The new Lord Chief Justice of England and Wales – Sir Ian Burnett – has been sworn in today (2nd October) – see the Judiciary announcement and the short video statement made by Sir Ian. The new President of the Supreme Court of the UK (Lady Hale of Richmond) and the new Deputy President (Lord Mance) have also been sworn in along with three new Justices of the Supreme Court. The new Justices are Lady Black, Lord Lloyd-Jones and Lord Briggs. Lady Hale is the third President of the court but, very significantly, she is the first female to be President. Interestingly, the Chief Justices of Australia, Canada and New Zealand are also female – Susan Kiefel (Australia), Beverley McLachlin (Canada) and Sian Elias (New Zealand). Those nations are also “common law” jurisdictions. The Swearing in Ceremony may be seen via the Supreme Court website – HERE. Biographies of the Justices are HERE.
The Supreme Court collegium led by Chief Justice of India (CJI) Dipak Misra has unanimously recommended the name of senior advocate Indu Malhotra for appointment as a Supreme Court judge. With the approval of law ministry, she will become the first woman lawyer from India to be directly elected to the post of judge in the Supreme Court. The ministry’s approval to Malhotra comes 14 weeks after the recommendation from the committee of five senior-most judges headed by CJI. 1. He should be a citizen of India. There is no minimum age for appointment as a judge of the Supreme Court. The president appoints the judges of the Supreme Court. The chief justice is appointed by the president after consultation with such judges of the Supreme Court and high courts as he deems necessary. The other judges are appointed by the president after consultation with the chief justice and such other judges of the Supreme Court and high courts as he deems necessary. In case of appointment of a judge other than Chief Justice, the consultation with the CJI is obligatory. Interested in General Knowledge and Current Affairs? Click here to stay informed and know what is happening around the world with our G.K.
In a decision rendered today, the Supreme Court has reaffirmed the principle that the welfare of the child is the paramount factor to determine as to whom the custody of the child should be given. 13. We have also talked with the child in our chambers in the absence of his parents. We found him to be quite intelligent and discerning. The child is in school and from the behaviour of the child, we could make out that he is well behaved and that he is receiving proper education. 14. The child categorically stated that he wants to stay with his mother. It appears to us that the child is about 8-10 years of age and is in a very formative and impressionable stage in his life. [See Mausami Moitra Ganguli vs. ]. We have considered this matter in all its aspects. 17. In Rosy Jacob vs. ], a three judge Bench of this Court held that all orders relating to custody of minors were considered to be temporary orders. The learned judges made it clear that with the passage of time, the Court is entitled to modify the order in the interest of the minor child.
The Court went to the extent of saying that even if orders are based on consent, those orders can also be varied if the welfare of the child so demands. 18. The aforesaid principle has again been followed in Dhanwanti Joshi vs. 20. In this connection, the principles laid down by this Court in Gaurav Nagpal vs. Sumedha Nagpal reported in (2009) 1 SCC 42 are very pertinent. 43. The principles in relation to the custody of a minor child are well settled. In determining the question as to who should be given custody of a minor child, the paramount consideration is the “welfare of the child” and not rights of the parents under a statute for the time being in force”. 21. That is why this Court has all along insisted on focussing the welfare of the child and accepted it to be the paramount consideration guiding the Court’s discretion in custody order.
See Thrity Hoshie Dolikuka vs. 22. In the factual and legal background considered above, the objections raised by the appellant do not hold much water. Have a look at the decision. ] wherein certain related and allied principles relating to custody of child were discussed. “The appellant’s argument based on estoppel and on the orders made by the court under the Indian Divorce Act with respect to the custody of the children did not appeal to us. All orders relating to the custody of the minor wards from their very nature must be considered to be temporary orders made in the existing circumstances. With the changed conditions and circumstances, including the passage of time, the Court is entitled to vary such orders if such variation is considered to be in the interest of the welfare of the wards. It is unnecessary to refer to some of the decided cases relating to estoppel based on consent decrees, cited at the bar. 19. Statutory provisions dealing with the custody of the child under any personal law cannot and must not supersede the paramount consideration as to what is conducive to the welfare of the minor. In fact, no statute on the subject, can ignore, eschew or obliterate the vital factor of the welfare of the minor. Elizabeth Dinshaw v. Arvand M. Dinshaw, AIR 1987 SC 3; Chandrakala Menon v. Vipin Menon, (1993) 2 SCC 6; Nil Ratan Kundu & Anr. Abhijit Kundu, (2008) 9 SCC 413; Shilpa Aggarwal v. Aviral Mittal & Anr.
