Showing posts with label Courts. Show all posts
Showing posts with label Courts. Show all posts

August 31, 2018

California Voted to Treat The Poor in The Courts The Same as The Rich: No Cash Bonds

 How many thousands you said, your honor? No problem!


California’s newly signed law abolishing money bail makes the livelihoods of thousands of bail bondsmen obsolete – and in Sacramento, which is dotted with colorful figures from the industry, many are frustrated by the move.
There are 3,200 licensed bail bondsmen in the state and the industry accounts for at least 7,000 jobs, according to Maggie Kreins, vice president of the California Bail Agents Association. .
“Bail bondsmen are insurance agents,” said Topo Padilla, president of the Golden State Bail Association and Sacramento bail bondsman. “We issue an insurance policy to the court guaranteeing a person’s appearance in court. If a person fails to appear in court, the bail industry goes out and returns people to the court. If we fail to return the person to court in time, we pay the full amount of the bond.”
The new law, SB 10, replaces the money bail system with a “risk assessment” of an individual’s likelihood of returning for court hearings and their chances of getting arrested again. Those who are deemed “low-risk” would be released with the least restrictive non-monetary conditions possible, while “medium-risk” and “high-risk” defendants could be held awaiting trial. 
"Really and truly a bail bond is nothing more than accountability,” said Greg Padilla, who owns Greg Padilla Bail Bonds in Sacramento. “That’s all it is.”  
The new law faces strong opposition from the bail bond industry, which moved to block the law Wednesday by introducing a referendum drive, asking voters to delay and ultimately overturn SB 10.
“With a stroke of a pen, this bill eliminates the bail bond business,” Topo Padilla said. 
Topo co-owns Greg Padilla Bail Bonds with his father, Greg, who has been in the industry for nearly 40 years.
Bail bonds is a family business for the Padillas, spanning three generations. Greg’s wife, son and grandson work in the bail industry. His son, Leonard Padilla, made an illustrious name for himself as a bail bondsman and led a life that is sometimes stranger than fiction. 
Leonard isn’t chasing people who jumped bail anymore, but his father still runs the business from his storefront directly across the street from the Sacramento County Main Jail.
“By October 1 of next year, we’re gone,” Greg said of SB 10. “So we just have to go find a job.” 
He has 14 full-time employees and two locations in downtown Sacramento. He said he didn’t know how they would fight SB 10 but he know people are looking into ways to do it. 
Tony “The Tiger” Lopez, another notable Sacramento bail bondsman, isn’t sticking around to see what happens. He’s closing up shop. leaving the bail bond business and moving out of state, he said. 
“By next year, it’s over, it’s a wrap, we’re done,” he said.  Lopez has been a bail bondsman for 19 years, taking up the business after a career as a professional boxer where he was a three-time World Boxing Champion.
“Who’s going to chase the people who don’t show up to court?” he said. “If they don’t show up, on my dime and our dime, we chase them . . . Anywhere they go we go, because if we don’t find them we actually pay that bond cost.” 
SB 10 replaces bondsmen with county-funded teams that are responsible for finding people who don’t show up on their court date.
“It’s stupid, there’s no other word for it, it’s just stupid,” he said. 

June 27, 2018

No Justice For Making a Murderer, Brendan Dassey

Dassey. Photo: MORRY GASH/AP/REX/Shutterstock
If you read this case from the beginning and concentrate how an underage kid without a lawyer and all his faculties is tricked into confessing and up to today that injustice-knott has not been dissolved. Would it ever?

