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Family Law

Family Code §4320(h) has been amended (eff. 1/1/2000) to allow the court to consider emotional distress resulting from domestic violence of the supporting party against the supported party.  In making this finding, however, the court must find documented evidence of a history of that domestic violence.  Domestic violence is further defined in Family Code §6211 as pertaining to, among others, a spouse, former spouse, cohabitant or child.

Effective 1/1/2000, the fact that a party is absent or relocates from the family residence may not be considered as a factor in determining custody or visitation, if:  1) The relocation was of short duration, there was no intent to abandon, and during such the party maintained (or attempted to maintain) a close relationship with the child(ren); and 2) The Relocation was as a result of real or threatened violence [Family Code § 3046]

Posted:  January 17, 2000

Family Code §4330(b) has been amended (eff. 1/1/2000) to provide that a court need no longer admonish the supported party regarding a failure to make a reasonable good faith effort to become self-supporting.  The warning now becomes advisable with the court advising the parties that an effort should be made to "assist in providing for support needs...".  Family Code §4320 still provides the main guidelines for spousal support.

Posted:  January 17, 2000

FINALLY, JUSTICE IS SERVED!  The former law which prohibited a court from considering a hardship deduction to the supporting party for a child living with him when the supported child was receiving public assistance benefits has been repealed (eff. 1/1/2000)  [Family Code §4071.5].

Posted:  January 17, 2000

Family Code §3653(c) has been amended (eff. 1/1/2000) to allow a court, in a support modification proceeding, when ordering support paid retroactively from the hearing date, to order the supported party to repay support paid in excess of the previous court order.

Posted:  January 17, 2000

In a recent decision (State of Oregon v. Vargas (1999) 70 CA4th 1123, 83 CR2d 229, the court has determined that the only restriction on imputing income based on the earning capacity of an unemployed or underemployed parent is where there is in fact no earning capacity or where such imputation would be inconsistent with the best interests of the children.  Ability and opportunity are still required pursuant to the case of Marriage of Regnery.

Posted:  January 17, 2000

Even if a student loan exceeds the amount necessary for tuition, books, etc., the loan proceeds may not be considered income for purposes of determining child support [Marriage of Rocha (1999) 68 CA4th 514, 80 CR2d 376].

Posted:  January 17, 2000

D.A. Thwarted!  A newly enacted section, Family Code §17402(a)(2), (eff. 1/1/2000) reduces from three years to one year the period of support recoupment of public assistance against a supporting parent.  However, said debt is non-dischargeable under 11 USC §523(a)(18).

Posted:  January 17, 2000

Finally - Relief!  Family Code §§3690-3693 are added (eff. 1/1/2000) to relieve a party from a support order previously barred by the six month limitation of Code of Civil Procedure §473; however, these sections do not adversely affect other sections providing relief where there is mistaken identity or where support is based on presumed income.  The court's decision to set aside such an order shall be based on equitable grounds.

Posted:  January 17, 2000

Except in "D.A. type" cases, an initial child support order may be made retroactive to the date the Petition (Complaint or other first pleading); however, unless the party was served within 90 days after filing the said pleading (absent evasion of service) the child support order is effective no later than the date of service.  This changes prior law allowing support retroactive only to the date of the Order to Show Cause (OSC) or Notice of Motion [Family Code §4009] (eff. 1/1/2000).

Posted:  January 17, 2000

Caveat - There have been substantial changes in federal law respecting non-support (Child Support Recovery Act - 18 USC 228).

Posted:  January 17, 2000

Substantial changes are afoot respecting the "changing of the guard" from the D.A. to the State Department of Child Support Services as to paternity, child support, medical, etc.  Whereas the substantive law, for the most part, has not changed, many sections of the Welfare and Institutions Code have been codified in Family Code §§ 17000-17320.  There will be a transition period between 1/1/00 and 1/1/03. Stay tuned to The Aleagle Perspective  to keep abreast!

January 17, 2000

Effective 1/1/2000, the Uniform Child Custody Jurisdiction Act has been repealed; the new act, The Uniform Child Custody Jurisdiction and Enforcement Act [Family Code §§ 3400-3465].  The renumbering of sections is only the tip of the iceberg of the problem - some substantive law remains the same, while some has been changed.  For additional information contact us. Contact Our Law Firm

Posted:  January 17, 2000

The Internal Revenue Service takes the position that whenever a husband and wife file a joint return, each is jointly and severally liable thereon for the entire amount of tax, Internal Revenue Code, §6013(d).  As a result, and in an attempt to mollify this untoward result in certain circumstances, Congress enacted the Restructuring Reform Act (RRA) in 1998; however, the result was less than heartening.

