfair to the support recipient who is often without counsel, and would generate asymmetry, delay and unfairness.
Oddly, the majority considers that the foregoing factors outweigh the principal that an indigent’s loss of physical liberty is a fundamental Constitutional right.
The dissent presents the buzz-words “original understanding of the Constitution” and “blessing of history” in support of an all-to-familiar rationale. If a right is not express in the Constitution and did not exist when our country was founded, it does not exist today. The dissent goes on to discuss the Sixth Amendment (which only applies to criminal proceedings) before addressing the suffering of women and children and the misbehavior of “deadbeat dads;” as if those subjects have anything to do with the right to a lawyer in this case.
A peculiar aspect of the dissent is Footnote 3, which says that “the judge could not hold Turner in contempt without concluding that he could not pay”. Actually, I believe it could. According to Footnote 6, Turner had eight jobs in three years, and dealt drugs in 2008 and 2009. The trial judge might plausibly have locked up Turner for being a deadbeat parent, which has nothing to do with his ability to pay support arrears on the date of the hearing. Since the South Carolina judge did not mark “had” or “did not have … the ability to make support payments”, the Supreme Court could not possibly know which of those mutually exclusive conditions applied.
This presumptive viewpoint of four Justices – declaring that it makes no factual difference whether Taylor had the ability to purge himself of contempt or not, or whether a form designed to elucidate the answer to that question was properly completed or even utilized at all – is the most troubling part of the whole opinion.
My personal and professional experience indicates that the normative influence of someone’s social milieu directly affects their willingness to divorce and the reaction of their close friends. If few cohorts are divorcing, a separation will be more cautious and friends’ reactions will appear more guarded. Curiously, if a couple divorces it is 75% more likely that their close friends will do so as well. Woody Allen directed a movie demonstrating this; marital dissonance spread rapidly from one couple to another.
It is reported in the article today that marriages are most likely to dissolve in their first decade. There are many reasons I can think of for this to be true.
Cohabitation is a learned behavior involving active listening, self-sacrifice and doing for others. The internalized portion of a relationship with someone else is differentiating individual desires from “must-haves,” and tolerating delayed gratification of some things while permanently writing off others.
This personal training takes place in the context of the other person doing their own sorting and balancing, sharing some values and activities while trading with you for their right to separately maintain others. Introducing a child into the equation requires that all these concessions, collaborations and painstakingly honed tolerance levels be re-calculated.
There is no doubt in my mind: Making a marriage work is harder than walking away. If a livable pattern of interaction gets established, I would expect to see it within the first ten years of marriage. Not always, but most of the time.
For many years, my opinion has been that counseling should be a prerequisite to issuance of a marriage license, in the same way that we require prospective drivers study a manual before earning the privilege of operating a motor vehicle. Why can’t couples learn a few basic skills before they wed, the same way we require familiarity with rules of the road before issuing a driver’s license?
Pre-marital study topics might include how to create a budget, balance a checkbook, set personal boundaries and priorities, communicate feelings rather than criticism, resolve conflict through negotiation, notice a partner’s emotions underlying their statements and conduct; and share and pay attention. I believe a little preventive maintenance on the front end would go a long way to reducing the trauma, therapy visits, litigation and expense for families when relationships fall apart. It might even preserve some marriages!
Simkin and Blank are a couple of wealthy New York City lawyers. When they divorced, Simkin gave Blank $2.7M cash from their $5.4M account in his name with Madoff Securities, and he kept the account. Blank waived spousal support and transferred their Scarsdale house to Simkin in exchange for her receiving their Manhattan apartment.
The only mention of equal division of anything is in the equalizing of retirement accounts. For the rest of the assets, the agreement just said who-got-what.
After divorce, Simkin learned the Madoff investment was not worth $2.7M; it was worth zero. Simkins sued Blank, claiming they made a mutual mistake about the value of the investment.
Dissenters P.J. Gonzalez and J. Moskowitz in the NY Supreme Court Appellate Division ruling get it exactly right; a deal is a deal:
If these parties had intended to divide the Madoff account 50-50, they would have said so. They do not mention Madoff’s name or that specific account anywhere in the agreement. [Seems to me this was a drafting error.]
Now Mr. Simkin, how can you allege that you and Blank made a mutual mistake about something that does not even exist by name within the four corners of your agreement?
You would not have shared the gain if the account had shot up in value, would you?
You are not offering to pay spousal support because the two of you have a lower combined net worth than anticipated, are you?
Get over it!
Psychologists and neuroscientists are rightfully fascinated. As an attorney, I foresee the need for a whole new body of law addressing individual freedom, contracts, dispute resolution, and criminal conduct.
Growing up will be a special experience, with a sister omnipresent and omniscient, but not necessarily a convivial alter ego. Krista and Tatiana should benefit from sharing the same grade-school education, collaborating on their respective SAT answers, and helping each other with undergraduate admissions essays. If each is admitted to a different college, they can select the best and then lobby to pay room, board and tuition for just one student. Employment will have to be the same hours at the same job, but there may be extra pay-for-performance based upon two sets of eyes and two pairs of hands. Dating and romantic cohabitation will bring new meaning to the concept of “blended family.” Marriage will not be polygamy because each husband can only be wedded to - and intimate with – a single one of them. They may need to take turns having children.
Imagining what it could be like for these siblings to do everything together is not difficult. Best friends and lovers do it to a lesser degree. There are many non-anatomical examples of symbiotic connectivity in the world around us:
In real estate, the duplex with common areas;
In computers, the dual core processor;
In geography, countries like the U.S. and Canada with a common border; and
In physics, the quantum superposition.
In this latest “exigent circumstances” exception to the need for a search warrant under the Fourth Amendment, Louisville police were conducting a controlled drug “buy” when their suspect ran into one of two apartments. Selecting the unit from which they smelled burnt cannabis emanating, police knocked loudly and declared their presence. Hearing movement inside that they concluded was persons destroying narcotics, they broke in without a warrant. In an 8-to-1 ruling, Justice Alito wrote that this was permissible conduct. Justice Ginsburg filed a dissent.
If I understand correctly, it makes no difference how police single out your residence provided there is no actual or threatened Fourth Amendment violation associated with their selection, like thermally imaging your grow-lights. Police can arrive because your window was ajar, you did not pick up your newspaper, or they just happen to be in the neighborhood. Once cops smell anything illegal (or a dog does), all they need to lawfully force entry consists of one-two-three: Knocking, announcing, and hearing any noise that reasonably suggests you are destroying evidence.
