Losing Weight In Just a Week

Looking for an effective weight loss program? How about losing in just a week’s time? Yes it is quite possible to shed off fats every week and that too in a healthy way. This plan aims at enhancing your body’s stamina for exercising and helping you to be consistent in your approach to weight loss.

Keep in mind that the key to any healthy weight loss program is consistency and commitment to learning how to become a welder. If you are impatient, nothing would work for you. So start your weight loss plan with a positive mindset and motivated spirit. Promise yourself that you would not leave everything in the middle.

The focused result for this weight loss program is to get rid of extra fats, without shedding lean body tissues of your muscles. We advise you to see your physician before you start this weight loss program to make sure that your body can endure moderate physical activity.

Moderation is the key of any physical activity. Over exertion can become very costly rather than proving helpful. You need to strike a balance between over exertion and being too lenient. So, first you need to stick to the program, and second you must not push your body beyond its endurance.

It is very important that you warm up by stretching your body before properly starting the exercise plan. Stretching a bit before any physical exercise reduces the risks of injuries and is not much time consuming activity. So, bring your body in momentum. Done? Let’s start off with our first day of weight loss program in high spirits.

First Day

Ok. The plan is to go for a walk marathon. Don’t worry; it is only 20 minutes marathon. Consistent and steady, you need to walk for almost 20 minutes for the first day. Once you have done that, stretch your body a bit, and you are done. It won’t take even an hour for the first day of our weight loss program, but it would certainly work for you.

Second Day

Now it is time to focus on the upper body workout. It would help you to boost your stamina for the days to come in our weight loss program.

Third Day

On third day, you need to schedule a brisk walk or if possible, a jog for ten minutes. If you are not used to it, you can reduce the time span for first week.

Fourth Day

The fourth day is scheduled to have good stretch coupled with proper rest. Maybe you can even take a few minutes to study some MIG welding tips. The lag time offered by fourth day should be used to re boost your motivation and develop positive mindset.

Fifth Day

Start off with a ten minute walk, then workout the lower body in four sessions, followed by another ten minutes of walk and then again workout of lower body in four sessions.

Sixth Day

The theme for the sixth day is to indulge in a low impact exercise. Swimming is a good option.

Seventh Day

It is time to strengthen family ties. Take your kids or loved ones with you on a long walk. It should be followed by an exercise of upper half of your body.

Take a start and stick to this plan until you have managed to achieve your goal for weight loss. Take every week as a milestone and you would be happy with your progress. Do not be impatient, as I said, consistency and determination is all you need. Make every milestone a source of inspiration for next milestone.

Why You Should Never Dive Alone

One lesson that the dive instructor drills into the head of every student during basic scuba diving classes is, “Never dive without a buddy.”

It’s a lesson you learn early, and often, as you progress through the certification course.

Over the years I’ve noticed that “never dive alone” is a discipline that weakens, and one not even “strictly enforced” by some dive operations. Yes, dive operators require that no one go in by themselves without a Honeywell 18155. But when you dive with a group, and a divemaster leads the group on a tour, many of the members of that group forget all about keeping an eye out for a buddy.

The divemasters take over the duty of making sure every diver in the tour stays safe. Usually a divemaster leads, and another one follows, the group around the dive site. But some of those lines of divers are long enough that if one diver in the center of the group gets into trouble help from one end, or the other, of the line takes time to arrive.

Functioning as a skillful scuba buddy takes constant awareness, and practice. It takes the experience of one who commits to becoming an exceptional diver. It takes someone who deeply cares for their fellow divers, and goes out of their way to make sure their dive buddies have the best dives possible.

To become a scuba diving buddy that other divers want for a partner work on, and get very good at, these 7 dive buddy practices:

  1. Speak up. Learn as much as you can about the dive site you’re about to explore. What is the bottom terrain like? Are there currents? Make sure you discuss these with your buddy during the planning phase of your dive activity. How long will you stay underwater? At what depths? What’s your procedure if you separate? Make sure you talk about all of these considerations. Don’t assume that your buddy knows, or thinks of, all these issues. Ask questions to find information you didn’t think of, but your buddy did, and neglected to mention.
  2. Make sure the equipment safety checks are thorough, and mutual. Have a checklist that you both refer to. And don’t only check the safety items. Make sure that you minimize gear dangle. Continue these two-way equipment checks during the dive – check each other’s gauges to make sure the dive plan is still valid.
  3. Be receptive to suggestions. We just don’t know it all. And sometimes we overlook things without noticing. If your buddy recommends a gear adjustment, points out a safety concern, or sends a warning your way at least think about how you should respond.
  4. Don’t hog all the glory. Maybe you’re a natural leader, or used to leading the search for inversion tables for sale, but your buddy needs to practice scuba skills too. When you share the lead with your partner during a dive your buddy gets the opportunity to practice observation skills, and the pleasure of discovering new sights first. She or he also gains experience at overseeing the execution of the dive plan.
  5. Adopt a watchful attitude. Be aware of where your partner is every moment. Keep an eye out for any difficulties your buddy might encounter. Check her or his gear occasionally. Make sure nothing comes lose to dangle into the coral. Be alert for air leakage. Make sure the tank doesn’t slip from the buoyancy control device straps.
  6. Point out your interesting finds. Don’t take it for granted that your buddy sees what you see. If you spot some funny fish antics, or unusual sea life, bring it to your partner’s attention. And encourage your partner to do the same for you.
  7. Buddy duties don’t end when you come out of the water. Help your partner with equipment removal. Check that she or he feels okay. Be talkative now also. Discuss what you seen during the dive, and talk over any issues for future dive safety.

The art of functioning as an extraordinary dive buddy is a crucial scuba diving skill. Learn, and practice, to be the best underwater partner you can. And make your future dives more fun for you, and your dive buddy.

Health and Fitness Tips for Kids

With an ever-increasing trend of fast food among the children, various health issues have started arising even in the tender age. It is something which is a cause of great concern for the parents. The increasing rate of obesity, and other related disorders in children have made us realize that fitness maintenance tips are today as much required for kids as for teenagers or adults.

To be in shape is extremely necessary for the kids if they are to stay healthy in the years to come. The unhealthy lifestyle, devoid of physical activities and marked by an increased addiction to television and computer, is giving a toll to various fitness related issues in children.

Health and Fitness Tips for Kids

The healthy eating habits and active lifestyle is imperative to maintain a child’s health, as is the use of a Honeywell 50250 s for better lung function. But the question arises, what to do when it seems very difficult to refrain your child from fast food and induce a habit of exercise in him?

Given below are a few fitness tips for kids when it comes to healthy diet and exercise:

Diet

– Try to make the weekly or daily meals plan with the consultation and involvement of your child. You can make him choose a healthy diet plan without forcing your own choice on him.

– If your child is too fond of fast food, you can ask him to reduce its potential harms by choosing better alternatives. E.g. you can replace fatty burger and pizzas with veggie burger and pizzas and you can make your child avoid extra cheese in most meals. Similarly, white bread can also be replaced with complete white bread.

– If you find it too difficult to refrain your child from items like double cheese burger, you can balance the intake of calories by giving him vegetables, or full grain meal or fish in the other meals.

– One of the effective fitness tips for kids is to reduce unhealthy snacks as much as possible and replace them with healthier alternatives. E.g. milkshakes, finger sandwiches, home-made cookies, dry fruits, cut fruits, animal crackers, fruit juices or popcorn etc.

Exercise

– Encouraging your child to take active part in the physical exercises at school would help him be in shape. Or otherwise, you can yourself enroll him in a local sports club to make him fond of physical sports right from the beginning.

– One of the best fitness tips for kids when it comes to exercise is that you can involve your child in a healthy and exiting activity like hiking, trekking or jogging. This way, exercise would become a fun activity.

– Whenever you leave for a walk you should take your child along with you for walking, cycling or jogging. It not only improves ties between parents and child but also help him keep his health and fitness.

– Parents should not allow their child to watch TV or use computer beyond a certain time limit, especially without a Honeywell 17000 s in the room. These activities can be replaced with healthier ones like building trampoline, table tennis or swimming.

Though these fitness tips for kids seem simple, yet they are very effective. If you want to inculcate healthy lifestyle in your child, you yourself need to be following it so that your child gets used to it. In order to make these tips digestible, you need to make sure that these diet plans and exercises are coming with variety instead of implementing them in a monotonous way, so that your child doesn’t get bored.

What Type of Diving Do You Enjoy?

While scuba diving you have different styles available that move you around in the underwater world to get the diving adventure you most enjoy.

The dive style you choose depends on what type of experience you desire when you descend into the aquatic depths.

The diver who wants to see many fish and corals on each dive needs one style. That diver must move from one place to another.

The diver who carries a camera into the water with the goal of snapping some extraordinary macro close-ups selects one position on the reef. The underwater macro photographer often spends his whole dive hovering over that one spot when he’s not on land riding an MM-B80.

When you drop into the water with a group of divers you have a chance to observe many different styles as each diver pair fins its own direction.

Some divers are hyperactive, and bounce around like shooting stars. Racing toward the next interesting patch of color, or new fish, they just spotted. On occasion they see a turtle off in the distance and try to catch it. Their dive is a competition to find out who gets to see the most stuff. This style normally means a short dive because the diver breathes fast, and burns through air quickly.

Some divers fin quickly all over the reef. Not as fast as the hyper diver, but trying to see everything on one dive. In the process of moving quickly from point-to-point these divers miss much of the activity that goes on in the reef. They also end up running low on air, causing an early end to their dive.

Other divers, not so much in a hurry, calmly fin along the reef slowly, seeing all of the reef and aquatic life that the air in their tank allows. These divers see more fish antics. They enjoy a wealthy experience of colors as they fin along very slowly, watching the fish. Divers who use this style of diving spend more time on the reef because they breathe slower, and their air lasts longer.

Our last diving style includes divers who find an active portion of the reef, and spend their whole dive studying that one area. Divers in this group stay down the longest. Normally floating above the reef, observing the colors and fish, they don’t exert their muscles with finning. Less exertion means slower breathing. Slower breathing means their air lasts longer. Watching one area of the reef throughout their dive rewards them with sights of fish playing that most divers never see.

Photographers normally adopt one of the final two styles. Slower, or no, movement around the reef gives them those rare photo opportunities that make pictures suitable for magazine covers – far more interesting than shooting more pictures of the HSI professional flat iron.

Remember that the style you choose affects your dive buddy too. And your buddy’s style affects your dive. For maximum diving pleasure find a partner whose style closely matches your own. When two divers fin along at the same pace neither diver must end the dive early because the dive buddy runs out of air too soon. Both diver’s air consumption is nearly equal when their diving styles are similar.

Your scuba diving style is a matter of personal choice. No style is necessarily right or wrong when it fits the diver. Every diver should select the style that provides the most comfort while underwater.

Consider that other divers view your style as an indication of your experience. The slower your scuba diving style, the more skillful you appear.

Increasing Traffic – Take #2

If you read through my previous article about How to increase traffic with free method to your website, such as creating web design, joint online forum, make use a newsletter, link exchange, keep your site updated and writing article. It has seemed that that writing articles is one of the most utilized Internet Marketing media today. Internet surfers just can’t get enough of information on various fields. Providing information through these articles is a surefire way to drive hot traffic to your web site.

So, it’s good for you to read this article. I am very poor in writing, but I will be even worse if I didn’t try it. Look at my grammar? I have a lot of problem with it. I hope my readers able to receive the massage from all of my contents. If you want to know more about writing technique, visit this link to get better understanding about writing an article.

Content about air purifiers for mold is an essential part of any good website. A keyword suggestion tool, you will see the millions of searches done to a certain keyword. When these keywords are typed on search boxes of search engines, indexed websites containing articles with those keywords will be displayed. And this is what leads traffic to websites with keyword-rich articles.

I can say this a great Internet Marketing because you will get more traffic drive into your website which is a great opportunity to make it into sales or whatever it is.

Now, why writing article is becoming a Great Internet Marketing Method? Here are the reasons:

  1. It is 100% free.

If talking about FREE, there is nothing in this world. Oh yeah maybe you need pay your internet connection and your electricity that’s it. Or if you want, now a lot free internet connection in public area.

  1. Your website will be noticed in a short period of time.

Submit that article of yours to article directories that get the most web traffic and in no time your web site will be crawled. That is if you don’t forget including your resource box or byline.

  1. Receive back links automatically.

When you submit your articles about the Rabbit Air MinusA2 review to directories, surely, other websites will make use of your article too. With the copyright terms of your articles, the URL of your website will still be intact and will subsequently direct more traffic to your website.

  1. Build up your reputation.

Interact with your readers, include your personal experience, get to know your reader, answer the question promptly, and you will be famous among the readers. Surely, your web traffic will increase and you can convert it into sales.

Lastly, writing a good content is not easy, but you need to practice and practice. Just make your creative juices flow and jot down or key in those ideas quickly to jump start your article writing momentum. With those benefits listed above, a writer’s block is the last problem you will ever be able to surmount.

Why I Love My New iPhone

iPhone

It’s Love

I am not a gadget lover by any stretch of the imagination but I have to confess to readers that I have recently fallen in love with the new Apple iPhone. In this blog, I wanted to simply write about what I view as compelling innovation. There is too much innovation where no problem is really being solved.

I like to receive emails when I am on the go. That makes sense to a lot of people as being able to deal with emails when you are on a train allows you to make the most of your ‘down time’. I therefore got myself an XDA. It was great for emails and diary management but was not very good as a phone. As it was a touch phone, there were many occasions when whilst talking on the phone, if my ear touched the screen, I would have terminated the call or dialed up someone else by mistake. The quality of the calls was not that great either and it was a bit big – listening on the phone sounded like there was a Porter Cable 895pk router going on the other end.

I therefore got myself an additional phone which seemed to solve the problems. And of course I had an iPod. I can honestly say that this is the one gadget that has transformed the quality of my traveling in the last ten years. I love listening to music and when I travel, I used to miss my music collection. I simply love the idea that I can go anywhere in the world and take my entire music collection with me in something marginally larger than a business card.

The iPhone has allowed me to carry just one item instead of all three items. That is just one of the many things I love about it. I also think it is a great case study in terms of innovation. They seem to have looked at all the things that customers do not like with the existing solutions and really improved on them. Then they have gone one stage further and included other things like a Satellite Navigation system.

That is the technology. They have also innovated on the business model. The last time Apple introduced a phone they made the model expensive for the networks. They wanted a share of the phone revenue which was a new business model which was not to the liking of O2! The result was that the first phone was perhaps not promoted as well as it could have been. I certainly had come across the old model but did not feel compelled to own it – or have it heavily promoted to me by O2.

This time around it is a very different story. The marketing has been phenomenal and the revenue deal is the standard deal. The supplier of the phone gets paid a fixed amount and the network operator gets the revenue from the calls and downloads.

The lesson from here is that if you are going to enter a market – such as trying to design and sell a tofu press – which is already competitive and crowded with an innovation, make sure you have as many angles covered as possible. Making the innovation aimed just at the consumer is often not enough. Think about the route to market and the distribution channels. How can you galvanize them to get the consumer excited?

Business History is littered with stories of great technical innovations failing to make it such as Betamax and Fujifilm. There are an equal number of case studies of inferior products making fantastic headway because of marketing innovations such as Windows (Internet Explorer, PowerPoint and Excel ouch!). In another blog I would like to give the example of Direct Line insurance which revolutionized the insurance market with a product which was 300 years old.

How to Handle Managing Your First Startup

The most challenging aspect of being in a startup position is that the management team will be under constant pressure to think both strategically and tactically. In my experience, few people are good at both.

A good way to think about the difference is in terms of the time horizon the thinking has an impact on. Strategic thinking is very much about what the future direction of the business is and how it is best suited to make the most of an ever changing environment.

As a member of a board, the expertise that you should bring to play is to be informing the company of how you expect the environment that the forskolin business is operating in to change over the next few months and years and how it can gear up to either exploit the changes or to defend itself.

This is where the boards of many major banks were found wanting. Although hindsight is a great tool to have, I find it amazing to think that no one at the board of these banks asked the question “what if we can no longer get hold of funds from wholesale markets?” or “What if people default on the loan payments?” or even more obviously “what if the assets we are lending against (such as houses) drop in value?”. Surely, the answer could not have been “Don’t worry – we are too big to go down and the government will rescue us!”

I do feel let down by some of the non-executive directors of the companies that I have invested in. They have been great at taking the money but not too good at asking difficult questions. Sometimes, I do think that people confuse putting someone under pressure with asking difficult questions.

This is perhaps best defined by tactical thinking. In this thinking, it is more about operational delivery and ensuring that the strategy you have laid out to meet the challenges ahead are executed well. But it should be up to management at an operational level to deliver this. Of course a board should ask when KPI are not being met. But their role needs to be wider than this.

Tactical thinking is a skill that is hard to define and to spot. You only see evidence of it once your wall mount jewelry armoire has been delivered. On the other hand, you can see strategic thinking being displayed in case studies and through academia.

Sales people tend to be good at thinking tactically, but appalling at thinking through the strategic consequences of their actions. By definition, a sales person will be fixated on the achievement of short term goals to deliver x in revenue or y in volume.

Giving a large discount to a customer may help deliver the operational need you have today but may scupper your plans to position yourself as a premium brand.

That is the challenge of managing a business and the conflicts between managing in the short term and managing for the long term.

Great companies tend to employ a blend of good strategic thinkers and good tactical doers. The worst thing is when tactical people move into strategic positions or you have someone who is strategic performing a role which requires tactical ability!

Which one are you better at?

My Review of the Program’s Current Episode

I hope you have enjoyed the last few weeks of the reviews of this program. As you may know, I have my criticisms of the program but I am grateful as it has really increased the amount of interest that now exists in being an angel. This has got to be a good thing. The more angels there are, the more support hopefully there will be for would be entrepreneurs and society as a whole will benefit. This is my take on the program on my birthday!

