News from Arkansas
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State judge finds federal office in contempt of court
Court: Arkansas 6th Judicial Circuit
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| A county judge in Arkansas has found a U.S. Attorney’s office in contempt. A year ago, Arkansas 6th Judicial Circuit Judge Wendell Griffen ordered the Little Rock office to pay $12,702 in fees, a sum which it did not pay until the finding of contempt Friday. Had the office waited any longer to comply with the September 2012 sanctions, Griffen’s court would have fined the federal office $300 per day.
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The fees were due to three private defense attorneys who represented USA Drug marketing executive Garret Sorensen, his wife and his sister-in-law in a criminal case. Sorenson pleaded guilty to mail fraud and money laundering, but Griffen, along with U.S. District Judge William Wilson, sanctioned the federal prosecutors for snatching a related civil case from the state court and bringing it into federal court. U.S. Attorney Christopher Thyer noted that Wilson earlier agreed to lift his sanctions on the U.S. Attorney’s office’s promise not to repeat its transgression. Griffen made no such agreement.[3][4][5]
Griffen described the federal government’s defiance of his sanctions as “willful disobedience,” a charge First Assistant U.S. Attorney Patrick Harris denied, and said that was “consistent with the way the United States has behaved since its intervention in the case.”[3] At the end of the Friday morning hearing, Griffen said, “The conduct of the government in this case all but sickens me.”[3]
The government, Thyer said, had intended to appeal the sanctions but could not until Griffen closed the case. Harris, who delivered the checks to attorneys Pat James, Erin Cassinelli and Chuck Banks, formally objected to the punishments. At the hearing, he argued that paying the fees would waive the prosecutors’ right to appeal. Harris did not make this argument until last week, as he acknowledged in response to a question from Griffen in a brief filed before the hearing. Griffen disagreed with Harris’s point, arguing that compliance with sanctions would not have waived any such right. Griffen said Harris’s concern about the government’s right to appeal was “more than slightly unpersuasive.”[3]
Sorenson is serving a 33-month sentence in federal prison. Prosecutors dropped all charges against his wife Katherine and her sister Shannon Walters after he entered his guilty plea. Of the $12,702 in fees, $4,170 went to James, Garret’s lawyer, $5,240 went to Cassinelli, Katherine’s lawyer, and $3,292 went to Banks, Walters’ lawyer.[3][4] |
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News from Nevada
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Tip sharing at the Wynn Las Vegas upheld
Court: Nevada Supreme Court
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| Steve Wynn, owner of the Wynn Las Vegas resort and casino, requires his dealers to share tips with their supervisors. This resulted in legal questions related to the state's minimum wage and rebates laws. On October 31, 2013, the Nevada Supreme Court upheld the legality of tip sharing.
Back in 2010, Nevada's labor commissioner decided that the tip sharing policy at the Wynn did not violate state law. The following year, Judge Kenneth Cory, of the 8th District Court (Clark County), ruled that the policy was, in fact, in violation of the law because it directly benefited the Wynn.
The supreme court explained that, though state law does prohibit an employer from garnering a portion of their workers' tips, it does not prohibit the sharing of tips among employees. Justice Michael Douglas wrote in the court's decision:
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We hold that the district court erred in overturning the labor commissioner’s decision because the Wynn did not keep any of the tips from the pool; rather, the Wynn distributed the money among its employees.[6][7]
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Tip sharing tends to be more common among workers of the same job level, while sharing tips with supervisors is less common. The casino dealers at the Wynn joined the Transport Workers Union of America in 2008 due to disagreement over the tip sharing policy. The union did, however, sign a 10-year contract in 2010 that allowed for tip sharing.[6] |
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News from Pennsylvania
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No resentencing for juveniles serving life terms, rules Pennsylvania Supreme Court
Court: Pennsylvania Supreme Court
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| Last year, in a case called Miller v. Alabama, the U.S. Supreme Court ruled that mandatory life prison terms without parole for juveniles violated the Eigth Amendment's prohibition against cruel and unusual punishment, and was therefore unconstitution al. Several states since then have grappled with whether this decision applies retroactively to those whose sentence was given to them before the U.S. Supreme Court ruling. Iowa, Mississippi, and Illinois have declared it retroactive, while Minnesota, Michigan, and Florida have stated it is not. Last Wednesday, the Pennsylvania Supreme Court joined the latter group of states, ruling that the Miller decision does not apply to those already serving their sentences.[8]
The 4-3 ruling fell along partisan lines in the Republican-dominated court. The majority opinion decided that the Miller decision was a procedural change, rather than a substantive change, therefore eliminating the opportunity for a new hearing for about 460 prisoners. The majority opinion by Justice Thomas Saylor stated:
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It is the Commonwealth's core position that (an) appellant's claim must be decided under the law as it stood at the time his conviction became final.[9][7]
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On the minority side was the view that this decision should be used retroactively. Justice Max Baer stated that that does not infer that life without parole should not be imposed on this type of criminal, but that it should be "the discretion of a trial judge observing the facts of the case and the characteristics of the defendant to determine whether life without parole is appropriate".[9]
Other opinions weigh in on both sides of the debate. Dan Fitzsimmons, the chief trial deputy for the Allegheny County District Attorney's Office, is happy with the court's decision. He believes that the chance for resentencing would bring unneccesary stress upon families of victims.[9] On the other hand, Marc Bookman, director of the Atlantic Center for Capital Representation in Philadelphia, said "I can't believe that it's fair-that if your sentence came down one day, you get nothing, and if it came down the next day, you get a new hearing".[10] Some experts have said that there is a good chance this matter will return to the U.S. Supreme Court to clarify what the ruling meant. |
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News from Georgia
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Georgia Supreme Court determines no contest plea is sufficient for gun license denial
Court: Georgia Supreme Court
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| The highest state court in Georgia ruled that a nolo contendere (no contest) plea to felony charges was sufficient grounds to deny issuance of a gun license to a Georgia man.