Okay, let’s imagine you are smoking a joint and the police knock. What can you do to save your front door from destruction 15 or 20 seconds after law enforcement bangs on it? You would need to “stand on [your] constitutional rights,” in the words of Justice Alito. It appears that if your living unit remains absolutely silent, law enforcement must obtain a search warrant. Alternatively, if you ask the officers face-to-face or through the closed door if they have a warrant, and they don’t, you can tell them to go away. The one thing you better not do is flush the toilet!
DSK may have had good reason not to wait until he was elected president of France. But if he did, the reason escapes me. You see, before the criminal charges this week, the press had reported DSK to be the frontrunner among candidates to unseat French president Nicolas Sarkozy. This would have allowed DSK to serve geographically alongside Prime Minister Sylvio Berlusconi of Italy. Together, they had the portent of being a revolting “passion” statement. In all fairness to Mr. Berlusconi, however, I should point out that he is not alleged to have paid a minor for sex until _after_ becoming leader of his country.
If it is shown that the president of Italy was able to defer gratification, why the big hurry, DSK? Were you on such an ego trip running the IMF that an opportunity to rough up a low-wage immigrant worker _before_ becoming president of France wasn’t worth postponing for a New York minute?
Speaking of worth, I read in the press that the rack rate for DSK’s living room - bedroom - conference room combo on the penultimate floor of this five-star French-company-owned hotel was $3,000.00 a night. (Although DSK is married, it seems he may have left his wife in Washington during last weekend’s junket. I see parallel structure: When we were told former Governor Spitzer came to D.C. for sex, he apparently left his wife in New York. In retrospect these two “super-stars” might have just traded wives and homes.)
Last Saturday afternoon, May 14, 2011, the day it was reported a naked DSK chased a 33-year old hotel employee across his suite, physically assaulted her, attempted sex, and sought fellatio; a round trip first class from New York to Paris was 10,887 Euros, or $7,700.00 one-way. I read that DSK was in a first class seat when Port Authority officers removed him from his plane at JFK.
Think about this: In just 48 hours, not counting meals, drinks, tax, tips and transfers, the Sofitel suite and the Air France ticket added up to nearly $11,000.00. Good grief! How much does this purported titan of international finance spend when he’s with his wife? Maybe 62-year-old DSK really was full of himself -- allegedly walking out of his hotel bathroom into his hotel bedroom without any clothes and pouncing upon a 32-year-old chambermaid.
Defense counsel announced today that DSK has an iron-clad alibi: He was having lunch with his daughter. Give me a break! Don’t you know about hotel video cams and electronic room keys? You can’t fake the time you entered or left your room.
So many facts reported in the press, if proven, would make me a poor candidate for jury duty at this trial:
A newspaper reports DSK forgot his cell phone. This harkens back to the “perfect” Chicago murder committed by Leopold and Loeb in 1924, except for one of them leaving behind a pair of eyeglasses. What kind of an idiot leaves his cell phone at the scene of a crime? Imagine if it were not password-protected, and the first thing a police detective saw on the calendar was Air France to Paris, 6:45 PM?
Someone who traveled to JFK with DSK is quoted as saying Strauss-Kahn appeared to be in a big hurry. Why the hurry, DSK?
DSK may have had prior incidents of sexual misconduct. One allegedly involved another IMF employee, for which DSK apologized. Another is a woman who claims to have not filed charges in the past out of respect for DSK’s position, but may be doing so now.
I know, I know. Just because someone did something in the past does not mean they’ve done it again. But all this sure seems like a smoking gun.
[17 May 2011: The Wall Street Journal reports that DSK only paid $800.00 for the $3,000.00 suite, and that the money came from him and not his employer.]
[19 May 2011: DSK resigns from his position as head of the International Monetary Fund.]
Parallel structure allows these “simulcast” plays to resonate in a way that exceeds the sum of their parts. Virginia Wolfe utilizes the social visit of a new couple to peel back the pretense of a long-ago failed marital relationship; while the Zoo performs radical couples “therapy” through a husband’s second-act dialogue with a vagrant. There is such powerful acting in both productions that their messages have not grown dull over time.
Anyone interested in how complacency towards a relationship can breed contempt, anomie or destructive behavior should see these plays.
In the Roth and Myers decisions earlier this month, Virginia Court of Appeals Judge James W. Haley, Jr., parses property settlement agreements dividing retirements.
The Roth agreement gave the wife forty percent of her husband’s retirement benefits “through his employment with the Fairfax County Board of Education” (VSRS). Further on, the parties specifically waived all other claims to each other’s pensions.
After the parties signed the agreement and divorced, Virginia set up a new, separate entity called “Virginia Retirement System” (VRS) covering the same employment of the husband and the same years of work. Thus, the husband now had two pensions from his career as a Fairfax County schoolteacher, where before he only had one.
The Court of Appeals denied the wife any share of the new retirement on the ground that it did not exist when the agreement was signed, and the parties expressly waived any interest in other property.
Two elements of the Roth ruling are perplexing:(1) The court states that contradictory testimony of the wife undermines her entitlement; but it is unclear why parol evidence would be considered at all - after the contract was deemed unambiguous.
(2) In closing, the court construes the agreement against the wife because her counsel drafted it. In doing so, the court seems to be applying a rule of construction for resolving ambiguity - again, despite this being a case where no ambiguity is found.
Wife’s counsel, David L. Duff, is a highly regarded family law practitioner. He could hardly have anticipated that Virginia would create a second pension covering the identical job and time period as a pension that the opposing party already had. In fact, settlement agreements commonly tie up loose ends by granting each party ownership of property not specifically mentioned.
The lesson in Roth may be to include a sentence in property settlement agreements awarding a share of any future property interest that the other spouse accrues as a direct result of employment during the marriage. Such a clause could capture even more than the improbable, supplemental retirement that materialized here. It could snare the employee stock option plan (ESOP) and bonus that a wily employer holds in abeyance pending their employee’s divorce.
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As in Roth, the Myers’ agreement has a paragraph dividing husband’s retirement. But the appellate outcome is radically different, since the Myers wife gets a share of the plan that is mentioned and a share of the plan that is not. How does she fare so much better than the wife in Roth? She is pursuing an interest in a plan that exists when the agreement is signed!