Making a Murderer’s Brendan Dassey has been rejected by the Supreme Court. On Monday, they declined a plea to hear Dassey’s appeal of his conviction for the 2007 murder of Teresa Halbach in Manitowoc County, Wisconsin, which was the subject of the Netflix true-crime series. In August 2016, a Milwaukee federal judge overturned Dassey’s conviction, determining that the then 16-year-old’s controversial confession was coerced. However, an appeals panel ruled in December 2017 that Dassey’s confession could be used against him; Dassey, now 28, was ordered to serve out the remainder of his life sentence in prison. The Supreme Court will not review that panel’s decision, giving no reason for their rejection. Dassey’s uncle, Steven Avery, who was also convicted for the murder, is still appealing his case. In 2016, Netflix renewed Making a Murderer for more episodes, pending further developments in the case.
Update: Dassey’s lawyer has provided the following statement to Vulture in response to the Supreme Court’s decision:
“We will continue to fight to free Brendan Dassey. Brendan was a sixteen-year old with intellectual and social disabilities when he confessed to a crime he did not commit. The video of Brendan’s interrogation shows a confused boy who was manipulated by experienced police officers into accepting their story of how the murder of Teresa Halbach happened. These officers repeatedly assured him that everything would be ‘okay’ if he just told them what they wanted to hear and then fed him facts so that Brendan’s ‘confession’ fit their theory of the crime. By the end of the interrogation, Brendan was so confused that he actually thought he was going to return to school after confessing to murder. Nonetheless, he was convicted and sentenced to life in prison on the basis of this ‘confession.’

Unfortunately, Brendan isn’t alone. Over the past twenty years, extensive empirical and psychological research has shown that children under 18 are between three and four times more likely to falsely confess than adults – and yet the criminal justice system fails many of them. It’s up to the courts to put an end to this. Now, more than ever, courts around the country must update their understandings of coercion in light of the newly understood problem of false confessions. The Center on Wrongful Convictions of Youth is dedicated to continuing this effort, along with our justice-minded partners in both law enforcement and defense-oriented communities across the globe.  

We would like to extend sincere gratitude to the dozens of former prosecutors, national law enforcement trainers, leading psychological experts, innocence projects, juvenile justice organizations, and law professors who filed amicus briefs in this case and who, along with our legal team, will continue to fight for Brendan and the many other children who have been wrongfully convicted due to the use of coercive interrogation tactics.”

By ~~~~~~~~Vulture 

March 8, 2018

A Felon in the Oval Office! Can A President Be Indicted? Sued for Personal Actions in State Court?

 Which shade of Trump could be indicted or sued for his personal conduct?

Adult film star Stormy Daniels is suing Donald Trump over a nondisclosure agreement on their alleged affair, adding to a long list of civil cases the president is already facing.

In a civil lawsuit filed recently in Los Angeles County Superior Court, lawyers for Stephanie Clifford (Daniels’ real name) argue that the nondisclosure agreement she signed before the 2016 election is not valid because Trump never signed it.

Trump is also facing a lawsuit from former Apprentice contestant Summer Zervos for defamation, and he’s been sued more than 100 times in federal court, on issues ranging from his actions on immigration to the Constitution’s Emoluments Clause.

In the meantime, special counsel Robert Mueller’s investigation into Russian meddling has already tripped up several of Trump’s associates, leading some to wonder whether he would try to indict the president as well if he had strong evidence of wrongdoing.

All of these cases have raised a straightforward question with complicated legal ramifications: Can you sue the president? Does it matter if it’s state or federal court? And can you indict the president?

Here’s a look at what it is known

Civil cases

Both the Daniels and Zervos suits raise a serious legal question: can someone bring a civil suit against a sitting president in state court? Trump’s lawyers say no. “State court can’t exercise any control over the president under any circumstances,” Trump’s lawyer Marc Kasowitz argued in New York state court in early December. The motion to dismiss Zervos’ case, Kasowitz continued, is about “protecting the ability of the president to do his constitutionally mandated job.”

In court filings, Trump’s team has cited the Supreme Court’s 1982 decision in Nixon v. Fitzgerald, which held that the president has “absolute immunity” from being held liable for damages in civil lawsuits for conduct within the “outer perimeter” of his official presidential duties. “Because of the singular importance of the President’s duties,” the decision reads, “diversion of his energies by concern with private lawsuits would raise unique risks to the effective functioning of government.” 

