Incoming Utah Attorney General Sean Reyes has announced that his office intends to appeal the ruling striking down the criminalization of cohabitation in the Sister Wives case. The decision will ultimately send the case to the United States Court of Appeals for the Tenth Circuit in Denver, Colorado. However, the trial court has not yet issued a final order due to a couple outstanding issues. Once that order is issued, the Attorney General’s office will have 30 days to file a notice of appeal. In a surprising decision, the Attorney General also indicated that he will no longer have his office defend the Utah ban on same-sex marriage (struck down by Judge Robert Shelby) and possibly the cohabitation law (struck down by Judge Clark Waddoups). That will require the hiring of outside counsel and an outside firm to defend these laws as opposed to the Office of the Attorney General itself.
Respectfully submitted by Lawrence E. Rafferty (rafflaw)-Guest Blogger
We have all heard the political arguments for and against an Estate Tax, or as some have called it, a Death Tax. Over the years while I attended several Continuing Legal Education seminars and Trust School presentations, I have often learned about the estate and gift tax avoidance strategy called a Grantor Retained Annuity Trust, or GRAT. Since these estate reduction strategies are best used with very large estates, I have rarely had the opportunity to recommend it to any of my clients or trust customers. Recently, I read an article that provided some documentation just how prominent and popular the GRATS are with the super wealthy.
Just what is a GRAT and why should any of us be concerned with its use? In my opinion, it is important to understand that when the über wealthy complain about any tweaking of the estate tax, most of them pay little or no estate or gift taxes due to the use of techniques like the GRAT. Just how does a GRAT work?
Simply put, the donor transfers money or stock into a trust and if the assets increase in value, any increase in the stocks beyond the principal and the minimum interest rate that must be paid back to the donor, goes directly to the beneficiaries tax-free. When you are talking assets worth millions and in some cases, billions, huge sums of money can escape the estate and gift tax process entirely. Continue reading “GRATS: Loophole or Blackhole?”→
Below is my column in the Washington Post (Sunday) on our recent victory in the Sister Wives case. The column looks at the most significant aspect of the case — the rejection of morality codes that once controlled across the country in prohibiting everything from homosexuality to adultery to fornication. These morality laws were upheld in the decision in Reynolds in 1876 in a polygamy case out of Utah. The Brown decision returned us to the same question involving the same issue in the same state. Some 136 years later however the answer from this federal court was very different. We are a different country today and, despite what one hears from politicians like Rick Santorum, I believe that we are a better country today.
There does seem to be confusion about the ruling with some saying that polygamy is still not legal after the opinion. That is simply wrong. Polygamy is not the same a bigamy. One is the crime defined under cohabitation statutes of living as a plural family or with a person married to another person. The other is the crime of having two or more marriage licenses. The latter has nothing to do with the structure of your family and has almost exclusively involved people who hold themselves out (falsely) as monogamous. We always argued that the state could prosecute people who obtained more than one marriage license. Bigamy has not been an offense committed by polygamists who traditionally have one official marriage license and multiple spiritual licenses. Indeed, the law targeted polygamy with the cohabitation provision precisely because there is a difference between the two. The state fought for years to preserve this law because it reached beyond simple bigamy. Before this opinion, it was a crime for polygamists to live, as do the Browns, in a plural family. After the opinion, it is legal. This is precisely what occurred in Lawrence v. Texas where homosexual unions were a crime but then became legal when the Texas law was struck down. This decision legalizes tens of thousands of polygamous families who will no longer been viewed as criminal enterprises. They will be allowed to be open plural families. They are now legal relationships. Legality of polygamy is entirely different from recognition of plural marriages just as the legality of homosexual relations is different from the recognition of same-sex marriage.
There is also a lack of knowledge about the existence of such laws outside of Utah. This law does exist outside of Utah. Indeed, the very same language is found in the Canadian cohabitation law. I was called as a legal expert in the recent challenge to that law. However, the Canadian Supreme Court in British Columbia upheld the law. Putting these distinctions aside, the thrust of this article is how this decision is part of a larger trend toward the repeal or the striking down of morality codes, including the rejection of a cohabitation law in Virginia this year.
