Archive for November, 2013

Appeals court blocks Obamacare mandate on contraceptive

Wednesday, November 13th, 2013

A requirement of President Barack Obama’s health-care law that group insurance plans cover contraceptives was ordered blocked by a federal appeals court, the first such ban on enforcement of the mandate.

The 2-1 decision by a US Court of Appeals panel in Chicago increases the probability the US Supreme Court may seek to resolve conflicting lower-court rulings, though no appeals court has made a definitive decision to throw out the law.

The three-judge panel on Friday reversed lower-court judges in Illinois and Indiana, telling them to stay the contraception coverage requirement contained in the 2010 Patient Protection and Affordable Care Act while the challenges proceed. The cases were filed separately by two Catholic families and the businesses they run.

“These cases—two among many currently pending in courts around the country—raise important questions about whether business owners and their closely held corporations may assert a religious objection to the contraception mandate and whether forcing them to provide this coverage substantially burdens their religious-exercise rights,” US Circuit Judge Diane Sykes wrote in the majority opinion.

Last week an appeals panel in Washington ruled the contraceptives mandate may violate religious freedom, as did an appeals court in Denver previously.

Federal appeals courts in Philadelphia and Cincinnati have upheld the law.

The Obama administration has asked the Supreme Court to review the Denver decision. Losing plaintiffs in the Philadelphia and Cincinnati appeals also petitioned the high court for review.

While the Chicago appellate panel didn’t render a final decision on whether the requirement violates US constitutional guarantees of religious freedom or the federal Religious Freedom Restoration Act, it ruled that compelling the companies to comply with the requirement “substantially burdens their religious exercise rights.”

Joining Sykes, who was appointed to the court by Republican President George W. Bush in 2004, was US Circuit Judge Joel Flaum, a 1983 appointee of Republican Ronald Reagan.

Ilana Diamond Rovner, the dissenting judge, was named to the court by President George H.W. Bush in 1992.

“The court’s holding in these cases is as remarkable for its reasoning as for its result,” Rovner wrote. “In the name of free exercise of religion, the court has relieved two secular corporations from a statutory obligation to provide health insurance to their employees that includes coverage of contraceptive care for the companies’ female employees.”

Employees’ choice to use contraceptives may be inconsistent with the owners’ religious beliefs, Rovner said, “but it is not the owners’ choice.” She concluded the requirement doesn’t burden their religious freedom.

Bloomberg News

KY. RETIREMENT SYSTEMS WAIVED SOVEREIGN IMMUNITY BY PARTICIPATING IN BANKRUPTCY ACTION

Saturday, November 9th, 2013

KRS LOSES BID TO HAVE CASE DISMISSED
Kentucky Retirement Systems has been denied a motion to dismiss the Seven Counties Services bankruptcy case. Seven Counties is the regional mental health services agency that filed for federal bankruptcy protection last spring to walk away from its pension obligations to its employees.
In dueling lawsuits arising from the case, KRS sought to have the case dismissed. Federal Bankruptcy Court Joan Lloyd issued an order yesterday dismissing the motion, allowing the bankruptcy case to proceed. Lloyd ruled that some issues raised by the motion need to be examined more closely at trial, such as a determination of whether KERS is defined by federal law as a governmental plan and, therefore, whether Seven Counties is eligible to participate in it. Another KRS contention was that it enjoys sovereign immunity. Judge Lloyd ruled that KRS’ active participation in the bankruptcy proceedings served to waive its right to sovereign immunity.

Christopher B. Tobe, CFA, CAIA

Stable Value Consultants

11801 E. Arbor Dr.

Louisville, KY 40223

(502)648-1303

OHIO LAWSUIT TO FIGHT LIQUOR FINANCED JOBS PLAN

Thursday, November 7th, 2013

JobsOhio, Governor John Kasich’s initiative to spur private economic development by selling bonds backed by state liquor sales profit, has twice eluded a legal challenge by a nonprofit citizens’ group that claims the program is unconstitutional.

Today, ProgressOhio.org, which says it has 350,000 members, went before the justices of the state’s highest court in Columbus seeking to revive the case. Two lower Ohio courts have ruled the group hasn’t shown it suffered any injury that would entitle it to redress under Kasich’s plan to use public money to spur private development.

“The JobsOhio arrangement violates numerous key structural limitations imposed by the Ohio Constitution on state government,” including one barring the state from making equity investments in private corporations, ProgressOhio said in an Ohio Supreme Court filing.

If the state supreme court agrees with the lower appeals court that the group didn’t have public interest or taxpayer standing to oppose the measure, “no Ohioan has the capacity” to question the JobsOhio initiative, ProgressOhio said.

