Tuesday, August 12, 2014
Friday, June 13, 2014
NC Supreme Court Strikes Down
RALEIGH, N.C. -- The North Carolina Supreme Court says the state's first local ordinance banning people from using cellphones while driving is invalid.
The high court on Thursday ruled unanimously that state laws regulate highways and roads and that prohibits the town's enforcement of the cellphone ban.
The court also struck down parts of a separate town ordinance regulating towing. Judges said the town could not cap towing fees or prevent towing companies from passing credit card fees to consumers.
RALEIGH, N.C. -- The North Carolina Supreme Court says the state's first local ordinance banning people from using cellphones while driving is invalid.
The high court on Thursday ruled unanimously that state laws regulate highways and roads and that prohibits the town's enforcement of the cellphone ban.
The court also struck down parts of a separate town ordinance regulating towing. Judges said the town could not cap towing fees or prevent towing companies from passing credit card fees to consumers.
Tuesday, May 27, 2014
Spring cleaning series: employee handbooks
Read this article we found:
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Spring is almost over, but we still have time for some spring cleaning before the season comes to an end. There have been many recent changes to federal and state labor and employment laws, so now is a great time to review your company policies and update those employee handbooks. This Spring Cleaning installment provides you with a quick overview of some, but certainly not all, recent employment law developments that employers should consider when updating their employee handbooks.
Federal Developments
Employee Conduct Policies
The National Labor Relations Board (NLRB) continues to heavily scrutinize employee conduct policies in employee handbooks. In particular, employers’ policies on social media, the use of employer email systems, employee codes of conduct, and confidentiality are all being targeted in order to determine whether these policies dissuade or “chill” employees from communicating about their work conditions — a protected concerted activity under the National Labor Relations Act. As such, these policies should be reviewed to determine whether they are overbroad and/or susceptible of being interpreted as chilling employee rights.
At-Will Disclaimers
The NLRB has recently provided guidance suggesting that at-will disclaimers, which merely restrict the employer’s own representative from entering into employment agreements with employees, are appropriate so long as they do not require employees to refrain from seeking to change their at-will status or agree that their at-will status cannot be changed in any way. Employers should review their at-will disclaimers to ensure that they do not infringe upon employees’ rights to organize or otherwise change the terms and conditions of their employment.
Criminal Background Checks
The U.S. Equal Employment Opportunity Commission (EEOC) has taken an aggressive approach on the use of criminal background checks and is pursuing litigation against various employers whose policies, the EEOC claims, are discriminatory and in violation of federal law. Employers that utilize criminal background reports should review their policy and consider recent EEOC guidance on the subject in order to craft their policies in a way that is likely to withstand scrutiny by the EEOC.
For more information on this topic, see the April 2014 Spring Cleaning Series installment on criminal background checks. (Click here.)
Break Policies for Nursing Mothers
Last year, the U.S. Department of Labor reminded employers that the Patient Protection and Affordable Care Act amended the Fair Labor Standards Act to require that employers provide reasonable break time for employees to express breast milk for their nursing children and provide a place, other than a bathroom, that is shielded from view and free from intrusion from co-workers and the public.
To the extent that employers do not have specific handbook policies addressing this issue, it may be time to consider adding such a policy. At a minimum, employers may want to review their existing break policies to ensure that such policies do not run afoul of the FLSA.
Description of Benefit Policies
Employers that describe benefits in employee handbooks run the risk that the benefit description may conflict with the description in the plan document or the Summary Plan Description. When such a conflict arises, courts generally interpret the contradictory provisions in the manner most beneficial to employees. Ambiguous language in a handbook may also have the unintended consequence of creating an ERISA plan.
Employers should revisit benefit policy statements in employee handbooks and consult with counsel to ensure that these descriptions and the benefit plan documents do not conflict.
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Employee Handbooks are Necessary
To avoid navigation through the court system in a messy case, you should have an employee handbook for your company. This handbook should state that employee come to you first to settle any disputes they may have before talking to a lawyer. There have been many cases where this excerpt in an employee handbook could have saved a business from disgruntled employee backlash.