This is a key element of Trump’s lawyers’ argument around the Zervos case for why he can’t be sued in state court. But there are limits to the holding in Nixon v. Fitzgerald: the case only applied to civil suits in federal court, not state court, and only to civil suits related to official actions as president, not personal conduct.

It’s a later Supreme Court case, 1997’s Clinton v. Jones, that introduces private acts to the patchwork of laws on presidents and civil lawsuits. This time, facing a case in which former Arkansas state employee Paula Jones accused President Bill Clinton of sexual harassment, the Supreme Court said the Nixon v. Fitzgerald ruling on immunity from civil damages did not apply to “unofficial conduct” by the president.

“We have never suggested that the President, or any other official, has an immunity that extends beyond the scope of any action taken in an official capacity,” the Court held. “The litigation of questions that relate entirely to the unofficial conduct of the individual who happens to be the President poses no perceptible risk of misallocation of either judicial power or executive power.”

This decision is good for those on the side of Zervos and Daniels, ruling definitively that presidents can be sued while in office for private conduct.

“Clinton v. Jones makes clear that this Defendant is not entitled to qualified immunity — or any other species of official acts [of] immunity — because this case involved unofficial conduct by Defendant before he assumed office,” Zervos’ lawyers said in a court filing earlier this year. “Precisely because Defendant’s underlying tortious behavior has nothing to do with his current duties or office, and because it occurred before he took that office, he does not have immunity from suit.”

But again, there’s a critical unanswered question in the Clinton v. Jones opinion: that case only applies to litigation in federal court and did not decide the issue of whether a civil suit can be brought against a sitting president in state court.

In fact, the Supreme Court explicitly decided not to decide that question, explaining that state court suits could raise different legal questions than the ones decided in Clinton v. Jones. “Because the Supremacy Clause makes federal law ‘the supreme Law of the Land,’ any direct control by a state court over the President, who has principal responsibility to ensure that those laws are ‘faithfully executed,’ may implicate concerns that are quite different from the interbranch separation of powers questions addressed here,” the majority opinion notes in a footnote.

The power difference between state and federal court arises in part from the Supremacy Clause of the Constitution, which establishes that federal law bars a state from interfering in federal functions. There would still be limits, however. In civil suits, “there’s no absolute immunity from being sued in state court for a president,” explains Samuel Issacharoff, a constitutional law professor at New York University Law School. He gives the example of if a president and his or her spouse wanted to get a divorce while in office — which would have to be handled in state court.

“Divorce matrimonial matters are not actionable in federal court, and it is inconceivable that we would make [the spouse] wait four or eight years [to get a divorce],” Issacharoff says. “The ordinary conduct of the life of the president as an individual may give rise to legal issues, and we’ve never said that there’s immunity from that.”

And some legal experts think that footnote was merely standard practice by the Supreme Court to limit the scope of its ruling on a constitutional issue, and that there’s no reason to think the Court wouldn’t have decided the case the same way had it been a state court in question.

“There’s nothing in the opinion that would militate heavily against the same type of process in state court,” says George Washington University Law School professor Jonathan Turley. “Indeed, one could argue that the federal system has a greater likelihood to recognize a form of immunity than the state system. Under federalism principles, these are two different systems, and the state system has its own independent authority and right to pursue defendants.”

As it stands now, Trump cannot be held liable for civil damages in conduct related to his presidential powers, but he can be held liable in federal court for civil damages related to his personal conduct before he became president. And if any presidency will lead to a clear decision on whether he can be subject to a civil suit on personal conduct in state court, there’s good reason to think it might be Trump’s.

“President Trump came to office dragging a long chain of existing civil lawsuits,” says Turley. “No president has come to office with as much experience as a litigant as President Trump.”

Criminal cases

There’s also a constitutional question about whether a sitting president can be criminally prosecuted, and there isn’t a clear answer. It has never happened before, and no court has definitively ruled on the issue. (The Supreme Court heard arguments about it in 1974 about President Richard Nixon, but never resolved the question.)

