Archive for the 'Court' Category

Utah Judge Was Wrong To Order Gay Couple to Surrender Foster Child

Judge Scott Johansen ordered a lesbian couple to give up the one year old child living in foster care in their home. Beckie Peirce and her wife, April Hoagland, were caring for the child while the state terminated the biological mother’s parental rights. Peirce and Hoagland were married last October and were licensed as foster parents earlier this year. Judge Johansen claims he has research to back up that children do better in heterosexual homes. A copy of the order currently isn’t available, but a court spokeswoman confirmed its contents.

Aside from the alleged research, there doesn’t appear to be a legal basis for Judge Johansen’s ruling. Utah doesn’t have a law prohibiting same-sex couples from adopting children. According to Hoagland, “the mother has asked us to adopt” the infant girl. Neither the Utah Division of Child Family Services nor the Guardian Ad Litem Office have advocated that the baby be removed from the couple’s care. No party, other than Judge Johansen, believes the adoption would be a bad idea.

Child’s Best Interest

In any child custody case, the deciding question should always be whether the decision is in the child’s best interests. The child’s welfare cannot be traded for the desires of the “adults.” The only evidence available is that Judge Johansen has research showing that children do better in heterosexual homes.

However, all factors must be considered to determine whether the custody decision is in the best interests of the child. Factors such as employment of each parent, the emotional, mental, physical, and educational needs of the child, level of responsibility each parent has, and the nature of the child’s Peirce and Hoaglandrelationship must all be considered. The sexual orientation of the parents, if it is a factor at all, should only play a small role. It certainty shouldn’t be the deciding factor, as is the case here.

Second, “better off” cannot be a legal standard. People come from different backgrounds, but nobody can say that one experience is better than another as long as basic emotional, mental, physical, and educational needs are met. Children grow up in households where the parents are of mixed race, different religions, different political ideologies, or different income levels. Children may have multiple siblings or be an only child. The point is, being different may be harder, but the law doesn’t remove custody simply because a child could be in a “better” environment.

Justice is Based on Judgment of the Individuals

Third, breaking up a family based solely on research is not acceptable. Social studies research deal with generalizations, but the law must judge people as individuals. A research showing that children with heterosexual couples are better off than children with gay couples cannot be the basis for a legal decision unless the research is applied to the specific case. Being gay cannot be a reason to exclude homosexuals from foster parenting and adoption if the judge cannot point to a problem with the specific gay couple’s parenting.

Indeed, social science research makes all kinds of conclusions that courts would be unwillingly to act on, even the conclusions favor certain results. For example, there’s a new study showing that children raised in religious households are more selfish and judgmental than children raised without religion. By Judge Johansen’s reasoning, we should remove children from Christian and Mormon households and give them to atheists because of this research. But we know that this wouldn’t be right. Religious parents must be judged as individuals and not based on a generalized (and flawed) study. Gay couples shouldn’t be treated any differently.

The limited information available doesn’t exclude Hoagland and Peirce as capable parents. They are already raising two children, ages 12 and 14, who are Peirce’s biological children. The infant has already spent three months with them, so there may be a small emotional bond already. The mother has allegedly given her blessing and Utah’s Child Services haven’t found evidence of abuse. The baby’s situation could be better, but Judge Johansen suggests that any heterosexual couple would be more qualified. If the heterosexual couple included the baby’s father or a blood relative, there may be an argument.

However, to suggest that a random heterosexual couple would be better parents than Hoagland and Peirce would be absurd. The two women are experienced parents who have met Utah’s criteria for foster parenting and are prepared to take on additional parental responsibilities.

How Banks Foreclose On a Home

The most common way for someone to buy a home is through a bank loan, also known as a mortgage. The bank fronts the homeowner money and they make monthly payments to the bank for between ten to forty years until the mortgage is paid off. Both the bank and the new homeowner expect everything to go smoothly from there, and it is great when that happens. Unfortunately, over ten to forty years things  change: the borrower may lose their job, encounter a financial crisis or countless other issues can arise.