“We’re here today because the appellate court wrongly held Ohioans always need a personal stake to enforce the Ohio Constitution,” Maurice Thompson, a lawyer for ProgressOhio, told the justices.

Who Challenges

“Who is positioned to bring this sort of challenge?” Chief Justice Maureen O’Connor asked.

“That is the question we have also been asking all along,” Thompson said. “Because it appears as though nobody has standing if the plaintiffs here don’t have standing.”

The product of legislation signed by Kasich, a Republican, in 2011, JobsOhio is a private entity that earlier this year sold $1.5 billion in bonds to raise money for job creation and to finance its 25-year lease of the state’s wholesale liquor distribution system. Liquor sale profits — a record $251 million last year — will be used to pay the bond debt.

In its first full year, the agency worked with 277 companies to create almost 21,000 jobs while retaining over 54,000 more, according to its 2012 annual report. It ended fiscal 2013 with more than $181 million available for job-creation loan and grant programs, according to an audited financial statement.

Actually Suffered

The state maintains that the program is constitutional. Stephen Carney, an attorney for JobsOhio, told the justices today that the state constitution only allows those who have actually suffered to bring a grievance into court.

“This case is not about the merits of JobsOhio as an organization, it’s about constitutional limits to hear disputes between actually affected parties,” he said. “There is no investment of public money here. They say taxpayer standing, but there is no taxpayer money being spent.”

A Kasich plan to expand Medicaid under President Barack Obama’s health-care overhaul was challenged in a state Supreme Court lawsuit brought by six lawmakers and anti-abortion organizations in Cleveland and Cincinnati.

Those plaintiffs claim that initiative was unlawful because Kasich obtained approval for expansion of the joint federal-state insurance program for the indigent from a state panel that considers agency spending requests after the governor was unable to persuade legislators to go along with the plan.

The JobsOhio case is ProgressOhio.org Inc. v. JobsOhio, 12-1272, Supreme Court of Ohio (Columbus).

To contact the reporters on this story: Andrew Harris in federal court in Chicago at aharris16@bloomberg.net; Denise Trowbridge in the Supreme Court of Ohio in Columbus at ;

To contact the editor responsible for this story: Michael Hytha at mhytha@bloomberg.n

KY. SUPREME COURT TO HEAR ORAL ARGUMENTS NOV. 13 -14

Thursday, November 7th, 2013

FRANKFORT, Ky. — The Supreme Court of Kentucky will convene Wednesday, Nov. 13, in Frankfort and Thursday, Nov. 14, in Highland Heights to hear oral arguments in cases that originated in Campbell, Fayette, Green, Jefferson and Powell counties. Proceedings are open to the public. Arguments will take place on the second floor of the state Capitol at 700 Capitol Ave. in Frankfort and in Ballroom 107 A of the Vortruba Student Union at Northern Kentucky University in Highland Heights. The student union is located on Kenton Drive.

The justices will travel to Highland Heights to hear oral arguments in a continuing effort to increase public understanding and awareness of the court’s function and of the legal matters that come before it.

The public may also observe oral arguments on Nov. 13 via the Supreme Court live stream on the Kentucky Court of Justice website and on Nov. 14 via a live stream through Northern Kentucky University Salmon P. Chase College of Law. Oral arguments are available online as they occur in real time and are not available as archives.

The Supreme Court is the state court of last resort and the final interpreter of Kentucky law. Seven justices (bios) sit on the Supreme Court and all seven justices rule on appeals that come before the court. The justices are elected from seven appellate districts and serve eight-year terms. A chief justice, chosen for a four-year term by fellow justices, is the administrative head of the state’s court system and is responsible for its operation. The Supreme Court may order a ruling or opinion to be published, which means that the ruling becomes the case law governing all similar cases in the future in Kentucky.

WEDNESDAY, NOV. 13, 2013
FRANKFORT

9 AM EST
2012-SC-721-DGE
COFFEY, ET AL. V. WETHINGTON

View Case Briefs (PDF – 71.06KB)

Summary: “Child Custody. Standing. KRS 403.822. Issues involve whether relatives, having procured an emergency custody order upon the death of the mother and “primary residential custodian” of teenaged twins, have standing under KRS 403.822(1)(b) to be considered within the KRS 403.800(13) definition of “person acting as a parent” in custody litigation against the biological father who had joint custody but had not seen the children for over a year.”