If allegations are proven it would reveal a shocking and systemic dereliction of duty of Washington’s Child Protective Services to investigate and properly respond to multiple reports of abuse and neglect lasting many years of a family of children. The abuses ranged from mental and verbal abuse to felony assaults against a child.
In March of 2013 the children’s parents Sandra and Jeff Weller of Vancouver were each sentenced to twenty years in prison after having been convicted of fourteen counts of child abuse; double the statutory determinate maximum sentence. Clark County Superior Court Judge Barbara Johnson levied the exceptional sentence due to the severity of the crimes.
Below is my column in USA Today on the NSA proposed reforms. I do believe that there are many worthy suggestions among the 46 recommendations, particularly the amending of Section 215 of the Patriot Act. However, what is missing is any true reform in ending this massive surveillance program since the White House panel started with the presumption that it was lawful. What remains are interesting but largely collateral changes. This includes a worthy proposal of adding an advocate to the FISA secret court. However, the panel does not (as with the program itself) seriously consider the need or the questionable legality of the secret court. Indeed, by tinkering around the edges of the program, the task force would effectively legitimize the program for the future. It will become the new normal in the President’s vision of a surveillance-friendly model of privacy.
The task force does call for serious changes in clearance rules however to avoid future disclosures of the abuses revealed by Edward Snowden. What is lacking is one measure that would go far in showing good faith by this President after years of rolling back on privacy: a pardon for Edward Snowden. Such pardons are not given because the subject is innocent or that a president agrees with his actions. They are granted in the totality of circumstances that mitigate the crime, including the disclosure of abuses that were long ignored, if not supported, by both the White House and Congress. A pardon can be legitimately conditioned on certain measures such as the return of undisclosed documents (which is a massive amount of files) and the signing of a non-disclosure agreement to allow prosecution for future disclosures. That would prevent further damage with disclosures, as suggested by at least on ranking intelligence official. I do not take violations of classification laws lightly and I understand the anger of many officials. However, the current standoff is not just undermining the credibility of the Administration but also doing little to limit further damage. I do not believe that Snowden is using the document to force such a pardon which remains unlikely. However, it is time to consider it. Despite the President’s understandable opposition to his method for raising the abuses, the Snowden disclosures have caused a comprehensive and international reexamination of surveillance rules, including new international measures to protect privacy. Perhaps it may be time to stop hunting the man and focus exclusively on the abuses that he disclosed. The column below is unfortunately limited in space, but it tries to raise some of these issues.
Submitted by Charlton Stanley (aka Otteray Scribe), Guest Blogger
“It is better that ten guilty persons escape than that one innocent suffer.”
– Sir William Blackstone KC SL, Commentaries on the Laws of England (1765)
Sir William Blackstone
One of the oldest cliché movie scenes of the past half century is the Gestapo agent, wearing a monocle, slapping a riding crop against his gloved hand, saying with a leer, “Ve haf vays of making you talk…..” Unfortunately, that caricature figure has come to life in in recent years, taking the form of rogue psychologists, unscrupulous investigators, and even the Vice President of the United States.
My motivation to write this is because of a phone call a few weeks ago. An old case I worked on back in the 1980s resurfaced with that phone call out of the blue. Of all the cases I ever worked on, the one I got the call about has been the most bothersome. It involved a murder, a coerced confession, a judge with a troubled psychological burden of his own, and a jury that would not believe confessions could be coerced. Plus, a district attorney with a reputation of wanting to win at any cost. Since this case has resurfaced and the new investigation is still under way, I can’t say too much about it now. As details become public, I will be writing more.
Let me start off by saying that most confessions may be legitimate, but since we have no way of knowing how many are false, no solid statistics are possible. The simple fact that so far, over three hundred people have been released from prison due to wrongful convictions is enough to give one pause. It is reasonable, based on the number exonerated so far, to assume there are a lot of them. We just don’t know which ones. Not all those overturned convictions were due to false confessions, but about a fourth of them were. If a defendant does make a false confession, and there is solid DNA evidence showing the defendant to be innocent, juries convict over 80% of the time, despite the physical evidence. One thing I find curious is the fact some prosecutors continue to prosecute cases even after the physical evidence proves they have the wrong person.
Respectfully submitted by Lawrence E. Rafferty-(Guest Blogger)
The main stream media was full of stories in the last week concerning a judge’s decision in Michigan to allow the Bankruptcy of Detroit to go forward. What the media seems to have omitted from the discussion, is just how pensions in Detroit and across the country have come under attack.