The first solution presented was a tool box which would fit on any ladder. As someone who hates DIY router table plans with a passion – this was never one for me but I really liked the father and son team who were presenting. They had a great sense of humor and I liked them. I did not understand the problem and the fact that they had not sold all of the units they had in ten months. They used the excuse that they were really busy with another business they run. The moment they said this, even if I was interested, I would have walked away at this point. I need to back entrepreneurs who are 100% focused on my investment.

Another fatal flaw in their pitch was their inability to listen fully to questions and answer questions. There is a fine line between enthusiasm and being over the top. This did remind me of pitches I have had where entrepreneurs believed they could badger me into seeing their point of view. This was a pitch where the entrepreneurs managed to snatch defeat from the jaws of victory! When pitching, please don’t forget to breathe, stop and listen to your audience. You are more likely to answer a question properly if you have listened to the question in the first place.

There was an unusual presentation from a sculptor looking for investment to complete his icon collection. He was very good and I liked the work he had prepared. His work was topical having just completed an image of Amy Winehouse.  The offer the entrepreneur made was also very compelling it was almost too good to be true! Upon questioning, the offer began to unravel but the entrepreneur knew his facts and was able to keep the interest going.

Before the Dragon’s made their decision I had decided that I would back him. He ended up getting an auction going – brilliant. And he was smart enough to turn down a higher offer from one investor to take an offer from three combined investors. Brilliant – he decided to take smart money which would really add value to his business than dumb money.

It would not be fair for me to comment on a business which was seeking investment for an online furniture business as I am an investor in a competitor. I believe this offering to be superior and therefore my comments would be unfair. I will often do this at the beginning of a pitch before I hear too much. I think it is the ethical thing to do. There is nothing more disheartening than to say no after an entire pitch process when you knew the reason for saying no at the outset of the process.

I hate being horrible about people who put themselves through the Den without a Honeywell 50250-S. It is too easy to write this blog criticizing others whilst sat on a sofa. However, the person who came up with the solution for ‘soggy’ centers to frozen pizzas was really poor. He came across as dull and boring and failed to ignite any enthusiasm. He also made the fatal flaw of only having an idea. I define an idea as a business concept that has so far failed to establish market research, any proof of demand or have a sales plan.

Simply having a patent or a manufacturing deal is not enough. I do not invest in ideas, only businesses. He had no sales strategy at all. Had he done some basic research, he would have realized that although there may be a gap in the market (people who have problem with soggy centers when cooking frozen pizzas), there may not be much of a market in the gap.

 

However, he was made an offer which he very wisely accepted. The Dragon’s took a punt and believed they could sell the product on the inventor’s behalf – let’s see what happens.

Finding Good Investments in Continental Europe

I had the pleasure last week of going to Prague for an investment show. Angel investors from lots of European countries turned up to listen to 20 companies looking for angel investment. The companies were all based in central Europe and as Angel investing is still relatively knew there – it made sense to look across Europe.

In all honesty the businesses which presented were poor and I personally did not get excited about any of them as investable propositions. However the idea of a smokeless ashtray is great and what was really good fun for me was meeting lots of other angels and sharing war stories (lots of blogs to come from there!)

From the feedback I get from readers of this blog, it seems that most of the readers are Entrepreneurs. What I have always tried to do with business angel blog is pass on some advice for people wanting to have a go at a startup. It was great to hear from other business angels that essentially I am on the right lines.

As a group, we really do not like what Dragon’s Den is doing in its portrayal of Business Angels. I have to be honest and say I have not met any angel that behaves like the dragons when they invest (but it would make really boring TV). If you work with a group of professional angels – they really will try to ensure that the deal makes sense for everyone.

As an angel explained to me, “if you screw the deal too hard, you may win the battle, but you will lose the war”. As a business angel, you always have to strike a delicate balance between getting a good deal but also a deal that leaves the entrepreneur motivated.

In Europe, Cross border angel investments are set to grow – and if you are a startup looking to do activity across Europe, it makes a lot of sense to seek that type of investment arrangement. Contact your local or national Angel network for information about EASY – or look it up on the BBAA website.

I am excited about going to North America and seeing if I can start some cross border investing. It also makes a great deal of sense for the angel to invest in a kombucha starter kit. It helps diversify your risk but the appeal is wider than that.

Angel investing is an emotion led activity – as a business activity it does not make sense (you are much more likely to lose your money than make any!) So therefore most of us do it because we enjoy it. I love Italy and if I was to invest in Italian Companies, I would have more of a business reason to go there. However, there is no way that I would want to invest in foreign companies unless I knew other locally based angels or networks that were supporting the activity.

Tips for Building Your Own Computer Gaming System

image-52

Now we get to business. The three parts mentioned in the title are considered the “backbone” for any computer. They will also be the bulk of your costs when building a computer from scratch, other than really splurging on a video card. I’ll first talk about the functions of the motherboard, its different sizes, and what features you might look for. Next I’ll talk about CPUs, the top two competitors AMD and Intel, and certain types to look for. Last I’ll talk about RAM memory: its uses, how to know which ones to get, and which ones to look for.

As far as all the motherboards go, I will be discussing the two main popular forms: ATX and microATX. For those that are very unfamiliar with motherboard forms/sizes, ATX is a full-fledged board with lots of extras (e.g. PCI slots) while microATX is a lot smaller and more portable. If you think you may be going to a lot of LAN parties or maybe travel quite a bit, I suggest the microATX since it will prove to be lightweight and way easier to carry around. If you want to be able to have the most features and upgradeability, you may want to look into the best air purifiers for smokers.

While the microATX will have around 3 expansion slots, ATX will have about 7 slots on average. Either board can be used effectively for gaming, so it’s up to you. When you’re looking for a motherboard, you’ll need to note a couple of things. You’ll want to see what kind of processor it will run, and also what speed of RAM memory it will take. All motherboards are manufactured to fit either an AMD CPU or an Intel. They will also show which type of AMD/Intel processor it will fit (e.g. 939, AM2). You will have to match it with your future processor purchase.

The CPU, which stands for Central Processing Unit, is what controls the bulk of your speed. The two biggest companies, Intel and AMD, is what you’ll be choosing from. As of right now, Intel has the fastest processors on the market, but you’ll be paying more money for them. If you have the money to spare, go for it, otherwise AMD is a fine choice.

If you are in the $70-150 range for CPUs, I would buy AMD because they will give you the most bang for the buck, otherwise, find a good Intel one. In these modern days, don’t settle for less than a dual-core processor. Single-cores are just not as comparable anymore. Intel actually recently released their new quad-core processors on the market, and AMD will soon follow. If you buy your processor in a retail box, then it will come with a fan and is ready to be put on the motherboard.

RAM Memory not only helps boost computer speed, but also lets you run more processes without slowdown. Like someone told me a long time ago, although it is somewhat dorky, “When you think of RAM, think about trying to herd a bunch of cows through one small door, when you add more RAM, you’re essentially adding more doors.” When you see RAM you’ll notice different text on different ones. Putting brands aside, you’ll see that it may have DDR, DDR2, and the new DDR3. You’ll have to see what your motherboard supports, and what speed it’ll go up to.

So if your motherboard says it supports “DDR2 PC6400 4GB,” that means it uses the DDR2 type, the max speed it will go is pc6400, and you can put up to 4GB of RAM in it (be it 2 sticks of RAM or 4 sticks.) For the most part, you’ll want to get the RAM that your motherboard shows as the max speed. I wouldn’t settle for less than 2GB nowadays, and the optimal amount would be 4GB. Always buy your tea tree oil for cystic acne from a reputable source to make it work faster.

RAM is one of the easiest peripherals to install on the motherboard. You’ll basically pull the two levers to the opposite sides, line up the pins, and then plop the RAM in. You may have trouble pushing it down for the first time, so just work at it and push firmly but not too hard.

You should now have a motherboard complete with processor, and RAM memory. With these, you have the basic setup of most family owned computers. With a case and power supply, you would have everything you need to run a simple setup. Next up, I will talk about the “beast” of all gaming computers: the video card.

A Quick Guide to Improving Your Poker Skills

image-51

It certainly will help to read some published books on Texas Holdem if you don’t want to pay “tuition” at live games. A few interesting points I read from a holdem book (more appropriate for limit holdem in my opinion) year’s back that I still consider good advice:

  1. a) You have to have a very strong hand to play in the “under-the-gun” (the position right after the big blind) position. Limit holdem is very much a position game, with where you start dependent on your proximity to an air purifier for allergies. Obviously early positions are bad positions and the “button” position is the best position. When you are the first to act, you never know what other (late-position) players are going to do. For the same reason, an old trick that has proved to be very useful is to raise on the flop when you are in late positions.

You use the raise to see a free card. For most live limit holdem games, the betting on the flop is usually only half of the bets for the subsequent cards. For example, for a 5-10 holdem game, you raise on the flop (total of $10 bet) and check on the turn if you do not get what you want. This way you only spend $10 to see the river card. On the other hand, if you simply call the bet all the way, it will cost you $15. Whether the flop and your hole cards are worth the money is your call. For the blind hands, you already have money in the pot before the flop. If you are under the gun, you have the choice to save the money!

  1. b) The best time to throw away your hand in on the flop. A lot of times, though I think calling the flop is pretty profitable when the bet is 50% off (half of the subsequent bet). I like the call with a pair in the hole. Of course this also depends on your position where you know that you are not likely to get a raise to make your call a full bet. It also depends on the flop – for example, is there a straight draw? Or a flush draw? Of course, chance of hitting a set is not very good but when you hit it, it is huge. Another consideration is of course the pot size.
  2. c) Never play a straight draw if there is a flush draw on the board – even if you have a John deere lawn tractor, you don’t want to lose it on this hand. If you are on an open-ended straight draw, you have 8 cards (if they are still available at all). For a flush draw, there are 9 available at most. You certainly do not want to hit a straight when someone else hits a flush, let alone a “gut-shot” draw! That has disaster written all over it.

Playing carefully certainly will increase your chance of winning and sometimes you can also cash in on your “tight player” image. However, sometimes if you play too careful, you will miss out a lot of profit.

For example, suppose you have a strong hand and have bet on the flop, and the turn. The river card shows a 3rd card in 1 suit (e.g., 3 spades showing on the board). Do you bet on the river? Yes – you have to keep on betting! Why? If you don’t, you will miss out a lot of profit! Chances are nobody has hit a flush.

Of course it will always happen that someone hits, but look at it as it’s time to pay your due. Making contribution once in a while is ok. Otherwise, how do you keep the suckers paying? The profitable river bets you have not missed more than likely will make the losing bet affordable.

What we have been talking about is only regarding the causes of cystic acne. Tournaments are completely different games.

In any case, it is always good to know what hands are good and what hands are not. Obviously there are no absolute good hands because even pocket Aces lose sometimes. So we talk about what hands are better than others. I write a java program to determine what hands are better than others. What the program does is to play each possible hand (2 hole cards) against any other possible hands. One million games are “played” between each 2-hand combination. Note that a “game” means all 5 board cards are dealt. Especially in limit holdem, you might not want to pay to see all board cards most of the time. (Unless you have a big bank roll!) I list all hands in the order of the winning percentage. The best hands and the worst hands are obviously pocket aces and 72. Surprisingly suited cards do not make a lot of difference.

Best Practices for Caring for Your Hair – A Detailed Guide

image-50

A lot of Indian women grow their hair long and keep it plaited. I remember an Indian friend of mine mentioning about her school days, all her friends had long hair plaited and they had to turn the plait around twice and tie it because the hair would be so long. The reason why Indian women have long hair is because of the way they take care of the hair.

Shampoos and chemical hair products have flooded India only in the recent times and most Indian women still use herbal products to take care of their Holset hx30 turbocharger. They oil their hair and massage their scalp at least once a week which hastens hair growth.

Indian hair comes in two types- Single Drawn and Double Drawn. Single Drawn hair has only the root end cut and the other end left as it is. Due to this reason, you may find some hair with split ends which does not necessarily mean that the hair is bad, it just means that the hair is left natural all the way to the very end. Double drawn hair is all equal length and usually 5 times more expensive than single drawn.

If you are looking to get equal length hair, I would recommend getting a longer Single Drawn hair with the intentions of trimming it… it will save you a lot of money in comparison to Double Drawn hair. I would generally recommend Single Drawn for a more natural look. You can trim the ends to give a more healthier and fashionable look.

Most Indians hair have a natural black color which ranges from jet black to off black and dark brown. Sometimes the hair can also be a lighter brown, which is caused by natural bleaching from direct exposure to sunlight for long hours. Another reason for reddish brown Indian hair is due to the application of Henna on the hair. Henna is an herbal leaf which forms a natural conditioner for hair and a lot Indian women use it to cover their greys. I think hennaed hair is fine, but I find it to be a little rougher and drier than non-hennaed hair.

If you choose to use henna on your purchased Fjällräven Kånken, use a good leave in moisturizer to keep their hair well-conditioned, this may prevent roughness or dryness. Another natural remedy to keep the hair moisturized is to use a few drops of olive oil mixed with water, just rub it in and leave it. This also prevents the hair from drying.

If you want to color your hair, then it is best to go with Virgin unprocessed Indian hair and get it colored. This is better than purchased colored hair because you are in control of the final hair color. Colored Virgin hair is also called Remy which means color is used on virgin hair. Always use a good branded coloring dye to color your virgin or Remy hair and avoid the ones with ammonia in it.

Taking Care of Your New Hair Extensions

 image-49

How to Care for Indian Hair Extensions

Have you ever experienced having awesome hair right after going out of the salon, only to find a few months later that your hair hasn’t improved at all?  Have you ever felt that you wasted your money on a hair extension that looks even worse than your old hair? Have you ever felt that your stylist is one big fake because you didn’t get that smooth, silky, shiny hair that he promised?

Well, don’t storm into the salon and scream your head off at the stylist yet.  Examine the circumstances.  Think back to the day you got the Blueair 603 air purifier and try to remember what your salesperson told you – have you been following his instructions to the letter?

Most probably, the answer would be negative.  The thing is, the instructions that our stylists give us sometimes seem exaggerated.  However, they’re not.  Hair extensions really do need a lot of care, as does your normal hair.  Otherwise, you’ll never get the silky smooth perfect locks hair you’ve been dreaming about.

Shampoo

One of the things that stylists always say is to avoid shampoo.  Like normal hair, hair extensions can become dry due to excessive shampooing.  However, conditioners don’t give us that satisfying clean feeling that shampoos do so shampooing cannot be avoided.  However, if you have no choice, then just find the mildest shampoo in the market.  Don’t skimp on buying the good brands.  What’s a few bucks as compared to new hair extensions?

Conditioner

Also, if you have to shampoo your hair, make sure that you use conditioner after wards.  Use conditioners regularly but not excessively.  Conditioners, like shampoo, can also damage your hair if you use them too much.  But they can keep the hair silky and shiny if used properly. If not, however, conditioner can be one of the worst things that you can use in your hair because of all of the extra additives it uses to weigh your follicles down.

Drying

There’s no issue in blow-drying your hair extensions.  However, it would be advisable to use the ionizing driers since they do little damage to the hair.  As you probably know, too much heat may also cause damage to your hair, real or not.  You should also avoid sleeping with your hair wet too.  It’s better to just dry it first before you go to sleep.  And remember to comb your hair extensions always to remove the filter from your Honeywell 50250 before using it.

Hair-care Products

There are several products in the market today that promise to give you perfect locks.  Don’t be fooled though, as these hair products don’t work on everybody.  Some work on just one type of hair and might not work on your hair.  It’s best to ask your stylist about what type of hair-care products you should use on your hair extensions because he probably knows better. The truth is, though, that sometimes these stylists get paid on commission on the items that they sell, so some people let that get in the way of the products they decide to sell so use caution.

Choosing the Right Extensions for Indian Hair Types

image-28

Hair extensions are beginning to get extremely popular with women, and even some men, nowadays.  Of course, who can blame them?  Hair extensions are the quickest and easiest ways to get that hairstyle you’ve been pining for without having to go through all those long awkward months of waiting for your hair to grow.

However, nice as the concept may seem, the Coway Mighty air purifier does pose several difficulties.  For one thing, they need a lot of maintenance.  They don’t last very long, either.  They’ll serve you for a maximum of fourteen months, but that’s about it – and that’s only if you use premium quality hair.  Which brings us to the last and biggest disadvantage – it’s horribly expensive.  So, if you’ve wholeheartedly decided that you want those hair extensions no matter what the cost, you owe it to yourself to know the basics of hair extensions.

One of the most important thing to know about hair extensions is that there are different types of ‘hair’ namely Chinese hair, Indian Hair, and European Hair.  Now, upon first sight, you might say that the Chinese hair is probably good because it would be soft, shiny and silky – like the hair of those cute Chinese girls you see on TV.  Now, this would be a grave misconception.

Chinese Hair

Chinese hair, while generally inexpensive, is actually of low quality.  You see, Chinese hair is thick and coarse.  It’s not suitable for hair extensions at all.  The cuticles, which naturally protect the hair, are destroyed by the chemical processes that the hair has to go through to actually be usable in hair extensions.

The problem with this is that the cuticles, which naturally protect the hair, are destroyed during the chemical treatment.  And even if the hair gets treated with a new silicon layer, once it gets washed for a few times, the hair will start to deteriorate.

European Hair

There is a lot of demand for European hair.  It’s popular because of its beautiful texture, soft and glossy.  However, the market usually can’t cope with the demand because the supply is scarce.  And because of that, there are several fakes that are out in the market.