As an employment attorney in San Diego (http://wblawgroup.com/employment-attorney-san-diego.html), I would be happy to help construct a well written book for your employees to read and sign. I believe this is a wise decision, and very necessary if you end up in court. It could be used as evidence.
Read more here:
Wednesday, April 16, 2014
Hillary Shoe Thrower Once Filed Restraining Order Against Aurora Shooter for ‘Entering Her Mind’
Check out this article we found:
read more at http://www.mediaite.com/online/hillary-shoe-thrower-once-filed-restraining-order-against-aurora-shooter-for-entering-her-mind/
As more details emerge about Allison Michelle Ernst, better known as the Hillary Shoe Thrower, police discovered a strange connection between her and James Egan Holmes, the man allegedly responsible for the 2012 Aurora movie shooting. According to Colorado police, Ernst seemed to be unhealthily obsessed with Holmes, to the point where she filed a rambling lawsuit against him for “entering [her] mind through subliminal messaging and causing [her] to be obsessed with him on a daily basis.”
Ernst, 36, was arrested for, but not charged with assaulting Hillary Clinton during a speech last week in which she hurled a shoe at the former Secretary of State. However, Ernst has a history of erratic behavior: back in 2012, Ernst, boasting a red dress and a shaved head, broke into a Colorado courtroom during one of Holmes’s hearings and declared that she had “information vital to the defense of James Holmes to the public defender,” before being escorted out.
Later, via her own personal website, she filed a lawsuit against the imprisoned Holmes, claiming that he had been stalking her through “mind manipulation,” though she also claimed he was innocent:
James Holmes is innocent and has been framed by the u.s. govt for new world order… James has taken over my life. I sleep, eat, and think James Holmes 24/7 and i seek a restraining order to have this james holmes mind manipulation to stop. I watched inception, so I’m fully aware of james holmes magical powers and also his neuo science studies which now james enters my head like dennis quaid in innerspace and he zooms to my heart and plays with it and forces me to care for him. James sent me naked photos of himself in a joker outfit which offends me. James Holmes wont even look at me on when he is in court and this offends me, my life and skin.
She also believed that the US government was attempting to “Tim McVay” him:
Tim McVay was the man accused of the Oklahoma City Bombing. Much like James Holmes, he was a mind controlled patsy that they dumped the blame for the bombing on and even after proof of other accomplices emerged they were able to keep the death penalty case together. This so called team of lawyers are either the worst lawyers in the world or have been purposely put in to lose the case for the defense.
read more at http://www.mediaite.com/online/hillary-shoe-thrower-once-filed-restraining-order-against-aurora-shooter-for-entering-her-mind/
How do you Apply for a Restraining Order?
Here at Webb & Bordson, APC, we have many family law attorneys in Fresno, CA (http://wblawgroup.com/family-law-attorney-fresno.html). Our attorneys are experienced in dealing with several types of restraining orders.
Documents That You Must Complete to Obtain a Temporary and/or Permanent Restraining Order
Documents That You Must Complete to Obtain a Temporary and/or Permanent Restraining Order
In order to qualify for a Temporary Restraining Order OR a Permanent Restraining Order, you must fill out legal documents that tell the court why you are applying. This will give them an idea of the circumstances and the amount of protection you may need.
To read the full version of this blog post please click the link below:
Thursday, August 29, 2013
Double Jeopardy
We found this article for you to read:
A second prosecution for the same offense after acquittal or conviction or multiple punishments for same offense. The evil sought to be avoided by prohibiting double jeopardy is double trial and double conviction, not necessarily double punishment.
The Fifth Amendment to the U.S. Constitution provides, "No person shall … be subject for the same offence [sic] to be twice put in jeopardy of life or limb." This provision, known as the Double Jeopardy Clause, prohibits state and federal governments from prosecuting individuals for the same crime on more than one occasion, or imposing more than one punishment for a single offense. Each of the 50 states offers similar protection through its own constitution, statutes, and Common Law.