In a country as culturally rich as India, where a person’s heritage is everything, would the concept of bringing up a child of a woman of some other caste or religion be tolerated? Commercial surrogacy has been legal in India since 2002, where renting of wombs or rather the artificial method of reproduction has been made legal. Not only is India booming industry for couples looking to adopt a child within the countries own territory, but it has become an international attraction for couples looking for a surrogate mother from abroad. All this is done at a very nominal price, regarding India population and the paucity of income generating methods. There are agencies and clinics that take care of the legal as well as medical complications that arise. The main problem arises with the fact of getting a passport for the child born in India becomes a problem, as the child born in India will be an Indian citizen: as it is stated in the Indian Constitution.
However, this has led to a lot vying by the medical clinics, wanting to get the business for themselves. The mix of legal environment and the cheap surrogates has led to favorable conditions for international market to look towards India. Recently the Law commissions report has stated why surrogacy needs to be legal and why it is required to be done. With an authority like the Law Commission supporting the surrogacy practice and with recent Supreme Court ruling in India, which is the highest court of authority in India whose decision cannot be overruled by any other court. The Supreme Court has decided in favor of surrogacy, in the 2008 Manji case. While this provides for a safe passage for the people who are tourists and have just come to India for a surrogate mother to be a carrier to their family’s legacy. However, the point remains is India ready for the fact that today people will accept a child whose mother is form another religion or another caste.
Where at one point professions were decided on the basis of ones birth, can today a couple who cannot conceive be ready to take the child of another woman who does not belong to their caste or religion. While, the legal circle tends to think otherwise, today citizens are no longer judged on basis of castes or religions but rather part of one country, and known as Indians. The concept of discrimination has come to an end with people ready to give more importance to human life: the child. Then to age old custom, which did nothing but segregate. So, we can safely say that India is becoming a developed country with the presence of broad minded individuals ready to take the risk and at the same time bring joy to both sides. The ethical issues remain debatable but there is no doubt how many problems this one procedure can solve, to ensure a happy life for individuals. Surrogacy is bold and at the same time benevolent step forward for India.
Appearances can be deceiving. It’s easy to read United States v. Higdon as a case that answers a narrow question: whether a North Carolina offense is a “violent felony” under the Armed Career Criminal Act’s definition. Higdon actually does much more and provides a nice outline about the state of violent-felony jurisprudence after Johnson v. United States, which relieved us of the burden of interpreting the statute’s residual clause. Johnson has not the panacea federal public defenders hoped. Let’s get down the brass tacks. Daryl Lynn Higdon pleaded guilty to being a felon in possession of a firearm and was sentenced to the mandatory minimum term of imprisonment of 15 years. The district court did so because Mr. Higdon had a 1984 conviction for discharging a firearm into an occupied structure in violation of N.C. The government abandoned any claim that the offense involves “attempted” or “threated” use of physical force, and so the only question the Sixth Circuit had to answer was “whether these elements, taken separately or together, require the ‘use . ]” Although the statute requires proof that force was used (discharging a firearm), it does not require that the force be “against the person of another.” No injury must occur. Now it’s time for the good stuff: why is Higdon important? This case provides direction for the proper analytical approach to help determine whether convictions contain a use-of-force element. Also of note is the fact that Higdon’s author, Judge Kethledge, highlighted his lingering disagreement with Judge Sutton about whether a mens rea of mere recklessness is sufficient to satisfy § 924(e)(2)(B)(i)’s definition. We covered this dispute previously, and this is an issue will continue to divide circuit courts until the Supreme Court intervenes. One final note: credit where credit is due. Congratulations to Jennifer Coffin of Federal Defender Services of Eastern Tennessee for her hard work on this case.
