This presidential campaign season has drawn attention to the grim persistence of anti-Semitism in the American political discourse. Last week, the Bloombingburg Jewish Education Center and developer Shalom Lamm settled its lawsuit, first filed in 2014, against the village of Bloomingburg and the town of Mamakating (Bloomingburg is an incorporated village in the town of Mamakating). 1.305 million from Bloomingburg) connected to the upstate New York communities’ alleged efforts to block the settlement of Hasidic Jews in the area. Filings in the case, accessed through PACER, the federal court system’s online record of system, read as if they belong to an entirely different time and place. Soberingly enough, their record of official discrimination and communal acrimony unfolded over the past two years, just 75 miles north of New York City. The governments of both Bloomingburg and Mamakating were eager to keep out Hasidic Jews themselves, using an arsenal of procedural trickery to make Hasidic settlement as difficult as possible. In 2006, a developer called Sullivan Fams obtained permission from the Village of Bloomingburg to construct nearly 400 housing units in a new neighborhood called Chestnut Ridge. As the original plaintiff’s complaint makes clear, the townsfolk and their leaders did little to hide their anti-Hasidic motives. In 2012, Bloomingburg residents formed a “Rural Community Coalition” to oppose Chestnut Ridge. The Bloomingburg case didn’t end with a feel good-moment of inter-communal reconciliation. The people of Bloomingburg will have to live with their Hasidic neighbors by virtue of exhausting all apparent legal avenues for preventing them from moving in.
As the Supreme Court hears the government’s appeal in the Brexit case, it is worth noting this Opposition Day debate in the House of Commons today (7th December). The Votes and Proceedings page indicates that this resolution is the result of a motion by Keir Starmer MP and an amendment to the motion put forward by David Davis MP (Secretary of State for Exiting the EU). The amendment is shown in Blue above. The amendment is the first time that the House of Commons has voted to accept the overall outcome of the referendum. 1. end the circus of uncertainty that has been going on in recent weeks on issues such as the single market, paying for access to the single market, the customs union and transitional arrangements. The Committee’s terms of reference include examining the Government’s objectives, so the plan must have sufficient detail to allow parliamentary bodies to conduct scrutiny effectively. 3. enable the Office for Budget Responsibility to do its job properly. 4. enable the relevant authorities in Scotland, Wales and Northern Ireland to be assured that their particular and specific concerns are addressed. 5. build genuine consensus. The resolution is not formally binding on the government and will not affect the deliberations of the Supreme Court. The Supreme Court is almost certain to announce its decision when it has reached one but there won’t be any announcement until January and the court does not sit until 11th January. The motion discussed in this post was mentioned in the Supreme Court on 8th December.
Today’s ruling by the High Court requires the government to obtain approval from Parliament if it wishes to trigger ‘Article 50’, ie the process of withdrawing from the European Union. This short post won’t focus on the national constitutional law issues, but on the process of possible involvement of the EU courts in Brexit disputes. The government has announced its intention to appeal today’s ruling to the Supreme Court. Some have suggested that the case might then be ‘appealed’ to the ECJ, but this misunderstands the judicial system of the European Union. There is no ‘appeal’ from national courts to the ECJ. Rather a national court may suspend proceedings and ask the ECJ some questions relating to EU law that the national court believes it needs the answers to. After the ECJ gives the answers to those questions, the national court resumes its proceedings and gives its judgment in light of them. The ECJ normally takes about 16 months to give a ruling, although it could (and probably would) fast-track a case raising fundamental questions about Brexit.
What EU law questions arise in this case? The obvious one is whether a notification to leave the EU under Article 50 of the TEU can be revoked once it is given. This is relevant because at the heart of the UK case is a dispute about the ‘royal prerogative’, ie the underlying powers of the UK executive. The royal prerogative allows the executive to conduct international relations, including decisions relating to international treaties. But prior case law makes clear that the prerogative cannot extend to taking away rights conferred by Parliament. The High Court has ruled today that this is what would happen if the executive invoked Article 50, since rights are conferred by the European Communities Act. Yet logically if an Article 50 notification is revocable, then the decision would arguably not as such necessarily lead to the removal of rights conferred by Parliament. Only the subsequent failure to revoke it would.
The High Court assumed in its judgment that the notification was not revocable, but that’s only because the parties agreed on this. The claimants agreed that an Article 50 notification was irrevocable because otherwise it would have weakened their case. The government agreed, perhaps because it would have been politically awkward to argue the opposite. But it’s not up to parties in a national proceeding to decide on what the correct interpretation of EU law is. Article 267 TFEU says that final national courts must send questions of EU law to the ECJ if necessary to give judgment. So the Supreme Court may decide that it wants to have this question answered. The revocability of Article 50 is not just an issue in this litigation. It’s a broader political issue, since some politicians would like there to be another referendum before the UK fully leaves the EU, once the public knows the terms of exit.