Here’s what the Constitution says in Article 1 Section 3: “Judgment in cases of impeachment shall not extend further than to removal from office, and disqualification to hold and enjoy any office of honor, trust or profit under the United States: but the party convicted shall nevertheless be liable and subject to indictment, trial, judgment, and punishment, according to law.”

The text of the Constitution doesn’t explicitly state whether a president can be prosecuted while in office, so arguments are based on structure and inference. The official view of the executive branch is that it can’t be done. The Office of Legal Counsel wrote in a 2000 memo arguing a president can’t be indicted, “The indictment or criminal prosecution of a sitting President would impermissibly undermine the capacity of the executive branch to perform its constitutionally assigned functions,” though it acknowledged, “neither the text nor the history of the Constitution ultimately provided dispositive guidance in determining whether a president is amenable to indictment or criminal prosecution while in office.”

Other legal experts disagree. “I fail to see the compelling basis for reading a sweeping immunity into the Constitution that was not mentioned in the constitutional convention, let alone in the text of the Constitution,” says Turley. “The danger of having an immunized felon in the Oval Office is greater than the danger of having an indicted president.”

In Mueller’s position as special counsel, he is bound by Justice Department policies, but it’s an unresolved question how much deference he must give to the Office of Legal Counsel’s previous legal analyses on this issue. Under the interpretation that the president cannot be indicted in office, Trump would have to resign or be impeached first, and they could be criminally charged afterward.

In that case, if Mueller’s investigation finds what he believes merits an indictment, historically that means he would bring his findings to the House, which would decide if it warrants “high crimes and misdemeanors” to impeach and proceed from there. The basic idea behind this precedent is that if you’re going to undo an election, it should be by a body that is subject to the will of the people.

August 7, 2017

Should A Judge Tell You What Medication to Take with The Power to Make You?

Philip Kirby says he felt pressured into taking Vivitrol for his heroin addiction by his drug court treatment program. "Like I couldn't come into the program until I got it," he says.
Jake Harper/Side Effects Public Media
Philip Kirby says he first used heroin during a stint in a halfway house a few years ago, when he was 21 years old. He quickly formed a habit.
"You can't really dabble in it," he says.
Late last year, Kirby was driving with drugs and a syringe in his car when he got pulled over. He went to jail for a few months on a separate charge before entering a drug court program in Hamilton County, Ind., north of Indianapolis. But before Kirby started, he says the court pressured him to get a shot of a drug called Vivitrol.
Vivitrol is a monthly injection of naltrexone, which blocks opioid receptors in the brain. It's one of three medications approved by the Food and Drug Administration for treating opioid addiction. While it's effective in some people, it's not for everyone. Patients have to be ready to be opioid-free, and some patients won't do well on it. It can also have side effects, which Kirby says he experienced.
"I had sinus problems, chest problems for the whole month I was on it," Kirby says. "I couldn't shake it."

He says he also got a rash — another possible reaction to Vivitrol, according to the product's warnings. Months after he had the shot, he still had white splotches on his arms, which he attributed to the drug. But even with those symptoms, Kirby says the court urged him to stick with the medication for a couple of more months. "They were way too pushy about it," he says.
More than 130,000 Americans will go through drug courts this year, according to the National Association of Drug Court Professionals. Drug courts are designed to allow some people whose crimes stem from addiction to get treatment instead of jail time. But the treatment that is offered varies from court to court and is entirely at the judge's discretion.
Some courts offer participants a full range of evidence-based treatment, including medication-assisted treatment. Others don't allow addiction medications at all. And some permit just one: Vivitrol.
Prime targets for marketing
One reason for this preference is that Alkermes, the drug's manufacturer, is doing something nearly unheard of for a pharmaceutical company: It is marketing directly to drug court judges and other officials.
The strategy capitalizes on a market primed to prefer their product. Judges, prosecutors and other criminal justice officials can be suspicious of the other FDA-approved addiction medications, buprenorphine and methadone, because they are themselves opioids. Alkermes promotes its product as "nonaddictive."
The argument worked for Judge Lewis Gregory, who heads the city court in Greenwood, Ind. About a year and a half ago, Gregory didn't allow participants to start on addiction medications while in the program. "We were failing miserably with the heroin population," he says.