Five policy considerations underpin the double jeopardy doctrine: (1) preventing the government from employing its superior resources to wear down and erroneously convict innocent persons; (2) protecting individuals from the financial, emotional, and social consequences of successive prosecutions; (3) preserving the finality and integrity of criminal proceedings, which would be compromised were the state allowed to arbitrarily ignore unsatisfactory outcomes; (4) restricting prosecutorial discretion over the charging process; and (5) eliminating judicial discretion to impose cumulative punishments that the legislature has not authorized.
Double jeopardy is one of the oldest legal concepts in Western civilization. In 355 b.c., Athenian statesman Demosthenes said, "[T]he law forbids the same man to be tried twice on the same issue." The Romans codified this principle in the Digest of Justinian I in a.d. 533. The principle also survived the Dark Ages (a.d. 400–1066), notwithstanding the deterioration of other Greco-Roman legal traditions, through Canon Law and the teachings of early Christian writers.
In England, the protection against double jeopardy was considered "a universal Maxim of the common law" (United States v. Wilson, 420 U.S. 332, 340, 95 S. Ct. 1013, 1020, 43 L. Ed. 2d 232 [1975]) and was embraced by eminent jurists Henry de Bracton (1250), Sir Edward Coke (1628), Sir Matthew Hale (1736), and Sir William Blackstone (1769). Nonetheless, the English double jeopardy doctrine was extremely narrow. It applied only to defendants who were accused of capital felonies, and only after conviction or acquittal. It did not apply to cases that had been dismissed prior to final judgment, and it was not immune from flagrant abuse by the Crown.
The American colonists, who were intimately familiar with Coke, Blackstone, and the machinations of the Crown, expanded the protection against double jeopardy, making it applicable to all crimes. Yet some perceived James Madison's original draft of the Double Jeopardy Clause as being too broad. It provided, "No person shall be subject … to more than one punishment or one trial for the same offense" (emphasis added) (United States v. Halper, 490 U.S. 435, 440, 109 S. Ct. 1892, 1897 104 L. Ed. 2d 487 [1989]). Several House members objected to this wording, arguing that it could be misconstrued to prevent defendants from seeking a second trial on appeal following conviction. Although the Senate later amended the language to address this concern, the final version ratified by the states left other questions for judicial interpretation.
Double jeopardy litigation revolves around four central questions: (1) In what type of legal proceeding does double jeopardy protection apply? (2) When does jeopardy begin, or, in legal parlance, attach? (3) When does jeopardy terminate? (4) What constitutes successive prosecutions or punishments for the same offense? Although courts have answered the second and third questions with some clarity, they continued to struggle over the first and last.
Where Jeopardy Applies
Only certain types of legal proceedings invoke double jeopardy protection. If a particular proceeding does not place an individual in jeopardy, then subsequent proceedings against the same individual for the same conduct are not prohibited. The Fifth Amendment suggests that the protection against double jeopardy extends only to proceedings that threaten "life or limb." Nevertheless, the U.S. Supreme Court has established that the right against double jeopardy is not limited to capital crimes or Corporal Punishment, but that it extends to all felonies, misdemeanors, and juvenile-delinquency adjudications, regardless of the applicable punishments.
In Benton v. Maryland, 395 U.S. 784, 89 S. Ct. 2056, 23 L. Ed. 2d 707 (1969), the U.S. Supreme Court ruled that the federal Double Jeopardy Clause is applicable to state and federal prosecutions. Prior to this ruling, an individual who was accused of violating state law could rely only on that particular state's protection against double jeopardy. Some states offered greater protection against double jeopardy than did others. The Court, relying on the doctrine of incorporation, which makes fundamental principles in the Bill of Rights applicable to the states through the equal protection clause of the Fourteenth Amendment, said this was not permissible. The right against double jeopardy is so important, the Court concluded, that it must be equally conferred upon the citizens of every state. Under Benton, no state may provide its residents with less protection against double jeopardy than that offered by the federal Constitution.