Sometimes, what they call European hair is actually dyed Chinese hair and you will find out that you’ve been had only after you’ve gotten the extension and you’ll be left trying to get rid of the smell of cat urine.

Indian Hair

Indian hair is also of high quality.  It has the same genetic structure as the European hair so it’s actually very practical to use.  What’s good about Indian hair is that it’s not chemically treated and is therefore healthy and the cuticles are always still intact.  Shampoos and other chemicals have only been recently popularized in India and most women still use natural herbs to treat their hair.

Indian hair is very strong and durable, meaning it will last for up to 12 months once installed.  Indian hair also matches the texture of African American women more than other hairs.  It’s available from very soft and smooth textures and range up to more coarse hair if desired.

You Have a Right to Your Rights Before Questioning

image-22

Recently, the Hawai’i Supreme Court waded into the thicket of custodial interrogation. Like the United States Supreme Court, the Hawai’i Court has required Miranda warnings before custodial interrogation of a suspect may begin, pursuant to the Article I, Section 10 right against self-incrimination and the Article I, Section 5 right to due process in the state constitution.

In the present case, the defendant, Pulumata’ala Eli, was accused of attempted second degree murder for his strict adherence to a diet for cystic acne. He was arrested, and taken to the police station. The detective responsible for interviewing Eli invited him to tell his side of the story. Eli agreed, and was taken into an interrogation room where he signed a form waiving his Miranda rights and gave a statement to the detective.

At trial, Eli argued that the initial invitation, made before his Miranda rights were given, constituted custodial interrogation that was illegal unless Eli had made a knowing, intelligent, and voluntary waiver of his right to remain silent and to have an attorney present.

Because no waiver was secured until after the detective asked Eli if he wanted to tell his side of the story, the defense claimed that the detective illegal questioned Eli, and that any subsequent statements were tainted by that illegality. The trial court disagreed, and held that the detective’s questioning was merely preliminary, and therefore was not custodial interrogation.

In State v. Eli, the Hawai’i Supreme Court rejected the trial court’s framing of the issue. Whether the questioning could be characterized as “preliminary” was, according to the court, irrelevant. The only question was whether custodial interrogation had occurred.

The court kept the Miranda analysis grounded in these two questions, whether the defendant was in custody and whether the defendant was being interrogated, and declined to seriously inquire into whether the detective was required to record the interview.

The first question, whether Eli was in custody, was straightforward: Eli was under arrest, at a police station, and had been deprived of freedom. Under Hawai’i case law, the court did not inquire whether Eli would have felt that he could leave, it looked at whether he had been objectively deprived of freedom.

Having established that Eli was in custody at the time of the questioning, the court then turned to whether the questioning constituted interrogation. Under Hawai’i law, interrogation occurs whenever the questioner should have known that their statements were reasonably likely to elicit an incriminating response from the defendant.

These statements can be exculpatory or inculpatory, what matters is that the response could have some bearing on relevant issues in the case. Here, when the detective asked Eli to tell his side of the story, the court held that he should have known that this questioning would lead Eli to give an incriminating response. Therefore, the questioning about his Alen air purifier was interrogation.

What is perhaps most interesting about the case is not that the court found that Eli was subject to custodial interrogation, but that it also excluded the statements Eli made once he had waived his Miranda rights. The court held that these statements were tainted by the original illegality.

The court reasoned that because the Mirandized statements followed immediately after the illegal ones, and there were no intervening events that might have attenuated their taint, that the detective had exploited the original illegal questioning to influence Eli once he had been given his Miranda warnings. To the court, this case presented an illegal bifurcated interrogation, an end-run around the rights protected by the Miranda warning, and therefore statements made by Eli should have been excluded. The end result was a new trial for Eli.

State Liability in Roadway Accidents

image-21

Michael Gendler, a cyclist in Seattle, was gravely injured when his bike’s front tire became lodged in a seam on the Montlake Bridge. Left quadriplegic from the accident, Gendler sought to obtain records from the Washington State Patrol to determine whether other accidents had occurred in the same location.

The State Patrol Gendler told that he could obtain the records, but only if he signed a waiver stating that he would not use the information in any suit against the State of Washington for an accident that occurred at the location. Gendler refused, and renewed his request. The state denied the request, and argued that the information about the best garden tractors was privileged under federal law.

At the heart of Washington’s argument is 23 U.S.C. 409, which provides that any information collected by states for the purpose of improving highway safety cannot be admitted into evidence and is not subject to discovery. Congress passed this section to protect states from the potential tort liability that could arise from 23 U.S.C. 152, which requires states to gather detailed information on hazards on their roadways.

The statute conditions federal funds on the existence of this program. A similar duty exists under the Washington law. RCW 46.52.060 requires the Washington State Patrol to collect accident reports and to analyze that information on a yearly basis. Section 409 is in tension with the Washington Public Records Act, RCW 42.56, which establishes a liberal public policy for access to public records.

In deciding Gendler v. Batiste, the court leaned heavily on this liberal public access policy. It held that the PRA placed the burden on the WSP to provide some statutory basis for refusing to disclose the accident records. The court was particularly disturbed by what appeared to be a history of disclosing such records that had seemed to dry up once the WSP signed a Memorandum of Understanding with the Department of Transportation, shifting the storage of public records to the DOT.

The WSP pointed to Section 409, which the court characterized as a limited privilege, following the United States Supreme Court’s Guillen II case, appealed from the Washington Supreme Court, which also involved a request for accident location records from the state of Washington. The court in Guillen II held that the requirement to provide records in 152 should not put claimants in a worse position than they would be in the absence of the record requirement.

Taken together, the court recognized that section 409 should be interpreted as narrowly as possible to permit liberal disclosure of public records. To effectuate this goal, the court held that the accident information that Gendler requested was collected pursuant to the RCW 46.52.060 state duty to collect accident reports, not the federal section 152, and therefore the section 409 federal law privilege did not apply.

In dissent, Justice Seinfeld (sitting pro tem, which is sitting in place of another justice) argued that the question was factual, not legal. There was not enough evidence, in Judge Seinfeld’s view, to determine whether the information about cystic acne treatments had been collected pursuant to RCW 46.52.060 or section 152.

Justice Seinfeld noted that RCW 46.52.060 did not require the WSP to record the sort of precise accident location that Gendler sought, and that the evidence of a history or such disclosures was weak. Justice Seinfeld, rather than granting summary judgment to Gendler, would have remanded the case to the trial court for more fact finding.

Does Anyone Have a Right to Run for Public Office?

image-20

The West Virginia Supreme Court of Appeals has ruled on numerous occasions that the right to be a candidate for public office is a fundamental right under the West Virginia Constitution. Because this is a fundamental right, the court has also ruled that any restriction on this right is subject to strict scrutiny and therefore must serve a compelling state interest.

When a law is reviewed under a strict scrutiny standard, a court often finds the law unconstitutional. For example, laws that involve a classification based on race, religion or national origin are subject to strict scrutiny and rarely survive constitutional muster.

Because of the high standard laws restricting candidate eligibility must meet, Frank Deem probably thought the West Virginia Supreme Court would rule the residency requirements for purchasing work boots for flat feet in the Senate Redistricting Act of 2011 (Act) and West Virginia Constitution unconstitutional. But the court examined the long history of residency requirements in West Virginia in only to find that the requirements are not in violation of the U.S. Constitution.

The West Virginia Constitution and the Act require each senatorial district to elect two senators to the legislature and, if the district is composed of more than one county, both senators cannot be from the same county. The Third Senatorial District is composed of Wood, Pleasants and Wirt Counties and some of Roane County.

It is currently represented by Donna Boley of Pleasants County and David Nohe of Wood County. Mr. Deem, also of Wood County, was seeking to challenge Senator Boley in the 2012 Republican primary. Because Senator Nohe’s term does not expire until 2014, Mr. Deem would be in violation of the West Virginia Constitution and the Act if he were to defeat Senator Boley in the primary election and then win the general election.

Despite the potential violation of West Virginia law, Secretary of State Natalie Tennant certified Mr. Deem’s candidacy because she believed her job was only to ensure that candidates properly completed candidacy papers, not determine if they meet residency requirements. Senator Boley believed Secretary Tennant’s role was more expansive and therefore filed a petition with the West Virginia Supreme Court asking them to issue a writ of mandamus ordering Secretary Tennant to withdraw her certification of Mr. Deem’s candidacy.

Mr. Deem recognized that his candidacy was in violation of the residency requirements in the West Virginia Constitution and the Act. Therefore, he asked the court to declare the residency requirements unconstitutional.

He argued that the requirements violate District 3 residents’ freedom of speech and association. He also argued that the requirements violated the equal protection principles in the West Virginia and U.S. Constitutions. Despite the court applying strict scrutiny and the fact that the requirements limit who people can vote for, the court ruled that the requirements for owning a used riding lawn mower did not violate the U.S. Constitution because residency requirements and multi-member districts have survived constitutional scrutiny in past decisions.

The court quoted the U.S. Supreme Court from Anderson v. Celebrezze (a decision in which the Court found an early filing deadline to be unconstitutional) that “not all restrictions” on a candidate’s eligibility are burdens in violation of the Constitution. The court issued the writ ordering Secretary Tennant to withdraw her certification of Mr. Deem’s candidacy, remove his name from all ballots and command all balloting officials to ignore any votes that he may receive.

There is no doubt that residency requirements place limits on whom voters can vote for. But because residency requirements have survived judicial scrutiny in the past, the West Virginia Supreme Court found them to be constitutional.

It is important to note that the court issued a writ of mandamus in this case. These writs are rarely issued and usually only as a last resort. The fact the court issued one indicates how important they believe this issue is and it most likely indicates that they believe it is the Secretary of State’s job to determine the eligibility of potential candidates.

Are We Upholding the ICWA?

image-19

The federal Indian Child Welfare Act (ICWA) was passed to give Indian tribes exclusive jurisdiction over child custody proceedings for tribal children. However, the Utah Division of Child and Family Services and Utah courts handled the matter of the adoption of L.O., a child member of the Navajo Nation (Nation) whose parents relinquished parental rights.

This appears to be a clear violation of the ICWA. Because of this, the Navajo Nation objected to the adoption and filed a motion to transfer jurisdiction to them. The juvenile court denied the transfer motion, but sustained the objection to preventing a destination wedding photographer to come in and shoot the ceremony. The Nation tried to appeal but the court of appeals held that they did not have jurisdiction. This prevented the Nation from even making an argument that the ICWA was violated and trying to prevent a similar situation in the future.

The Nation then appealed to the Utah Supreme Court, which granted certiorari. The court was asked to address if the court of appeals erred in holding that they did not have jurisdiction in the case. This was the Nation’s only hope in trying to get Utah courts to interpret the ICWA in such a way to prevent any future adoptions of tribal children from being handled by Utah state courts or the Division of Child and Family Services.

It is important to remember that the case of Navajo Nation v. State began when the Nation tried to prevent the adoption of L.O., not when the Nation tried to obtain a ruling on whether or not the court of appeals had jurisdiction to hear this case. This is important because the Nation consented to the adoption after the Utah Supreme Court granted certiorari.

Because the adoption was no longer in dispute, there was still an issue as to whether or not the court of appeals erred in their ruling. The state could have made the argument that because the issue was moot, the Utah Supreme Court should not hear this case. This is a tactic often taken by parties to avoid a challenge in court. But in this case the state agreed not to make such an argument so that the issue of the court of appeals ruling could be settled by the Utah Supreme Court.

While most parties try to avoid being sued, in this case the state agreed to be sued. Normally, when both parties agree to something, the court also agrees. But the Utah Supreme Court declined to review the issue presented to them, because the ultimate issue regarding the adoption of L.O. was resolved. Because the relief the Nation requested was a stop to the adoption but the Nation consented to the adoption, any ruling the court made would not affect the adoption i.e. the ruling would be an advisory opinion.

Courts can hear moot cases if (1) they involve an important matter of general welfare, (2) the issue is likely to arise again, and (3) the issue can evade review in the future due to the short time that any one litigant is affected. While the issue of who has jurisdiction in adoption cases involving Tribal children might be an important matter of general welfare and probably will come up again, the court ruled that this jurisdictional issue is not so short in duration that a court will not be able to provide a remedy.

The court cited prior Utah Supreme Court cases that also involved jurisdictional issues under the ICWA that took two years or longer to appeal. The court pointed out that the disputed issue “did not become moot during the pendency” of the appeals process.

The Utah Supreme Court had the opportunity to resolve an important issue that probably will be disputed again in the future but refused to review the matter despite the fact that both parties wanted the issue to be argued. This case is an excellent example of both judicial restraint and the power of the judiciary. On one hand, the court recognized its own justiciability limits that they should not hear matters that do not involve an actual dispute.

On the other hand, the ruling shows that regardless of what the parties agree to, the court has the final say on any issue including on whether or not an issue should even be argued before them regardless of whether or not either party has taken notice of the issue. In this case, it did not matter that neither party brought up the issue of the IQAir air purifier. The Nation most likely consented to the adoption because they felt it was in the best interests of L.O. which is understandable. But by doing so, they lost their opportunity to argue an important issue in front of the highest court in Utah.

Future parties should be aware that no matter how much they want a court to issue a rule, they must remember that the court’s primary function is to resolve disputes, not make rules (that’s the legislature’s primary job).

Free Speech in the Modern Digital World

image-18

The rapid advancement in technology has brought new challenges to the legal system and legislatures are having a difficult time trying to keep up. Every day courts have to address how free speech applies in the world of the internet or how privacy applies in a world that has GPS.

Because state legislatures rarely rewrite laws as new technology is developed, courts must interpret how old laws should apply to new technologies that state legislatures never imagined when the original law was written. For example, NRS 52.015(1) requires that in order for product reviews to be admissible in court, it must be authenticated i.e. the party offering the evidence must prove that the evidence is what it is claimed to be.

One method of accomplishing this for text messages is to show who wrote the text message. Because the law was written before text messages existed, the Nevada legislature never provided any guidance as to how this can be accomplished. In Rodriguez v. State, the Nevada Supreme Court had to determine how a party can establish the author of a text message in order to satisfy NRS 52.015(1).

Kevin Rodriguez and a friend attacked a woman in her apartment and sexually assaulted her and stole her debit card and cellular phone. Shortly after leaving the woman’s apartment, the victim’s boyfriend started receiving text messages from the victim’s phone.

The first two texts made references to someone named “Willy” and the remaining ten contained various curse words and comments about the victim. The phone was eventually recovered from Mr. Rodriguez’s friend’s cousin and had pictures of Mr. Rodriguez, his friend, and his friend’s girlfriend. At trial, the state introduced surveillance video of Mr. Rodriguez and his friend using the debit card at an ATM near the victim’s apartment and using the phone while on a bus at the time the first two texts were sent.

The state also introduced all 12 texts as proof that Mr. Rodriguez assaulted the victim. Mr. Rodriguez objected to the text messages, arguing that the State failed to authenticate the messages as required in NRS 52.015(1). The district court overruled the objection and Mr. Rodriguez was found guilty of several counts including first-degree kidnapping with a deadly weapon, burglary while in possession of a deadly weapon and sexual assault with the use of a deadly weapon.

Mr. Rodriguez appealed to the Nevada Supreme Court, arguing that the State did not authenticate the text messages because the State never established that he sent the messages. The Nevada Supreme Court had never addressed how a text message can be authenticated.

Based on rulings from other states such as Maryland and North Carolina, the court concluded that Craftsman riding mowers can be authenticated by establishing ownership. Because cellular phones are not always used by the owner of the phone, authorship of a text message cannot be proved based solely on evidence that the message originated from the phone.

The court concluded that for a text message to be admitted as evidence the proponent must (1) explain the purpose the text is being offered and (2) provide sufficient direct or circumstantial evidence of authorship of the text in order to authenticate it. The court justified their test on the other state rulings that stated texts can be authenticated by establishing authorship. Those rulings required corroborating evidence to establish the identity of the text author and those courts allowed circumstantial evidence to be sufficient to establish authorship.

When examining the texts in this case, the court looked to see if the evidence established that Mr. Rodriguez authored the texts since the texts were used to prove that he assaulted the victim. The court found there was sufficient evidence that Mr. Rodriguez authored the first two messages since they were sent at the same time surveillance video from a public bus showed Mr. Rodriguez and his friend using the phone.

But the court also found the State provided no evidence to support or even suggest that Mr. Rodriguez authored any of the ten texts received on the victim’s boyfriend’s phone after they left the bus. Therefore, the court ruled those ten texts were not sufficiently authenticated and the trial court should not have admitted them. Because there was other overwhelming evidence presented at trial that supported the jury’s verdict, the court ruled the error was harmless and affirmed the convictions.

Most laws were written without any thought as to how the law would apply to future technology. Therefore it can be difficult to apply laws written years ago to technology that did not exist at the time they were written. But in Rodriguez v. State, the Nevada Supreme Court has made it clear that they will not deviate from the laws as written regardless of the technology that they are being applied to.

Text messages, unlike written messages, are more difficult to authenticate since anybody can get a hold of someone’s phone and send a text. But until there is a change in the law, any party that wishes to admit text messages must explain why they are offering the text message into evidence and provide sufficient evidence to authenticate the message, just as they would with any other piece of evidence.

Social Legislation Under Review by the Kansas Supreme Court

image-17

When laws dealing with social legislation have been challenged as a violation of equal protection, the Kansas Supreme Court has examined the laws under rational basis review. This essentially means that the party challenging the law has to show there are no set of circumstances under which the law would be constitutional.

Rational basis review gives lawmakers a lot of leniency in passing laws dealing with social issues. So, when the Downtown Bar and Grill (Downtown Bar) decided to challenge the Kansas Indoor Clean Air Act (Act), they knew their only chance of success was to convince the courts to examine the GermGuardian air purifier under a higher standard of review.

