The Supreme Court Reasoned That A Generally Applicable Provision

A trip to court can be a life changing experience for the parties involved. It can mean the loss of a home, money, a business, or even their liberty. It can also mean the vindication of rights, justice for past wrongs, or a new start. Yet, in most cases a trial court opinion will go unpublished. Its effects thus often end with the parties involved. An appellate case is different. Because appeals often address disputes over broad legal principles, the opinions judges enter in such cases are often published and may serve as justification for other courts of appeal to rule in separate cases -the case sets a precedent. In this way, an appellate court opinion may affect countless parties for decades to come in addition to the parties in the case at bar. Thus, a good appellate advocate can change the law and the course of legal history. An example of this would be one of the cases the Sacramento appeal lawyers at Kassouni Law recently presented to the California Court of Appeal -Lockaway v. County of Alameda. The Sacramento Appeal Attorney team prevailed in representing Lockaway thereby changing California property rights law.

At issue in the case was whether the government is responsible for investment backed expectations when approved development is unreasonably delayed by the government. Background: Private business Lockaway purchased property, obtained permits, and began development on a business facility. Prior to completion of development, and hundreds of thousands of dollars later, the planning department of Alameda notified Lockaway that it could no longer continue development. Lockaway sued Alameda County, and regained the right to continue its development. The Courts should be applauded for not allowing the egregious abuse of power attempted by the County of Alameda. However, obtaining the right to continue development on the previously permitted facility took several years in court. What recourse does a business in California have when it is precluded from doing business, and making money on its investment? The U.S. Constitution provides citizens the right to be justly compensated when property is taken away. So one would think that Lockaway would have recourse when the county flip flopped and created delays in the opening of the business. However, prior to this case, in California, no compensation could be recovered due to California Supreme Court appellate decision -Landgate. Landgate protected government entities from the responsibility of lost revenue due to government delays and error. In ruling for Lockaway in this case, the Appellate Court overturned Landgate. The Court’s decision in Lockaway changes California property law. Now, businesses are ensured compensation if egregious errors and delays are made by the government when it keeps a business from creating revenue. This new economic liberty ensures Californian’s not just their Constitutional right of just compensation, but also, a thriving economy where businesses enjoy the right of protection from government abuse.

In an interesting case dealing with concurrent jurisdiction and preemption, the Texas Supreme Court has found that a state court had jurisdiction to consider a malicious prosecution action based upon an adversary proceeding. Graber v. Fuqua, No. 05-0303 (Tex. Bankruptcy attorney Richard Fuqua filed his own bankruptcy back in 1988. Attorneys for Sunbelt Savings, FSB brought an adversary proceeding against him for fraud and forwarded information to the U.S. Attorney resulting in a criminal prosecution. Fuqua was vindicated in both the criminal case and the adversary proceeding, with the Bankruptcy Court granting a directed verdict in the adversary. After all this played out, Fuqua filed a state court malicious prosecution action against the lawyers in 2000. The state court granted a plea to the jurisdiction, but was reversed by the Court of Appeals. The question in this case is whether a state malicious prosecution claim is preempted by the federal bankruptcy regime simply because the claim arose out of the filing of an adversary action in a bankruptcy proceeding. We hold that under the facts of this case, Congress did not intend for such a claim to be preempted.