The heading of the Myers’ agreement paragraph about retirement says “Retirement Plans” (emphasis added). The body of that paragraph talks about the “retirement plan at Merck.” Here, as in the precedent set by Hale v. Hale, 42 Va. App 27, 590 S.E.2nd 66 (2003), the Court of Appeals finds that the intent of the parties encompasses all existing plans with the named employer – whether specifically identified or not.
Addressing attorney fees, J. Haley denies the wife’s claim on the ground that she did not initiate the proceeding alleging breach of the agreement; the husband launched the proceeding to determine his own obligation.
The Myers’ agreement provided that if judicial “proceedings are instituted for … nonperformance … the defaulting party shall be responsible for” attorney fees. It seems obvious to me from this sentence that the right of recovery belongs to the prevailing party. Surely, this husband and wife couldn’t care less about which of them filed the first pleading about interpreting their contract. What they cared about is the whole purpose of fee-shifting clauses – that the loser cover the other party’s costs.
Applying the court’s strained interpretation of the Myers’ attorney fee provision can generate an untoward result: You could have a husband in brazen defiance of all material elements of a property settlement agreement who goes to court first to “determine his obligations,” thereby avoiding liability for the attorney fees of his wife who did nothing wrong. That is so clearly not what these parties intended.
[1] Roth v. Roth, Record No. 1332-10-4, March 1, 2011; and Myers v. Myers, Record No. 1509-10-3, March 8, 2011. Both decisions are unpublished.
We all know the back story of our federal government pursuing Julian Assange, Wikileaks and Bradely (sic) Manning. I find it interesting to see the criminal investigation unfolding with the subpoena of Twitter records in real time.
(The caption of an opinion by the U.S. District Court in Alexandria, Virginia issued March 11, 2011, is reprinted below.)
Magistrate Judge Theresa Carroll Buchanan made quick work of constitutional law objections to the U.S. subpoena of non-content registration information stored with Twitter. I agree with the court that data provided in “click-through” agreements with ISP’s and social networking sites has no First Amendment protection.
The closer issue for me is the content of tweets themselves. The judge appears to have assumed out of hand that published tweets are thrown to the winds, and are publicly disclosed statements by their very nature. But in my experience, that is not necessarily so. Twitter accounts can be limited to authorized subscribers only. For example, the only people I permitted to read my tweets might be my lawyer, minister and spouse.
We have to assume in reading Judge Buchanan’s opinion that all the Twitter accounts under review were open to public subscription without any required authorization by the account holder and were in fact followed by non-privileged members of the public, in order for the “Twitter Order” reaffirming subpoenas to make sense.
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In Re: §2703(d) Order; 10GJ3793
Miscellaneous No. 1:11dm00003
UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINIA, ALEXANDRIA DIVISION
2011 U.S. Dist. LEXIS 25322
March 11, 2011, Decided
March 11, 2011, Filed
When I read this morning of politicians pushing back against airlines abandoning regional airports, it seemed like a lesson in behavioral economics: We are psychologically affected more by losses than by gains; and more by fear of failure than the satisfaction of success.
In our economy, an avoidant reaction often wastes money. I view this as our preference for narrowly addressing symptoms rather than solutions or - better yet - underlying causes. Tax breaks, subsidies and other techniques to prevent closure of the 250 out of 450 U.S. commercial airports that account for only three (3) percent of passenger demand are one example. The extra money we spend on the TSA full-screening of everyone instead of implementing a robust secure-traveler program is another. There are many more.
Why Mom Had to Personally Serve Dad Visiting Virginia
if Dad Never Had Sex in the Commonwealth
Imagine a man who lived in France got you pregnant in France and then visited Virginia. Don’t you think personal service on him in Virginia would be your ticket to Virginia child support? It seems obvious to me, but last month the Court of Appeals had to teach a mother that lesson.
Here is what happened in a nutshell: A Virginia woman visited France and met an American living there. They slept together. She came home to Virginia and gave birth to their child. Dad visited Virginia once to see the baby, before returning to France.
Mom sued dad for child support in Virginia, and apparently delivered the suit papers to him in France. Do you see the problem with this? The child was “Made in France”. The parents never had sex in Virginia. Sexual intercourse only establishes personal jurisdiction in Virginia over a non-resident of Virginia if the sex act occurs on Virginia soil! Virginia has no jurisdiction over fathers who reside and conceive their child in some other place.
This mother made three huge mistakes. (1) She didn’t serve dad when he visited their child. (2) She misinterpreted the plain-as-day, sex-in-Virginia prerequisite for Virginia jurisdiction based on conception. (3) She did not simply go after the dad for child support in France.
Option three is probably still open to the mother. Why she did not go to a French lawyer from the outset, I have no idea. And why people litigate and appeal such tenuous legal positions, I may never understand.
[1] Bergaust v. Flaherty, VA App, Record No. 0650-10-4, January 11, 2011.
[2] The Virginia long arm statute addressing child support requires that a person “conceived or fathered a child in this Commonwealth”. § 8.01-328.1(A)(8), VA Code. It is the geographic mandate of the phrase that the mother ignored.
Can an Oscar threaten your marriage? It does if you are a woman, according to a new study by the University of Toronto's Rotman School of Management and Carnegie Mellon University. (The research looked at men, but concluded they were not more likely to divorce after winning an Oscar.)
What increases divorce risk among Oscar-winning actresses?
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1. Their husbands may feel threatened or emasculated. That super-charged female recognition can shift the marital balance of power so much that the relationship no longer meets the expectations of both spouses.
2. Stated differently, an Oscar-winning wife may develop a greater sense of entitlement in all aspects of her life, including her marriage, (more so than an Oscar-winning man). Her man may be unwilling or unable to conform to the new order. Alternatively, the woman may develop a feeling that she is unfulfilled, unappreciated or trapped -- independent of her marital partner’s conduct.
3. The general public’s insatiable curiosity, fascination, and paparazzi-style pursuit of actresses molds the actresses’ lives in ways they cannot always control. Our social adulation of entertainment heroines diminishes their privacy and increases their stress. Think limousines, private jets and gated communities -- twenty-four seven. Starlets can be prisoners of their own fame; and an Oscar makes it worse.