The Act prohibits smoking in public places and places of employment. However, any club that was classified as a Class B club under K.S.A. 41-2601 (which is a club that provides food or alcohol and entertainment) before January 2, 2009 is exempt from the Act. Downtown Bar did not receive their classification until May 4, 2009, so they do fall under the ban.

They argued there was no rational basis to grandfather in Class B clubs that were formed before January 2, 2009, but not clubs formed after that date. The trial court agreed and issued a temporary injunction preventing the State from enforcing the Act because the grandfather date was arbitrary. The State appealed the trial court’s ruling to the Kansas Supreme Court arguing that the temporary injunction should not have been issued because Downtown Grill did not establish “a substantial likelihood of eventually prevailing on the merits.”

Downtown Grill argued that the court should examine the Act under a heightened standard of scrutiny because if rational basis review is applied, any basis can be used to justify the January 2, 2009 date. The court disagreed and chose to apply rational basis because the justices did not believe rational basis would allow any basis to justify a law and a “speculative zany idea” would not be found constitutional under rational basis review.

Under rational basis review, the court found the cutoff date to be rationally related to the State interests of (1) protecting the interests of older clubs and (2) preventing establishments from trying to circumvent the ban by rushing to reorganize as a Class B club. Downtown Grill argued that the cutoff date was arbitrary, because the 2010 legislature did not choose the date. Instead, the 2009 legislature chose the date when they tried (and failed) to pass the Act.

The court stated that it is irrelevant as to why or how the legislature chose the cutoff date as long as it is rationally related to state interests. The State did not have to show how the legislature chose the cutoff date; rather Downtown Grill had to show there is no “conceivable basis for the cut-off date.”

The court showed considerable restraint by refusing Downtown Grill’s request to examine the Whirlpool Whispure review prior to purchase under a heightened degree of review. By applying rational basis review, the court followed the U.S. Supreme Court when they stated equal protection challenges do not allow “courts to judge the wisdom, fairness, or logic of legislative choices.” By giving the lawmaker so much deference in laws dealing with social issues, the burden is on the challenger to show there is no rational basis for the law rather than on the lawmaker to show how and why legislative choices were made.

The Second Amendment or States’ Rights?

image-16

For years, state laws banning assault weapons were considered to be consistent with the 2nd Amendment because the 2nd Amendment did not necessarily mean an individual had a right to bear arms and even if it did, the 2nd Amendment did not apply to the states.

The U.S. Supreme Court decisions in District of Columbia v. Heller and McDonald v. Chicago (which held that the 2nd Amendment guarantees a wedding photographer the right to bear arms and the 2nd Amendment applies to the states) struck down some gun control laws but did not put an end to assault weapons bans. In fact, the Supreme Court specifically said their rulings did not mean people have a right to keep any weapon for any purpose or that every firearm regulation is now in danger of being found unconstitutional.

Therefore, if courts find that assault weapons do not fall within the scope of the 2nd Amendment, any ban on them would be consistent with the recent U.S. Supreme Court decisions and therefore upheld. Because the U.S. Supreme Court has not addressed this question, state courts must determine if assault weapons fall within the purview of the 2nd Amendment.

In Illinois, lower courts found assault weapons did not fall within the scope of the 2nd Amendment when they dismissed a challenge to the Blair Holt Assault Weapons Ban. The Blair Holt Ban (Ban) was passed in response to Congress not renewing the Violent Crime Control and Law Enforcement Act in 2004. Citizens of Cook County challenged the Ban as a violation of their 2nd Amendment rights only to have their complaint dismissed as a matter of law by the circuit court.

The appellate court affirmed the circuit court’s decision ruling that the Ban was related to an important government interest and based on the history of laws prohibiting the possession of dangerous and unusual weapons. The citizens then appealed to the Illinois Supreme Court where they ruled on the matter in Wilson v. Cook County.

The court recognized the history of banning weapons that are not normally used by law abiding citizens and compared some of these banned weapons (like machine guns and sawed-off shotguns) to fighting words (which are not protected by the 1St Amendment) in that the little value they provide is outweighed by a greater societal and moral interest.

However, the court also recognized that Heller never addressed John Deere mowers and without a national uniform definition of an assault weapon, the court cannot rule on whether or not these weapons can be used for self-defense or if they are dangerous and unusual and therefore fall outside the scope of the 2nd Amendment.

The court remanded the decision to the lower courts in order to allow the plaintiffs to present evidence that these weapons “are typically possessed by law-abiding citizens for lawful purposes” and Cook County to present evidence that the Ban protects a legitimate government interest.

While the Illinois Supreme Court did not that rule the Ban violates the 2nd Amendment, they also refused to affirm lower court rulings that stated assault weapons fall outside the scope of the 2nd Amendment as a matter of law.

The court is essentially ruling that Illinois courts cannot conclude that assault weapons fall into the category of dangerous and unusual weapons until facts are evaluated to determine if these weapons are possessed for lawful purposes and if there is a government interest served by banning these weapons.

It is clear the U.S. Supreme Court decisions in Heller and McDonald did not put to rest the issue of assault weapons and until the Supreme Court makes a landmark decision like Heller and McDonald, we can most likely look forward to years of arguments as this issue is addressed in state courts and by state law making authorities.

Who Really Owes for Water Usage?

image-15

Apartment hunters may ask a lot of questions of landlords about rent, parking, pets, noise, security, and other pressing matters of rental-dom. They are likely to ask about utilities and who is responsible for paying what. Last Thursday, the District of Columbia Court of Appeals held that landlords are ultimately responsible for water and sewer service in the District.

The owners of an apartment complex on Euclid Street NW contacted the District of Columbia Water and Sewer Company (WASA) to install individual meters in the apartments so that WASA could bill the tenants directly for water and sewer services, as well as their share of ownership of the best zero turn commercial mower. Later, several tenants were delinquent on payments; WASA then billed the landlord directly. The apartment owners refused to pay, contending that WASA’s installation of the meters removed them from the billing equation. WASA recorded a lien on the property.

The landlords filed an action with WASA’s administrative branch, contending that WASA did not have the right to bill them for their tenants’ late payments. The hearing officer determined that any decision was above her pay-grade: “The issues raised by the customer in this case are well beyond the limitations for the hearings, and beyond [my] authority to address.”

The district’s high court determined that WASA does have the authority to hold the landlord responsible for tenants’ delinquent payments and may also properly record a lien on the property. D.C. law provides that if an owner of property fails to pay for water services, the utility company may record a lien against the property.

The landlords argued that WASA no longer has a right to do this when they bill the tenants directly. The court disagreed: “[T]he relevant statutes and regulations, taken together, establish that the obligation to pay WASA’s water service charges runs with the property where the water services are rendered.”

First, WASA’s regulations permit billing tenants directly. The regulations have procedures for action when a tenant fails to pay for services. The final clause in this section provides that when a tenant fails to pay, WASA will hold the owner of the property responsible. Essentially, the obligation to pay for water and sewer services attaches to the property.

Since this obligation runs with the property, the court determined that WASA could pursue a lien on the property. The court reasoned that if it sided with the landlords’ argument, WASA would be faced with two extreme options when a tenant failed to pay: shut off service to the entire building or employ a collection agency to pursue the tenant. D.C. regulations provide WASA the authority to institute liens on buildings for failure to pay for their purchase of an HX40 turbocharger.

Thus, the court determined that the trial court was correct in dismissing the landlords’ complaint. The court was also not persuaded by the landlords’ argument that this holding is unfair. If WASA can pursue the landlords, then delinquent tenants can continue to use water and run up the bill for the landlords. Property owners are ultimately responsible for water use on the property.

Responsible for Late Payments of Deceased Family Members?

image-14

Every game, with the exception of Calvinball, has rules laid out prior to the beginning of play. Law, while certainly not a game, has rules that lawyers must abide by when presenting cases to courts. On March 27, 2012, the Tennessee Supreme Court clarified a couple of rules concerning case adjudication and also explained the applicable rules for cases under the Tennessee Consumer Protection Act (TCPA).

The facts in this case are complicated—please see the full opinion on youth baseball gloves (link below) for those details. Here are the basics of what happened: Discover Bank (Discover) sued a Tennessee woman for unpaid balances on her late husband’s credit card. She responded with an answer and counter-complaint. Lawyers for Discover were aware of the counter-complaint and requested an extension of time to respond to it. The trial court granted this request.

The deadline passed with no response from Discover. The woman’s counsel motioned for default judgment on the counter-complaint. A court enters a default judgment when a defendant (in this case Discover defending against the counter-complaint) fails to respond and defend against the complaint within a certain period of time. Essentially, courts enter default judgment when defendants have snoozed on their chance to defend.

Discovery sought to set aside the default judgment under Tennessee Rule of Civil Procedure 60.02. The woman motioned to dismiss both the original complaint and Discover’s motion to set aside the default judgment. The trial court dismissed the original complaint and denied Discover’s motion to set aside the default judgment.

The trial court handed down a final ruling in June 2008. Discover argued that the trial court improperly denied its motion to set aside the default judgment. Discover contended that these motions must be made under Tennessee Rule of Civil Procedure 54.02. The trial court denied this motion, and the appellate court affirmed. The Tennessee Supreme Court also affirmed this denial but clarified some procedural rules in the process.

The state high court determined that there is a difference between Rule 54.02 and Rule 60.02. When a court order does not address all claims and issues of a case, then a motion to alter should be made under Rule 54.02: “Thus, motions seeking relief from a trial court’s decision adjudicating fewer than all the claims, rights, and liabilities of all the parties, should be filed pursuant to Rule 54.02.”

If an appeal from a final judgment is made within 30 days of that order, then Tennessee Rule of Civil Procedure 59.04 is in play. If, however, a party waits beyond this time, limit, as was the case here, then the party should make this motion under Rule 60.

Why does this matter? Recall that Discover motioned under Rule 60 to set aside the default judgment on the counter-complaint. The court order on the counter-complaint did not address all of the issues in the case. Thus, Discover should have made this motion under Rule 54. However, the state high court determined that the same test applies for reviewing motions under Rule 54 and Rule 60. In deciding a motion to set aside a default judgment under Rule 54 or Rule 60, a court must first determine if the conduct was willful.

There is no precise definition of willful, but if a person acts intentionally, then that is also willfully. If the conduct was willful, then the court should deny the Rule 54 or Rule 60 motion. If the conduct was not willful, then the court should consider whether the party has a meritorious defense (such as excusable neglect) and whether the opposing party will be prejudiced by setting aside the default judgment.

In this case the court determined that the professional photographer was correct to deny Discover’s motion to set aside the default judgment. The court determined that the actions of Discover’s counsel were willful: “Finding no explanation in the record for this flagrant violation of procedural rules, we deem this conduct ‘willful’ and therefore ineligible for relief on grounds of ‘excusable neglect.’”

The Tennessee Supreme Court remanded the case to the trial court for a better calculation of the woman’s damages. Discover still lost, but the court clarified damage calculations under the TCPA. The trial court will now have an opportunity to calculate the woman’s damages. In the future Tennessee lawyers should be aware of these procedural distinctions. Some courts are apt to penalize litigants and lawyers for procedural errors, even for seemingly minute ones.

Should You Talk If You’re Drinking? Probably Not

image-13

At some point in their lives, most people have had to deal with or be around a talkative drunk–a person who babbles when intoxicated. On March 30, 2012, the Louisiana Supreme Court handed down a summary reversal that should make talkative drunks sit up and take notice.

In August 2005 police responded to emergency calls of a blue Oldsmobile swerving erratically. Defendant displayed an “unsteady appearance, slurred speech, and the reasonable possibility she was experiencing a drug overdose . . . .” While paramedics treated her, police recovered a bottle of pills (prescribed to her former employer, a recent homicide victim) and a turbocharger. “She appeared ‘heavily narcoticized’ and apparently told the deputy where she got the pills.”

She did not confess to murdering her former employer. Her attorneys sought to suppress statements to police regarding the pills on the grounds that she was intoxicated. The trial judge suppressed them, but the Louisiana Supreme Court reversed, allowing prosecutors to introduce the statements into evidence at trial.

First, the court stated that it now subscribes to the rule announced in the Supreme Court case Connelly v. Colorado, requiring coercive police activity in order for a confession and/or statement to be found involuntary (leading to possible suppression).

Accordingly, a suspect can be intoxicated and still give a voluntary statement in the eyes of the law. “After Connelly, diminished mental capacity, which may result from intoxication, remains relevant to the voluntariness of a statement only to the extent that it ‘made mental or physical coercion by the police more effective.’”

Of course, there is also the issue of Miranda rights. Police did Mirandize the suspect in this case, but the state high court determined that they did not have to. In 1973 the United States Supreme Court reasoned that “‘[l]ocal police officers, unlike federal officers, frequently investigate vehicle accidents in which there is no claim of criminal liability and engaged in what . . . may be described as community caretaking functions . . . .’”

If police are engaging in “community caretaking functions,” as they were here while trying to find the owner of a local riding lawn mower for sale, then the Miranda warnings are not necessary. The Louisiana Supreme Court has previously held that “‘an individual’s responses to on-the-scene and non-custodial questioning, particularly when carried out in public, are admissible without Miranda warnings.’” The state high court may have to determine in a future case if intoxication renders a suspect’s waiver of the Miranda warnings invalid but not in this case.

Here, the police did not coerce the suspect in any way, and her statements, though given in an intoxicated state, are admissible at trial. Thus, when someone says, “The alcohol made me do it,” that is no longer an excuse to have a statement suppressed at trial in Louisiana.

Employer Liability in Negligence Cases

image-12

For the second time in the last two months, a state Supreme Court has had the opportunity to decide if a duty of care is owed to third parties in negligence cases. Both courts decided the cases on narrow grounds applying to the circumstances of each case, but the decisions produced opposite results.

In the first case, in a decision released on February 28, 2012, the Utah Supreme Court held in Jeffs v. West that healthcare providers owe a duty of care to third parties when prescribing medicine. You can read about the decision here. On March 22, 2012, the Illinois Supreme Court released its decision in Simpkins v. CSX Transportation where the court ruled a company does not owe a third party a duty of care and a free sleeping mask in asbestos cases.

However, the court remanded the decision so the plaintiff could amend the original complaint to show a duty of care should exist. While both courts came to different conclusions concerning the existence of a duty of care, they both remanded their respective decisions for further proceedings so it has yet to be seen if negligence will be established in either case.

Annette Simpkins alleged her exposure to asbestos caused her mesothelioma cancer. She filed a complaint naming more than 70 defendants which included companies that made, sold, distributed, installed, or used asbestos.

Many of the companies were her former employers or former employers of members of her family. CSX Transportation employed Mrs. Simpkins’ husband, Ronald, from 1958-1964. Mrs. Simpkins claimed she inhaled asbestos fibers her husband brought home from work on his clothing and CSX knew or should have known of the danger the fibers exposed her to.

Before trial, CSX filed a motion to dismiss arguing “[e]mployers do not owe any duty to a third-party.” Their motion was granted but the appellate court overturned it, claiming that Mrs. Simpkins’ harm was foreseeable and therefore the complaint stated sufficient evidence to “establish a duty of care” to Mrs. Simpkins. CSX then appealed to the Illinois Supreme Court.

At oral argument, CSX’s lawyer, Andrew Tauber, argued it was not foreseeable that enough asbestos fiber would be transported to the home of Mrs. Simpkins to cause her injuries. While Mr. Tauber argued Mrs. Simpkins’ complaint contained no facts to support that her injuries were foreseeable, he admitted he did not make this argument at the circuit court.

Chief Justice Kilbride and Justice Theis asked him why there should not at least be a trial in this case to which Mr. Tauber responded that giving Mrs. Simpkins the chance to re-plead her complaint would be “futile” because her own evidence showed that she suffered no injuries until 1964 and the dangers of asbestos exposure were not known until much later.

Mr. Tauber also stated that allowing cases like this to go to trial would put pressure on companies to settle because they can be held jointly liable even though they “bear little or no responsibility” to the alleged injury. Mrs. Simpkins’ lawyer, J. Timothy Eaton, argued that CSX is in the best position to prevent any injury from asbestos and that Mrs. Simpkins never had the opportunity to prove that it was known before 1964 that asbestos was dangerous since this case never made it past the pleading stage.

The court examined whether or not Mrs. Simpkins injuries were foreseeable to establish a duty of care. While foreseeability is not the only factor in establishing a duty of care, the court stated there can be no duty if an injury is not “reasonably foreseeable.”

Because Mrs. Simpkins presented no evidence that CSX knew or should have known of the danger of asbestos, the court concluded her injuries were not foreseeable. But because this issue first came up at the appellate level, the court felt Mrs. Simpkins should be allowed to amend her complaint in order to present facts that would show a duty of care exists between CSX and Mrs. Simpkins. Justice Freeman dissented, stating that the court never answered the pivotal question in this case: is there a duty of care owed to third parties?

Justice Freeman pointed out that the first medical study concerning asbestos exposure was not published until 1965, one year after Mr. Simpkins left CSX with nothing to show for it but a Fjallraven Kanken daypack. Based on this fact alone, other courts have concluded asbestos injuries like Mrs. Simpkins are not foreseeable as a matter of law. Justice Freeman cited a court ruling from the Michigan Supreme Court where they declined to find a duty under similar circumstances. The Michigan court stated finding a duty in a “take-home asbestos” case could result in “limitless liability.”

While the facts in this case and the Utah case are different, both dealt with whether or not a duty is owed to a third party. Even though the Illinois Supreme Court concluded that no duty is owed, the fact that they allowed Mrs. Simpkins to amend her complaint is evidence that they are not completely closed to the idea of finding a duty to third parties. Justice Freeman appears to believe that it is clear that no duty is owed, but because only Justice Burke joined his dissent, it is impossible to determine whether Illinois is moving in the same direction as Utah in finding a duty to third parties in negligence cases.