In a Texas trial court, Richard Fuqua alleged that Thomas Graber and Hopkins & Sutter had committed the common law tort of malicious prosecution by initiating an adversary proceeding in Fuqua’s federal bankruptcy case. The petitioners argue that federal bankruptcy statutes express Congress’s intent to preempt Fuqua’s claim and others like it. But to hold as the petitioners suggest would require us to extract the requisite intent from congressional silence, an inference that our preemption jurisdiction does not allow. The petitioners further argue that permitting Fuqua’s state malicious prosecution claim would impermissibly threaten the uniformity of federal bankruptcy law. Yet we can identify no such risk. Until Congress clearly says otherwise, preemption of Fuqua’s malicious prosecution action is not warranted. Fuqua’s suit should have survived Graber’s plea to the jurisdiction. The Supreme Court did a good job of analyzing the interplay between bankruptcy and non-bankruptcy jurisdiction. Under 28 U.S.C. Sec. 1334, bankruptcy courts and state courts have concurrent jurisdiction over matters arising in a bankruptcy case, arising under bankruptcy law or related to a bankruptcy case. Therefore, the state court would have jurisdiction over this claim, which either arose in a bankruptcy case or was related to a bankruptcy case, unless preemption applied. The Supreme Court reasoned that a generally applicable provision, such as Bankruptcy Rule 9011, did not evidence an intent to preempt another court’s jurisdiction, while a “custom-built” provision, such as 11 U.S.C. Sec. 303(i) or 362(k) (sanctions for filing involuntary proceeding in bad faith and sanctions for violating the automatic stay) would. Since no “custom-built” bankruptcy provision applied to redress harm arising from a malicious adversary proceeding, the claim could be brought in state court. 2. Sanctions under 28 U.S.C. 3. Sanctions under the Court’s inherent authority to punish bad faith conduct under 11 U.S.C. 4. A state court malicious prosecution action.

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Since the abolition of the UK’s default retirement age in 2011, there has been some ambiguity about when retirement should take place, and whether employers could enforce it. Now, after a landmark legal case in the Supreme Court, the matter may not exactly be resolved, but it is certainly a little clearer. In October of last year, campaigners against age discrimination celebrated when the long-established default retirement age (DRA) of 65 was scrapped. The move was celebrated by age-related charities, but bemoaned by some business organisations. Others voiced concern that older workers staying in their jobs for longer would lead to young jobseekers being unable to get the work or training they need. However, matters concerning the scrapping of the DRA are not as clear-cut as they may first seem. On the first point, the employer had argued that their retirement policy ensured that younger workers had the chance to become partners at the firm within a reasonable period. On the second they said that having a set retirement age avoided the need for them to have difficult discussions with older workers about whether they were still fit for the job. The Supreme Court ruled that in this case a ‘public interest’ had been served by telling workers to retire at a certain age. In effect, this ruling makes it clear that in certain cases a mandatory retirement age is legally acceptable, if it can be proved that it serves a legitimate purpose such as protecting the rights of younger workers. However, until further such cases pass through the courts, it may be very difficult for employers to judge whether their retirement policy serves such a purpose. Furthermore, the Supreme Court did not rule on what a suitable age for retirement should be, instead sending the case back to an employment tribunal. So, for the time being, the ambiguity continues. Looking for an Edinburgh Employment Solicitor?

Whats crossing the line of privacy rights? According to the law, installing a GPS in a private citizens vehicle, even without a warrant, does not cross that line. In Commonwealth v. Connolly, the state’s highest court answered this question in the affirmative and limited the monitoring period to 15 days. While many view the ruling in this case as a win-win for privacy rights and law enforcement personnel, there are still concerns about the broader implications of government use of GPS devices to track private citizens’ movements. In Connolly, the police had spent more than a year investigating suspected drug dealer Everett H. Connolly. Their investigation included information gathered from police observation, undercover informants and a GPS device installed in the defendant’s minivan. The defendant was arrested and ultimately convicted of trafficking and distributing cocaine. The police had received a warrant authorizing them to install the tracking device in the defendant’s minivan. However, the defendant argued that the warrant had expired before the police collected the information they needed to serve as the basis for the later warrant that was used to search his vehicle. During the vehicle search, the police confiscated cocaine and large amounts of cash.

Since the search and seizure were unlawful and based on an invalid warrant, though, the defendant argued that the evidence collected from his minivan should not have been admitted in court. The Supreme Judicial Court did not agree with the defendant’s arguments. The court found that installing a GPS device into a private citizen’s vehicle constitutes a seizure under the state’s Declaration of Rights, and thus requires a validly issued warrant. However, the court also ruled that warrants related to GPS devices are good for 15 days and that the warrant in this case had not expired. The court did not address whether installing a GPS device constitutes a search or seizure under the Fourth Amendment or whether it constitutes a search under the Declaration of Rights. In issuing the Connolly opinion, the Massachusetts high court became the first court in the country to find that installing a GPS device constitutes a seizure.

