News from Kentucky
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Kentucky judge says defendant must testify against same-sex partner
Court: Kentucky Circuit Court 30
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| By Jong Son
A Kentucky judge has ruled that a woman in a same-sex union cannot invoke spousal privilege to avoid testifying against her partner in a murder trial.[6] Bobbie Jo Clary, the defendant, and her domestic partner, Geneva Case, had both argued that Kentucky law exempted them from being compelled to testify against each other under a statute that affords this “spousal privilege” to married couples. Clary and Case claimed that the civil union they entered into in Vermont in 2004 afforded them the same spousal privileges that apply to heterosexual married couples in Kentucky.[7]
Judge Susan Schultz Gibson of the Jefferson Circuit Court disagreed, ruling:
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[I]t is abundantly clear that under black-letter Kentucky law, same sex marriages or their equivalent cannot be performed in this state, and if solemnized outside this state in a jurisdiction which permits them, will not be recognized as valid marriages or unions within this state.[8][3]
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Though Gibson went so far as to state that “an increasing number of citizens of this country and this state believe that extension of basic rights taken for granted by heterosexual couples to same-sex couples will not result in the destruction of civilization, but in the enrichment of it,”[8] she nonetheless ruled that it was not the court’s duty to rule on whether the state statutes were morally defensible, socially enlightened, or “constitutionally repugnant.”[8]
Even if Kentucky were required to honor same sex marriages conducted in other states, Gibson reasoned, the couple had not, in fact, been married in Vermont, but had instead entered into a civil union. Same sex marriage did not become legal in Vermont until 2009, at which point the state offered to issue marriage licenses to same sex couples already in a civil union. Gibson noted that Case and Clary have not sought such a marriage license, and that their union was not “automatically converted” but rather required some further action by the parties.[8] Gibson explained:
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At a minimum, the privilege granted by the Commonwealth of Kentucky would require that the parties were actually married. Ms. Case and the defendant are not, under the law of either Kentucky or Vermont.[8][3]
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Clary’s attorney, Bryan Gatewood, said he was disappointed with the ruling and would determine whether to appeal after consulting with his client.[7]
Clary is charged with murder and theft in an October 29, 2011 incident that resulted in the death of 64-year-old Portland man George Murphy.[9] He was found dead in his home after being fatally wounded with a hammer. Clary has claimed that Murphy was raping her when the incident occurred, and that she fought back in self-defense. Prosecutors claim that Case heard Clary confess to killing Murphy, and that she also witnessed Clary clean blood out of her van and abandon the vehicle in southern Indiana around the time of the incident.[7] |
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News from Nebraska
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Nebraska district court affirms smoking ban
Court: Nebraska District 3
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| By Alma Cook
A district court judge in Nebraska has ruled against an Omaha pool hall owner who had hoped to repeal a statewide smoking ban.[10]
The ban, which prohibited indoor public smoking as of 2008, reflected the state's intentions to protect its citizen's health, safety and welfare, wrote Judge Jodi L. Nelson in her ruling. But Bill Prout, co-owner of Big John's Billiards, found that the statute only obstructed his business' and employees' well-being. He cited a three-month period in the winter of 2012 during which his bar openly ignored the ban—a time when business allegedly increased 20 percent. He was cited and fined for disregarding the law and has since struggled to keep Big John's above water.[11]
Ted Boeker, the pool hall's attorney, was disappointed that the ban was not struck down, commenting that "[i]n the real world, there is an economic impact from these statutes." His clients' next hope is that the Nebraska Supreme Court will revisit the issue as part of a previous case, a 2011 ruling (also by Judge Nelson) that declared it unconstitutional to allow certain businesses to operate as exceptions to the rule. Motels, cigar bars and tobacco stores (the latter two of which claim that customers must be able to sample their products before buying them) have been allowed to maintain their smoking policies while the appeal is pending. If these exceptions are struck down, the law itself will return to the state legislature for reconsideration.[11][10]
Judge Nelson stood by the decision, writing in the court opinion that the smoking ban was a legitimate use of state power:[11][10]
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Even if the court had found that the act somehow impaired plaintiff’s contracts, the act is reasonable and necessary to the furtherance of the important public purpose identified by the Legislature, of protecting the public health and welfare of the citizens of the state. … The plaintiff’s claim that the state has unconstitutionally interfered with its contracts is wholly without merit.[10][3]
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Big John's was forced to close a location in Lincoln and claims that the smoking ban damaged its ability to pay its vendors and landlord. Regardless, Nelson noted that the statute does not prevent the business from operating as a billiards hall, bar and restaurant.[11]
"Allowing smoking in the business is not a substantive right," the judge ruled.[11] |
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News from New Jersey
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Judge chooses comedy over the bench
Court: New Jersey Supreme Court
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| By Matt Latourelle
The New Jersey Supreme Court, on September 19, ruled that part-time Municipal Court Judge Vince Sicari could not be both a comedian and a judge. Later that day, Sicari resigned from his judgeship.[12]
Sicari served on the South Hackensack municipal court in Bergen County. Since joining the bench in 2008, he has worked as a judge by day and as stand-up comedian "Vince August" by night. He is a regular at the New York City comedy club Carolines on Broadway, has opened for "The Daily Show with Jon Stewart" and has been an actor on the hidden-camera show "What Would You Do?".
Sicari was seeking guidance about whether or not it was proper for him to have both jobs. The court, in a unanimous decision, explained that not everyone would get Sicari's jokes and that judges must be held to a higher standard. The decision stated:
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In the course of his routines, he has demeaned certain people based on national origin and religion, has revealed his political leanings, and has declared his dislike for and intolerance of children.[13][3]
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and…
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It is, therefore, imperative that a municipal court judge conduct the proceedings in his or her court fairly, impartially, and in accordance with appropriate standards of decorum.[13][3]
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Sicari's comedy career took off in 1997. At the same time, he was a private practice lawyer. In January of 2008, he joined the municipal court bench. He said that he attempted to keep his two careers separate by using a stage name for his comedy and he never joked about his judicial role. However, when the Bergen Record contacted him about doing a story on his double life, he contacted the judiciary's Advisory Committee on Extrajudicial Activities. The committee recommended he quit comedy while serving as judge. The Supreme Court heard arguments on the matter in February of this year.[14]
Rep. Jon Bramnick (R-Union), Assembly Minority Leader and fellow comedian, explained the situation:
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Here’s the problem: Every lawyer who goes before that judge is going to look for a reason to set aside that case…If they got the video of [Sicari's] act, and the judge were to say things — say, in a sexual assault case — that could be interpreted in a certain way, it could be grounds for upsetting the judge’s decision.[13][3]
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