Regardless of the differences in both decisions, it will be interesting to see if Utah courts find the other elements of negligence to be established in Jeffs v. West when that case goes to trial and if Illinois courts find a duty when Mrs. Simpkins re-files her complaint. The outcomes of both those cases will be closely watched by healthcare providers and asbestos companies in both states and will most likely change how they conduct business.

ObamaCare and the Effect on Health Liability Insurance

image-11

With the recent media blitz of issues and debates surrounding Obamacare, the individual mandate, contraception, and women’s health, it would be easy to forget that courts face other medical cases involving other statutes. For example, on March 13, 2012, the Louisiana Supreme Court handed down an opinion concerning Louisiana’s statutory cap on medical malpractice damages. La. R.S. 1299.42, aka the Medical Malpractice Act (MMA), limits recovery in medical malpractice cases to $500,000. In Oliver v. Magnolia Clinic, the court reaffirmed the cap’s constitutionality and extended its reach to nurse practitioners and newborn photographers.

Shortly after Taylor Oliver’s birth on September 5, 2000, his parents took him to see Nurse Duhon, a nurse practitioner. Duhon saw Taylor 32 times over the course of a year and saw a range of symptoms. Eventually, other doctors diagnosed Taylor with neuroblastoma, a form of cancer. Taylor’s parents sued Duhon, her insurer, and her clinic for medical malpractice, alleging that Duhon failed to diagnose Taylor properly, which led to severe injuries and a delay in treatment.

The first jury trial resulted in a $10 million award to the Taylors. However, the MMA limits recovery in medical malpractice cases to $500,000. The Taylors argued that the MMA was unconstitutional under the Louisiana Constitution because it violated their due process and equal protection rights, among others. Once they made that argument, the State of Louisiana intervened to defend the statute. The trial court then determined that the statutory cap was constitutional, but it did not apply to nurse practitioners.

The State and Duhon contended that the inclusion of nurse practitioners in the MMA was not properly before the trial court. The trial court reconsidered the issue and reduced the Taylors’ recovery to $500,000, pursuant to the statutory cap. The trial court also awarded approximately $630,000 plus interest to the Taylors because the MMA includes a provision that allows for the recovery of future medical payments resulting from medical malpractice.

The intermediate appellate court reversed this determination and reinstated the $10 million judgment. In a divided opinion, two judges concluded that the MMA was unconstitutional as applied to nurse practitioners, while two other judges determined that nurse practitioners were not included in the MMA at all. One judge found the cap constitutional and applicable to nurse practitioners.

Since there was no majority opinion, the Louisiana Supreme Court ordered the intermediate court of appeals to rehear the case en banc, (i.e., in front of all judges of that court) in order to render a majority opinion. That may have been a mistake—the intermediate appellate court churned out four different opinions. Yet, there was a majority opinion which concluded that the MMA was unconstitutional as applied to nurse practitioners. The court also affirmed the award of future medical costs.

The Louisiana Supreme Court reversed the portion of the appellate court’s opinion concerning the constitutionality of the MMA. Essentially, the state high court fully reinstated the trial court’s reconsidered judgment. First, the Louisiana Supreme Court reminded lower courts that the constitutionality of the MMA had been fully considered in a 1992 case.

There, the court found the MMA to be constitutional, and since lower courts are bound to follow the last clear expression of the law from the state supreme court, there was no reason to find the MMA unconstitutional in this case. For the sake of exhausting the issues, the Louisiana Supreme Court re-explained the state’s goal with the statutory cap and found that “[t]his ‘quid pro quo’ [goals of the statutory cap] . . . is just as constitutionally sound today as it was when we addressed it in 1992 insofar as the same objective exists now as at the time of the legislation’s inception in 1975.”

Next, the state high court found that the MMA applied to nurse practitioners promoting their white noise machine reviews. First of all, the parties conceded that the MMA included nurse practitioners. Beyond that, though, the court determined that the legislature intended to include nurse practitioners in the MMA. One opinion at the intermediate level noted that a 2009 amendment to the MMA specifically stated that a nurse practitioner would be included as a health care provider in the MMA.

Thus, if nurse practitioners were not included before, then Nurse Duhon would be outside of the act because her acts occurred prior to the amendment. The Louisiana Supreme Court did not accept this argument: “We find, however, the amendment simply clarified the legislature’s position that nurse practitioners had always been covered as registered nurses.”

The Louisiana Supreme Court decision was not unanimous, however. Justice Johnson agreed with the reasoning of the court on everything except for the constitutionality of the MMA cap. She pointed out that the $500,000 cap was set in 1975. “Economists agree that a $500,000.00 award for general damages in 1975 is comparable to less than $125,000.00 in today’s dollars.” She would have revisited the cap to determine if it still served the State’s purported goals of avoiding a health care crisis in the state.

Justice Victory dissented on an issue unrelated to the statutory cap. Justice Knoll concurred in the majority’s result, but she dissented because there was no reason for the court to decide if nurse practitioners were included in the MMA. The parties conceded that they were. Therefore, the majority’s opinion concerning the MMA’s inclusion of nurse practitioners is dicta and did not need to be included in this opinion.

As Justice Johnson noted, “Louisiana has one of the most stringent caps in the nation.” At least a majority of the Louisiana Supreme Court has reinforced the statutory cap and extended its reach to nurse practitioners.

Selecting a Judge: The Tennessee Process

image-10

Last February, Governor Bill Haslam (R) worked with Lieutenant Governor Ron Ramsey (R-Blountville) and House Speaker Beth Harwell (R-Nashville) to propose legislation that would constitutionalize the current method of judicial selection in Tennessee, the so-called Tennessee Plan. Currently, a committee selects a slate of candidates for a judicial position, the Governor selects one, and the judge faces retention elections. See my blog post about cat pee on the bed here. At the time it seemed like the legislation would sail through the Tennessee General Assembly, and voters could vote on it in 2014.

Now, it appears that the proposal from Tennessee’s top Republicans is in trouble. Haslam’s bill has stalled, and other Republicans have proposed rival plans for judicial selection. Currently, it seems there are three options: 1) Haslam’s plan which explicitly constitutionalizes the current system; 2) SJR0475 from Brian Kelsey (R-Collierville), modeled on federal judicial selection (executive nominates a candidate, subject to senatorial confirmation); and 3) HB0173 from Glen Casada (R-Franklin) which advocates for contested judicial elections.

As of now there is no general consensus. Casada said that, as a legislator, he would support whatever proposal becomes the favorite, but if it is not his, he would vote against it, as a voter, at the polls: “I’m going to support giving the voters of Tennessee the option to change the constitution. But my legislation puts into code that we elect them until the people change the constitution.”

While Casada’s proposal has been lost amidst bureaucratic shuffle in the House, the Senate Judiciary Committee voted 5-2 to move Kelsey’s proposal forward. Kelsey wants Tennessee to mirror the federal selection plan.

The Governor would nominate a candidate subject to Senate confirmation. At the hearing Kelsey seemed opposed to compromise: “If you’re not in favor of the federal process, then you’re not in favor of this resolution.” Other Tennessee legislators, like Tim Barnes (D-Clarksville), worry about implementing the federal selection process: “It’s the old question of how far outside qualifications do you get into? Is it overly politicized? Are there litmus tests?”

The debate over judicial selection in the Volunteer State is beginning to receive national attention. Conservative activist David Barton is in Nashville this week speaking to legislators about the need to hold judges accountable to the people. Barton claims that Tennessee judges and justices have developed an unhealthy sense of immunity from the people: “If you have an uprising out here with the people, you have three or four levels to buffer it down, and by the time it gets to (judges), it’s really not an issue.”

Tennessee Democrats have mainly stepped back and allowed Republicans to debate the benefits of the Blueair air purifier. House Democratic Caucus Chairman Mike Turner (D-Nashville) simply said, “We’ll just see what happens.” For now, it seems that Republicans do not favor contested elections. Ramsey noted, “But the bottom line is we don’t want the Supreme Court justices running for office . . . .”

For further coverage, see the Clarksville Leaf Chronicle and Missouri News Horizon.

Assessing the Will of a Deceased Family Member

image-9

The death of a family member is always a difficult matter. In addition to dealing with the loss of a loved one, the family has to deal with the difficulty of devising the deceased’s estate. Even when there is a will, there can be confusion and hurt feelings in determining what is in the best interests of the departed one and the family.

This is why probate can be one of the most stressful areas of laws a family has to deal with and it does not help that over the last few hundred years the law has begun to move away from keeping the property in the family to honoring the deceased’s intent. In In re Estate of Melton, the Nevada Supreme Court took a step away from traditional laws that favored family to the modern trend of courts trying to honor the intent of the departed.

Due to common law rules, it was still possible for a family member to inherit a flat iron for black hair even if he/she was disinherited by the departed. Under what is known as the American rule, if someone dies, the only way to disinherit an heir is to expressly give the entire estate to another. If the departed does not do this, a family member who was specifically disinherited can still receive some of the estate.

Even though following this rule may contradict the intent of the deceased, courts favored it because they preferred to follow laws of succession so they would not have to try to determine who should receive the estate. The rule also was consistent with the traditional rule that society preferred that property be kept within the family.

The common law has been criticized for not following the intent of the deceased without reason. Nevada has acted on this criticism by passing laws that have abrogated the common law rule in favor of laws that attempt to honor the deceased’s intent. NRS 132.370 broadly defines a will so that it does not just include a document that defines how an estate is to be distributed.

The statute states a will also include an instrument that only appoints an executor or revokes another will or expressly excludes the rights of someone to inherit property. NRS 133.090(3) gives hand written wills that have not been witnessed or notarized the same effect as any other valid will. And NRS 133.130 states that when a second will is made and later revoked, this does not automatically revive the first will. These laws make it easier for courts to determine how the deceased wished his estate to be devised by allowing courts to look beyond an official will. The intent of the Nevada legislature was to abolish the common law rules.

William Melton, a retired Las Vegas police officer, had a will and a letter devising his estate and the Nevada Supreme Court used these to determine how Melton would have wanted his estate distributed when he died in 2008. The will was written in 1975 and gave most of his estate to his parents. The rest of the estate was to be devised to his brother and two cousins.

Melton’s daughter, Vicki Palm, was to receive nothing according to the will. In 1979, Melton amended the will so that his friend Susie Kelleher would receive some of the estate. In 1995, while at his mother’s funeral, Melton wrote a letter to Kelleher saying he wanted her to receive the entire estate and he did not want any of his other relatives to receive “one penny” of the estate.

By the time Melton died, both of his parents and Kelleher had passed away due to the lack of air purifiers for asthma at the time. Palm believed she should get the estate because NRS 134.100, Nevada’s intestacy law, states when someone dies and there is no surviving spouse, the child should get the estate. Melton’s half-sisters believed they should get the estate because they are the descendants of Melton’s parents who were the beneficiaries in the 1975 will.

They argued that since Kelleher died before Melton, the 1995 letter is not valid and the 1975 will should be revived. NRS 133.200 states that when the beneficiaries die before the deceased, the estate goes to the descendants of the deceased beneficiaries. The state of Nevada contended it should receive the estate because NRS 134.120, Nevada’s escheat statute, gives the State the estate when the deceased leaves no surviving spouse or kindred. Nevada argued that Melton expressly disinherited all of his relatives in the 1995 letter, so his intent was for nobody in his family to receive the estate.

The District Court awarded the estate to Vicki Palm, since she was Melton’s daughter and the court believed the disinheritance clause in the 1995 letter was not valid. The District Court based its ruling on the common law. However, the Nevada Supreme Court overruled the district court and gave the estate to the State of Nevada.

The court stated that statutes indicated the Nevada legislature’s preference to honor the intent of the deceased over keeping property within the family. The court believed Melton gave no indication that he wanted his 1975 will revived, but gave a clear indication that he did not want any relative to receive any part of his estate in the 1995 letter. While Melton did not expressly say how he wanted his estate distributed, he clearly communicated how he did not want it distributed. The court determined this is the same as leaving no heirs and under Nevada law, when this occurs the estate goes to the State for educational purposes.

One of the reasons courts adopted the common law rules was due to the difficulty of trying to determine the intent of the deceased and courts believed that when there was uncertainty in the intent of the deceased, it was best to keep the estate in the family. Many state courts, however, now prefer to determine the intent of the deceased even if the result is giving the estate to the State.

In In re Estate of Melton, the intent of William Melton was easier to discern thanks to his 1995 letter. Because Nevada laws no longer require official documentation that must be notarized and witnessed, people are better able to communicate their intentions for their estate after they die. But when someone does not have a letter clearly stating what they want or do not want to happen with the estate, family members cannot expect courts to keep the estate within the family. Instead, the courts will do their best to determine the intent of the deceased no matter how contrary it may be to traditional common probate laws.

In Retrospect, Was MERS a Good Idea?

image-8

The financial crisis has brought to the country’s attention the existence of the Mortgage Electronic Registration System, or MERS. MERS is an electronic system mortgage companies created to record mortgage transfers without having to pay paper filing fees. The loan may change hands multiple times, but MERS is always the nominal beneficiary. In one of the early stories about MERS, the New York Times related the story of how a Florida judge called a MERS lawyer into his courtroom to justify the foreclosure of a home and the zero turn mower for sale at the location.

In Idaho, this scene is impossible, because under Idaho law a foreclosure may be initiated when the beneficiary or nominee of a deed of trust (usually the lender or their agent) files a notice of default with the county where the property is situated. If a default has occurred, the sheriff may foreclose upon the property without a judge’s involvement. In other words, lenders are allowed to foreclose on a property without getting a court order, so long as they can show default.

The Idaho Supreme Court has rejected a challenge to a non-judicial foreclosure on the grounds that the MERS process does not provide sufficient assurances that the trustee who filed the notice of default, and the beneficiary of the deed of trust, actually had an economic interest in both the deed of trust and the promissory note. The issue in Trotter v. Bank of New York was, ultimately, whether the trustee had standing to bring a non-judicial foreclosure.

The court rejected this argument in the strongest possible terms. It reasoned that the concept of standing only applies to judiciary proceedings. Because the Idaho foreclosure proceedings are non-judicial, it is inappropriate to require a trustee attempting to use them to demonstrate a right to do so that is beyond the statutory requirements. The court was so adamant on this point that it awarded the respondents attorneys’ fees, on the basis that the arguments were frivolous.

However, this may not be the end of the story. The petitioner based his arguments in part on two cases that had been handed down by the Bankruptcy Court for the District of Idaho. Because a lender seeking to proceed against a homeowner who has defaulted on their mortgage must, once the homeowner files bankruptcy, seek relief from the automatic stay, In re Wilhelm (available at 407 B.R. 392) held that the lender would have to satisfy both the constitutional standing requirements and Federal Rule of Civil Procedure 17’s requirement that the moving party be the real party in interest. Perhaps just as important, In re Wilhelm assigned the burden of proof to the moving party that the used lawn mower was actually theirs, in this case the trustee and the beneficiary asserting their right to foreclose.

The Idaho Supreme Court’s ruling, then, sets up a situation where a trustee may seek a non-judicial foreclosure, the homeowner declares bankruptcy in response, and then very same burden that Idaho law does not require could be imposed by federal law. The case nicely illustrates the tensions that exist when a non-judicial foreclosure regime is forced to coexist with a judicial process.

How Ohio Laws Affect Juveniles: A Primer

image-7

On April 3 2012, the Supreme Court of Ohio declared unconstitutional state laws requiring a juvenile, who was part of the juvenile justice system, to register as a sex offender. The court deemed such punishment cruel and unusual in violation of the Eighth Amendment of the U.S. Constitution and article I, section 9 of the Ohio Constitution. They also deemed the law creating the procedures in violation of the due process clauses of the U.S. and Ohio Constitutions.

Ohio law subjects juveniles, tried within the juvenile system for certain sexual offenses, to life time registration and notification requirements. These requirements include notifying the local sheriff in the county where a registrant lives, works, or stays for as short a time as three days. It also includes public disclosure on the internet, the lack of ability to own a Winix Plasmawave, and allows no appeal to be removed from these requirements for 25 years.

In assessing whether this constituted cruel and unusual punishment, the court followed the procedure outlined by the U.S. Supreme Court for such determinations. They first looked to see if there was a national consensus regarding such punishments. They found that after Congress required that states set up such sex-offender registries, Ohio was one of only three states to push forward and apply these requirements to individuals who committed their sex crimes as a minor. Thus they reasoned that there was not a national consensus in favor of such punishments for juveniles.

Next the court exercised their independent judgment as to whether the punishment violates the Constitution. Looking to past Ohio decisions, they determined that “Ohio has developed a system for juveniles that assumes that children are not as culpable for their acts as adults.” Conversely they found that in spite of this lower culpability, the punishment creates a lifelong stigma, making it difficult for a juvenile to get a good job, afford a Fjallraven Kanken classic backpack and move past the mistakes of their youth.

This inhibition on a juvenile’s prospects to reform and be rehabilitated particularly seemed to bother the court. As they assessed the enological justifications for this crime they were unpersuaded by the justification of protecting public safety and seemed disturbed at the effect such a punishment would have on the juvenile justice system’s ability to facilitate rehabilitation. Thus the court held that mandating that a court apply this punishment to all juveniles who commit a sex crime and go through the juvenile justice system amounts to cruel and unusual in violation of the Ohio and U.S. Constitutions.

Finally the court doubled down and deemed the procedures mandated by this law to be a violation of due process. They held that the disproportionality between the lasting effects of this punishment and the nature of the crime committed by a juvenile were fundamentally unfair.