4. The earnings of an Oscar-wife may increase dramatically relative to her husband, with transformative effect: The wife could develop a greater desire to be a decision-participant if not the outright decision-maker. She may become more opinionated, assertive and independent-minded than she was before.
5. Hollywood is known for over-sized egos. But a woman’s Oscar can have an exponential, self-aggrandizing disruptive impact on the pre-existing role models and division of labor in the relationship. (Since top male actors already have massive egos, an Oscar probably doesn’t change them as much.)
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Major events like birth, death, job loss and bankruptcy will strain any marriage; no surprise there. Nor is it surprising that an actress winning an Oscar is at increased risk of divorce.
What I am really curious to know is if Oscar wives are more often divorce plaintiffs than their non-Oscar peers. I bet you they are.
Commentary entitled “The Future of Malpractice Reform” by Tara F. Bishop, MD; Paul E. Klotman, MD; Bruce C. Vladeck, PhD; and Mark A. Callahan, MD appeared in The American Journal of Medicine, August 2010, Vol. 123, No. 8, pp. 673-74.
A invited guest on this blog, Jerome H. Jaffee of The Jaffee Law Firm, P.C. (McLean, Virginia) responds below. Mr. Jaffee is a personal injury lawyer.
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In response to Drs. Bishop, Klotman, Vladeck, and Callahan, I agree with their conclusion that the current malpractice system needs reform, but take issue to their assertion that many malpractice suits are frivolous. In fact, most reviews of malpractice claims filed show almost no claims having been dismissed by Courts as frivolous, and I know of almost no cases sanctions have been brought against patients or their attorneys for commencing frivolous litigation (an available sanction to any court.) The general feeling that these suits are frivolous is due more to the malpractice carriers’ propaganda campaign over the last 20 years, than to any factual basis.
Secondly, as a solution, the good doctors recommend specialized health courts. We have tried this approach in Virginia, with malpractice panels hearing cases. The panels consisted of a lawyer, a doctor and a judge. However, whenever the panel ruled against the doctor, the carriers appealed, destroying the effectiveness of the panel in reducing litigation. The panels are now worthless exercises in futility.
The final item of interest to me is the concept of a no-fault system, as is used in some European countries and in birth related injuries here in Virginia. Again, ask any lawyer who handles these cases and they will tell you the litigation is as complex, expensive and lengthy as ever, because the funds for the system comes out of the insurance carrier and doctors' pockets. Thus, every case is fought to the bitter end, even when a catastrophic injury has occurred. The same is true for Vaccine-related injuries, which are subject to a special Federal court.
In summary, the system needs reform, but not by restricting injured patients' rights. Rather, the approach of more doctor honesty and error disclosure, also espoused by the authors, would do more to foster trust and reduce suits than any other method.
The horrific shooting of Congresswoman Gabrielle Giffords and nineteen others (six of whom died) resurrects our national soul searching about civil political discourse, weapons availability and the mentally ill. This returns to the spotlight one of the unfortunate logical disconnects woven into the fabric of our country. These are intensely debated in times of crisis, but change very slowly over time.
We have difficulty reconciling so many issues. These are a few examples:
1. We insist upon individual freedom to purchase assault weapons and over-sized ammunition clips, but express shock at their being used for their only purpose among members of the public – killing large numbers of innocent people.
2. We are highly vigilant about border security and the exclusion of undocumented immigrants. At the same time, in the rest of the World we appear to be increasing the hatred for America through drone attacks on civilians, and the propping-up and taking-down of other governments. From the perspective of the third world, it is easy to see us as the leading force in killing others and re-ordering politics in accordance with our world view.
3. We are the only Western country to impose capital punishment, and we have one of the highest levels of religious affiliation in the West. Yet, while all manner of adult pornography and graphic violence is available on the Internet, we shield our state-sanctioned executions from public view.
In this time of national mourning and introspection, we should resist over-rationalizing one mentally disturbed individual’s choice of target, and instead ponder the larger context of violence and disordered priorities that I believe characterizes America in general.
Two articles[1] in today’s New York Times (9 January 2011), examine the predicament of law school graduates who cannot earn enough to reduce their student loan balances.
1. Tuition debts that cannot be discharged in bankruptcy (except in rare, extreme circumstances) are those that the U.S. Government has guaranteed it will repay banks if the borrower defaults.
2. These Federally-insured student loans represent a trade-off: More money is available to borrowers, the interest rates are lower, and repayment terms are more flexible precisely because the loans generally cannot be wiped out in Bankruptcy Court. Loan money is available because the risk of loss to private lenders is so low.
3. If students could walk away from these obligations, very few unsecured student loans would be available. Many students would be financially unable to attend law school. Applicants from poorer families would be the biggest losers.
4. Borrowing for law school in the hope of landing a high-paying job represents a calculated risk. It like setting up a business or speculating in real estate; there is no promise or guarantee of a payoff.
5. I believe in a free market in which individuals make their own calculations about where to work or whether to choose graduate school. It is unavoidable that law school may turn out to be a poor investment choice in retrospect for people who borrow three years of tuition for a low-ranking law school, go too far into debt, or graduate at the bottom of their class. Our Government cannot prevent those outcomes, nor should it try to.
6. The Times articles suggest that some law schools manipulate statistics to paint a falsely positive graduate employment picture for their applicants. There should be regulations to assure that law schools provide full and fair disclosure.
7. Furthermore, I believe Congress should reconsider the conditions upon which Federally-insured student loans may be deferred or discharged, including accommodation for the new lawyer who cannot despite best efforts earn enough to reduce their tuition debt. This calls for fine-tuning. Making these loans dischargeable unconditionally would do more harm than good.
The highest court in Massachusetts has ruled that a DNA profile may substitute for a defendant’s name to prevent the statute of limitations from running on the crime of rape. Commonwealth v. Jerry Dixon, SJC 10668, December 9, 2010.
If you rape someone in Massachusetts and leave your DNA behind, you may be prosecuted forever -- regardless of how many years it takes to match your genetic profile with your identity and effectuate your arrest.
Jerry Dixon left DNA at the scene of rapes in 1991. Someone else was convicted of the crimes and served 12 years in prison. Later scientific advances in profiling demonstrated that the convict was innocent, so he was released and a grand jury “indicted” the unnamed owner of the DNA, shortly before the 15-year statute of limitations would have expired.
Dixon was in prison on another crime in 2008. His DNA was routinely collected and determined to match that of the rapist 17 years earlier.