Discretionary Review granted 3-13-2013
Green Circuit Court, Judge Janet P. Coleman

Attorney for Appellants: James Lee Avritt, Jr.
Attorney for Appellee: Elmer J. George

Note: Justice Keller is recused.

10 AM EST
2012-SC-462-DG
MV TRANSPORTATION, INC. V. ALLGEIER, ETC.

View Case Briefs (PDF – 71.06KB)

Summary: “Tort Law. Punitive Damages. Respondeat Superior. Issues include whether an employer’s admission of respondeat superior liability requires dismissal of other theories of secondary liability, like negligent hiring; whether a claim for negligent hiring can be based on evidence of an employee-tortfeasor’s past alcoholism, addiction, or mental health treatment when there is no evidence the accident was causally related to those factors; and whether an employer may be found to have ratified or authorized an employee’s conduct for purposes of KRS 411.184(3) based on post-incident investigation policies.”

Discretionary Review granted 5-15-2013
Jefferson Circuit Court, Judge Mary M. Shaw

Attorneys for Appellant: Gene Frederick Zipperle, Jr., Griffin Terry Sumner, and Jason Patrick Renzelmann
Attorneys for Appellee: Bryan Todd Thompson, Scott Coleman Cox, Millicent Ann Tanner, Brian Scott Brownfield, and Chad Owens Propst

11 AM EST
2012-SC-651-DG
CHARLES T. CREECH, INC. V. BROWN, ET AL.

2012-SC-693-DG
BROWN, ET AL. V. CHARLES T. CREECH, INC.

View Case Briefs (PDF – 71.06KB)

Summary: “Employment Relations. Noncompetition Agreement. Issues include whether the “blue pencil” rule was applied appropriately to add a geographical limitation to the noncompetition clause and whether continuing employment was sufficient consideration for the noncompetition agreement.”

Discretionary Review granted 4-17-2013
Fayette Circuit Court, Judge Kimberly N. Bunnell

Attorneys for Charles T. Creech, Inc.: Don Arlie Pisacano, Carroll Morris, Redford III, and Elizabeth C. Woodford
Attorneys for Brown: Jon Allen Woodall, Brendan Reynolds Yates, and Ryan Colleen Daugherty
Attorneys for Standlee Hay Co., Inc.: David R. Irvin and James M. Mooney

THURSDAY, NOV. 14, 2013
NORTHERN KENTUCKY UNIVERSITY

9 AM EST
2012-SC-621-DG
VIRGIN MOBILE U.S.A, L.P. V. COMMONWEALTH OF KENTUCKY ON BEHALF OF COMMERCIAL MOBILE RADIO SERVICE TELECOMMUNICATIONS BOARD

2012-SC-626-DG
COMMONWEALTH OF KENTUCKY ON BEHALF OF COMMERCIAL MOBILE RADIO SERVICE TELECOMMUNICATIONS BOARD V. VIRGIN MOBILE U.S.A., L.P.

View Case Briefs (PDF – 71.06KB)

Summary: “Tax. Statutory Construction. Attorney’s Fees. KRS 65.7635. Issues include the proper application of Kentucky’s tax on pre-paid wireless telecommunication services and whether an award of attorney’s fees was improperly reversed.”

Discretionary Review granted 5-15-2013
Jefferson Circuit Court, Judge James M. Shake

Attorneys for Virgin Mobile: Douglas Frank Brent, Timothy Joseph Eifler, Mark Terrell Hurst, and Charles W. Schwartz
Attorneys for Commonwealth of Ky.: Jonathan Goldberg, Jan Michele West, and Jennifer Kaelin Luhrs

10 AM EST
2013-SC-196-DGE
MORGAN V. GETTER, ET AL.

View Case Briefs (PDF – 71.06KB)

Summary: “Family Law. Child Custody. Guardian Ad Litem. Issue is whether a guardian ad litem may serve as both an advocate for a child and as a witness or advisor to the court in child custody cases.”

Discretionary Review granted 6-12-2013
Campbell Circuit Court, Judge Richard A. Woeste

Attorney for Appellant: Cynthia Ann Millary
Attorneys for Appellees: Joshua Bryan Crabtree and Richard Alex Konkoly-Thege

11 AM EST
2012-SC-402-DG
COMMONWEALTH OF KENTUCKY V. JOHNSON

View Case Briefs (PDF – 71.06KB)

Summary: “Criminal Law. KRS 15.200. Attorney General. Issues include whether the Office of the Attorney General has the jurisdiction to investigate drug related offenses within the Commonwealth.”