That’s only a feasible suggestion if it is possible to revoke an Article 50 notification once it’s made, given that the EU refuses to discuss the terms of exit with the UK until that notification is made. What if the Supreme Court decides not to refer to the ECJ – is that the end of the matter? Not quite. Since the ECJ judgment in Kobler, it’s established that a Member State can be liable in damages if its supreme court gets EU law wrong without asking the ECJ questions about it. There are several other possibilities for Brexit issues to come before the CJEU. It might be disputed what could be included within the scope of an Article 50 withdrawal agreement, and in particular whether this must be separate from a treaty on the post-Brexit EU/UK relationship. There might be other issues about that latter treaty; some say that the EU legally cannot negotiate one until the UK has fully left. Many say that the UK cannot negotiate trade deals with non-EU countries until it has left.
How could such issues reach the Court? Article 218 TFEU allows it to rule on future treaties between the EU and non-EU states, so in principle could be used. Any Member State, or the EU Commission, Council or Parliament, could invoke it. A lot of issues arise here, though. Does Article 218 apply to Article 50 at all – since the UK hasn’t left yet, and Article 50 only refers to some parts of Article 218? Is it too soon (for now) to ask about future treaties between the UK and EU, given that notification and negotiations haven’t happened yet? Alternatively, Article 273 TFEU allows Member States to bring a dispute with each other about issues related to EU law to the CJEU by special agreement. However, the UK would have to be willing to use this provision, and it would have to find another Member State to agree to do so, in order to bring issues before the ECJ. Other issues may arise about Brexit, even in other Member States’ national courts. An Irish court has already ruled that European Arrest Warrants issued by the UK are still valid in light of Brexit. But this issue is likely to keep arising. UK citizens living in the EU (and vice versa) might want to litigate the argument that they cannot lose their EU citizenship.
Retired Employees Association of Orange County, Inc. v. County of Orange (November 21, 2011) 2011 WL 5829598, a unanimous California Supreme Court ruled public employees can receive constitutionally-protected vested rights by way of implied contract terms. The holding means public employers can be liable for promises made to employees, even if they do not formally adopt them by ordinance. The case has been closely watched for its broad implications on labor relations, employee compensation, and pension benefits. The case arose after Orange County substantially increased the cost of retirees’ health insurance premiums by splitting retirees into a separate pool from active employees for calculating premiums. The retirees filed suit in federal court, arguing they have a vested right to premiums calculated from a joint pool. The County claimed the retirees have no vested rights because the MOUs under which they retired did not expressly indicate how the cost of retiree health benefits would be calculated. The District Court sided with County, finding the County could not be liable because it did not explicitly confer vested rights through an ordinance. The retirees appealed and the federal Court of Appeals asked the California Supreme Court to decide the issue. The Court held the County could be held liable for its promises to employees, regardless of whether it expressly adopted them through an ordinance. The Court reasoned employees could hold their employer accountable for the implied terms of a contract, such as the duration of a benefit.
“Regarding the budget document, I do not support it,” Lance told a packed auditorium of around 400 people during a town hall at Union County College in Cranford. Trump’s recently released budget proposal contains significant cuts to social safety net programs, including Medicaid, food stamps and Social Security disability benefits. Lance also voiced confidence in his fellow Republican state delegation colleague, Rep. Rodney Frelinghuysen, who chairs the powerful House Appropriations Committee, though Frelinghuysen’s name was greeted with a loud chorus of boos from the audience. The congressman from North Jersey has come under intense criticism for refusing to hold a town hall and for supporting the House Republican Obamacare repeal plan. For his part, Lance broke with the GOP line earlier this month when he voted against the Obamacare repeal plan, but many of the audience members on Tuesday were pushing for him to further distance himself from Trump. Lance represents the 7th Congressional District, which includes parts of Essex, Morris, Somerset, Union and Warren counties and all of Hunterdon County. Historically, it has been a solid Republican district.