“Now that a federal judge, Steven Rhodes, has ruled that the bankruptcy can proceed, a central issue will be whether the city can jettison up to $3.5 billion in accrued pension benefits owed city workers (which Orr claims are unfunded). With accrued state and municipal pension benefits protected by the Michigan constitution, Judge Rhodes’ ruling sets a chilling precedent for future municipal bankruptcies.” Truth-outContinue reading “Pension Busting”→
A family of three from Marshfield, Massachusetts, could face criminal charges. Their crime? Harassing duck hunters. Police Chief Phil Tavares said his department is seeking a clerk magistrate hearing in order “to determine whether there is probable cause to charge the family members with three counts of hunter interference and two counts of threatening to commit a crime.”
Julie Carreiro said that her family was awakened very early one October morning this fall by the sound of gunfire. She, her husband, and their son ran outside. They found hunters on conservation land that abuts their property. The hunters reportedly told police that the Carreiros had threatened them with physical harm if they didn’t leave. Chief Tavares said, “Members of the family began to use air horns to possibly attempt to scare away the water fowl, which is interference with a hunter.”
UPDATED: The recent case of Ethan Couch, 16, out of Burleson, Texas has been previously addressed on this blog (here and here) in general terms of the fundamental unfairness and apparent bias of the plea deal and in psychological terms concerning both the social isolation wealth can engender and the consequent lack of empathy that creates. Let’s look at this in a little more detail as relates to justice and the corrosive effect such rulings have on social order. The pattern of facts in this case are critical to examining whether or not Couch’s sentence was just and inform whether or not such rulings are corrosive to society as a whole. To summarize:
Hollie Boyles, 52, Shelby Boyles, 21, Brian Jennings, 41, and Breanna Mitchell, 24, are the primary victims.
From left: Brian Jennings, Breanna Mitchell, Hollie Boyles, Shelby Boyles.
Just before midnight on June 15, 2013, Mitchell was driving west on Burleson-Retta Road when she had a blowout, forcing her pickup truck into a roadside ditch. Living nearby, Hollie and Shelby Boyles heard the blowout and went to render assistance. Jennings, a Burleson youth minister, was returning from his son’s high school graduation party when he stopped to assist Mitchell as well. All four were on the roadside when they were struck by a pickup truck driven by Ethan Couch. The Ford F-350 pickup was going between 65 and 70 miles per hour in a 40 mile per hour speed zone when it clipped Mitchell’s stranded truck before striking and killing the four bystanders. Couch’s truck then struck Jenning’s pickup truck (in which two young boys were waiting) sending it back into the roadway. There it collided with an eastbound Volkswagon carrying two Burleson girls before going off the south side of the road. Couch’s truck then flipped over, coming to rest against a tree on the north side of the road. Two other teenagers riding in the bed of Couch’s truck were thrown from the vehicle. One suffered broken bones and internal injuries. The other suffered a traumatic brain injury that left them unable to move or talk.
I believe that it is impossible to deal with any problem until one understands the underlying nature of that problem. The analogy of a Physician treating the symptoms of a patient, but ignoring the cause of those symptoms, comes to mind. We have the medicine to deal with the specific manifestation of an illness like a headache and a fever, but in ameliorating the discomfort of the symptoms, we may miss the underlying pathology. This happened to me last March when shortly after being prescribed a change in the anti-rejection medicines that keep me alive after my heart transplant, I began to get so sick that I needed hospitalization in intensive care. I won’t bore you with the grimy details of this sudden downturn in health, but I must note that my most important bodily functions began to shut down. What is curious about this incident is that my wife, who is internet savvy, immediately began to suggest to my Doctors that I was having a bad reaction to the medicinal change. At first they ignored her as they had Department Heads in Cardiology, Immunology, Infectious Diseases, Neurology, Proctology, Urology and even Dermatology come in to examine me and pore over my medical charts. Finally, in response to my wife’s unfailing advocacy, they returned me to my prior anti-rejection medication. To my Physician’s surprise and possible chagrin the symptoms almost immediately began to abate and within in days I was home from the hospital and on the mend. Continue reading “Our “Virtuous” Rich”→
It is with a great pleasure this evening to announce that decision of United States District Court judge Clarke Waddoups striking down key portions of the Utah polygamy law as unconstitutional. The Brown family and counsel have spent years in both the criminal phase of this case and then our challenge to the law itself in federal court. Despite the public statements of professors and experts that we could not prevail in this case, the court has shown that it is the rule of law that governs in this country. As I have previously written, plural families present the same privacy and due process concerns faced by gay and lesbian community over criminalization. With this decision, families like the Browns can now be both plural and legal in the state of Utah. The Court struck down the provision as violating both the free exercise clause of the first amendment as well as the due process clause. The court specifically struck down language criminalizing cohabitation — the provision that is used to prosecute polygamists. The opinion is over 90 pages and constitutes a major constitutional ruling in protection of individual rights.