Judge Lewis Gregory, head of the city court in Greenwood, Ind., began allowing drug court participants to begin taking Vivitrol after meeting with an Alkermes sales representative.
Jake Harper/Side Effects Public Media
At the time, Gregory was only familiar with buprenorphine and methadone. Both are opioid medications that can prevent withdrawals, reduce cravings and ultimately help people maintain a stable recovery. When they are properly prescribed and administered, patients don't get a euphoric feeling or a "high."
Buprenorphine and methadone have been the standard of care for opioid addiction for years, but because they're opioids, it is possible to misuse them. They're also sold illegally on the street.
"I was certainly not going to do a medication-assisted treatment program with drugs which people use to get high," Gregory says, adding that he would not order someone to stop buprenorphine treatment if it were legally prescribed by a physician, a situation he rarely sees.
Then he received some Vivitrol literature in the mail and a phone call from an Alkermes sales representative. "So we ended up meeting in the early part of 2016, and she began educating me a bit," he says.
Six months later, his court began a Vivitrol program, permitting some participants to use the drug. A sales representative sometimes sits in on the court's treatment team meetings, Gregory says.
Many treatment specialists say allowing judges and other criminal justice officials with no medical training to exert influence over medical decisions is problematic. The power makes them prime targets for Vivitrol marketing, they say.
"You would think it would be more appropriate to go after physicians," says Basia Andraka-Christou, who researches drug courts at the Fairbanks School of Public Health at Indiana University.
"What this is implying is that the judges in these cases are actually making a lot of the medical decisions, and that should be very concerning to everyone," she says.
Adriane Fugh-Berman, who researches pharmaceutical marketing at Georgetown University, says she has not heard of another drug company going after judges. She says it's not just unique — it's inappropriate and could ultimately be damaging to patients. "They're not health care providers. They don't know data. They don't know research," she says. 
A company strategy
The drug court Kirby went through doesn't allow medications other than Vivitrol for treating addiction. In fact, NPR and Side Effects Public Media have identified at least eight courts out of the several dozen in Indiana that say they only allow Vivitrol treatment.
NPR and Side Effects Public Media have learned that Alkermes sales reps have also marketed the drug to court officials in Missouri and Ohio. A report from ProPublica found that extensive marketing is leading judges to favor Vivitrol around the country.
The company is open about this part of its sales strategy. At an investor event last year, policy director Jeff Harris said drug courts are a huge market for Vivitrol.
"We're making progress but still just barely scratching the surface on the need that exists across the country," Harris said in a presentation. "There are over 3,000 counties in the United States, and there are over 3,000 drug courts." A shot of Vivitrol costs about $1,000, making it pricier than the other addiction treatments. In many cases, the drug is paid for through Medicaid or other public funds. And marketing to criminal justice settings seems to have paid off for the company, whose earnings have grown significantly since its introduction. Vivitrol sales reached $209 million in 2016 — up from just $30 million in 2011. Sales have continued to climb this year.
Alkermes goes beyond marketing to judges. It also lobbies state and national policymakers to write laws that favor Vivitrol — and in some cases, hamper access to other addiction medications. The company has said it supports the use of all medications for addiction, but in practice, it doesn't.
The company supported one law in Indiana that encourages the use of Vivitrol in drug courts. Signed in 2015, the bill allows judges to require medication as a condition of participating in a drug court, and the language specifically highlights Vivitrol treatment.
Alkermes declined repeated interview requests. In a written statement, the company defended the practice of marketing in criminal justice settings by noting that judges don't actually prescribe their product.
No one-size-fits-all solution
Drug court judges interviewed for this story say they don't mandate Vivitrol treatment, and that people can say no.
"We encourage it, but we never force anybody," says Judge Gail Bardach of the Hamilton County, Ind., drug court, where Philip Kirby was a participant.