When things go wrong, the bank forecloses on the home. This means the bank attempts to take the house back from the borrower through its rights in the contracts it entered into with the borrower. The typical mortgage contract is known as a Deed of Trust, which gives the bank the right to foreclose on the home. However, many people do not know how the foreclosure process works and both banks as well as  Foreclosurehomeowners make major mistakes in the foreclosure process, which can lead to major issues. This was seen recently when the mortgage crisis occurred, and property values plummeted, cities declared bankruptcy and crime spiked across the country.

How does foreclosure work? Each state has its own foreclosure laws. However, the foreclosure laws can be organized into two big picture foreclosure systems: (1) Judicial Foreclosure States and (2) Non-Judicial Foreclosure States. Judicial foreclosure states require that the party attempting to take the property obtains approval from a judge. A non-judicial foreclosure state does not require review or approval by a judge. As a result, non-judicial foreclosures have less oversight and are usually faster and less expensive for the foreclosing party. Not surprisingly, many of the states hit hardest by the foreclosure crisis, such as California, were non-judicial foreclosure states. Without judicial oversight, the foreclosure process is easier to abuse.

Regardless of whether a state is a judicial or non-judicial foreclosure state, a bank forecloses on a home by recording a Notice of Default. The Notice of Default alleges that the borrower has missed payments. Thereafter, if payment is not made, the Bank can sell the property at a Trustee’s Sale. Typically, a Trustee must wait between 30-90 days from the recording of a Notice of Default to schedule a Trustee’s Sale. A trustee’s sale or foreclosure sale is where the Bank sells the property at an auction, usually at a courthouse or city hall, to the highest bidder.

The Notice of Default is the triggering document and these documents were largely responsible for the mortgage crisis. When the housing bubble burst, banks recorded Notice of Defaults at a rapid pace. Many homeowners did not know their rights and abandoned their homes, which resulted in homes sitting vacant for years, also known as zombie foreclosures. Other banks simply recorded Notice of Defaults on the wrong property or listed the wrong amount owed. Due to these abuses, many states enacted what are known as Homeowner Bill of Rights, which are laws that require banks to contact borrowers before recording a Notice of Default to discuss loan modifications, repayment plans, and other options to avoid foreclosure.

In California, for example, banks must follow a detailed notice requirement prior to recording a Notice of Default. If the bank does not comply with the notice requirements, a homeowner facing foreclosure can file a lawsuit to obtain an injunction (a court order stopping foreclosure). Furthermore, if the courts grants an injunction, the homeowner can get attorney’s fees from the bank.

The foreclosure process is becoming a larger issue as regulatory laws become more complex, the housing market changes, and banks look for new ways to make a quick buck. If you receive a Notice of Default or Notice of Trustee’s Sale, you should immediately contact a real estate attorney to protect your rights as a homeowner.

Top 5 Mistakes Clients Make in Personal Injury Law

Mistakes. They sometimes happen. Unfortunately, when clients make mistakes in their personal injury case, it can be the difference between winning and losing a claim. Below are five of the most common mistakes clients make in personal injury cases.

5. Rebelling against Doctor’s Orders

Failing to treat an injury because of someone’s negligence is a fairly common mistake. When a plaintiff files a claim against someone for an injury, the last thing he should do is ignore doctor’s treatment orders. Failing to treat an injury ranges from not taking medication to missing doctor’s appointments and self-treating the injury.

A successful personal injury claim involves proving pain and suffering caused by the defendant’s negligence. Pain and suffering damages are awarded to some plaintiffs. The damages are intended to compensate the plaintiff for losses sustained because of the injury. The losses include emotional trauma and physical pain. Any time a person fails to follow doctor’s orders, one strong argument can be made: the plaintiff is the cause of his pain and suffering. This argument, if successful, could lead to little to no money to cover pain and suffering.

4. Failing to Disclose a Pre-existing Injury

A pre-existing injury refers to any medical condition or injury an individual had prior to the accident. Pre-existing injuries are the focus of personal injury claims because they are factored into the amount of money the plaintiff may receive in an award or settlement.