Dixon complained on appeal that he did not have notice of his indictment before the limitations period expired. The Supreme Judicial Court of Massachusetts ruled Dixon was not entitled to notice. And in my view this is unquestionably a proper ruling. Perpetrators of heinous crimes know who they are. They do not need notice that their DNA has been indicted just because they failed to leave their name at a crime scene.
The New York Times on 4 December 2010 described a loan company that bankrolls division of property litigation on a contingent fee basis, for the cash-poor divorcing party in cases where the marital estate is $2-15M. The lower limit of the eligibility range is to make sure the litigation is driven by asset division, and not some other hot-button issue like kids, self-respect or revenge.
In an open economy you can finance just about anything if it is legal. But the vulnerable spouse in a medium-to-high-asset divorce case raises special concerns. It is precisely because of these concerns that lawyers cannot fund cases for clients in contested family law matters, the way they can in product liability or personal injury suits.
Here are pro’s and con’s involved in borrowing money for divorce.
Advantages | Risks |
1. Level the playing field for the spouse without access to cash. | 1. The spouse borrowing to pay for a court case may be unnecessarily signing away part of the marital estate that they would have received anyway, even without the financing.
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2. If the litigation does not work out, there is always the possibility the loan may be dischargeable in bankruptcy. | 2. These litigants (stay-at-home moms, and others) are vulnerable to overreaching. Often, they are less sophisticated in financial matters. |
3. Use of the third-party lender preserves legal counsel’s independent professional judgment. |
3. If their attorney receives part of the loan at the outset of litigation, the lawyer may fight less hard to obtain fees from the other party through a settlement or award. |
The overriding concern in divorce financing needs to be a just and fair outcome for the more needy spouse, usually the wife. As long as an injection of funds for the lawyer, private investigators and experts does not tilt the litigation outcome in favor of the early lump sum settlement preferred by the lender; rather than, for example, higher spousal support over time that may be of greater value to the recipient, I am all in favor.
What’s good for maintaining an interpersonal partnership, whether married or living together, is not necessarily the ideal for either partner individually at any given time. And besides, people change over time. So the differences between you and the person you committed to ten years ago may be a lot wider today than when you started out.
The article in today’s paper brings to mind what I consider the seven factors that allow romantic love to thrive. Each factor is like a rubber band that is stretchable by each partner to some limit they define for themselves. As they say, "Everybody has their limits". What keeps romances alive is the ability of each partner to clearly identify what is negotiable (stretchable) and what is non-negotiable in every aspect of being a couple.
I will list what I consider to be core elements in making a relationship work:
1. Shared identity or experience, meaning shared appreciation of beliefs and life-activities. These may include things such as culture of origin, religion, child-rearing, and hobbies or sports.
2. Satisfactory division of labor. For example, it is not necessarily unfair for one mate to do all the cooking, cleaning, and child care if both parties are happy with the arrangement. What’s critical is not how you divide the responsibilities, so much as it is getting them all acceptably divided. This is the commitment on the part of both to put in the time, effort and money to make the two-person enterprise work. In effect, it is a small business model. Everything that needs to get done is handled by one of the partners, or contracted out for a fee (like day care).
3. Inter-personal metabolism; meaning a mutual consent about who takes the lead or an agreement to have either party initiate anything. This may involve adaptation to the emotional volatility or quietude of the other person (think Doc Martin); or adjustment to go-getter or couch-potato life-style differences.
4. Openness to dialogue, re-examination and change. (This is probably the most important factor).
5. Sociability or the lack thereof. Introvert vs. extrovert.
6. Value system (morality).
7. Together-time vs. autonomy. This is the balance between being with the other person and having your own activities (alone-time).
Most couples’ activities and break-ups involve these elements. Individual rubber bands can snap or become unfastened. The ensemble of bands can also exert more pull more than one of the individuals can tolerate.
The September 15, 2010 issue of the Journal of the American Medical Association contains “Clinician’s Corner” articles about placing patient treatment in their personal context, being biased in favor of diagnosing diseases you saw most recently, and becoming predisposed to accept gifts from the medical industry. The lessons from these studies have broad application to our conduct, beyond just the members of the medical profession.
1. Contextualized Patient Care
Doctors assess and manage patients based on their medical knowledge base. The more they learn about the care recipient’s individual situation, the more it ends up being a part of the treatment plan. Schwartz, A Weiner S, et al. An Educational Intervention for Contextualizing Patient Care and Medical Students’ Abilities to Probe for Contextual Issue in Simulated Patients. JAMA 2010; 304(11): 1191-1197.
Outside the medical domain, we would call this information management, pattern recognition and objective reflective reasoning. Essentially, the more we learn about a situation, the better equipped we are to deal with it. Knowledge matters; but as the next section demonstrates, it needs to be the right knowledge.
2. Availability Bias
Recent treatment experience with a particular diagnosis increased the likelihood that 1st and 2nd year medical residents would rely on it again, even if it was inapplicable. These fast, intuitive decisional errors based on pattern recognition, which are perhaps more frequently made by experts, are called “non-analytical reasoning”. The interns who had not encountered a similar medical case recently did not display the same tendency to wrongly apply diagnoses to new cases. They were utilizing what is called “reflective reasoning”. Mamede S, van Gog T, et al. Effect of Availability Bias and Reflective Reasoning on Diagnostic Accuracy Among Internal Medicine Residents. Id.,1198-1203.
In my opinion, this distinction between quick and wrong decision-making, and choices that are more probative and thoughtful, appears throughout all walks of life:
Problem | Non-analytical Solutions | Reflective Solutions | |
A. Marital difficulties such as loss of romantic interest or joint problem-solving ability, cruelty, spousal abuse. | Adultery, separation, divorce. | Improved communication, stress management, financial planning, boundary preservation, conflict resolution tools, mutual respect. | |
B. Economic crisis, like unemployment or the inability to pay all bills on time. | Replace elected representative, oppose any new taxes (even on the rich), demonstrate against Government spending cuts (e.g. students in the U.K. and Italy; and French workers opposing an increase in the retirement age. | Raise taxes (increase income). Cut spending. | |
C. Fear of terrorists. | Jersey walls and full-body airport scans.
| Qualitative threat-assessment heuristics such as those utilized to evaluate passengers on EL AL, the Israeli airline. Express-lane passes for pre-qualified categories of people, like the attorney-ID’s at the Fairfax County (Virginia) Judicial Center. | |
3. Gift Rationalization
A number of behavioral economics studies have recently shown that people approaching a decision are unconsciously influenced by a subtly suggested mind-set. This “post hoc ergo propter hoc” fallacy applies to doctors: Resident physicians “primed” with a perception that they were underpaid, significantly indebted, and generous in their career sacrifices were more likely to accept gifts from industry.