We have been discussing the alarming erosion of free speech principles in England in recent years. This trend includes both humorous and political speech. Now a sandwich shop owner has been arrested, his computer seized, and questioned for hours because he merely made a joke about Nelson Mandela. Neil Phillips, 44, was not charged but the message clear: even jokes are now subject to criminal investigation if deemed insulting by the police or sensitive public members.
I have long been a fan of the opinions of Chief Judge Alex Kozinski. While we disagree on many cases, Kozinksi often defies predictions and more ideological colleagues in ruling against the government. Chief judge of the San Francisco-based 9th U.S. Circuit Court of Appeals and considered a leading libertarian, Kozinski often rules in favor of individual rights — making him a refreshing voice on the federal courts which tend not only to be highly conservative on police powers but also populated by a disproportionate number of former prosecutors. Kozinski’s dissenting opinion this week in the case of Kenneth Olsen continues that legacy and further puts the bias of the federal court in favor of prosecutors into sharp relief. Kozinski opposed the denial of an en banc rehearing with four of this colleagues in the case of Kenneth Olsen, whose trial was marked by prosecutorial abuse. Kozinski began his decision with the chilling but true observation that “There is an epidemic of Brady violations abroad in the land. Only judges can put a stop to it.” They didn’t. The court voted overwhelmingly to deny a rehearing in United States v. Olsen,
704 F.3d 1172, 1177 (9th Cir. 2013), a case where the Justice Department failed to fully disclose exculpatory evidence. For those who have been objecting to the expansion and abuse of police powers, it is important to remember that these abuses only continue because federal judges turn a blind eye to them.
Yesterday, we discussed a case of a former law student who got off lightly after being found to have been practicing law without a license. We can now add an Iowa lawyer to the list of the fortunate among bar defendants. Robert Allan Wright Jr. arranged for various people to give him money to secure inheritance of $18.8 million from a mysterious long-lost Nigerian cousin. Most people above the age of six would immediately scoff at the classic Nigerian scam, but the Iowa Supreme Court found that Wright not only believed the scam to be true but still believes that it is true. It is the village idiot defense but in this case the subject is an attorney who secured loans of thousands from clients. Now here is the most disturbing fact: Wright was not disbarred. He was suspended, leaving open the possibility that he will represent people in the future.
Washington State Constitution Article II Section 1(a) “Initiative: The first power reserved to the people is the initiative.”
The initiative process in Washington State is designed to allow individual citizens to participate in the law making process and collectively to work together to bring this cause to fruition. But is this century old tradition, rather uncommon in the various governments of the world, suffering from the effects of corporate interest and losing its original purpose? Continue reading “By The People For The Dollars: Washington Initiative Process Dominated By Out Of State Corporations.”→
Incoming Utah Attorney General Sean Reyes has announced that his office intends to appeal the ruling striking down the criminalization of cohabitation in the Sister Wives case. The decision will ultimately send the case to the United States Court of Appeals for the Tenth Circuit in Denver, Colorado. However, the trial court has not yet issued a final order due to a couple outstanding issues. Once that order is issued, the Attorney General’s office will have 30 days to file a notice of appeal. In a surprising decision, the Attorney General also indicated that he will no longer have his office defend the Utah ban on same-sex marriage (struck down by Judge Robert Shelby) and possibly the cohabitation law (struck down by Judge Clark Waddoups). That will require the hiring of outside counsel and an outside firm to defend these laws as opposed to the Office of the Attorney General itself.