But facing potential jail time and court officials who really believe in Vivitrol, participants say getting the shot doesn't always feel like a choice.
"They made it seem like they were forcing it upon me, like I couldn't come into the program until I got it," Kirby says.
For some patients, Vivitrol does help. Jeremy Templin went through the Hamilton County drug court program a few years ago after he was arrested for theft. He said the decision to go on Vivitrol seemed like it was made without him, but he credits his recovery, in large part, to the drug.
"I don't know what it would have been like without it, but I know that I did have it, and here I am today," he says. "I'm still alive."
But Vivitrol is far from a one-size-fits-all solution. It's not ideal for patients who are dealing with chronic pain on top of their addiction, or for pregnant women. It's expensive. Furthermore, relapse rates for all kinds of opioid addiction treatment are high, and after a period of not using, tolerance for opioids is low. Treatment with Vivitrol, which contains no opioid ingredients, could make someone more likely to overdose if they relapse, addiction specialists warn.
Dan Mistak, an attorney with Community Oriented Correctional Health Services, says courts should allow all medication options and let doctors make treatment decisions — including whether someone should use medication in their recovery.
"We rely on outside experts all the time in the judicial system. We don't ask a judge to come in and be an expert in arson," for example, he says. "This is a responsibility that a judge doesn't want."
The federal government and the National Association of Drug Court Professionalsagree that courts should allow all three FDA-approved opioid addiction medication options.
"Especially with this exploding opioid use epidemic, we have to make available, as much as we can, whatever interventions are out there that are likely to be effective," says Terrence Walton, chief operating officer for the NADCP, which lists Alkermes as one of its biggest donors.
For some judges, limited access to buprenorphine and methadone shapes their decisions about what to allow in drug court programs. The medications are heavily regulated, and many communities lack providers who can prescribe and dispense the drugs. Judge Bardach says she would consider allowing participants to use methadone if there were a provider closer to the court.
A need for regulation?
Currently, there is no regulatory agency that can ensure that judges follow best practices.
"There are not that many ways to leverage accountability over these courts," says Christine Mehta, a researcher at Physicians for Human Rights. Mehta recently authored a report on drug courts, focusing on three states. "Really the key is attaching restrictions and requirements to funding," she says.
The federal government has put some requirements in place for courts receiving grants from the Bureau of Justice Assistance. They have to show that they "will not deny any eligible client access to the program because of their use of FDA-approved medications for the treatment of substance use disorders." But only about 200 of the more than 3,000 drug courts nationwide operate with help from a BJA grant.
The Substance Abuse and Mental Health Services Administration has similar grant-making guidelines in place, but it currently funds only 172 courts.
Mehta says states and counties need to implement similar requirements and work to educate drug court officials about all addiction medication options. She argues that until drug courts allow all of the medications, they're not fulfilling their promise.
"If drug courts say that they provide access to treatment instead of prison, they are inherently violating that by saying, 'Well, we only provide Vivitrol,' " she says.
Mehta says Alkermes' marketing would be less effective if judges were compelled to follow best practices.
Georgetown researcher Fugh-Berman thinks that pharmaceutical companies like Alkermes should be barred from marketing to court officials and lawmakers.
"It would be great if the [FDA] went after this," she says. "I think it does fall under their jurisdiction, but I wouldn't rely on that being enough." She says Congress could pass a law preventing such marketing, as well.
Philip Kirby says his probation officer finally relented when he lifted his shirt and showed that his rash was covering his whole body.
That rash has since cleared up, but it has left a pattern of white spots on his arms.
"I don't know if they'll go away," he says. "I hope they go away eventually."
He says he wishes he'd never taken Vivitrol in the first place.