The new provisions of the RRA, the IRS are an attempt to temper the often harsh result of the former Act.  The new innocent spouse provisions provide relief where the former provisions rarely provided relief to the truly innocent spouse.  Further, there is no need for the "innocent spouse" to have been divorced, legally separated or not living with the non-innocent spouse for more than twelve months.

Detailed application of this Act is beyond the scope of this website; therefore, if you believe you may come under the protection of the RRA, please contact your CPA as soon as possible.

January 18, 2000

  The U.S. Supreme Court has agreed to review an 8th Circuit Court of Appeals decision to  strike down a Nebraska law criminalizing so-called partial birth abortions.   

Also Pending - a case involving First Amendment rights of free speech and the right to picket abortion clinics.

Keep your eyes and ears open for yet another round of "choice" vs. "life"!

January 19, 2000

New legislation (Ch.588[AB26]) permits state registration of "domestic partnerships" of either two adult, same-sex partners, or, if over the age of 62, of two opposite-sex partners, if they agree to be financially responsible for the other's "basic living expenses".  This will have broad effects on health insurance and related items.

January 25, 2000

The Ninth Circuit Bankruptcy Appellate Panel has held that a debtor's obligation under a marital settlement agreement to pay college education expenses of a child is a non-dischargeable debt, since such obligation was in the nature of a child support obligation. [11 U.S.C., §523(a)(5)]

January 25, 2000

The First DCA has held that Judgment of "Legal Separation" that terminated marital property rights disqualified a decedent's (former) spouse from inheritance under intestate succession Estate of Lahey.

Posted:  February 7, 2000

The 4th Dist Court of Appeals has held the the Marital Summons' restraining order against transfers of property is not violated by a severance of joint tenancy.  Estate of Mitchell (1999).

Posted:  March 3, 2000

The 4th District Court of Appeals has ruled that a father who had constructively abandoned his child may forfeit his right to custody upon conviction of child abduction.  People v. Ryan (Crim. No. A084321 - 1999).

Posted:  March 3, 2000

In violation of California's Invasion of Privacy Act, Penal Code, ss 630, et seq., a woman was fined for secretly recording her husbands telephone conversations regarding the divorce.

Posted:  March 3, 2000

The 9th Circuit Court of Appeals has held that a spouse may assert her rights (in this case suing the retirement plan) for benefits due her as an "alternate payee" in her husband's ERISA retirement plan in a divorce judgment  - irrespective of the existence of a Qualified Domestic Relations Order (QDRO).

Posted:  April 3, 2000

In an area of law rife with emotion, the handwriting is on the wall for the demise - or at least reduction - of grandparents' rights.  But harken ye residents of California; the news may not be as bad for our fair state.

The U.S. Supreme Court is expected to rule this term in the 1998  Washington State case involving grandparents' rights (Troxel v. Granville, 969 P2d. 21).  The expected June 2000 ruling may be the demise of like-situated third-party visitations, but California's scheme for such may present a light at the end of the tunnel that won't turn out to be an on-coming train.

Codified in Family Code, §§ 3102-3104, grandparent visitation is described in certain appropriate situations.

If you are, or know of, a grandparent that has such a problem, can show a "compelling need", and wish to discuss it with a qualified attorney, please contact our office.

Posted:  April 6, 2000

The Second Dist. Court of Appeal has held that the equitable defense of "laches" [Fam. Code §291]may defeat the enforcement of past due child support.

Although child support judgment have no "10-year renewal" requirement [Fam. Code §4502, amended Civil Code §4384.5, 1992] as do other civil judgments, the court reasoned that a lack of diligence in pursuing past-due child support was a factor to be considered in evaluating a family court order.

April 20, 2000

California's "omnipotent 7" have unanimously decided that out-of-court hearsay statements by very young children, whether or not they may qualify as a competent witness, are nevertheless admissible if they are "believable", irrespective of the constitutional due process rights of the parents.  In Re Lucero L.. 2000 DAR 5333.

Posted:  May 30, 2000

The California Court of Appeal (3d Dist.) has held that irrespective of a finding that an adoption may proceed without a father's consent, his child support obligation continues unabated.