The faulty logic underlying this behavior applies equally well to voters susceptible to simplistic conditioning:
> No new taxes;
> Less government without cutting the military budget or entitlements;
> Others are responsible for everything wrong; and
> Sarah Palin’s predicted 2012 campaign theme, American exceptionalism.
This logical trap might ensnare any of us. A possible example is Mr. Murray Hardison Wright, who in April of this year filed a motion to reduce the monthly alimony he had been paying his ex since 1992. Wright v. Wright, CL 09-4587-01, Circuit Court for the City of Richmond, Virginia, Opinion and Order of September 1, 2010, p.7. Mr. Wright argued that “Mrs. Wright should work as a nurse, despite the fact that she last worked in 1978, has had three heart attacks, and wears a heart monitor. Needless to say, the judge did not require she return to employment.
An article in Le Monde today, (“Immobilier : riches Américains à Paris et riches Français à New York”), highlights a growth industry: the super-rich acquiring second homes in Paris and New York City. There is apparently no rational limit to what people will pay for a prime location with a spectacular view. In the art world, we learned a few days ago that the perceived value of a photograph can be extraordinary, as well. Richard Avedon’s print of the model, Dovima, in a Dior evening gown with elephants on either side sold at Christie’s for $7.4M. These über-purchasers and sellers of real estate and other collectibles operate in a market that is pure supply and demand, unrelated to the cost of production or comparable value.
It reminds me of a blown-out photograph. When a photographic scene needs to be protected from blazing over-exposure, the three on-camera adjustment choices are ISO, aperture and shutter speed. The off-camera option, of course, is to reduce the amount of light falling on the subject.
Three “third rail” items in our national budget are social security, Medicare, and defense. These are sacrosanct; a legislator who reduces one of them usually gets voted out of office. Curtailing spending on one of these “sacred cows” to bring a budget back into balance is like adjusting one of the camera settings I mentioned to make a picture darker and more visible. The other way to fix the problem is to raise taxes. In photography, the analogy might be doing something outside the camera to control the amount of light falling on the scene.
Let’s get back to the super-rich. They are like the extreme edge of an “economic” photograph’s tonal range, where all you see is pure white. In this national time of debate about perpetuating Bush-era tax cuts for the wealthy, we see the rich wanting to continue minimizing their own taxes. (Actually, they always want that, don’t they?) It is an influential group because they control a substantial percentage of our national wealth, and contribute such a disproportionally large amount to political candidates compared to the rest of us. But the Battery Park co-op and Avedon picture buyers have so much cash available to spend that what they pay for things often bears no relation to what the purchases are worth. Couldn’t they pay more Federal taxes?
I read recently that in Finland, traffic fines vary according to the defendant’s income. This sounds to me like “need” and “ability to pay”, the sliding scale we utilize in setting spousal and child support, except that here I am talking about the needy party being the U.S. Government. We should figure out a way to reduce taxes for people who are barely making it; and raise taxes on people who have so many millions or earn so much that they may hardly notice.
In Van Dam v. Gay, Record No. 091659, Wife’s counsel failed to properly safeguard his client’s entitlement to Federal survivor benefits. Husband died more than three years after the faulty agreement had been incorporated into the final decree. When Wife approached the U.S. Government about benefits, they pronounced the language of the agreement insufficient and refused to pay.
Wife sued former counsel. He defended by asserting that the limitations period commenced when both parties signed; so that by the time Husband died the period had expired.
Wife countered that the limitations period could not have begun when the agreement was signed because Husband was still living. If he had survived Wife, she would receive no retirement from him at all. In other words, her interest in his retirement had not vested yet; it was contingent on her surviving him. The Supreme Court disagreed with Wife and sided with former counsel, concluding that it was too late for Wife to complain; her three-years in which to allege attorney malpractice had already run.
The Court reached its decision on the basis that retirement rights were rendered non-contingent by Virginia’s equitable distribution statutes. Those statutes provide for dividing retirement at time of divorce even if the money being apportioned is only accessible in the future if ever at all. Since the contingent or conditional character of the retirement expectancy was eliminated by statute, the Court explains, damages to a wronged spouse begin accruing the moment a defective agreement is signed.
I believe this rationale is faulty for several reasons:
1. The Virginia Legislature may have intended that retirements be treated as non-contingent only to allow for their division upon divorce and not for other purposes such as the one inferred here -- allowing a presumption of immediate damage in legal malpractice.
2. A general rule of statutory construction is that laws mean exactly what they say, and do not carry other meanings that might have been intended but were not specifically stated.
3. In Van Dam dictum, the Supreme Court reaffirms the rule that “[N]o cause of action [exists] until some injury or damage was sustained as a result of the malpractice”. Inexplicably the Court fails to apply that rule here. In the facts of this case, Wife suffered no material harm until Husband passed away. She had no damages – and no cause of action – before he died.
4. The provision of the parties’ agreement that entitled Wife to Husband’s survivor benefit was a contingent property interest. If Wife had passed away first, she would have received nothing from Husband’s retirement regardless of her counsel’s drafting error. Contrary to the view expressed by this Court, a potential share in a retirement is not significantly different from a bequest that a testator might delete before death. Both are inherently, ineluctably conditional.
The Van Dam opinion turns defective property settlement agreements into ticking time bombs. It allows bad drafting to blow up in the face of an innocent spouse, potentially – as in this case – long after a right of recourse has expired.
This problem begs for the legislative remedy called equitable tolling. This kind of statute, which exists in many other jurisdictions, prevents a limitations period from starting to run until you know or should have known about the misfortune that befell you. Its absence in Virginia will only benefit incompetent professionals and their insurance carriers at the expense of hapless divorcées.
www.courts.state.va.us/opinions/opnscvwp/1
I disagree that a legacy preference (a college admissions criterion favoring children of alumni) necessarily constitutes elitism, as argued in the 30 September 2010 New York Times op-ed piece entitled “Elite Colleges, or Colleges for the Elite”.