The U.S. Supreme Court has also held that the right against double jeopardy precludes only subsequent criminal proceedings. It does not preclude ordinary civil or administrative proceedings against a person who already has been prosecuted for the same act or omission. Nor is prosecution barred by double jeopardy if it is preceded by a final civil or administrative determination on the same issue.
Courts have drawn the distinction between criminal proceedings on the one hand, and civil or administrative proceedings on the other, based on the different purposes served by each. Criminal proceedings are punitive in nature and serve two primary purposes: deterrence and retribution. Civil proceedings are more remedial; their fundamental purpose is to compensate injured persons for any losses incurred. Because civil and criminal remedies fulfill different objectives, a government may provide both for the same offense.
The multiple legal proceedings brought against O. J. (Orenthal James) Simpson in the death of Nicole Brown Simpson and Ronald Lyle Goldman illustrate these various objectives. The state of California prosecuted Simpson for the murders of his former wife and her friend. Despite Simpson's acquittal in the criminal case, three civil suits were filed against him by the families of the two victims. The criminal proceedings were instituted with the purpose of punishing Simpson, incarcerating him, and deterring others from similar behavior. The civil suits were intended to make the victims' families whole by compensating them with money damages for the losses they had suffered.
The distinctions between criminal and civil proceedings and between punitive and remedial remedies may appear semantic, but they raise real legal issues. Courts have recognized that civil remedies may advance punitive goals. When they do, double jeopardy questions surface. For example, a civil Forfeiture or civil fine, although characterized by the legislature as remedial, becomes punitive when the value of the property seized or the amount of the fine imposed is "overwhelmingly disproportionate" to society's loss (Halper). This principle was exemplified when the U.S. Supreme Court prohibited the federal government from seeking a $130,000 civil penalty against a man who previously had been sentenced to prison for the same offense of filing $585 worth of false Medicare claims (Halper). The Court concluded that the gross disparity between the fine imposed and society's economic loss reflected a punitive remedial aim.
Conversely, many courts have ruled that Punitive Damages awarded in civil suits are not sufficiently criminal for double jeopardy purposes when the plaintiff seeking those damages is a private party, not the state. This ruling can be best explained by noting that the Bill of Rights guarantees protection only against government action. It does not create a system of rights and remedies for disputes between private citizens, as do the laws of contracts and torts. Courts have not determined whether punitive damages recovered by the government in a civil suit would bar subsequent prosecution, nor have they agreed whether a number of administrative proceedings can be uniformly characterized as punitive or remedial. Cases involving the revocation of professional licenses, driving privileges, Probation, and Parole have divided courts over the purposes underlying these proceedings.
When Jeopardy Attaches
Courts have provided much clearer guidance on the question of when jeopardy attaches, or begins. This question is crucial to answer because any action taken by the government before jeopardy attaches, such as dismissal of the indictment, will not prevent later proceedings against a person for the same offense. Once jeopardy has attached, the full panoply of protection against multiple prosecutions and punishments takes hold.
The U.S. Supreme Court has held that jeopardy attaches during a jury trial when the jury is empanelled. In criminal cases tried by a judge without a jury, jeopardy attaches when the first witness is sworn. Jeopardy begins in juvenile-delinquency adjudications when the court first hears evidence. If the defendant or juvenile enters a plea agreement with the prosecution, jeopardy does not attach until the court accepts the plea.
When Jeopardy Terminates
Determining when jeopardy terminates is no less important, but somewhat more complicated. Once jeopardy has terminated, the government may not hail someone into court for additional proceedings on the same matter without raising double jeopardy questions. If jeopardy does not terminate at the conclusion of one proceeding, it is said to be continue, and further criminal proceedings are permitted. Jeopardy can terminate in four instances: after acquittal; after dismissal; after a mistrial; and on appeal after conviction.
A jury's verdict of acquittal terminates jeopardy, and it may not be overturned on appeal even if it is contrary to overwhelming proof of a defendant's guilt and derived from a trial that was rife with reversible error. This elemental maxim of double jeopardy Jurisprudence entrusts the jury with the power to nullify criminal prosecutions that are tainted by egregious police, prosecutorial, or judicial misconduct.