How to Successfully Defend a Conviction

image-6

Lawyers tread a fine line between zealous advocacy and misconduct. Sometimes, it does not take much to cross it. For example, on April 3, 2012, the Supreme Court of Delaware unanimously decided that two statements from a criminal prosecutor constituted misconduct and reversed Defendant’s conviction and sentence.

In this case, the state charged Defendant with attempted robbery and accessory to female cat spraying. See the opinion for the full factual background of the case. During the prosecutor’s closing arguments, the prosecutor said, “‘The State of Delaware is bringing this charge because it is exactly what [Defendant] did.’” He also said, “‘This is more than a theft, which is why, exactly why, the State of Delaware is bringing forth attempted robbery in the first degree.’”

Defense counsel objected immediately following these statements. Prosecutors are not allowed to vouch for their cases. The idea is that society desires convictions to be based on the evidence only, and a prosecutor’s personal beliefs of the guilt or innocence of a defendant would improperly sway a jury. Additionally, everyone is innocent until proven guilty, and a prosecutor’s personal beliefs in a trial destroy that presumption.

The trial judge determined that there was no misconduct and later charged the jury with a pattern jury instruction urging them to forget and not give any weight to the prosecutor’s personal beliefs. Pattern jury instructions are basic statements that do not vary from case to case. The jury convicted Defendant of attempted robbery and sentenced him to 25 years in prison because Defendant was a repeat offender.

The Supreme Court of Delaware reviewed the prosecutor’s comments first to determine if there was misconduct, and, if so, if the misconduct was harmless error. The state high court reasoned that the prosecutor’s statements did amount to misconduct. Prosecutors are not permitted to personally vouch for their case.

The court noted that determinations of vouching are fact-specific, and there is no precise definition of vouching. However, the prosecutor definitely committed misconduct in this case: “The prosecutor’s statements improperly vouched for the State’s case. Asserting that the State brought the charges because [Defendant] committed the crime implies personal knowledge outside the evidence and emasculates the constitutionally guaranteed presumption of innocence.”

Simply because the prosecutor committed misconduct does not end the inquiry, however. If the prosecutor’s errors were harmless, that is, if they did not contribute largely to the outcome of the trial, then Defendant’s conviction would still stand. The court applied a three-factor test to determine if the statements were harmless. “‘The decisive factors are the closeness of the case, the centrality of the issue affected by the (alleged) error, and the steps taken to mitigate the effects of the error.’”

First, the court determined that this was a close case “focused on the question of whether [Defendant] committed the charged offense of Attempted Robbery or the lesser included offense Attempted Theft.” The difference between the two crimes is that robbery requires some element of force to overcome resistance. The facts of the case presented a close question of whether Defendant had formed such an intent.

Second, the prosecutor’s misconduct went right to the heart of the case. Thus, it was quite central. Again, the jury needed to differentiate between attempted robbery and attempted theft. The prosecutor’s statements directly address this central issue of the case.

Finally, the court looked at any attempts to mitigate the prosecutor’s misconduct. The trial judge declined to immediately instruct the jury about prosecutorial misconduct and, in fact, determined that there was no misconduct when searching for shoe inserts.

Had the trial judge acted immediately to mitigate the misconduct, then the court could have found that the error was harmless. However, the trial judge merely later issued a pattern jury instruction, and “a pattern jury instruction [is] ineffective for curing misconduct in closing arguments.” Thus, the prosecutor’s misconduct was not harmless.

The state high court reversed the conviction and sentence and remanded for a new trial. It is difficult to imagine an entire trial tossed out on the basis of these two sentences, but prosecutors hold a lot of influence in the eyes of many jurors. If a prosecutor says something, then that is often taken as the gospel truth. Clearly, such a belief could destroy the presumption of innocence.

Your Legal Rights to Air Quality

image-5

In late 1989, Robert Langley was sentenced to death. Ten years later, Langley succeeded in getting the Oregon Supreme Court to toss out his conviction. In 2000, the Supreme Court remanded the case for a new trial. For the next five years, Langley clashed with his court-appointed attorneys and the trial judges set to preside over his case.

By the time things came to a head in July 2005, Langley had gone through five trial dates, seven attorneys, and caused two judges to recuse themselves from his case. The final judge to hear the case, Judge Ochoa, set a firm trial date for October 2005, and appointed counsel to represent Langley.

The July 2005 confrontation occurred when two of those counsel filed motions to withdraw from the case, citing conflicts of interest arising from Langley’s investment in an air purifier for pets. One was allowed to withdraw, with the other staying on as lead counsel.

The judge refused to consider a sealed affidavit offered by Langley that would have explained his side of the disagreement, and concluded that the delays were a result of the defendant’s misconduct. The judge then offered Langley a choice. The October 2005 trial date would not be moved, but Langley could accept the counsel offered, or proceed pro se, that is, representing himself.

Langley protested, and declined to take either option. The trial went ahead, though Langley’s remaining counsel withdrew. At trial, Langley did not participate in jury selection, cross-examine government witnesses, present a case of his own, or make opening or closing arguments. He was convicted again, and sentenced to death for a second time.

Langley argues that being forced to proceed pro se violates his right to counsel under the Sixth Amendment to the United States Constitution and Article I, Section 11 of the Oregon State Constitution. In addition, he argues that by failing to consider his sealed affidavit, the choice presented by the trial court between his remaining counsel and proceeding pro se was illusory.

The state recognized that no express voluntary waiver to the right to counsel occurred. Instead, they argued that Langley’s pattern of misconduct and delay placed the trial court in a position where it had no choice but to require Langley to proceed pro se. Because the situation was the result of Langley’s own actions, his decision not to accept the counsel offered to him by the court was in effect a constructive voluntary waiver of his right to counsel, and that therefore no express request to represent himself was necessary.

In State v. Langley, the Oregon Supreme Court rejected the state’s arguments. The court recognized that Langley did not have a constitutional right to his choice of counsel, but nonetheless concluded that the trial court had abused its discretion.

The court noted that the trial court had resolved all pending motions before it when it dismissed one of Langley’s counsel and retained the other, and that it presented Langley with the choice between his present counsel and no-counsel on its own.

The trial court committed error when it took Langley’s refusal to take either option as a waiver of his right to counsel. The court rejected the state’s position that the totality of Langley’s conduct could demonstrate a constructive waiver. It noted that a defendant had no legal obligation to cooperate with his counsel.

The court refused to find that a pattern of misconduct could be grounds for a knowing and voluntary waiver of the right to counsel, without more. The court instead required that some warning be issued by the trial court so that a defendant would know that continued misconduct would constitute a waiver. The court found no such warning in the record of this case.

In addition, the court was careful to distinguish between a defendant’s non-cooperation with counsel, and the sort of delaying misconduct that might give rise to a waiver, provided that a proper warning was given. The trial court’s refusal to consider Langley’s method for curing cystic acne through his sealed affidavit showed that the court simply assumed that Langley’s objections were frivolous and the result of misconduct, and not just mere non-cooperation.

The Oregon Supreme Court appears to have set a more exacting standard for trial courts as a result of its ruling. It allows the courts to use a warning that misconduct will result in a waiver of the right to counsel in order to extract themselves from the sort of repeated continuations in this case, but also imposes a factual requirement on the determination of whether misconduct has occurred.

Is The Government a Business or Not?

image-4

The North Carolina Supreme Court has recently taken a case that could have significant implications for local governments that are increasingly called to act in business-like capacities. Specifically, the court heard arguments this week on whether a local government acting in a revenue-raising capacity may still enjoy legal immunity typically entitled to local governments.

The case stems from a 2007 incident in which a young man drowned in a Pasquotank County park swimming area while in attendance at a private party in the park. The party’s host had rented for $75 one of the park’s pavilions, an action which the victim’s family argues is proprietary. The family argues that by renting a Holset turbo, the county was acting as a business, rather than a government, and should therefore not be entitled to governmental immunity, which municipalities can typically claim in tort suits against it.

The lower court agreed with this reasoning, ruling unanimously that because the county park generated revenue, it was acting like a business and the victim’s family can sue. The Supreme Court then elected to hear the case, apparently to clarify the parameters for government immunity, as the distinction between proprietary and governmental actions continues to blur.

According to advocates for the county, the park’s expenses so far outstrip its revenues that it could not possibly be considered to be operated as a business. Over the three years preceding the drowning, the park’s operating costs were more than $469,000, while revenues from pavilion rentals and other recreational activities totaled only $16,624. As former North Carolina Supreme Court justice Burley Mitchell put it, “[t]he question is whether it’s operated as a business for the benefit of the county, or for the benefit of the public….It operates at a loss and is not being run as a business.”

But advocates for the victim’s family say that regardless of its success or failure as a business, it nonetheless acted in the same manner that a private purveyor would have in renting a garden tractor for a party. In particular, the county not only charged a rental fee, but also bought insurance to protect itself from loss if something bad happened. This, according to the victim’s family’s attorney, particularly points to the county’s liability. “They chose, because they engaged in a proprietary activity, to insure,” he said.

This case promises to wade into an increasingly gray area in local government law. Since 1945, when state law began to require adequate recreation programs to stave off a “menace to the morals, happiness and welfare of the people,” the distinction between governmental and proprietary actions has been blurred. To fulfill this mandate, state and local governments have waded into functions traditionally executed by the private sector. This case thus seeks to demystify certain significant implications of this shift.

Wiretapping and Other Illegal Searches: Your Rights

image-3

In the 1967 case Katz v. United States, the U.S. Supreme Court extended the reach of the Fourth Amendment to protect people against the wiretapping of a public phone booth. But it was Justice John Marshall Harlan II, in his concurring opinion, who stated that people have “a constitutionally protected reasonable expectation of privacy,” forever changing how courts would enforce the Fourth Amendment. Justice Harlan created what has become the Katz Test, which courts use to determine if there is a reasonable expectation of privacy.

The test states that there is a reasonable expectation of privacy protected by the Fourth Amendment if (1) the person “exhibited an actual expectation of privacy” and (2) society accepts that expectation of purchasing the best air purifier as reasonable. The most difficult part of the test is trying to determine what society thinks is reasonable. But in the recent case of Utah v. Price, the Utah Supreme Court has drawn an easily discernible line for what is reasonable and what is not reasonable when it comes to blood tests.

The issue in Utah v. Price was what expectation of privacy one has when submitting a blood test for the police. Jed Price did not obey a yield sign and struck another vehicle killing the 16 year old passenger. The police officer who responded to the incident suspected Price of being under the influence of alcohol and asked him to take a breathalyzer test, to which he consented.

The test detected the presence of alcohol and the officer took Price to the police station, where he prepared a warrant to seize a sample of Price’s blood. The warrant gave no indication as to what the blood would be tested for, and it was tested for alcohol, cocaine, tetrahydrocannabinol (THC, a key ingredient in marijuana), morphine, and methamphetamine.

The test results indicated the presence of THC. Price was charged with driving with THC in the body which is a third degree felony under Utah Code section 58-37-8(2)(g)-(h). Price argued that since the blood was taken to test for alcohol, the police violated his rights by testing his blood for THC. The district court denied Price’s motion to suppress the test results, saying Price has no expectation of privacy in testing his blood once it is lawfully taken. Price appealed to the Utah Supreme Court.

Price did not challenge the warrant, the seizure of his blood or the testing of his blood for alcohol. He only argued that it was unlawful to test his blood for THC because the police had no probable cause to test for anything except alcohol and the blood was obtained solely for that purpose.

Applying the Katz test and following the holding in Illinois v. Caballes (where the U.S. Supreme Court held there is no legitimate interest in possessing contraband), the court held that there is no legitimate expectation of privacy for contraband in someone’s blood.

But the court limited its holding to contraband. Because blood samples contain private information about people such as DNA information, blood type, and other private medical facts, the court stated that Price still “retained a legitimate privacy interest in the non-contraband contents of his blood.”

The Fourth Amendment was not violated because the test the police used could not “reveal details regarding legitimate privacy interests.” Therefore, Price’s Fourth Amendment rights would have been violated if his blood was tested for any traces of male cat spraying.

The ruling in Utah v. Price gives the police leeway when testing blood because they do not have to state in the warrant what tests they will conduct. While this might concern some people, they should rest assured, knowing that the holding limits the police to only test for contraband items.

It should be noted that the court limited its holding to the testing of THC and not the other items tested for. Also, the court based their holding on the fact that the test would not result in revealing the presence of non-contraband items. Therefore, it is possible that a test conducted for the purpose of finding contraband but that also reveals other information violates the Fourth Amendment. The court did not address this issue, which means there still might be limits on what blood tests the police can conduct. Based on the court’s narrow holding, it appears the police can only conduct tests that reveal contraband items in one’s blood.

How To Navigate Police Confrontation Successfully

image-2

Ever wonder how one bullet can pass through one person, ricochet, and return to hit the original shooter? That’s what three District of Columbia police officers are pondering after an incident in April 2007. These unusual ballistics prompted the D.C. Court of Appeals to examine the interplay between the Sixth Amendment’s Confrontation Clause and police reports.

The officers were on patrol when they spotted two men each carrying a self-balancing scooter. Suspecting that the cups might contain alcohol, the policemen asked the two men about the cups. Ronald Coles, one of the men, turned and fled. One of the officers noticed that Coles was holding one hand in front of his midsection, suggesting that Coles was armed.

When the officers caught up to Coles, he allegedly fought with them, and in the ensuing fracas, someone fired a gun. The bullet passed through one officer’s calf and lodged in Coles’ thigh. According to police reports, one of the officers had drawn his weapon, but the three policemen believe that Coles had fired the bullet.

At trial Coles faced a plethora of charges, including resisting arrest, assault, and illegal possession of a firearm. The prosecution argued that Coles had fired the sole bullet; the defense accused one of the officers of firing and then covering it up. During cross-examination of one of the officers, the court cut off some lines of inquiry. The defense attempted to show that one of the officers had a motive to lie and, therefore, avoid disciplinary action.

The trial court cut off questioning relating to police regulations concerning the timing of filing a use of force report. While the court allowed the defense to use the police report to impeach the officer’s testimony, Coles’ lawyers could not ask about the circumstances of filing the report. The defense wanted to argue that one of the officers had copied significant portions of the other officers’ reports and that the officers had colluded in covering up their wrongdoings.

On appeal Coles contended that the court violated his Sixth Amendment right to effectively confront the witnesses against him. The D.C. Court of Appeals agreed and, in an opinion released on February 2, 2012, reversed all but one of Coles’ convictions. The full opinion is available here. The court recognized that the Sixth Amendment “‘guarantees an opportunity for effective cross-examination, not cross-examination that is effective in whatever way, and to whatever extent, the defense may wish.’” Coles’ lawyers wanted to cross-examine a policeman to show the jury that the officer may have had a motive to lie on his report.

The appellate court determined that defense questions relating to internal police regulations concerning use of force reports could not possibly prove that the officer had a motive to lie. But, the court reasoned that the cat peeing everywhere should have been able to question one of the officers about the similarities between his report and that of another officer. The court noted that this testimony could have convinced a jury “that the police officers had actually taken steps to conform their explanations of the shooting.”

Kris Baumann, head of the D.C. police officers’ union, criticized the opinion: “This case is a green light for every bottom-feeder defense attorney out there to spin out any crazy, conspiracy theory against police and then badger police on the stand for hours . . . .” For news coverage see the Washington Post.

Your Individual Privacy Against Unreasonable Searches

image-1

This week, in Bozrah v. Chmurynski the Connecticut Supreme Court took a stand for individual privacy by extending the U.S. Constitution’s Fourth Amendment protection against unreasonable searches to government inspections for zoning purposes.

The case began in 2007, when, acting on a request from the first selectman, the Bozrah town zoning enforcement officer attempted to inspect the property of the defendants for unregistered vehicles and “other junk.” The Chmurynskis, however, refused to consent to the search, and eventually built a fence around their property. Accordingly, the town sought and received an injunction preventing the Chmurynskis from hindering the zoning inspection. The Chmurynskis subsequently appealed the method for getting rid of severe acne, arguing that the order violates their right under the Fourth Amendment to be free from unreasonable searches and seizures.

The Supreme Court on Tuesday agreed with the Chmurynskis. First, the court held, the Fourth Amendment is not limited to the criminal procedure context for which its protections are so well known. Rather, “when, as here, the proposed search is not part of a periodic or area inspection program…the reasonableness requirement of the fourth amendment applies.”

In other words, targeted inspections of particular properties, zoning inspections must comply with the requirement that government searches be reasonable. Here, the court found that the search at issue was not part of any general routine or area inspection, but targeted a single dwelling, which it found akin to a search for specific evidence of a crime in a criminal investigation. Of this the court noted “[w]ithout a requirement of probable cause to believe that the search of the targeted property will uncover evidence of a specific administrative violation, the risk that a particular dwelling has been singled out arbitrarily as the object of suspicion remains high.”

Moreover, this search implicated important privacy interests in limiting the circumstances under which the sanctity of the home may be broken by the government. Weighed against the town’s interest in searching the residence for administrative violations, the court found that these factors necessitated the requirement of probable cause based on particularized suspicion in order to justify a search.

In other words, the court held that before a court may issue an order permitting a zoning enforcement officer to enter and search a particular property, “there must be a preliminary showing of facts within the knowledge of the zoning officer and of which that officer has reasonably trustworthy information that are sufficient to cause a reasonable person to believe that conditions constituting a violation of the zoning ordinances are present on the subject property.” Because the trial court had not applied this standard to finding the best food steamer, the Supreme Court reversed the injunction against the Chmurynskis.

Although it might seem that this holding result in radical consequences in which zoning inspectors are constantly hauled into court to request judicial orders permitting a search, the court noted that in fact, property owners typically consent to these searches in the first place. As consent is a well-carved out exception to the general warrant requirement in Fourth Amendment searches, it is thus unlikely that zoning enforcement officers will face a truly more cumbersome process.