Discretionary Review granted 2-13-2013
Powell Circuit Court, Judge Frank A. Fletcher

Attorney for Appellant: Jack Conway and James Coleman Shackelford
Attorney for Appellee: Emily Holt Rhorer

Kentucky’s Business Climate Ranks 9th in Nation by Site Selection Magazine

Wednesday, November 6th, 2013

Press Release Date: Wednesday, November 06, 2013
Contact Information: Kerri Richardson
Terry Sebastian
502-564-2611

National economic development publication highlights Kentucky’s competitiveness, project activity and tax structure in annual survey

FRANKFORT, Ky. – Site Selection magazine has recognized Kentucky’s business climate among the top 10 in the nation in its 2013 Top State Business Climate ranking. Jumping two spots from 2012, the Commonwealth is ranked ninth overall in this year’s annual survey, which includes input from corporate site selectors and a mix of other leading indicators.

“This is further proof that Kentucky’s economy is heading in the right direction,” said Gov. Steve Beshear. “The ranking reflects our dedication to economic growth by offering companies an array of assets and business advantages, including a strong and educated workforce, robust infrastructure, progressive incentive programs and a pro-business environment.”

The ranking is based 50 percent on a survey of corporate site selectors and 50 percent on a set of criteria that include the states’ competitiveness rank as published in Site Selection’s May issue; qualified projects so far in 2013 and on a per capita basis; and state tax burdens on new and mature firms as compiled by the Tax Foundation and KPMG Location Matters analysis.

Kentucky scored particularly well in project activity categories, including first place for number of qualified projects on a per capita basis in 2012; second place for number of qualified projects on a per capita basis for the first eight months of 2013; and an overall 10th place finish for project activity in 2012, taking population out of consideration.

“We are pleased to include Kentucky on our list of Top 10 state business climates with a ninth-place finish for 2013, up from 11th place the previous year,” says Mark Arend, editor in chief of Site Selection. “States that rank this prominently are taking the steps necessary to attract capital investment, and our readers will pay close attention to these efforts in the year ahead. My colleagues and I salute Gov. Beshear and his economic development team for their commitment to improving Kentucky’s business climate.”

Site Selection magazine, published by Conway Date Inc., delivers expansion planning information to nearly 49,000 subscribers.

The article and rankings can be viewed in their entirety at www.siteselection.com.

Ky. Retirement Systems Announces Appointment of Interim Chief Investment Officer

Wednesday, November 6th, 2013

Press Release Date: Tuesday, November 05, 2013
Revision Date: Tuesday, November 05, 2013
Contact Information: Kentucky Retirement Systems
Questions call: 1-800-928-4646
Email

The Kentucky Retirement Systems (KRS) is pleased to announce that Executive Director William A. Thielen has appointed David Peden, MBA, CFA, as Interim Chief Investment Officer (CIO) to replace TJ Carlson, KRS’ current CIO, who will be leaving KRS on December 31, 2013. This decision is fully supported by the KRS Investment Committee, which met to discuss the matter on November 4, and by the KRS Board of Trustees. Mr. Peden will officially take over the CIO responsibilities beginning January 1, 2014. In the meantime, he will work with Mr. Carlson, to ensure a smooth transition process before Mr. Carlson’s departure.

Mr. Peden joined KRS on March 1, 2009 as the Director of Fixed Income with the KRS Investment Division. He previously was with J.J.B. Hilliard, W.L. Lyons, LLC, Louisville, Kentucky. David received a Bachelor’s Degree in Finance with a minor in Economics from Western Kentucky University. He received his MBA from the University of Louisville. He received his designation as a Chartered Financial Analyst (CFA) in 2012. According to the Chartered Financial Analyst Institute: “to earn the CFA charter, you must have four years of qualifying investment work experience; you must become a member of CFA Institute (the global association of investment professionals that administers the CFA charter), pledging to adhere to the CFA Institute Code of Ethics and Standards of Professional Conduct on an annual basis; you must apply for membership to a local CFA member society; and you must complete the CFA program

Supreme Court of Kentucky to hear arguments Nov. 13 in Frankfort and Nov. 14 in Highland Heights

Wednesday, November 6th, 2013

Proceedings are open to the public

FRANKFORT, Ky., Nov. 6, 2013 – The Supreme Court of Kentucky will convene Wednesday, Nov. 13, in Frankfort and Thursday, Nov. 14, in Highland Heights to hear oral arguments in cases that originated in Campbell, Fayette, Green, Jefferson and Powell counties. Proceedings are open to the public. Arguments will take place on the second floor of the state Capitol at 700 Capitol Ave. in Frankfort and in Ballroom 107 A of the Vortruba Student Union at Northern Kentucky University in Highland Heights. The student union is located on Kenton Drive.