High school graduates may attend the same college as their parents for a variety of benign reasons, none of which is considered by the article. For one thing, high schoolers know a lot more about where mom or dad went to college than they do about comparable institutions. Their parents’ college may be geographically close to home. Their parents’ friends may have talked up the place, as well. Thus, I predict children of alumni have a statistically higher-than-random chance of showing up in the applicant pool where mom or dad went to college. My prediction is derived from the fact that I went to the same college as my dad, and so did my daughter – for some of the reasons I mention.
Many non-discriminatory factors influence the admissions office side of the equation, as well. More often than not, children’s academic ability and interests are similar to those of their parents. In other words, if a parent attended a particular school, there is a good chance their son or daughter will qualify to go there as well. Across all admissions criteria -- including grades, SAT scores, initiative, leadership ability, creativity, congeniality, and writing skill – I contend that parents and children will, on average, show similar competence and eligibility for admission.
Thus, if mom or dad graduated from a particular institution – whether it be Harvard or Penn State – their offspring will probably be more likely to apply than at other schools similarly situated, and will probably have what it takes to get in.
Before we condemn legacy preferences, we should conduct an impact study. I would like to compare grades and SAT scores of legacy admissions to the average for other entering freshmen. If legacy kids score the same or higher than their average classmate, then the college probably did the right thing admitting them – regardless of whether or not a parent was an alum. If legacy kids scored significantly worse than their peers, only then would it be appropriate to consider the possibility of a legacy preference. In that circumstance, the college would only have itself to blame; since data indicates alumni are no more likely to be generous towards their alma mater just because their parent went there.
In any event, whatever legacy-to-class-average statistics happen to reveal, college admissions involve far more influential criteria than where someone’s parent graduated.
[This is a guest commentary by Richard Byrd, a retired Northern Virginia attorney residing in New England.]
I read your blog entry regarding the Grim Sleeper case. Such a use of high technology for surveying many innocent people to perhaps catch one criminal was explored deeply in the 5-4 decision in Kyllo v. United States, 533 U.S. 27 (2001). [Majority opinion] [Dissent].
The controversy was about the use of a thermal-imaging device to scan residences for the heat being emitted by the house itself. Many people growing marijuana use high intensity heat lamps to grow the plants faster. A detective used the heat-seeker to drive down residential streets looking for "hot-spots." He found that Danny Kyllo had a very hot garage. The detective got a warrant on this basis and a search revealed over 100 marijuana plants being cultivated in the garage. Kyllo moved to suppress the evidence, but the district court denied his motion. Kyllo entered a conditional guilty plea and appealed his case to the 9th Circuit Court and ultimately to the Supreme Court.
The district court found the imager was non-intrusive, since only a crude visual image of heat from the outside of the house was revealed. The imaging did not reveal any activity in the house, and so no intimate details had of the residents were shown by the scan. The 9th Circuit Court affirmed the district court that Kyllo's rights had not been denied because of an unconstitutional search.
The U.S. Supreme Court found that to “explore the details of the home that would previously have been unknowable without physical intrusion, the surveillance is a 'search' and was unreasonable without a warrant.”
In the majority opinion, Justice Scalia said:
- “The present case involves officers on a public street engaged in more than naked-eye surveillance of a home. We have previously reserved judgment as to how much technological enhancement of ordinary perception from such a vantage point, if any, is too much. While we upheld enhanced aerial photography of an industrial complex in Dow Chemical, we noted that we found 'it important that this is not an area immediately adjacent to a private home, where privacy expectations are most heightened.' [Dow Chemical Co. v. United States, 476 U. S. 227, 234-235, 239] …
- “We have said that the Fourth Amendment draws 'a firm line at the entrance to the house' … That line, we think, must be not only firm but also bright—which requires clear specification of those methods of surveillance that require a warrant. While it is certainly possible to conclude from the videotape of the thermal imaging that occurred in this case that no 'significant' compromise of the home-owner's privacy has occurred, we must take the long view, from the original meaning of the Fourth Amendment forward …
- “Where, as here, the Government uses a device that is not in general public use, to explore details of the home that would previously have been unknowable without physical intrusion, the surveillance is a 'search' and is presumptively unreasonable without a warrant.
- “Since we hold the Thermovision imaging to have been an unlawful search, it will remain for the district court to determine whether, without the evidence it provided, the search warrant issued in this case was supported by probable cause — and if not, whether there is any other basis for supporting admission of the evidence that the search pursuant to the warrant produced.”
There certainly seems to me to be a similarity between cruising innocent people for heat signals and cruising innocent people for DNA matches. The technical distinction between the cases may be in the comparison between the detective tricking the father into giving up some DNA compared to just simply taking the heat signatures. In any case, modern technology is presenting difficult challenges for the eternal debate between privacy and law enforcement.
[Editor's Note: For a law review article on the adaptation of Fourth Amendment law to new technology, see Orin S. Kerr, "An Equilibrium-Adjustment Theory of the Fourth Amendment" 125 Harv. L. Rev. 476 (2011).]
The recent cold case capture in California of the so-called Grim Sleeper serial killer involved a new scientific technique called familial or kinship DNA searching. The analysis examines a person’s partial genetic match to crime scene DNA as a pointer leading investigators to the individual’s parents, siblings and children. When the follow-up generates a perfect match – as reported in this case – it is known as a “cold hit”.
Sorting through the DNA of innocent people to reach suspects raises significant privacy issues. In the case of the Grim Sleeper, the partial match came from the son of the accused who just happened to already be in the California felon database for a recent weapons conviction. When the detectives explored the son’s family tree, their attention fell upon his father, someone who was not catalogued. Needing the dad’s DNA for comparison, investigators apparently tricked him into discarding a cup after taking a drink, thus leaving behind a sample of his genetic code. The prior existing crime scene evidence from years of murdered prostitutes was so sketchy and contradictory that absent the perfect DNA match, it is questionable whether this alleged perpetrator would have ever been apprehended.
The law is clear that when you walk away from a cigarette butt or anything you ate or drank with, you give up any ownership of your saliva on the property. You have no valid privacy objection to law enforcement lifting DNA from something you abandoned.
But what if law enforcement had a bullet-proof model for taking data collection one step further, by conditioning receipt of a government perk – like a passport or a fishing license – upon your voluntarily placing your DNA in a criminal database?