Other courts generally have focused on whether installing the tracking device requires a warrant because it constitutes a search of the vehicle. Several courts, both state and federal, have recently considered similar questions regarding law enforcement use of GPS devices to gather information on criminal suspects. So far, the courts have split on whether a warrant is required. A few months previously, a New York court reached the same conclusion as the Massachusetts court and held police officers are required by the state constitution to have a valid warrant. However, a Wisconsin appellate court ruled the opposite, finding that state law did not require law enforcement to obtain a warrant prior to placing a GPS device in a vehicle. The federal courts have produced similarly divided results, with some districts finding that the Fourth Amendment protections against unreasonable searches and seizures apply to GPS devices and others finding that they do not. The US Supreme Court has not yet heard a case specifically dealing with the issue of GPS devices.

In an earlier decision, United States v. Karo, the Court found that the use of an electronic beeper device to track a vehicle did not constitute a search for Fourth Amendment purposes. In dicta, however, the Court stated that a more sophisticated, satellite device that replaced rather than enhanced an officer’s abilities might be considered a search for Fourth Amendment purposes, requiring a search warrant. Why Does This Matter? While it is generally believed that law enforcement officials only use GPS tracking devices in limited cases, the broader concern is that the use may become more widespread. If there are no limits on the government’s use of these types of tracking devices, the potential for abuse and invasion into private citizens’ lives is great. Requiring the police to first prove sufficient probable cause to obtain a warrant to install the device can help protect some privacy rights. At the very least, the police must produce enough evidence to convince a judge or magistrate that the individual is involved in criminal conduct before using GPS tracking. Unfortunately, no system is perfect and there is still the potential for abuse even when a warrant is required. For more information on police use of GPS tracking devices or, more generally, about your Fourth Amendment rights to be free from unreasonable searches and seizures, contact an experienced criminal defense attorney today.

I am referring to the antitrust case filed by a company called TIKD against the Florida Bar. TIKD’s website is here. TIKD is a company that promises consumers to take care of their traffic tickets (with a money back guarantee). The consumer pays a fee to the company and the company takes care of everything, including hiring a lawyer to represent the consumer. Based on this business model, a law firm in Florida filed a complaint with the Florida Bar alleging that TIKD was practicing law without a license. The Florida Bar issued an opinion finding that lawyers who work with TIKD could be in violation of Florida Bar disciplinary rules and requested an injunction to prevent TIKD from continuing to provide services in the state. Private entities can also be protected by state-action immunity, but only if their conduct is (1) taken pursuant to a clearly articulated and affirmatively expressed state policy and (2) actively supervised by the State itself.

See, California Retail Liquor Dealers Ass’n v. Midcal Aluminum, Inc., 445 U.S. Midcal, however, did not decide whether professional regulators, such as the Florida Bar, whose members are participants in the market they regulate, should be subject to the doctrine’s requirement of active state supervision for private entities claiming state-action immunity. Thus, the application of the state action doctrine is the key to the controversy, and that’s where North Carolina State Board of Dental Examiners v. Federal Trade Commission comes into play. In that case the Supreme Court held that if a controlling number of decisionmakers are active market participants in the occupation the agency regulates, a state agency must be actively supervised by the state in order to obtain antitrust immunity. In the TIKD case, the Florida Bar is arguing that, as an “arm of the Florida Supreme Court,” it is entitled to state-action protection without having to meet the “clear articulation” or “active supervision” requirements recognized by the Supreme Court. Yet, the U.S. Department of Justice has filed a statement of interest arguing that the Florida Bar is not immune from federal or state antitrust liability based on North Carolina State Board of Dental Examiners.

You can read the statement of interest here. The National Law Review has a short discussion of the issues raised by the case here. On the other side of the equation, so to speak, TIKD’s arguments are also problematic. It argues that it is not engaging in the practice of law because it is merely a referral service rather than a law firm. But its own representations in its website, do make it sound like it provides legal services to the consumers. It essentially says, pay us, send us your ticket and we will provide you with a lawyer. From what I can see in its website, the consumer does not choose the lawyer, TIKD does, and the lawyer doesn’t even have to meet the client. At best TIKD seems to be operating as a temp agency, which finds lawyers and sends them off to do tasks for clients who have no (or very limited) contact with the lawyers themselves.