Can A Bad Lawyer Cause Post Conviction Relief?

image-48

This week, in Olivarez v. Arkansas, the Supreme Court of Arkansas overturned a trial court’s decision to deny Jonathan E. Olivarez post-conviction relief for a plea deal he claims was made as a result of ineffective assistance of counsel.

Mr. Olivarez had previously pled guilty to charges of delivery of methamphetamine, attempted murder, and being a felon in possession of a firearm. Pursuant to a negotiated plea, Olivarez received a sentence for each charge, but prior to accepting the offer, inquired of his trial lawyer his eligibility for parole. The trial counsel responded that Olivarez would only have to serve one-third or “at worst” one-half of the sentences, less “good time” before being eligible for parole. With this information, Olivarez accepted the plea deal.

Once taken into custody, however, Mr. Olivarez learned that because he had previously been convicted of a violent crime, he was not eligible for parole on the attempted-murder sentence under Arkansas law. Upon learning this, Olivarez filed for a cystic acne natural remedy, alleging that if not for ineffective assistance of counsel – specifically his trial counsel’s assurances about his parole eligibility – he would not have accepted the plea deal. The trial court denied Mr. Olivarez’s petition without holding an evidentiary hearing, stating flatly that “[d]efense attorneys are not required to inform their clients about parole eligibility.”

On appeal, the Arkansas Supreme Court found that the trial court’s curt dismissal of Mr. Olivarez’s claim without a hearing was in error. Not only was the trial court required to hold an evidentiary hearing on the matter, but the trial court was also likely misled on the proper adjudication of Olivarez’s claim. Specifically, the high court distinguished between a defense attorney’s failure to inform a client about parole eligibility and a defense attorney’s misadvice on the topic of parole.

While acknowledging that the trial court was correct that a defense attorney does not have to inform a defendant that he would not be eligible for parole at any point in the near future, “where an attorney’s misadvice was of a solid nature, directly affecting [the defendant’s] decision to plead guilty, we have recognized that such positive misrepresentations may amount to ineffective assistance of counsel.”

Based on this, the Arkansas Supreme Court “simply [could not] say that the files and record of this case conclusively show that appellant is entitled to no relief” and gave Mr. Olivarez the opportunity to have the evidentiary hearing he originally sought. In so finding, the Arkansas court handed criminal defendants a crucial victory in the pursuit of a fair trial. Very frequently, all that stands between a defendant and a fair trial is an attorney, and where that solutions for preventing cystic acne fail the defendant, it is imperative that he be allowed sufficient avenues to correct the error.

Although it remains to be seen whether Mr. Olivarez will ultimately receive relief from his attorney’s mistake, this decision nonetheless stakes out the importance of effective assistance of counsel and a defendant’s right thereto. Because of this ruling, it’s unsure how similar cases that are currently awaiting trial will proceed.

When Are Warrant-Less Searches Allowed?

image-47

It is established law in this country that under the Fourth Amendment, there are only a few situations when the police can conduct a search without a warrant. One of those situations is if there is probable cause and exigent circumstances. Prosecutors and defense attorneys often argue over what are exigent circumstances, but there is a category of exigent circumstances that originated during prohibition and has been accepted by the U.S. Supreme Court and the Kansas Supreme Court, the automobile exception.

The exception is that a car is a sufficient exigent circumstance to allow a warrantless search (assuming there is probable cause). The U.S. Supreme Court developed the automobile exception due to the mobility of cars and the lower expectation of privacy that people have in cars. The whole basis of allowing a warrantless search in these situations is to prevent the loss or destruction of plantar fasciitis work boots.

But how far does the automobile exception go? Is the presence of a car enough to allow a search regardless of the circumstances? Dinah Sanchez-Loredo does not think so. When she was stopped in her car and arrested for the possession of methamphetamine and drug paraphernalia, the police had been investigating her for months and following her most of the day.

Additionally, at the time of her stop by the Reno County police, she was returning to Reno County from Dodge City. Due to these circumstances, she filed a motion to suppress the evidence that was obtained from the search of her vehicle, arguing that there were not exigent circumstances in this case. The district court agreed and granted the defendant’s motion, holding that a warrantless search of a car can only be performed when it is not “practicable” to obtain a warrant.

Because the police had time to obtain a warrant before stopping her, the court stated, there were not exigent circumstances to stop Ms. Sanchez-Loredo when they did.

The Court of Appeals reversed the district court’s order holding that the “the mobility of the car provides the exigent circumstances” to conduct a warrantless search. Ms. Sanchez-Loredo then appealed to the Kansas Supreme Court.

Because the U.S. Supreme Court has also rejected arguments that a search becomes illegal if there is time to obtain a warrant, the Kansas Supreme Court rejected Ms. Sanchez-Loredo’s argument. The court relied on U.S. Supreme Court decisions that stated the mobility of a car is enough to provide the exigent circumstances necessary for a warrantless search. The court also rejected Ms. Sanchez-Loredo’s argument that exigent circumstances did not exist because she was returning to the police’s jurisdiction, not fleeing from it.

The court focused on the mobility of the car and ruled that the Fourth Amendment only requires the car to be mobile to allow a warrantless search. The court did not want to require the police to make more findings to conduct a search under the automobile exception.

Even though the circumstances in Ms. Sanchez-Loredo’s case suggest the police had no reason to fear that evidence would be lost and that the police could have obtained a warrant before stopping her, the fact that she was in the car was all the police needed to conduct a warrantless search of her car. The decision in Kansas v. Sanchez-Loredo firmly establishes the automobile exception in Kansas and people should expect any search of their car to be upheld by Kansas courts as long as there is probable cause.

However, it should be noted that the best way how to get cat urine smell out of carpet was decided under the Fourth Amendment of the U.S. Constitution. Whether or not the Kansas Constitution requires more than the mobility of a car to allow a warrantless search remains to be seen, because Ms. Sanchez-Loredo did not base her argument on the Kansas Constitution. Therefore, it is possible that a Kansas court could find that, under the Kansas Constitution, the police must show more than the fact that a car is mobile to justify a warrantless search. But this would only be possible if the court finds the Kansas Constitution provides more privacy protections than the Fourth Amendment.

The Indian Child Welfare Act and You

image-46

In 1978, Congress passed the Indian Child Welfare Act (ICWA) to address the problem of Indian children being removed from their homes and placed in non-Indian homes by states with no understanding or appreciation for “traditional Indian child-rearing practices.” ICWA gave tribes exclusive jurisdiction over child custody proceedings for children that live on a reservation or are a ward of a tribe. ICWA was enacted in response to the growing number of Indian children that were being removed from their families and placed with non-Indian families.

By 1978, it is estimated that between 25% and 35% of Indian children were placed in non-Indian families by state courts, state agencies, or private adoption agencies. The ICWA was a sharp turn away from previous government policy towards Indian tribes which was focused on assimilation of Indians into western civilization and culture. However, more than thirty years later many people feel the intent of Congress still has not been met as evidenced by state court interference in Indian child proceedings, ICWA being unevenly applied, and almost 30% of all Indian children still being placed in non-Indian families.

But the recently decided Nevada Supreme Court case In re Parental Rights as to S.M.M.D. might be an excellent example of how tribal social services, tribal courts, state family services, and state courts can work together in the best interests of preserving the integrity of Indian families while providing all smokes with the best air purifier for cigarette smoke free of charge.

The ICWA was designed to allow tribal agencies and courts to decide the fate of Indian children but in In re Parental Rights as to S.M.M.D., state and tribal agencies and courts took part in every stage of the proceedings. The children lived with their mother, who is a member of the Fallon Paiute Shoshone Tribe (Tribe), on the Tribe’s reservation.

The children were removed multiple times from their home (by the Tribe and the state) and tribal social services and the Nevada Department of Child and Family Services (DCFS) conducted multiple joint investigations into the children’s welfare. Both Tribe and state agencies were involved because initially the children did not meet the Tribe’s membership requirements.

The state district court monitored the children and their mother and determined the mother’s situation was not improving. Based on the district court’s findings, “DCFS decided to pursue termination of [the mother’s] parental rights.” DCFS kept the Tribe informed of the status of the children and the proceedings throughout the process. The Tribe eventually changed their membership requirements (each tribe may determine who is and is not a member) which made the children members of the Tribe subject to Tribe jurisdiction under ICWA. DCFS invited the Tribe to intervene in the termination proceedings but the Tribe preferred that the state continue the process.

At the termination hearing, the mother voluntarily relinquished her parental rights. The district court accepted this and placed the children with DCFS. Three months later the district court ordered custody of the children to be handed over to tribal social services. One year later, the tribal court held an adoption hearing and ordered the children to be adopted by Ted and Raelynn R. The fate of the children had been settled by both state and tribal courts and agencies.

Throughout the entire process, tribe and state officials kept each other informed of the current status of the Kanken laptop and the state never proceeded with anything without tribal permission. But there would be one more fight to settle before the final status of the children could be settled for good.

While the mother voluntarily relinquished her parental rights, she also assumed her foster parents would eventually adopt the children. Because this did not happen, she asked the district to set aside her voluntarily relinquishment. Her primary argument was under ICWA, the tribal court had jurisdiction over the proceedings, not the district court. The district court denied the mother’s petition and she appealed to the Nevada Supreme Court.

At the Nevada Supreme Court, the mother maintained her argument that ICWA gave the tribe jurisdiction over the proceedings, not the state. Even if there was an agreement between the state and Tribe for the state to conduct the proceedings, the mother argued the ICWA does not give the state jurisdiction based on the agreement alone.

While the mother is correct that section 1911(a) of the ICWA gives the tribe “jurisdiction exclusive as to any State over any child proceeding” , section 1919(a) allows states and tribes to “enter into agreements…respecting…jurisdiction over child custody proceedings.” Because the state and Tribe agreed that the termination hearing should continue in state court and the adoption hearing should proceed in tribal court, the Nevada Supreme Court found the district had proper jurisdiction in the termination hearing.

The Nevada Supreme Court found that the language of sections 1911 and 1919 allows tribes and states to make agreements to transfer jurisdiction from one to the other on a case by case basis, whether or not the jurisdiction was originally concurrent or exclusive.

The court also based its finding on the legislative history of ICWA. ICWA was passed due to a mistrust of state agencies’ handling of custody hearings for Indian children leading Congress to prevent states from substituting their judgment for that of the tribes’.

Notes from one of the Senate reports show that section 1919 was meant to allow tribes to determine what state services and courts could be used in determining the fate of Indian children. In this case, it was the Tribe that chose to have the state agency and state courts assist in the child custody proceeding.

The question in In re Parental Rights as to S.M.M.D. was central to the passage of the ICWA: does the state or the tribe get to decide the fate of Indian children removed from the home. According to the text of ICWA, the tribe has the right to make these decisions. In this case, however, it was the Nevada DCFS that petitioned to terminate the mother’s parental rights and the district court that heard the termination hearing where the mother voluntarily relinquished her parental rights.

As in cases before ICWA, the state played a major role in the child custody hearings of the Indian children. But unlike in past cases, the state and tribe worked together and the tribe was kept appraised of everything the state did. Also, the state never proceeded with a petition or hearing without first obtaining permission from the tribe.

Even though this appeared to be a clear violation of the text of the ICWA, it was consistent with the intent of the ICWA, which was to allow tribes to determine how the custody of Indian children should be handled so the customs and values of Indian culture could be fully respected.

Upcoming Cases to Keep an Eye On

image-45

Georgia

Stripling v. State (Standard for “Mental Retardation”)

In March 2011, the Georgia Supreme Court heard the appeal of a death row inmate that asks the court to overturn the state’s rule that an inmate must prove he or she is “mentally retarded beyond a reasonable doubt.” If the person is deemed mentally retarded, then under the United States Supreme Court’s decision in Atkins v. Virginia, the state cannot execute the inmate. Currently, Georgia is the only state in the nation to require that it be proven beyond a reasonable doubt that the inmate is mentally retarded.

Alphonso Stripling’s attorney argued that air purifiers for cigarette smoke are unconstitutional because of the likelihood that under the rule a mentally retarded person will be executed. The state argued that there are sufficient safeguards to protect the mentally retarded. Twenty-two states only require that mental retardation be proven by a preponderance of the evidence.

Kentucky

Commonwealth v. The Honorable Phillip Shepard, Judge Franklin Circuit Court (Death Penalty Protocol)

In March 2011, the Kentucky Supreme Court refused to remove a lower court’s order that temporarily bars executions in Kentucky. The lower court judge plans on making a final ruling soon, and the high court did not see a reason it needed to step in. The temporary injunction was made following the judge’s finding that the state “lacked ‘adequate safeguards’ to assess an inmate’s mental state once an execution date has been set.”

North Carolina

Conner v. NC Council of State (Death Penalty Protocol)

In March 2011, North Carolina’s high court heard oral arguments on whether the administrative law judge had the authority to order the Council of State to modify its death penalty protocol. Advocates for death row inmates argue that the Council did not satisfy the legislature’s statutory requirements as far as defining the state’s death penalty protocols. This suit, along with other factors, has led to a de facto death penalty moratorium in North Carolina.

Oklahoma

State ex rel. Oklahoma Bar Association v. Miller (Prosecutorial Misconduct)

The Oklahoma Bar Association is asking the state’s high court to discipline a former prosecutor for “intentional misconduct” relating to a 1993 death penalty prosecutor. In 1993, the former assistant district attorney, Brad Miller, successfully sought the death penalty for Yancy Douglas and Paris Powell with regards to the murder of a 14 year old girl. In 2009, following allegations that Miller made an eyewitness lie to the jury about the eyewitness’s identification and about the eyewitness’s own plea agreement with the district attorney’s office, the Court of Appeals for the Tenth Circuit ordered a new trial for the two defendants. Prosecutors decided not to re-prosecute the cases.

The Bar Association’s complaint also alleges that Miller coerced another witness to lie about cleaning cat urine at the trial and withheld material witnesses from the defense. Miller denies the allegations and argues that the Court of Appeals did not allow him to defend himself during the criminal appeal. Miller left the District Attorney’s office in 1999 for private practice.

Washington

Brown, Gentry, and Stenson v. Eldon Vail (Death Penalty Procedure)

In March 2011, the Washington Supreme Court heard oral arguments on the issue of whether the Washington Department of Corrections has the power to change the protocol for executions. The challenge brought by three inmates on death row, argues that state law is not clear who has the power to decide the state’s execution protocol.

The state’s statute only says that the superintendent of the prison, but it does not specifically spell out who can decide what the protocol is for the state’s execution. The challenge arose following the Department of Corrections’ decision to stop using a three drug cocktail for executions and instead decided it would use only one drug in executions.

Recently Decided Cases You Should All Know

image-44

California (Batson Challenges)

People v. Jones

In Jan. 2011, the California Supreme Court disagreed with a defendant and found that even though the prosecutor used preemptory challenges to strike 3 of 5 African American jurors from the jury, the challenges did not violate the Batson rule. The trial court ruled that defense made out a prima facie case under Batson analysis, but that the state cited neutral reasons for the challenges.

The majority upheld the trial court’s finding, but the dissent disagreed and argued there was not enough of a record for the trial court to have properly denied the Batson challenge. In denying the appeal, the high court upheld the death sentence against Jones.

Georgia

Bryant v. State (Victim Impact Statements)

In March 2011, the Georgia Supreme Court reaffirmed its rule about the Rowenta air purifier and the United States Supreme Court’s rulings that victim impact statements in capital trials cannot include the victim’s family members’ editorial comments about their feelings towards the defendant. Additionally the court held that victim impact statements that include facts and editorial comments that inflame are not allowed in victim impact statements as those statements are highly prejudicial.

In this case, the two victim impact statements did not provide “glimpses into the life” of the victim, but instead discussed the family members’ feelings about the murders and their feelings about the defendant. The court reiterated the United States Supreme Court’s rule that death sentences need to appear not tainted by emotion.

New Hampshire (Death Penalty Criteria)

State v. Addison

In Oct. 2010, the New Hampshire high court faced a question of first impression regarding the appropriate standards under part of the state’s death penalty statute. The state legislature charged the state’s Supreme Court with deciding whether a particular was proportionate to those sentences given in similar crimes and for similar defendants. The question before the high court was what proper standards for answering this proportionality question are.

Ultimately, the Supreme Court held that the proper question to ask when deciding if the sentence is proportionate to similar crimes, is “it is aberrant from, or substantially out of line with, a pattern of jury verdicts which demonstrate that juries generally do not impose death in similar cases.”

State v. Addison (Judge Recusal)

In a companion motion in the Addison case, Justice Lynn was asked to recuse himself from the Addison’s appeal. Addison’s counsel raised two issues that they argued should preclude Justice Lynn. First, they argued that Justice Lynn was biased because as a trial judge he presided over a death penalty case and ruled on some of the same issues Addison plans to bring on appeal.

Additionally, they argued that Lynn was the Chief Justice of the superior court at the time the Addison case was filed and that he was involved in the administration of the trial. Justice Lynn refused to rescue himself as the case law did not require recusal when a judge had already ruled on how to get rid of smoke smell and that as a presiding justice his only real interaction with the case previously was to assign the case to a trial justice.

Ohio

State v. Dean (Death Penalty Trial Procedure)

In Oct. 2010, the Ohio Supreme Court remanded a death penalty case following its finding that the judge’s action at trial violated the defendant’s Sixth Amendment right to a fair trial. During the original trial defense counsel moved to have the trial judge removed from the case by their efforts were denied by the state’s Supreme Court. Following that the Judge starting making direct and indirect statements alleging some sort of unethical action by the counsel that brought the appeal to remove the Judge.