James Hertz, plaintiff, pleaded nolo contendere to aggravated assault and other felony charges for which he received three years probation in 1994 at the age of 18. Then a Florida resident, Hertz has since relocated to Georgia and sought a gun license. Judge Andrew Bennett, of the Quitman County Probate Court, denied Hertz the license after accounting for his nearly twenty-year-old nolo plea. Hertz sued the judge, attempting to force the issuance of the license.
Georgia state law forbids individuals convicted of a felony from being issued a firearms license. Georgia’s definition of “convicted” includes pleading nolo contendere, but the plaintiff argued that the interpretation of nolo pleas differs between Georgia and Florida, where he made the plea. Because Hertz was put on probation, however, the supreme court interpreted his nolo plea according to the Georgia statute, meaning he was convicted of a felony. The high court claimed that the first offender clause, designed to restore gun rights to individuals convicted of felony, does not extend beyond felonies relating to controlled substances.
Hertz challenged the constitutionality of the ruling based on the Second Amendment, but the court dismissed the claim on the grounds that he retains the right to bear arms in his home, car, and place of business according to Georgia law. The court claimed that the right to bear arms is protected in public places, but more limited due to a “substantial government interest.”[11] |
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News from Ohio
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GOP Governor bucks party to implement Obamacare in Ohio
Court: Ohio Supreme Court
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| In October, Republican Governor John Kasich circumvented his own party in the Ohio General Assembly to implement a $2.56 billion-dollar Medicaid expansion plan in Ohio. Governor Kasich, arguing that his decision was out of concern that there was a “war on the poor,”[12] utilized the Ohio Controlling Board, a subdivision of the Ohio Office of Budget and Management, to push through the expenditure of the federal aid provided by the Affordable Care Act.[13]
In response, two chapters of the organization Right to Life and six Republican members of the Ohio House of Representatives filed suit against the Ohio Controlling Board and the Ohio Department of Medicaid. The suit contests the Controlling Board’s authority to accept such funds without the support of the Ohio General Assembly. They argue that the Ohio Constitution “forbids the delegation of such major policymaking authority to a small administrative board of legislators” and they are seeking a writ of mandamus to nullify the Controlling Board’s allegedly unlawful action which failed to pass “statutory and constitutional scrutiny.”[14]
The Controlling Board, which handles “certain limited day-to-day adjustments needed in the state budget,” is composed of seven members: the Director of the Office of Budget and Management, the Chairs of the Senate and House Finance Committees, and a majority and minority member appointed from both the Senate and the House.[15]
Since the Medicaid expansion is set to take effect on January 1, 2014, the Ohio Supreme Court agreed to fast-track the lawsuit, setting a schedule that would have all response briefs, written arguments, and the filing of evidence completed by the end of the first week of December.[16][17] The State’s attorneys have already filed their answer to the complaint, emphasizing that the Controlling Board was acting within its authority, that the lawsuit was primarily about the boundaries of the Controlling Board’s authority and not about Governor Kasich’s decision to expand Medicaid, and that in no way would the acceptance of the federal funds be used to “jeopardize unborn life.”[18]
The 2012 United States Supreme Court decision upholding the Affordable Care Act permitted states to opt-out of Medicaid expansion. For states that choose to expand Medicaid, the federal government will cover 100 percent of the cost of expansion for three years and 90 percent or more of the cost in the following years. The option of expanding Medicaid will benefit individuals who earn less than the poverty level but are currently unable to qualify for Medicaid. It is expected to provide 275,000 low-income Ohioans with health insurance.[19] |
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News from Texas
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"Talking dirty" to minors protected under First Amendment, says Texas Court of Criminal Appeals
Court: Texas Court of Criminal Appeals
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| A recent ruling from the Texas Court of Criminal Appeals struck down a section of a 2005 law prohibiting adults from engaging in sexually explicit online communication with children.[20]
The law, noted as "broad" by the court opinion, not only restricts a "whole cornucopia of titillating talk or dirty talk" but also makes online discussion of sexually explicit material—from 50 Shades of Grey to Shakespeare’s Troilus and Cressida—illegal. The court’s consensus was that banning this kind of exchange is a violation of free speech and is not necessary in light of other statutes outlawing online solicitation and other inappropriate behaviors.[20]
Wrote Judge Cathy Cochran,
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Sexual expression which is indecent but not obscene is protected by the First Amendment.[20][7]
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This means that while soliciting sex from a minor is still illegal, "talking dirty" with a person under the age of 17 is a protected constitutional right.[20]
The debate began when a Harris County man was accused of sending explicit text messages to a teenager. According to attorney Grant Scheiner, "It's unclear whether the messages are serious or whether he was joking around. Nevertheless, he got charged with a crime."[20]
Charges for that crime were dropped upon the decision to strike down the law on October 30. Any similar pending cases will also likely be dismissed, and there are plans to revisit the cases of anyone convicted under the voided law.[20]
Reactions to the decision were mixed. Mark Bennett, who argued for the defendant in the appellate court, spoke favorably of the ruling:
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[The court] has protected free speech in the face of a challenge to free speech by the government. … Parents have the job of dealing with this. This is not the government's job. Keep track of who your kids are communicating with and teach your kids what's appropriate and what's not.[20][7]
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Prosecutors expressed disappointment with the decision and are considering an appeal to the U.S. Supreme Court. Alan Curry, chief of the Harris County District Attorney’s appellate division, commented:
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[The law] has been a really valuable tool to help us capture folks who prey on children. We've been able to pull some really dangerous people off the street because of it.[20][7]
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