A jury also may impliedly acquit a defendant. If a jury has been instructed by the judge on the elements of a particular crime and a Lesser Included Offense, and the jury returns a guilty verdict as to the lesser offense but is silent as to the greater one, then reprosecution for the greater offense is barred by the Double Jeopardy Clause. For example, a jury that has been instructed as to the crimes of first- and second-degree murder may impliedly acquit the defendant of first-degree murder by returning only a guilty verdict as to murder in the second degree. A not-guilty verdict as to the greater offense is inferred from the silence.
A dismissal is granted by the trial court for errors and defects that operate as an absolute barrier to prosecution. It may be entered before a jury has been impaneled, during the trial, or after a conviction. But jeopardy must attach before a dismissal implicates double jeopardy protection.
Once jeopardy attaches, a dismissal granted by the court for insufficient evidence terminates it. Such a dismissal also bars further prosecution, with one exception: The prosecution may appeal a dismissal entered after the jury has returned a guilty verdict. If the appellate court reverses the dismissal, the guilty verdict may be reinstated without necessitating a second trial. The state may not appeal a dismissal granted for lack of evidence after a case has been submitted to a jury, but before a verdict has been reached.
Reprosecution is permitted, and jeopardy continues, when the court dismisses the case on a motion by the defendant for reasons other than sufficiency of the evidence. For example, a court may dismiss a case when the defendant's right to a Speedy Trial has been denied by prosecutorial pretrial delay. The U.S. Supreme Court has held that no double jeopardy issue is triggered when defendants obtain dismissal for reasons that are unrelated to their guilt or innocence (see United States v. Scott, 437 U.S. 82, 98 S. Ct. 2187, 57 L. Ed. 2d 65 [1978]).
A mistrial is granted when it has become impracticable or impossible to finish a case. Courts typically declare a mistrial when jurors fail to reach a unanimous verdict. Like a dismissal, a mistrial that is declared at the defendant's behest will not terminate jeopardy or bar reprosecution. Nor will a mistrial preclude reprosecution when declared with the defendant's consent. Courts disagree as to whether a defendant's mere silence is tantamount to consent.
A different situation is presented when a mistrial is declared over the defendant's objection. Reprosecution is then allowed only if the mistrial resulted from "manifest necessity," a standard that is more rigorous than "reasonable necessity," and less exacting than "absolute necessity." A mistrial that could have been reasonably avoided terminates jeopardy, but jeopardy continues if a mistrial was unavoidable.
The manifest-necessity standard has been satisfied where mistrials have resulted from defective indictments, disqualified or deadlocked jurors, and procedural irregularities willfully occasioned by the defendant. Manifest necessity is never established for mistrials resulting from prosecutorial or judicial manipulation. In determining manifest necessity, courts balance the defendant's interest in finality against society's interest in a fair and just legal system.
Every defendant has the right to appeal a conviction. If the conviction is reversed on appeal for insufficient evidence, the reversal is treated as an acquittal, and further prosecution is not permitted. However, the defendant may be reprosecuted when the reversal is not based on a lack of evidence. The grounds for such a reversal include defective search warrants, unlawful seizure of evidence, and other so-called technicalities. Retrials in these instances are justified by society's interest in punishing the guilty. A defendant's countervailing interests are subordinated when a jury's verdict is overturned for reasons that are unrelated to guilt or innocence.
The interests of accused individuals are also subordinated when courts permit prosecutors to seek a more severe sentence during the retrial of a defendant whose original conviction was reversed on appeal. Courts have suggested that defendants who appeal their convictions assume the risk that a harsher sentence will be imposed during reprosecution. However, in most circumstances, courts are not permitted to impose a death sentence on a defendant during a second trial when the jury recommended life in prison during the first. The recommendation of life imprisonment is construed as an acquittal on the issue of Capital Punishment.
for more information: http://legal-dictionary.thefreedictionary.com/double+jeopardy
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