The public may also observe oral arguments on Nov. 13 via the Supreme Court live stream on the Kentucky Court of Justice website and on Nov. 14 via a live stream through Northern Kentucky University Salmon P. Chase College of Law. Oral arguments are available online as they occur in real time and are not available as archives.

The Supreme Court is the state court of last resort and the final interpreter of Kentucky law. Seven justices (bios) sit on the Supreme Court and all seven justices rule on appeals that come before the court. The justices are elected from seven appellate districts and serve eight-year terms. A chief justice, chosen for a four-year term by fellow justices, is the administrative head of the state’s court system and is responsible for its operation. The Supreme Court may order a ruling or opinion to be published, which means that the ruling becomes the case law governing all similar cases in the future in Kentucky.

WEDNESDAY, NOV. 13, 2013

FRANKFORT

9 AM EST

2012-SC-721-DGE

COFFEY, ET AL. V. WETHINGTON

View Case Briefs

Summary: “Child Custody. Standing. KRS 403.822. Issues involve whether relatives, having procured an emergency custody order upon the death of the mother and “primary residential custodian” of teenaged twins, have standing under KRS 403.822(1)(b) to be considered within the KRS 403.800(13) definition of “person acting as a parent” in custody litigation against the biological father who had joint custody but had not seen the children for over a year.”

Discretionary Review granted 3-13-2013

Green Circuit Court, Judge Janet P. Coleman

Attorney for Appellants: James Lee Avritt, Jr.

Attorney for Appellee: Elmer J. George

Note: Justice Keller is recused.

10 AM EST

2012-SC-462-DG

MV TRANSPORTATION, INC. V. ALLGEIER, ETC.

View Case Briefs

Summary: “Tort Law. Punitive Damages. Respondeat Superior. Issues include whether an employer’s admission of respondeat superior liability requires dismissal of other theories of secondary liability, like negligent hiring; whether a claim for negligent hiring can be based on evidence of an employee-tortfeasor’s past alcoholism, addiction, or mental health treatment when there is no evidence the accident was causally related to those factors; and whether an employer may be found to have ratified or authorized an employee’s conduct for purposes of KRS 411.184(3) based on post-incident investigation policies.”

Discretionary Review granted 5-15-2013

Jefferson Circuit Court, Judge Mary M. Shaw

Attorneys for Appellant: Gene Frederick Zipperle, Jr., Griffin Terry Sumner, and Jason Patrick Renzelmann

Attorneys for Appellee: Bryan Todd Thompson, Scott Coleman Cox, Millicent Ann Tanner, Brian Scott Brownfield, and Chad Owens Propst

11 AM EST

2012-SC-651-DG

CHARLES T. CREECH, INC. V. BROWN, ET AL.

2012-SC-693-DG

BROWN, ET AL. V. CHARLES T. CREECH, INC.

View Case Briefs

Summary: “Employment Relations. Noncompetition Agreement. Issues include whether the “blue pencil” rule was applied appropriately to add a geographical limitation to the noncompetition clause and whether continuing employment was sufficient consideration for the noncompetition agreement.”

Discretionary Review granted 4-17-2013

Fayette Circuit Court, Judge Kimberly N. Bunnell

Attorneys for Charles T. Creech, Inc.: Don Arlie Pisacano, Carroll Morris, Redford III, and Elizabeth C. Woodford

Attorneys for Brown: Jon Allen Woodall, Brendan Reynolds Yates, and Ryan Colleen Daugherty

Attorneys for Standlee Hay Co., Inc.: David R. Irvin and James M. Mooney

THURSDAY, NOV. 14, 2013

NORTHERN KENTUCKY UNIVERSITY

9 AM EST

2012-SC-621-DG

VIRGIN MOBILE U.S.A, L.P. V. COMMONWEALTH OF KENTUCKY ON BEHALF OF COMMERCIAL MOBILE RADIO SERVICE TELECOMMUNICATIONS BOARD

2012-SC-626-DG

COMMONWEALTH OF KENTUCKY ON BEHALF OF COMMERCIAL MOBILE RADIO SERVICE TELECOMMUNICATIONS BOARD V. VIRGIN MOBILE U.S.A., L.P.

View Case Briefs

Summary: “Tax. Statutory Construction. Attorney’s Fees. KRS 65.7635. Issues include the proper application of Kentucky’s tax on pre-paid wireless telecommunication services and whether an award of attorney’s fees was improperly reversed.”