This story is part of a reporting collaboration with NPR, Side Effects Public MediaKaiser Health News and WFYI. Esther Honig of WOSU in Columbus, Ohio; Bram Sable-Smith of KBIA in Columbia, Mo.; and NPR's Shaheen Ainpour contributed reporting.

July 12, 2017

The Gecko Looks Cute Until It Bites Your Finger and There is No Court to Sue CFPB Giving A Way Out of Arbitration

A federal consumer watchdog agency has issued a new rule that will prevent credit card companies and banks from requiring customers to agree to settle disputes by arbitration rather than going to court.
Most people don't realize how important this is because they ussually don't have to deal with negative bank decissions but this also applies to insurance companies.
I had a car accident while insured by Geico. I thought I was in good hands because of their commercials and lower rates. I would have gladly paid $100 more for my policy and not face myself in a situation in which they arbitrarily made a decission in which they assigned 80% of fault to me.  This is after an SUV slammed into the driver's side of my car, totaling my vehicle and sending me to the hospial. This happened while I was stopped waiting for the vehicle to pass while I was making a left turn. That decission meant I will only collect 20% from the other driver's insurnce to replace my car. I could not understaand why they will not use the film of the accident from a store of where it happened and it showed the other car flying thru in a 25 MPH zone.  They also would not use the police diagrahm made at the time of the accident. They never use all the evidence that showed I was not at fault.  They said their deission was based on something I told the cop at the time of the accident. What ever that was? Then I told them I was going to take them to court, they simply said there is no court for me but arbitration. I know how arbitration works and is a waste of time unless you are willing to try the courts anyways. These so called arbitrators are not going to vote against the people paying their salary. This is just a little example to show you what rbitration is and everynone that deals with financial institutions whch includes insurance companies, lending companies, banks got screwed by congress when took the right of a americans to go to court. It is so unamerican but that tells you about the power of money. If you have a problem and you are on the right you will be on the wrongside of the table without. judgee or jury. It doesnt guarrantee you will win if you are on the right but you are at least given a clean shot to have your case heard by someone who is in no way connected to any industry.
The decission released Monday, the Consumer Financial Protection Bureau explained:
"Hundreds of millions of contracts for consumer financial products and services have included mandatory arbitration clauses. These clauses typically state that either the company or the consumer can require that disputes between them be resolved by privately appointed individuals (arbitrators) except for individual cases brought in small claims court. While these clauses can block any lawsuit, companies almost exclusively use them to block group lawsuits, which are also known as 'class action' lawsuits."
CFPB Director Richard Cordray said the current rules "make it nearly impossible for people to take companies to court when things go wrong." He said the new rules would "stop companies from sidestepping the courts."
The CFPB has a website and a video explaining the new rule.

March 14, 2017

Court Clarifies that Discrimination Against Gay Workers is Not Illegal

In a setback for gay rights advocates hoping for an expansion of workplace discrimination protections, a federal appeals court in Atlanta has ruled that employers aren’t prohibited from discriminating against employees because of sexual orientation.

A three-judge panel of the 11th U.S. Circuit Court of Appeals on Friday ruled 2-1 that Title VII of the Civil Rights Act of 1964, which prohibits workplace discrimination based on a variety of factors, doesn’t protect against workplace discrimination based on sexual orientation.

The case was one of two that Lambda Legal had pending before federal appeals courts — along with an Indiana case at the 7th U.S. Circuit Court of Appeals in Chicago — that the LGBT rights group had hoped would mark a significant step forward for gay rights.

Jameka Evans in April 2015 sued her former employer, Georgia Regional Hospital in Savannah, alleging that she was discriminated against and effectively forced from her job as a security guard because she is a lesbian and didn’t conform to gender norms.

Visiting Judge Jose E. Martinez wrote in the majority opinion that the court was bound by precedent set by a 1979 case that said Title VII doesn’t prohibit “discharge for homosexuality.” Other circuits have also found that sexual orientation is not a protected class under that law, Martinez wrote.

An 11th Circuit decision from 2011 said discrimination against a transgender employee because of gender non-conformity amounted to sex discrimination and was not allowed, and Evans’ attorneys argued it should also protect gays and lesbians who claimed discrimination based on their sexual orientation.

Circuit Judge William Pryor, who was a party to that opinion, argued in a concurring opinion that the transgender case, which involved a legislative aide who was fired after telling her boss she planned to undergo a gender transition, was based on behavior rather than status.