In a 52-to-48 vote that substantially altered the balance of power in Washington, the Senate changed its most infuriating rule and effectively ended the filibuster on executive and judicial appointments. From now on, if any senator tries to filibuster a presidential nominee, that filibuster can be stopped with a simple majority, not the 60-vote requirement of the past. That means a return to the democratic process of giving nominees an up-or-down vote, allowing them to be either confirmed or rejected by a simple majority. The only exceptions are nominations to the Supreme Court, for which a filibuster would still be allowed. But now that the Senate has begun to tear down undemocratic procedures, the precedent set on Thursday will increase the pressure to end those filibusters, too. What matters, of course, is not some arcane voting process in the Senate. What matters is that Americans believe they are governed by law, not by whatever political party manages to stack the Supreme Court. Awww. So much partisanship and arcane voting processes. The NYT made sure to include a throwaway line: “Some of the blame rests on the Democrats.” In 2013 they were preserving democracy while in 2017 they’re resisting the forces of factionalism.
In Augustus v. ABM , the California Supreme Court ruled that requiring security personnel to monitor radios and respond to calls during breaks meant they were not relieved of all duty and therefore still working. This case was brought under California Labor Code sections and Wage Orders that require California employers to provide 10 minute rest breaks every 4 hours of work where the employees are relieved of all duties. ABM required employees during their breaks to keep their pagers and radio phones on, and remain vigilant and responsive to calls when need arises. The guards claimed ABM failed to provide bona fide rest periods because they were required to remain on call during their breaks, e.g. on duty. They were required to monitor their radios and pagers and interrupt their break to respond if a need arose. 90 million judgment. Our Supreme Court reasoned that the guards were still working and thus did not have full personal use of their break time. While this case was brought by private sector security guards under California Labor Code and Wage Order sections, the Court’s determination that time spent monitoring a radio during a break or meal period must be compensated has farther reaching impacts. For public sector safety employees, this ruling provides strong support that unpaid meal periods where employees are required to monitor their radios violate the Fair Labor Standards Act (FLSA). Unpaid rest breaks have been long held to violate the FLSA.
Or Tier 1 PERS retirees either (too late, I guess). It’s been pretty boring out in PERS-land lately. The only real news has come in the past week or so. PERS announced the 2006 COLA increase today (2% for everyone EXCEPT the window retirees) – so what else is new? The Supreme Court issued its way too long awaited decision in the petition for an award of attorneys’ fees to the plaintiffs in the Strunk Case. The Court agreed that the plaintiffs were entitled to something, but then punted to a special master to duke it out with the plaintiffs and the defendants on how much the award should be. 350,000 to litigate. Wonder how much the special master will see fit to award. The legal systems continues to grind along at a snail’s pace. A hearing is set for September 28th in the Arken case (Window retiree) to consider the motion of summary judgement. The Robinson case is also buzzing along at about the same speed (slowly). AFSCME is holding a Q&A session on PERS this coming Monday night (July 24th at their Portland headquarters). Call AFSCME if you’re interested in attending.
The Second Court of Appeals has ruled that the second amendment is not applicable to states. The Court stated that it governs the Congress and Federal Government only. Of course, to every rule, there are exceptions. The ruling in this Second Circuit case only applies to courts in states in it’s Circuit. There are 9 circuits in the United States. Go to this link to see if your state is controlled by the Second Court of Appeals. Any of the other 8 Circuit Courts are free to rule the other way. ” (or “nunchaku”)which were against New York law,in his home in violation of New York law. He pled to a disorderly conduct charge. He also argued that the law violated the Fourteenth Amendment because it didn’t have a rational basis. Unfortunately, The 2nd Court of Appeals believed otherwise. Why doesn’t the 14th amendment make the 2nd applicable to the states?