Discretionary Review granted 5-15-2013

Jefferson Circuit Court, Judge James M. Shake

Attorneys for Virgin Mobile: Douglas Frank Brent, Timothy Joseph Eifler, Mark Terrell Hurst, and Charles W. Schwartz

Attorneys for Commonwealth of Ky.: Jonathan Goldberg, Jan Michele West, and Jennifer Kaelin Luhrs

10 AM EST

2013-SC-196-DGE

MORGAN V. GETTER, ET AL.

View Case Briefs

Summary: “Family Law. Child Custody. Guardian Ad Litem. Issue is whether a guardian ad litem may serve as both an advocate for a child and as a witness or advisor to the court in child custody cases.”

Discretionary Review granted 6-12-2013

Campbell Circuit Court, Judge Richard A. Woeste

Attorney for Appellant: Cynthia Ann Millary

Attorneys for Appellees: Joshua Bryan Crabtree and Richard Alex Konkoly-Thege

11 AM EST

2012-SC-402-DG

COMMONWEALTH OF KENTUCKY V. JOHNSON

View Case Briefs

Summary: “Criminal Law. KRS 15.200. Attorney General. Issues include whether the Office of the Attorney General has the jurisdiction to investigate drug related offenses within the Commonwealth.”

Discretionary Review granted 2-13-2013

Powell Circuit Court, Judge Frank A. Fletcher

Attorney for Appellant: Jack Conway and James Coleman Shackelford

Attorney for Appellee: Emily Holt Rhorer

U.S. SUPREME COURT REFUSES TO HEAR OKLAHOMA ABORTION LAW CASE

Tuesday, November 5th, 2013

Nov. 4, 2013
The U.S. Supreme Court dismissed what would have been its first abortion showdown since 2007, backing out of a clash over an Oklahoma law that sought to restrict drug-induced procedures.
Today’s action leaves intact an Oklahoma Supreme Court decision that struck down the 2011 law on the grounds it put an unconstitutional burden on women seeking an abortion.
The high court will have other chances to consider abortion limits in the coming months. Abortion-rights advocates today asked Justice Antonin Scalia to block enforcement of a Texas law requiring doctors who perform the procedure to have local hospital admission privileges.
STORY: The End of the Class-Action Carnival
In the Oklahoma case, the Supreme Court in June took the unusual step of saying it would review the dispute while simultaneously asking the state’s highest court to clarify what the law covered. The Oklahoma court responded on Oct. 29 by saying the measure “effectively bans all medication abortions.”
The U.S. Supreme Court then reassessed its involvement and today said, in a one-sentence order, that it wouldn’t hear the case after all.
The Oklahoma dispute tested what has become a favored approach of anti-abortion groups and lawmakers: requiring doctors to follow Food and Drug Administration instructions in dispensing abortion-inducing drugs. Abortion-rights advocates say the FDA-approved protocols no longer represent the safest approach and that doctors must be able to prescribe drugs “off label.”
STORY: Supreme Court and Campaign Finance: Four Blunt Points
‘Outright Ban’
“The Supreme Court has let stand a strong decision by the Oklahoma Supreme Court that recognized this law for what it is,” said Nancy Northup, president of the Center for Reproductive Rights, which sued to challenge the Oklahoma rules. The law was “an outright ban on a safe method of ending a pregnancy in its earliest stages and an unconstitutional attack on women’s health and rights.”
Abortion-inducing pills have transformed the procedure — and the debate — since their approval in the U.S. more than a decade ago. Rather than visiting a clinic, which can be subject to protests and tight regulations, a woman early in her pregnancy can start an abortion by taking a pill at her doctor’s office and finish the process at home. Anti-abortion forces see the drugs as vehicles for making the procedure more widely available.
FDA Approval
The central question for the Oklahoma Supreme Court was whether the state measure would bar doctors from using misoprostol, an ulcer drug, because it hadn’t been approved by the FDA for abortions.
STORY: Supreme Court on Gun Control: Waiting and Watching, for Now
Oklahoma officials urged the court to say that the statute didn’t cover misoprostol. That interpretation might have increased the chances that the U.S. Supreme Court would uphold the measure.
The Oklahoma court instead said the language of the law indicated it covered misoprostol, barring its use in abortion.
“Given the Oklahoma Supreme Court’s overly broad and erroneous interpretation of the Oklahoma law, the U.S. Supreme Court had little choice but to dismiss the case,” Oklahoma Attorney General Scott Pruitt said in a statement today. “We are disappointed with the state court’s interpretation of a law that was crafted by the legislature to protect Oklahoma women from potentially deadly protocols that have never been approved by the FDA.”