“A gay individual may establish with enough factual evidence that she experienced sex discrimination because her behavior deviated from a gender stereotype held by an employer, but our review of that claim would rest on behavior alone,” Pryor wrote.

Pryor also argued that it was up to Congress, not the courts, to declare sexual orientation a protected class.

Circuit Judge Robin Rosenbaum wrote in a dissenting opinion that it is time for the court to recognize that the law prohibits workplace discrimination based on an employee’s sexual orientation because that is discrimination based on sex.

“Plain and simple, when a woman alleges, as Evans has, that she has been discriminated against because she is a lesbian, she necessarily alleges that she has been discriminated against because she failed to conform to the employer’s image of what women should be — specifically, that women should be sexually attracted to men only,” Rosenbaum wrote.

Evans’ lawsuit also included a claim that she was targeted because of gender-based behavior, notably dressing like a man and having a male haircut. The majority opinion said that could amount to a claim that’s not based on her sexual orientation and instructed the lower court to allow her to amend her initial lawsuit to try to bolster that claim.

In a similar case, a three-judge panel of the 7th U.S. Circuit Court of Appeals in Chicago in July upheld a lower court’s dismissal of a 2014 lawsuit filed by Kimberly Hively of South Bend, Indiana, a former part-time instructor who said Ivy Tech Community College in her hometown didn’t hire her full time because she is a lesbian.

The full 7th Circuit vacated that panel’s decision, and all 11 of the court’s judges reheard the case in November. The ruling has not yet been announced, but several of the judges seemed to signal during oral arguments that they were ready to broaden the scope of the 53-year-old civil rights law.

Lambda Legal attorneys said they plan to ask the 11th Circuit to vacate the Evans ruling and have the full 11-judge court rehear the case, like the 7th Circuit did in the Hively case.

“This is not the end of the road for us and certainly not for Jameka,” attorney Greg Nevins said in an emailed statement. “There is no way to draw a line between sexual orientation discrimination and discrimination based on gender nonconformity because not being straight is gender-nonconforming, period.”


March 1, 2017

In Landmark Decision The Italian Court Recognizes Gay Parents

An Italian court has ruled for the first time that two gay partners should be legally recognised as the fathers of two surrogate children. In a landmark ruling, the Court of Appeal in the northern city of Trento decided that both men can be officially named as the father - not just the parent who is biologically related.

The children, now aged seven, were born to a surrogate mother in Canada through artificial insemination and neither they nor their fathers have been identified.

In their decision, the judges said in Italy parental relationships should not be determined only by the biological link.
"On the contrary, one must consider the importance of parental responsibility, which is manifested in the conscious decision to raise and care for the child,” they said.

Details of the decision were published on Tuesday on Article 29, a website that refers to an article regarding family in the Italian Constitution.

It said the decision made on February 23 had "great significance", as it is the first time an Italian court has ruled that a child has two fathers, while also recognising the need to safeguard the needs of the child.

“This is a recognition of full parenthood, in other words, not adoption,” said the couple’s lawyer, Alexander Schuster. “It has recognised for the first time a foreign provision that gives the second father the status of a parent.”

The ruling was immediately hailed as an important precedent by gay activists and support groups.

“In the absence of clear laws we hope now that all Italian courts follow the same path,” said Marilena Grassadonia, president of gay parents’ group, Famiglie Arcobaleno (rainbow families).

“It is the only way that we can safeguard our children.”
Italian law currently prevents couples from using a surrogate mother, and in theory, anyone caught entering into a surrogacy arrangement faces up to two years in prison and a fine of up to a million euros.

Two years ago, a child was removed from parents who had paid a surrogate mother in Ukraine. The couple were charged with fraud and the child put up for adoption.  

In 2016, during debate over Italy's same-sex unions bill, the current foreign minister, Angelino Alfano, sparked outrage when he said that surrogacy should be treated as a “sex crime”. The Italian parliament approved civil unions between homosexuals last May despite fierce resistance from the Catholic Church and conservative politicians.

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