Common sense would say it should in light of the other parts of the bill of rights that the 14th incorporates to the states. Such as other rights such as the 1st Amendment, the 4th Amendment, 5th Amendment, 6th Amendment, and so forth. In order to not be incorporated, there must be a “Rational Basis” for that. The Incorporation Doctrine is where fundamental rights of the Bill of Rights are enforced on the States by way of the 14th Amendment. An argument was made by Mr. Maloney that the 14th amendment incorporated the 3nd Amendment and made the the right to keep and bear arms of the second amendment applicable to the states. There are exceptions to the Incorporation Doctrine. One incorporation exception is the grand jury requirement of the 5th Amendment. People in some states are charged by the prosecutors submitting a criminal “Information” to the Court instead of presenting evidence to the Grand Jury.
D.C.’s handgun ban and trigger-lock requirement also violated the Second Amendment. The total ban on handgun possession prohibits an entire class of arms that Americans overwhelmingly choose for the lawful purpose of self-defense. Under any standard of scrutiny, that ban falls. The trigger-lock requirement makes self-defense impossible. D.C. may use a licensing scheme. This ruling also make self defense impossible. But, Justice Scalia also said that the Second Amendment right is not unlimited. In testing whether a right is a fundamental right that should be enforced against the states, the Court previously looked to the fundamental nature of the Bill of Rights. The Supreme Court used that analysis in incorporating the fundamental right in the 6th Amendment to an attorney in all states in a criminal case in Gideon v Wainwright. In that case, the Supreme Court said that the First Amendment’s freedoms of speech, press, religion, assembly, association, and petition for redress of grievances are fundamental rights made applicable to the states through the 14th Amendment.
Aren’t the protections of the Second Amendment as fundamental as the First Amendment’s freedoms of speech, press, religion, assembly, association, and petition for redress of grievances? It is the firm belief of gun owners that the right to keep and bear arms is a fundamental right, and that the other amendments are protected by the Second Amendment. It is also the firm belief that the right to defend one’s self, family, and others is a fundamental right that should be applicable to the states. The Second Circuit Court followed a principle of “Stare Decisis” where all Courts are bound to follow the previous decisions made by it, such as the Presser case. In the past, Stare Decisis also kept laws on the books that allowed slavery, denied women the right to vote, and maintained racially separate schools. This case can be appealed on a certiorari application to the SCOTUS. The SCOTUS does not have to hear the case. They could also hear an appeal if another Circuit rules differently on a similar case. At this point, this decision only affects the area covered by the second Court of Appeals. Lets hope it doesn’t spread like a cancer.
Scalia joined his fellow opera lover RBG in the majority. We granted certiorari to resolve a division among lower courts on the question whether police routinely may extend an otherwise-completed traffic stop, absent reasonable suspicion, in order to conduct a dog sniff. We hold that a police stop exceeding the time needed to handle thematter for which the stop was made violates the Constitution’s shield against unreasonable seizures. A seizure justified only by a police-observed traffic violation, therefore, becomes unlawful if it is prolonged beyond the time reasonably required to complete the mission of issuing a ticket for the violation. ] purpose.” Ibid. See also Caballes, 543 U. S., at 407. Authority for the seizure thus ends when tasks tied to the traffic infraction are—or reasonably should have been—completed. ] mission.” Caballes, 543 U. S., at 407. As we said in Caballes and reiterate today, a traffic stop “prolonged beyond” thatpoint is “unlawful.” Ibid. My join in JUSTICE THOMAS’ dissenting opinion does not extend to Part III. Because the stop was reasonably executed, no Fourth Amendment violation occurred. The Court’s holding to the contrary cannot be reconciled with our decision in Caballes or a number of common police practices. Query: Should the Supreme Court decide fourth amendment cases based on “a number of common police practices” ? Should what the police do be a yardstick in determining reasonableness under the fourth amendment? Query: Since a Terry Stop is a judicially created exception, reading into the constitution words for an exception that the founders never wrote nor contemplated, what in the world is Thomas, of all the justices, doing citing Terry with approval? Anyway, the fourth amendment struggles on, doing just a bit better today because of the Notorious RBG. See you in court.