Clients with pre-existing injuries fear not receiving an award or less money because of the injury. As a result, they make the common mistake of not disclosing the prior injury to their doctors. What they don’t realize is that the defense attorney will request his previous health records looking for any prior injuries in the location where the new injury occurred.  Car Accident

If they discover the prior injury in the same part of the body the plaintiff claims is injured, it will damage the case. To the judge, jury, and defense attorney, it looks like the plaintiff lied or is hiding something.

3. Settling a Claim without Speaking with an Attorney

A settlement offer is presented from one party to another as reimbursement for injuries suffered in a personal injury case. Typically a defendant or insurance company will offer a settlement to a plaintiff to avoid going to trial. Settling a claim without speaking to an attorney is a critical mistake. Unless a plaintiff receives a settlement offer after negotiations between his attorney and the other party, there’s no way to know if it’s fair.

Remember, a defendant is trying to pay the least amount of money possible. Sometimes, a settlement offer won’t cover a plaintiff’s medical bills, pain and suffering, or lost wages. This means serious financial trouble for the plaintiff. He can’t sue for the remaining balance not covered by the settlement. Part of the settlement offer requires a plaintiff to give up the right to sue for any future or past damages.

2. Withholding Information from Your Attorney

To win, a personal injury attorney needs to know everything about the case. Unfortunately, the client may decide to withhold facts from his attorney which will damage the case. For example, a client may exaggerate injuries to his attorney. The attorney will aggressively fight to obtain the compensation to cover severe injuries. A defendant will discover the plaintiff’s injury isn’t as bad as he claims. How? Sometimes, the defense attorney will place the plaintiff under surveillance or check social media accounts. It doesn’t matter how the defense finds out, the damage is done.

1. Plaintiff Acts as Own Attorney

Many people think they can do a better job than a personal injury attorney at negotiating and presenting their case. So instead of seeking legal representation, they handle their own cases. The problem is an attorney knows how to negotiate, document injuries, and prove liability. Most laypersons do not. So they will actually do more harm than good when trying to win their case. The best way to avoid this mistake is to leave representing clients to the professionals.

Jury Holds Gun Store Responsible For Milwaukee Shooting of Police Officers

Gun stores face little liability for the crimes committed with weapons that they sell. This is in part because federal law shields them from most (but not all) liability. However, two police officers have just successfully sued a gun store for negligence, the first-ever successful suit of its kind. If the jury’s verdict is upheld on appeal, this decision will have consequences for gun dealers in Wisconsin as well as in the entire U.S.  Gun Store

The Purchase

In May 2009, Jacob D. Collins entered a gun store called Badger Guns and purchased a Taurus PT140 Pro .40-caliber handgun. Collins was a “straw buyer”- in this a substitute buyer for someone who could not legally purchase a firearm. Collins was paid to acquire the gun for Julius Burton, an 18 year old who could not yet legally make the purchase. When Collins purchased the gun, he was asked whether or not he was the actual buyer of the gun- he said no- and was then instructed by a store employee to change his answer to yes. He did so, and walked away with a gun that the store knew would be given to another person.

The Shooting

One month later, Julius Burton was bicycling down a sidewalk when Officers Bryan Norberg and Graham Kunisch approached him and told him to move. Burton did not heed the officers and continued to bicycle. When the officers pursued Burton, he became aggressive. He then shot the officers seven times. Officers Norberg and Kunisch recovered from the shooting, but have long-term injuries. Burton was found guilty of attempted first-degree intentional homicide and sentenced to 80 years in prison. Collins was sentenced to two years for violating gun laws.

The Verdict Against Badger Guns

This shooting was not the first time a weapon that Badger Guns sold had been involved in a crime. According to the Milwaukee Chief of Police, six Milwaukee police officers had been shot with weapons which originated from Badger Guns between 2006 and 2009. After the Burton shooting, the Milwaukee-Wisconsin Journal Sentinel sent a Freedom of Information Act request to the Bureau of Alcohol, Tobacco, and Firearms and found that in 2005 Badger Guns, was the top seller of crime guns in the entire nation, with 537 guns involved in illegal activity.