Act, 2005, the Supreme Court has ruled that a wife’s claim for alternative accommodation lie only against her husband and not against in-laws and that her right to ‘shared household’ would not extend to the self-acquired property of her in-laws. Bench of Justice SB Sinha and Justice Markandey Katju said dismissing the claim of a Delhi woman who had claimed her right for alternative accommodation under Section 19(1)(f) of the Act. The Bench also interpreted the concept of ‘shared household’ under Section 17(1) of the Act. The court also commented on poor drafting of Section 2(s) of the Act, which defines ‘shared household’. Under Section 17(1) of the Act, every woman in a domestic relationship shall have the right to reside in the shared household, whether or not she has any right, title or beneficial interest in the same. The apex court’s ruling makes it amply clear that shared household would mean only the house belonging to the husband or taken on rent by him or the house belonging to the joint family of which he is a member. It further clarified that the wife’s claim for alternative accommodation can be made only against the husband.

Sandhya Batra was married to one Anand Batra (both names changed) on April 14, 2000 and the couple was residing at a house owned by the husband’s mother at Ashok Vihar, Phase-I, Delhi. After Anand filed a divorce petition, Sandhya lodged dowry demand cases against her husband and in-laws including married sister-in-law and they had to visit Tihar Jail. Initially she shifted to her parents’ residence due to the dispute but when she returned to her in-laws’ place, the house was locked. She filed a suit for getting entry to the house. However, it was alleged that even before the suit could be decided, she, along with her parents, forcibly broke open the locks of the house at Ashok Vihar belonging to her mother-in-law. It was further alleged by her in-laws that they had to stay in their office as she terrorised them and that they finally shifted to Mohan Nagar, Ghaziabad. The trial judge granted her temporary injunction on March four 2003 and restrained her in-laws from interfering with her possession. However, the order was reversed on September 17, 2004 by the Senior Civil Judge, who held that she had no right to the properties other than those of her husband. Her in-laws challenged the HC order before the SC where her counsel contended that in view of the coming into effect of the Act, she could not be dispossessed from the property in question. Her counsel further contended that the definition of ‘shared household’ “includes a household where the person aggrieved lives or at any stage had lived in a domestic relationship”.

Services at 3PM today. On July 31, 1963, two gas stations attendants were murdered in Port St. Joe, Florida, a small town located in the Panhandle of the State. Within hours, the Gulf County Sheriff’s Office had arrested Freddie Lee Pitts and Wilbert Lee. Pitts and Lee were indicted on two counts of First Degree Murder. On August 28, 1963, Judge W.L. Fitzpatrick sentenced both men to death. You did not read that incorrectly folks. It took 28 days from the day the crime was committed until the date that the death sentence was ordered. For most of the next decade, a young attorney by the name of Irwin J. Block took on the cause of Pitts and Lee, pro bono, in a case that all Criminal Law 101 law students now study. We did not know Irwin Block personally, but 3rd DCA Judge Kevin Emas did. We asked Judge Emas if he could provide us with some personal words. Captain: I had the privilege of working with Irwin for six years while I was at Fine Jacobson Schwartz Nash Block and England. Here are a few thoughts.

Thanks for doing this. Irwin Block was old school. 87 years old and still going to work. He loved the law. He loved being a lawyer. He loved being a trial lawyer. And make no mistake about it. Irwin was not a litigator. He was a trial lawyer. And he was extraordinary in trial. Even opposing counsel in a trial would sometimes find themselves becoming spectators, watching with admiration as Irwin held the witness and the jury in the palm of his hand. Irwin Block was involved in many high-profile cases over the course of his exceptional career. But for all his talents as a trial lawyer, Irwin was a humble man. He never sought the limelight, and bristled at the notion that he should ever be honored for just doing his job. But honored he was, including the American Jewish Congress’ Judge Learned Hand Award, History Miami’s Legal Legend Award, and the DCBA’s David W. Dyer Professionalism Award. Irwin was more interested in fighting for clients than fighting for causes.