It may sound outrageous at first, but I can think of two models of public-private contract that led to a voluntary and Constitutionally acceptable trade for minimal personally identifying data.
My first example is the driver’s license. It is a privilege and not a right. Licensing in many states is conditional upon the driver’s promise to consent to a blood or breath test when there exists a reasonable suspicion of drunk driving. A state cannot force anyone to participate in a breathalyzer or blood test; since that would be an invasion of privacy. But if a DWI suspect refuses to allow measurement of their blood alcohol upon probable cause, they lose their right to drive.
Another example of exchanging some privacy for a government benefit is the pre- cleared passenger express lane at airports. (An Express Lane at the Airport? CBS News, June 16, 2004. Iris Scans, Red Orbit, November 5, 2005.) This was a pilot program in recent years where for a fee you submitted to a criminal background check and provide biometric information. In exchange, you received an ID and the privilege of breezing more quickly through security before boarding flights. I don’t know if the program still exists, but it was a model for what I am talking about.
I foresee objections from civil libertarians and privacy advocates that my proposal sounds like a national identity card. My reply is that this would be purely voluntary. It would exist on the premise that most people are willing to give up a small amount of privacy in exchange for something of value. I wish my idea could become part of a national dialogue, especially for legitimizing and streamlining the lives of legal immigrants and permanent residents. People whose immediate family committed murder need not apply.
I read the three-part Washington Post report of Dana Priest and William M. Arkin following a two-year investigation of waste in top-secret government contracting. Greater cost-effectiveness unquestionably needs to be a priority with an intelligence budget of $75 billion. And the investigative reporting offered far more detail about entities, funding, projects and staffing than I had before. But I do not expect that I will ever know from personal knowledge if the money devoted to keeping America safe was well spent.
Obviously, a major obstacle for this area of inquiry is the fact that intelligence programs have to be concealed; they are compromised by disclosure. The public must trust elected officials to evaluate top-secret operations; and to a large we rely on legislators to properly balance defense and national security costs against the rest of the federal budget. Members of the Select Committees on Intelligence are supposed to monitor our success in the war against terror and appropriate funds accordingly.
National defense from my perspective is a multitude of delicate balances, some of which appear in the chart below. The location of an equilibrium position on an issue depends upon the individual decision-maker’s political persuasion, employer, and their ability to persuade others; as well as the threat assessment, measurable results, and available money.
Competing Factors in Issues of National Security
Data sharing. | Protecting your budget and political turf. Example: Special Access Programs (“SAPs”). |
Profit motive. | The larger public interest. Performance metrics. |
Saving one American life. | Trimming $___ million dollars from the budget. |
Bigger government. | More private contractors. |
Strategic initiatives. | Tactical advantages. Example: Rendering armored personnel carriers impervious to Improvised Electronic Devices (“IEDs”). |
White-listing areas or people to free up resources. Example: Relaxing security inside a military base. | Investing in more hardware, software, personnel, overlapping security and coordination – at a higher cost. |
Redundancy | The “soccer ball” syndrome in which everyone runs to the ball. |
Members of Congress voting for Department of Defense (“DOD”) and national security budgets. | Getting voted out of office for being “weak” on defense. |
Clearly, command, control and productivity should be the exclusive responsibility of the Office of the Director of National Intelligence (“ODNI”). If, as the journalists claim, the “colossus” is unmanageable due to “Washington ways,” then the ways need to change: We need to confer the requisite power through legislation or executive order. ODNI has to be able to exercise budgetary oversight. Meaningful oversight requires unfettered access to contracts, data, reports and position descriptions – all in the context of enforcing an accountability workflow.
Our national security industry is not necessarily too big or too complex if it is appropriately scaled, focused and monitored to accomplish its purpose.
Instead of stressing about part of the national budget that will always be esoteric by definition, I believe Americans should take a step back from the details and consider some larger issues: Is the war in Afghanistan winnable? Does killing insurgents with drones make us safer? Why do we have so many more prisoners and private firearms than other advanced Western countries? Did we over-react to 911 by invading Iraq in a Korematsu-style collective paranoia?
I don’t know. But when we debate our nation’s top-secret budget, these other questions should also be asked.
Dexter (like Big Love) is a cable television serial depicting the grey area between law and moral responsibility. The fictional protagonist in “Dexter” is a Miami crime scene analyst who moonlights as a one-man vigilante. Acting on more compelling evidence than would be available to a lynch mob, he is a serial executioner of murderers. Dexter is persuaded his victims deserve to die because they are guilty beyond a reasonable doubt. This superficial rationale probably resonates with advocates of capital punishment who also tend to oppose welfare, unemployment compensation and drug rehabilitation. Viewer adulation is jury nullification run wild; a glorified exoneration of someone who believes he is enforcing a “moral” code by punishing perceived wrongdoers, protecting the innocent, and saving the public money. If the means of killing appears cruel and unusual, the victims have legal defenses or are altogether innocent, those are dispensable details. No one expects justice to be perfect.
Dexter is exaggerated for entertainment, but his form of retribution is a motif for societal trends: Procedural details are “dumbed down”, truncated, ignored and overlooked before conclusions are reached and acted upon. Rationales and outcomes are treated the same as if they were properly founded. We encounter this in real life.
One area in which the process frequently occurs is in our utilization of information technology and social networking. New connectivity tools including blogs, RSS feeds, Twitter and Facebook allow us to skim the surface of reality. In doing so we risk compromising our rapport with others, sacrificing depth of knowledge and -- often times -- the truth. The need to adopt in greater moderation is the well-developed theme of a new book, Hamlet’s Blackberry, by William Powers.
The other unsettling expression of this encapsulating trend is in national politics. As we know, investigative journalism and in-depth reporting are dwindling. Fewer and fewer of us gather our understanding of the world from rational discourse or from newspapers. Consequently, too many Americans despise the U.S. Congress as an institution, and are susceptible to truisms like “no more taxes”. Congressmen, as a result, are so desperately constituent and re-election oriented that – except for the areas of health care and financial reform -- they have no motivation to act in the national long-term interest. The failure to enact comprehensive immigration reform or a meaningful energy bill are examples of the lack of Congressional leadership.
David S. Broder, a respected Washington Post political op-ed columnist, addressed University of Chicago alumni on July 19, 2010. He declared pointedly that democracy is threatened when voters consistently hold their legislature in low esteem.
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