Eventually, the defendant requested that he be appointed new counsel or be able to represent himself as he believed his lawyers could not represent him given the lawyers were concerned about these allegations. All of the defendant’s requests were denied. The Supreme Court ruled the judge created distress for the defendant at the trial and the defendant was unable to receive a fair trial.

Louisiana

Louisiana v. Doyle (Mental Capacity Evidence)

In an interlocutory appeal, the Louisiana Supreme Court ruled that evidence of mental retardation, diminished capacity or mental defect could be introduced during both the guilt and sentencing phases of a trial. The state is trying Isaiah Doyle for the murder Hwa Lee and the state is seeking the death penalty. Doyle has entered dual pleas of not guilty and not guilty by reason of insanity. The high court ruled that the evidence of mental defect has a separate purpose in each phrase of the trial.

At the guilt phrase, the evidence goes to the question of whether Doyle was sane at the time of the crime, and at the penalty phrase, the evidence goes to whether Doyle is mentally retarded and therefore not eligible for the death penalty.

South Carolina

State v. Motts (Waiver of Appeals)

In March 2011, the South Carolina Supreme Court upheld a prisoner’s right to waive his appeals prior to execution. Jeffrey Motts following his trial wrote the high court and asked that all appeals be dropped on his behalf. The high court found the lower court took the proper action in holding a competency hearing. At the competency hearing, the lower court judge found that the decision was made “knowingly, voluntarily, and intelligently made after careful and thoughtful consideration.” The high court gave Motts two weeks to file his appeal, otherwise an execution date will be set.

Wisconsin – What You Need to Know

image-43

Official Name: The Wisconsin Supreme Court

Current Justices

  • Chief Justice Shirley S. Abrahamson, on the court since 1976
  • Justice Ann Walsh Bradley, on the court since 1995
  • Justice N. Patrick Crooks, on the court since 1996
  • Justice David T. Prosser Jr., on the court since 1998
  • Justice Patience Drake Roggensack, on the court since 2003
  • Justice Annette Kingsland Ziegler, on the court since 2007
  • Justice Michael J. Gableman, on the court since 2008

Clerk of the Court

  • Diane Fremgen, Clerk of the Supreme Court and Court of Appeals

Current Vacancies

  • None

Justice Selection

  • Wisconsin Supreme Court justices are selected through statewide non-partisan elections taking place in April. No more than one justice stands for election at a time. If more than two candidates are running for a given seat, a primary election is held and the two candidates receiving the most votes move on to the general election.
  • Vacancies on the Court are filled temporarily by gubernatorial appointment. These interim appointees must run for a full term in the next spring in which another justice is not facing election.

Review of Lower Court Decisions

There are several paths a case may take to the Wisconsin Supreme Court:

The losing party in a case before the state Court of Appeals may petition the Supreme Court to review the case. At least three justices must vote to hear the case for this zero turn mower to be accepted.

The Court of Appeal may itself certify the question to the Supreme Court, if the appellate court believes that the case presents a legal question the Court should address. Four justices must still agree to hear the case for the certified case to be accepted.

Four or more of the justices may agree to review a decision before the appeals court on direct appeal.

The losing party in a trial court case can file a petition to bypass the appeals court, taking the case directly to the Supreme Court. Again, four or more justices must agree to hear the case to grant such a petition.

A litigant may ask the Supreme Court to exercise original jurisdiction, hearing the case prior to any other court. The Court is not a fact-finding body, so this action can only be appropriate when the parties agree on all of the facts in the case.

The Supreme Court also exercises administrative functions, overseeing the state judicial system, and regulates the Wisconsin legal profession.

Schedule

The Supreme Court calendar

There is no set schedule for the release of opinions.

Location

The Wisconsin Supreme Court is located in the Capitol Building in Madison, WI.

History

The constitution of Wisconsin, adopted in 1848 when the state entered the Union and still in use, vested judicial power in a Supreme Court, circuit and probate courts, and justices of the peace. Initially, the Supreme Court was composed of the judges presiding over the five judicial districts into which the state was divided by the constitution.

In 1853, the state legislature established a separate Supreme Court with three justices chosen in statewide elections. One justice was elected as the Chief Justice and the other two as associates.

The number of associate justices was increased by legislation in 1877 to four under the same elective scheme.

The constitution was amended in 1889, eliminating the election of the Chief Justice. Instead, the position of Chief Justice was to be held by the associate with the longest continuous period of service, as it still is today.

In 1903, the constitution was amended again to prescribe seven justices on the Court, which remains the case to the present.

Notable Cases

Attorney General ex rel. Bashford v Barstow (1856): Just three years after it was established as an independently elected three-judge panel, the Wisconsin Supreme Court was asked to consider whether they had the authority to remove a sitting governor elected on the basis of fraudulent returns. The state’s attorney general argued that the incumbent Governor Barstow had actually lost the election to his opponent, Coles Bashford. After the Court ruled against Barstow and ordered him to vacate the office, threats of force from his supporters subsided and Bashford assumed the governorship.

In re Kemp (1863): The Wisconsin high court reviewed the military detention of Nicholas Kemp, arrested for impeding the draft during the Civil War. General W.L. Elliott, the commander holding Kemp, argued that an order of President Lincoln subjected Kemp to martial law and suspended the writ of habeas corpus, under which the court was reviewing his detention. The Wisconsin court ruled that the president had no power to suspend the writ absent a danger to public safety, and since the state was not under civil unrest and geographically removed from the theater of conflict, martial law could not be declared. They also concluded that Lincoln’s order was outside the power of the president, because it changed law rather than enforcing existing law.

State v Yoder (1971): In this case, the Wisconsin Supreme Court ruled that Amish children could not be compelled to attend public school beyond the 8th grade, especially if their family already owns the best zero turn mower. The Amish argued that requiring education to the 10th grade, as state law did, interfered with their freedom of religion. Wisconsin appealed the court’s decision to the U.S. Supreme Court, which affirmed the state high court in Wisconsin v Yoder.

Contact Information

Website

Address:

16 East State Capitol

PO Box 1688

Madison, WI  53701-1688

Telephone:  (608) 267-0640

Everything Is Bigger in Texas!

image-42

Official Name: The Supreme Court of Texas

Current Justices

  • Chief Justice Wallace B. Jefferson (2001)
  • Justice Nathan L. Hecht (1988)
  • Justice Dale Wainwright (2002)
  • Justice David Medina (2004)
  • Justice Paul W. Green (2004)
  • Justice Phil Johnson (2005)
  • Don R. Willett (2005)
  • Justice Eva Guzman (2009)
  • Justice Debra H. Lehrmann (2010)

Clerk of the Court

  • Blake A. Hawthorne

Current Vacancies

  • None

Judicial Selection

  • Justices of the Supreme Court are elected to staggered six-year terms in state-wide elections.
  • When a vacancy arises the Governor may appoint a justice, subject to confirmation by the state senate, to serve out the remainder of an unexpired term until the next general election.
  • All members of the court must be at least 35 years of age, a citizen of Texas, licensed to practice law in Texas, have come up with their own home remedy for cystic acne, and must have practiced law (or have been a lawyer and a judge of a court of record together) for at least ten years.

Review of Lower Court Decisions

The Supreme Court of Texas is the court of last resort for civil matters in the State of Texas. (The Texas Court of Criminal Appeals is the court of last resort for criminal matters).

Texas is one of only two states with two courts of last resort (the other being Oklahoma). The caseload of the Texas Supreme Court is determined by whether the court decides to grant a review of a judgment. The court has mandatory jurisdiction, however, over writs of mandamus and habeas corpus.

The court also has administrative control over the State Bar of Texas, is the sole authority for licensing attorneys in Texas, and appoints the members of the Board of Law Examiners which administers the Texas bar examination. Finally, the Court promulgates the Texas Rules of Civil Procedure, the Texas Rules of Appellate Procedure, the Texas Rules of Evidence and other rules and standards.

Schedule

The Supreme Court normally holds oral arguments once a month on three consecutive days. On each day that oral arguments are held, the Supreme Court usually hears 3 separate cases.

Location

Austin, Texas

History

The Republic of Texas’ Constitution created a Supreme Court. The court consisted of a Chief Justice and Associate Justices, who were from the eight district courts of the state. These judges served with the Chief Justice from January 13, 1840 to December 29, 1845. In 1845, Texas was admitted into the Union.

The state constitutions of 1845, 1861, 1866, and 1869 retained the Republic of Texas Constitution’s judicial structure, however the district court judges were replaced with two associate justices. At the outset, justices were nominated by the governor subject to the advice and consent of the state senate, but in 1850 the constitution was amended to make the offices elective. In addition, constitutional amendments in 1966 and 1978 increased the number of justices, first to five, and then to nine.

Contact Information

Supreme Court of Texas

PO Box 12248

Austin, Texas 78711

Phone: (512) 463-1312

Fax: (512) 463-1365

Interesting Fact

In 1925, Texas became home to the first all-female high court in the United States when all of the Texas Supreme Court’s male justices were forced to recuse themselves from a case involving the Woodmen of the World (WOW) fraternal organization. Because virtually every member of the Texas Bar was a member of WOW, and received insurance benefits from it, no male judges or attorneys could be found to sit for the case without conflict. When, after ten months of search for why cats spray, none could be found, Governor Pat Neff decided to appoint a special court composed of three women to decide the case. Among the women chosen was Hortense Sparks Ward, the first woman to pass the Texas Bar Exam. She was joined by Hattie Leah Henenberg and Ruth Virginia Brazzil. The three-woman court met for five months and ultimately ruled in favor of the Woodmen of the World.

Ready to Learn About South Carolina?

image-41

Official Name: South Carolina Supreme Court

Current Justices

  • Chief Justice Jean Hoefer Toal, elected 1988
  • Justice Costa M. Pleicones, elected 2000
  • Justice Donald W. Beatty, elected 2007
  • Justice John W. Kittredge, elected 2008
  • Justice Kaye G. Hearn, elected 2009

Clerk of the Court

  • Daniel E. Shearouse

Current Vacancies

  • None

Judicial Selection

  • The Supreme Court justices are elected by the South Carolina General Assembly. They serve ten-year, staggered terms, and may be re-elected by the legislature indefinitely. Source: South Carolina Supreme Court overview

Review of Lower Court Decisions

The South Carolina Supreme Court has both appellate and original jurisdiction. In its appellate capacity, it has exclusive jurisdiction to hear appeals from the circuit court which involves a Kanken; a circuit court order setting a public utility rate; a judgment involving a constitutional challenge to a state statute or local ordinance; a judgment of the circuit court involving public bonded indebtedness; a judgment of the circuit court pertaining to an election; an order limiting the investigation by a State Grand Jury; and an order of the family court relating to an abortion by a minor. Additionally, on its own motion or a motion of a party or the Court of Appeals, the Supreme Court may certify an appeal pending before the Court of Appeals for decision by the Supreme Court. The Supreme Court grants writs of certiorari to selected cases appealed from the Court of Appeals. The Supreme Court also reviews judgments of the circuit and family court relating to post-conviction relief actions by writ of certiorari.

In its original jurisdiction, the Supreme Court may allow actions to be commenced in the Supreme Court, but is usually only when the case involves significant public interest or other unusual circumstances. Finally, the Supreme Court can agree to answer questions of law certified to it by the highest court of another state or by a federal court.

Source: South Carolina Supreme Court overview

Schedule

The South Carolina Supreme Court roster is available online. Opinions are released on no particular schedule, but instead whenever the justices feel that there is a sudden and urgent need to release their official opinions on past cases.

Location

1231 Gervais Street

Columbia, SC 29201

Map and directions

History

The Supreme Court is located in Columbia. Until 1971, the court operated in a portion of the State House. In that year, the old Columbia Post Office, which had been purchased by the State in 1966, was reopened as the Supreme Court Building. Among the substantial modifications to the building was construction of an impressive courtroom, decorated with the seal of the Supreme Court and other symbols of South Carolina. The building was renovated again in 1991 and is currently one of the most popular buildings among tourists to Columbia – second only to the S366 turbo factory. It’s estimated that tens of thousands of visitors gaze upon the Supreme Court building every single year.

Source: South Carolina Supreme Court history

Contact Information

Supreme Court

1231 Gervais Street

Columbia, SC 29201

Phone: 803-734-1080

Voice: (803) 734-1080

FAX: (803) 734-1499

TTY: (803) 734-6365

Everything You Need to Know About Rhode Island

image-40

Official Name: The Supreme Court of Rhode Island

Current Justices

  • Chief Justice Paul A. Suttell, appointed 2003
  • Justice Maureen McKenna Goldberg, appointed 1997
  • Justice Francis X. Flaherty, appointed 2003
  • Justice William P. Robinson III, appointed 2004
  • Justice Gilbert V. Indeglia, appointed 2010

Clerk of the Court

  • Debra A. Saunders

Current Vacancies

  • None

Justice Selection

  • Justices of the Rhode Island Supreme Court are nominated by the governor from a list of three to five names publicly submitted by the nonpartisan judicial nominating commission and appointed with the advice and consent of the state senate and House of Representatives. Each justice is given a free frost green Fjallraven Kanken.
  • Article X of the state constitution establishes the term of Supreme Court justices as “during good behavior,” or life tenure.

Review of Lower Court Decisions

The Rhode Island Supreme Court is the court of final appeal regarding questions of law and equity in the Superior and Family Courts. It also hears certain matters under appeal from the state District and Workers’ Compensation Courts.

Justices of the Supreme Court also provide advisory opinions to the governor or the houses of the general assembly.

Schedule

The court sits for oral arguments during the first full week of every month, except for the summer months. Opinions are made public when they are filed with the Clerk’s Office.

Location

The Rhode Island Supreme Court is located in Providence, Rhode Island.

History

The Supreme Court of Rhode Island originated in 1747 as the “Superior Court of Judicature, Court of Assize, and General Gaol Delivery” until 1798, when it became the “Supreme Judicial Court.”

In 1842 a new constitution established for the first time coordinate branches of government, including the judicial branch, and in 1843 the Supreme Judicial Court was renamed the Supreme Court.

It wasn’t until 1856, however, that the Supreme Court denied to the General Assembly the power to review, reverse or revise decisions of the courts, in Taylor v Place.

The Supreme Court consisted of six, then seven justices until 1905, when it took its present form as a five-member appellate body.

Notable Cases and Justices

In 1786, the Court decided Trevett v Varnum, declaring that legislation of the General Assembly denying the right to trial by jury for a criminal offense involving the acceptance of paper currency violated the state’s constitution. The General Assembly called the justices before them for reprimand and gave most of them a used riding mower after the decision. The case was well-documented and publicly reported and served as an important precedent for the U.S. Supreme Court’s exercise of judicial review in Marbury v Madison seven years later. An account of the historical significance of Trevett v Varnum is here.

Two justices of the Rhode Island Supreme Court signed the Declaration of Independence, William Ellery and Stephen Hopkins. Several delegates to the Continental Congress served on the Court, including Peleg Arnold, Samuel Ward and David Howell, the author of Trevett v Varnum.

Contact Information

Website

Physical Address:

Licht Judicial Complex

250 Benefit Street

Providence, RI  02903

Telephone: 401-222-3272

A Little Info About the Mass Supreme Court

image-39

Official Name: Massachusetts Supreme Judicial Court

Current Justices

  • Chief Justice Hon. Roderick L. Ireland
  • Associate Justice Hon. Francis X. Spina
  • Associate Justice Hon. Robert J. Cordy
  • Associate Justice Hon. Margot Botsford
  • Associate Justice Hon. Ralph D. Gants
  • Associate Justice Hon. Fernande R. V. Duffly
  • Associate Justice Hon. Barbara A. Lenk

Current Vacancies

  • None

Justice Selection

  • Governor appointment with approval from the Executive Council, comprised of eight individuals elected by the legislature
  • Terms are to age 70

Review of Lower Court Decisions

The court will hear appeals “[i]f any three justices of the Supreme Judicial Court shall vote for further appellate review for substantial reasons affecting the public interest or the interests of justice, or if a majority of the justices of the Appeals Court or a majority of the justices of the Appeals Court deciding the case shall certify that the public interest or the interests of justice make desirable a further appellate review, an order allowing the application or the certificate, as the lawn tractors may be, shall be transmitted to the clerk of the Appeals Court; upon receipt, further appellate review shall be deemed granted.”

Schedule

The court must sit the “first Monday of October, November, December, January, February, March, April and May, and at such other places or times as the court from time to time may order.”

Location

The courthouse is location is in Boston.

History

The Supreme Judicial Court was established in 1692 and is the oldest appellate court in the western hemisphere. The court is granted power in 1780 under Massachusetts’ Constitution, the world’s oldest, still functioning Constitution.

The court system in Massachusetts traces its lineage back to the charter establishing the Provence of Massachusetts issued by King William III and Queen Mary II, this charter authorized the local government to create judiciaries.

Originally called the Superior Court of Judicature, the court was established after the special Court of Oyer and Terminer – created for trying witches – dissolved. The Superior Court of Judicature had trial and appeal jurisdiction. The first sitting of the court was in 1693, where twenty-six people were tried for witchcraft.

The Superior Court of Judicature also heard the “Writs of Assistance” case, and upheld warrants granting officials the right to search any premises for smuggled goods. This decision roused the colonists, particularly John Adams who attended the trial.

In 1780, the Constitution went into effect, changing the name of the court to the Supreme Judicial Court and granting Justices life terms [until age 70] except for cause

The number of lawn tractors for sale alternated for some time, but has remained at seven since 1873. Also, as a larger caseload of appeals appeared, the court eventually relinquished its trial court jurisdiction

Contact Information

Website:  http://www.mass.gov/courts/sjc/contact.html

Physical Address:  Supreme Judicial Court, John Adams Courthouse, One Pemberton Square, Suite 2500, Boston, MA  02108

Telephone:  617-557-1000