Officers sued Badger Guns (and its related company, Badger Outdoors), saying that in this case, their actions led directly to the shooting. Employees had looked the other way to sell a handgun to a “straw buyer.” The officers won. A jury found that Badger Guns was negligent in the sale of the weapon that was used in the shooting. After a jury trial, they won a $5 million dollar settlement compensation for significant injuries that were a result of the shooting. One of the officers lost an eye and suffered brain damage. The other officer was shot in a way that damaged his teeth and jaw. Both suffer from anxiety and other psychological injuries due to the shooting.

A New Era of Responsibility for Gun Stores?

This was the first time that a gun store has been found negligent in court. Gun stores have generally been protected from repercussions for crimes committed with their products due to the 2005 Protection of Lawful Commerce in Arms Act (PLCAA). This act limits civil liability for businesses engaged in the sale of firearms. However, this act still allows lawsuits to be brought against gun dealers who are negligent, sell defective weapons, or engage in criminal behavior. However, these suits are generally not pursued.

People on both sides of the gun debate are excited about this decision for different reasons. For those who favor gun control, this is a blow against indiscriminate gun sales and a reason for gun dealers to want to keep some of their inventory off the street. However, many Democrats, including presidential candidate Hillary Clinton, voted against the PLCAA and would like to further increase liability for gun stores. For gun rights advocates, this case sends a strong signal that the PLCAA is working, and that existing gun control laws don’t need to be changed.

This decision will likely be appealed by Badger Guns, and could eventually land in the Wisconsin Supreme Court. However, it sends a signal that this type of lawsuit is possible, and thus will have a more immediate impact on the way gun stores view their obligation to follow the rules.

A Murdered Wife’s Letter is Not Harmless to a Jury Verdict

Late last year, a Wisconsin murder trial made its way up to the state Supreme Court over a single piece of evidence. Mark Jensen was on trial for the murder of his wife Julie and the jury returned a verdict finding him guilty and charging him with framing the murder as a suicide. During the trial, the court allowed the prosecution to enter into evidence a handwritten letter by Julie dated just two weeks prior to her death. In that letter, Julie states she would never take her own life and if she were to be found dead, her husband would be the main culprit. The Jensens

Wisconsin Court of Appeals: Admitting Letter was a Harmless Error

The case moved up to the Wisconsin Court of Appeals to determine whether that evidence should have been admitted at all. Jensen argued the evidence violated his constitutional right to confrontation, which grants all accused the right to face adverse witnesses. In this case, Julie’s letter was admitted into evidence but Mark clearly could not face her in court and have her cross-examined. Although the Court of Appeals agreed that the letter should not have been admitted into evidence, it maintained that the letter was a “harmless error” because the verdict would have come back as guilty regardless of whether the letter was admitted or not. The Court of Appeals stated because there was enough evidence admitted by the prosecution to return a guilty verdict, allowing the letter as admissible evidence was a “harmless error” in retrospect.

Wisconsin Supreme Court: Court of Appeals has it all Wrong

The State Supreme Court felt differently and held the Court of Appeals was unreasonable in their application of the “harmless error” standard. The Supreme Court stated the lower court had applied the standard completely wrong and that it should not have been looking to whether the prosecution had admitted sufficient evidence beyond the letter to return a guilty verdict regardless. Rather, the harmless error standard considers whether the letter had a substantial and prejudicial effect on the jury verdict. The Supreme Court held in this case, it clearly could have.

Whether Julie’s letter was true or false, the contents without a doubt influence the jury to believe that Mark was her murderer because of its decisive tone and the fact it was written by the victim herself. However, there’s also a chance the contents were a lie written in anger and impulse, or even a really bad joke. Regardless of whether the statement was true or false at the time it was written, the fact of the matter is Julie could not be around to testify as to the contents and Mark could not have asked her questions about the nature of the letter as he would with any other adverse witness during cross-examination. Therefore, the jury was naturally tipped toward returning a guilty verdict for Mark and Mark could not fully defend himself as to that particular piece of evidence.

Because of these issues, the Wisconsin Supreme Court held allowing the letter as evidence was in fact not “harmless” at all and reversed the Court of Appeals’ decision.