TENNESSEE DEFENSE LAWYER DEMANDS HE BE CALLED CAPT. JUSTICE IN COURT…You may agree with him!!!

Saturday, November 2nd, 2013

NASHVILLE, Tenn. — When prosecutors in Williamson County tried to ban a defense attorney from referring to them as “the government” in court, defense attorney Drew Justice had a demand of his own:

From now on, call me “Captain Justice.”

A war of words broke out in an attempted aggravated burglary case in Williamson County Circuit Court between prosecutors and Justice, who is defending one of two people in the case. In May, fed up with Justice referring to prosecutors as “the government,” Assistant District Attorney Tammy Rettig filed a motion to ban Justice from using the term in trial.

“The State has noticed in the past few years that it has become commonplace during trials for attorneys for defendants, and especially Mr. Justice, to refer to State’s attorneys as ‘the Government,’ ” she wrote in her motion. “The State believes that such a reference is used in a derogatory way and is meant to make the State’s attorney seem oppressive and to inflame the jury.”

Choosing titles

Justice fired off his own motion in response. It included conventional references to case law, the First Amendment – technical stuff that one would expect in a court filing.

And then he got creative.
If the court sided with Rettig, he demanded his client no longer be referred to as “the Defendant,” but instead be called “Mister,” “the Citizen Accused” or “that innocent man” – since all defendants are presumed innocent until a judge or jury finds them guilty. As for himself, clearly “lawyer” or “defense attorney” wouldn’t do him, well, justice.

“Rather, counsel for the Citizen Accused should be referred to primarily as the ‘Defender of the Innocent.’ … Alternatively, counsel would also accept the designation ‘Guardian of the Realm,’ ” Justice wrote.

And since prosecutors are often referred to formally as “General” in court, Justice, in an effort to be flexible, offered up a military title of his own.

“Whenever addressed by name, the name ‘Captain Justice’ will be appropriate.”

Gathering steam, he went on to say that even “the defense” wasn’t adequate and that “the Resistance” would be far more appropriate.

He then concluded his motion, returning to the formal language of court documents – sort of.

“WHEREFORE, Captain Justice, Guardian of the Realm and Leader of the Resistance, primarily asks that the Court deny the State’s motion, as lacking legal basis.”

Prosecutors ‘disappointed’

Rettig couldn’t be reached to comment on her motion or Justice’s response because she was in court Thursday. Her boss, Williamson County District Attorney Kim Helper, said her prosecutor was just trying to make sure the focus stayed on the facts of the case.

“We’re a little disappointed at the response that talked about ‘Captain Justice, Defender of the Realm,’ ” Helper said. “From my perspective, it seemed a little bit – I don’t know what the right word would be. The response did not appear to be in good faith.”

Justice didn’t want to talk about the specifics of the case but said the judge recently tossed out Rettig’s motion in court.

“He said the word ‘government’ wasn’t derogatory,” he said.

All in a day’s work for Captain Justice.