However, it swung for Democrat Hillary Clinton in the 2016 presidential election and was recently changed from “likely Republican” to “lean Republican” by The Cook Political Report in the wake of the Obamacare repeal vote. Alan asked Lance when he would call on the administration to release the president’s tax returns, financial disclosure forms regarding Trump family investments and more information about Russia’s involvement in the November election. “When will you call them out? What will it take to make a clear statement? The mild-mannered Lance carefully selected his responses, gliding over some of the more charged components. The congressman said he supported the appointment of former FBI Director Robert Mueller by the Justice Department as special counsel to investigate the issue. “I think that is an excellent step and I believe that Mr. Mueller will investigate the matters that you have raised and he will do so in a completely impartial and above board manner,” Lance said. Lance kicked the issue of whether the Trump family’s financial interests violated the U.S. Constitution to the Supreme Court. The Emoluments Clause of the U.S. Constitution bars federal officials from accepting payments from foreign governments. Lance gave a theoretical example of whether a foreign government paying to rent the ballroom at the Trump International Hotel in Washington, D.C., would constitute a violation. “That is an open question, ladies and gentlemen.
The US Supreme Court is deciding whether a court appointed divorce lawyer is required for hearings on delinquent child support. The United States Supreme Court is currently dealing with the extremely difficult legal question of whether poor people should be sentenced to jail during child support proceedings without the benefit of a divorce lawyer. Based upon comments from the Justices themselves, they appear confused and flummoxed about how to rule. This is likely due to the complicated procedural and legal problems with either of the two ways that they can decide. The actual litigant that is appealing to the Supreme Court has a compelling personal case for a divorce lawyer to assist him. He is a man from South Carolina who has been found in contempt of court for not paying child support. He claims that he is too poor to pay what the court has ordered him to pay. The court in South Carolina has put in him jail repeatedly because he has not paid, including stays up to one year.
He argues that if an attorney could assist him explain to the court that he is unable to pay what he owes, he will have a greater ability for the court to work with him and find an amicable solution. Beginning in the 1960s, the Supreme Court has held repeatedly that the indigent facing jail time need to have the opportunity to be provided with an attorney in order to protect their Sixth Amendment rights under the Constitution. The problem with applying the Sixth Amendment right to counsel in this particular case is that this normally only applies to criminal cases, not domestic/civil litigation. Despite the Supreme Courts difficulties in wording a solution, it seems clear right now that the highest court will not require a divorce lawyer for a parent owing child support just yet. It does seem that there is a high probability of the court mandating some reforms before the parent is sent to jail.
The tenants of the two mega complexes Stuyvesant Town and Peter Cooper Village were not taken note of when these units were sold last. But today two lending parties are fighting in court for control of the sibling complexes located in Manhattan (East). Both parties are wooing the 25,000 occupants. The tussle is over control of the complexes. The hearing in Manhattan State Supreme Court remained hanging over interpretation of creditor agreement. Judge Richard B. Lowe III said that the ruling would soon be given. It is certain that the decision would be appealed against according to lawyers and experts dealing with real estate. Meanwhile the two lending factions – Winthrop Realty Trust together with Pershing Square Capital and CW Capital contend that the interests of the tenants are their top priority. The two groups of lenders also contend that they are willing to create an affordable cooperative that will include all the 11,226 apartments located in 110 buildings on the eastern side of First Avenue between 23rd Street and 14th Street. Kevin Simpson is a consultant with experience in Cheap Homes Listings. With his knowledge in the real estate market, he provides information over the best investments in Kentucky cheap homes listings for future owners and sellers.
The mailbag overflows with questions from worried PERS members wanting to know how to time their retirement to miss anything the legislature might do. There is no simple answer to this question. If you weren’t planning to retire now, thinking about it as a way to avoid what the Legislature might do is just plain silly. If you aren’t READY to retire, you shouldn’t give up your job and retire just to protect some benefits you might get. The Legislature is in its third week and not a single PERS bill has been scheduled for a hearing. This leads another group of members to wonder whether they should worry at all. Also the wrong answer. Just because bills haven’t been heard yet doesn’t mean they won’t be heard. It is true that a fair number of the 23 PERS bills are off in the danger zone of potential contractual violations. The House leadership has made it clear that they want NO bills on PERS to pass that will be undone by the Oregon Supreme Court.
That doesn’t leave very many bills to pass that avoid that potential fate. Let me go back to my principle that if you weren’t already planning to retire this year, then you shouldn’t be thinking about retiring this year. You aren’t ready and you won’t like retirement because you’ll be worrying about all the money you aren’t making by working. If you were already planning to retire in 2011 anyway, then timing might be an issue. Since a few of the bills, especially those pertaining to the retiree COLA, are presented currently as applying to both new and pre-existing retirees, you don’t gain anything by retiring early. Bills that attempt to cap the pension benefit at the Final Average Salary are potentially devastating to some actives on the verge of retiring. If you are in that category and want to be ahead of that prospective change, then getting out before the end of March would be the best plan. This date slips the longer the Legislature doesn’t take up such legislation.