U.S. SUPREME COURT TO HEAR SEPARATION OF CHURCH AND STATE CASE

Friday, November 1st, 2013

Posted Oct 30, 2013 By Erwin Chemerinsky
The Supreme Court will return next week to one of the most controversial topics in constitutional law: the separation of church and state. The court is scheduled to hear oral arguments Nov. 6 in Town of Greece v. Galloway, which poses the issue of whether explicitly Christian prayers before town board meetings, delivered by invited Christian clergy, violate the establishment clause of the First Amendment. Underlying the case is the even larger issue of the meaning of the establishment clause.
The town of Greece is a suburb of Rochester, N.Y. Until 1999, its town board opened meetings with a moment of silence. But then Town Supervisor John Auberger initiated a policy change, and the town began inviting clergy to begin meetings each month with a prayer. From 1999 to 2008, the town invited exclusively Christian ministers, most of whom included explicitly Christian content. Some elaborated on Christian theology, discussing “the saving sacrifice of Jesus Christ on the cross” and “the plan of redemption that is fulfilled in Jesus Christ.”
In 2007, complaints were made to the town board about this and for four months clergy from other religions were invited. But then for the next 18 months, the board reverted to inviting only Christian clergy and their prayers were almost always explicitly Christian in their content.
A lawsuit was brought claiming that the town’s practice violated the establishment clause of the First Amendment. The federal district court ruled in favor of Greece, but the 2nd U.S. Circuit Court of Appeals reversed. Judge Guido Calabresi wrote for the court and emphasized the totality of the circumstances: the town inviting only Christian clergy for almost all of an 11-year period; the explicitly Christian content of the prayers; and the participatory nature of many of the prayers in a small setting, including the audience being asked to join in saying the “Our Father” prayer and bowing their heads.
This is not the first time the Supreme Court has dealt with prayer before legislative sessions. In Marsh v. Chambers (1983), the Supreme Court upheld the constitutionality of prayers before sessions of the Nebraska legislature delivered by a Presbyterian minister who was on the state’s payroll for this purpose. The court, in an opinion by Chief Justice Warren Burger, emphasized the historical practice of legislative prayers since the earliest days of the country. However, the court also noted that the prayers were “non-sectarian” and that all references to Christ had been removed from the prayers. The court said that prayers were permissible before legislative sessions so long as they did not “proselytize, advance or disparage” religion.
The town of Greece argues before the Supreme Court that Marsh v. Chambers is controlling and its prayers are permissible because they do not “proselytize, advance, or disparage” a particular religion. But the challengers argue that the town’s practices clearly endorse and advance the Christian religion: For 11 years, except for four months, the town board invited only Christian clergy and they usually delivered explicitly Christian prayers.
Surprisingly, the Obama administration filed a brief on the side of the town. The federal government is not a party to the suit and did not have to participate at all. Traditionally, Democratic administrations have favored enforcing the wall separating church and state. In fact, even the Reagan administration in its brief in Marsh v. Chambers emphasized that non-sectarian prayers are required. It therefore was unexpected to see the Obama administration filing a brief on the same side as the religious right.
Underlying the case is the question of the appropriate theory to be used in interpreting the establishment clause. For decades, the court held that the establishment clause created a wall separating church and state and enforced it to declare unconstitutional religious presence in government and government support for religion. Beginning in the 1980s, Justice Sandra Day O’Connor took a different position; her view was that the government violates the establishment clause if it “endorses” religion or a particular religion. Other justices, such as Harry Blackmun and Stephen G. Breyer, also took this approach. As the swing justices their views controlled the outcome of many establishment clause cases.
But while William Rehnquist was chief justice, four justices–Rehnquist, Antonin Scalia, Anthony M. Kennedy and Clarence Thomas–took a very different view. They argued for “accommodation” and contended that religion should be accommodated into government. They added that government support for religion should be tolerated so long as the government does not discriminate among religions. Under their view, the government violates the establishment clause only if it coerces religious participation. There has been disagreement among these justices as to what is necessary to prove coercion. For Justice Scalia, legal coercion–compulsion with penalties for non-compliance–is required in order for the government to violate the establishment clause. For Justice Kennedy, social pressures have been enough to find coercion.
Amicus briefs filed on behalf of the town urge the court to adopt this coercion test. Conservative groups hope that Chief Justice John G. Roberts and Justice Samuel A. Alito might join Justices Scalia, Kennedy and Thomas in creating a majority to make this the controlling test. Under it, especially under Justice Scalia’s version, little ever would violate the establishment clause. Religious symbols on government property, prayers before legislative sessions, and aid to parochial schools all would be allowed because they do not coerce religious participation. In fact, it would seem that a town could declare itself to be Christian (or any religion) because that would not coerce religious participation.
But opponents of the coercion test point out that never has a majority of the court adopted this approach. It would overrule decades of precedents concerning the establishment clause and leave little to the wall separating church and state. Those who urge the affirmance of the 2nd Circuit on behalf of the challengers—including an amicus brief that I co-authored–point to Justice O’Connor’s words, shortly before she left the high court: “At a time when we see around the world the violent consequences of the assumption of religious authority by government, Americans may count themselves fortunate … Why would we trade a system that has served us so well for one that has served others so poorly?”
Why indeed?
Erwin Chemerinsky, Dean and Distinguished Professor of Law, and Raymond Pryke Professor of First Amendment Law at the University of California, Irvine School of Law, is one of the nation’s top experts in constitutional law, federal practice, civil rights and civil liberties, and appellate litigation. He is the author of seven books, the latest being The Conservative Assault on the Constitution (Simon & Schuster, 2010). His casebook, Constitutional Law, is one of the most widely read law textbooks in the country. Chemerinsky has also written nearly 200 law review articles in journals such as the Harvard Law Review, Michigan Law Review, Northwestern Law Review, University of Pennsylvania Law Review, Stanford Law Review and Yale Law Journal. He frequently argues appellate cases, including matters before the U.S. Supreme Court and the U.S. Court of Appeal, and regularly serves as a commentator on legal issues for national and local media. He holds a J.D. from Harvard Law School and a B.S. from Northwestern University