Posted 8/22/00

In an area of law rife with emotion, the handwriting is on the wall for the demise - or at least reduction - of grandparents' rights.  But harken ye residents of California; the news may not be as bad for our fair state.

The U.S. Supreme Court is expected to rule this term in the 1998  Washington State case involving grandparents' rights (Troxel v. Granville, 969 P2d. 21).  The expected June 2000 ruling may be the demise of like-situated third-party visitations, but California's scheme for such may present a light at the end of the tunnel that won't turn out to be an on-coming train.

Codified in Family Code, §§ 3102-3104, grandparent visitation is described in certain appropriate situations.

*   *   *   UPDATE  *   *   *

The Supremes have spoken!  In a 6-3 majority opinion authored by Justice Sandra Day O'Connor (with Justice Clarence Thomas' concurring and Justice John Paul Stevens' dissenting opinions), the High Court ruled that states must take appropriate safeguards to safeguard parental rights - reaffirming parental constitutional rights to raise their children.  The decision struck down a Washington state law that permitted "any person" to request visitation rights "at any time".

How does this affect grandparents visitation rights here in California?  Whereas that resolution may still be up in the air, the High Court has certainly set the tone for future legislation.  California's present statute respecting such rights, Family Code, §§ 3102-3104, creates a rebuttable presumption that parents control visitation rights - thus in conformity with the Supremes. [tentative citation - Troxel v. Granville 2000 Daily Journal DAR 5831.

If you are, or know of, a grandparent that has such a problem, can show a "compelling need", and wish to discuss it with a qualified attorney, please contact our office.

Posted:  April 6, 2000

The California Supreme Court has ruled regarding arms length negotiations in prenuptial agreements.  In a unanimous decision, The Supremes held that prenups are valid even if only one party has an attorney.

The decision, involving baseball star Barry Bonds and his ex, Sun Bonds, could not have been more lopsided, factually.  Sun, a Swedish immigrant, was not a native speaker of the English language, had only a high school education, did not have her own attorney, was presented with the document on the eve of her Las Vegas wedding and was not instructed by Bonds' attorneys as to the legal significance of the document.  This all notwithstanding, the high court ruled that - she signed - ergo, it's valid.  Marriage of Bonds (8/21/00)

Posted 8/23/00

The California Supreme Court has also ruled, 6-1, that a waiver of spousal support in a prenuptial agreement, by consenting adults, does not violate public policy.  Marriage of Pendleton (8/21/00)

Posted 8/23/00

The Fourth DCA has held that a permanent award of spousal support may not be based on a computer program designed for temporary spousal support only.  Marriage of Zywiciel (9/26/00; 10/6/00).

Our very own appellate guys ruled that FC §4320 contemplates an evaluation "from the ground up", utilizing the criteria delineated therein.

Posted 11/22/00

The First DCA (San Francisco) has held for the first time that a non-related lesbian, who helped raise the child, may fight for custody against the child's biological mother. In Re Guardianship of Olivia J.

This opinion creates a procedural path (legal standing) for all non-parents to pursue custody through a probate court.

Posted 12/20/00

Criminal Law

California's much beleaguered "Three Strikes Law" may be headed for a revision.  The new initiative, slated for the November 7th ballot (providing 419,260 signatures can be obtained by June 1, 2000) would repeal our 6 year-old present law and impose a sentence of 25-years-to-life only for serious felonies such as robbery, rape, burglary, etc.  This new law, as presently worded, would also change certain juvenile ramifications of the present law.

My belief is that the law is necessary to prevent the unnecessary use thereof, such as the California man who was sentenced to 25-years-to-life for stealing a slice of pizza.  Ah, yes.  Our tax dollars.  I haven't seen the final draft of the initiative, but the heart of the legislation is in the right place.  Serious sentences should be reserved for serious offenders.

Posted:  January 17, 2000

Keep a close eye on this page for new information concerning the pending attacks against the Miranda decision (you know - "You have the right to remain silent...yada...yada...yada...".  

The smart money is on significant changes to the well-established rule promulgated by the famous (infamous?) 1966 Supreme Court Decision.

Posted:  January 17, 2000

The Orange County District Attorney's use of California's unique "provocative act murder doctrine" will be reviewed by "Justice George & The Supremes" (People v. Cervantes), determining an issue of vicarious liability for murder.  Under the 35 year-old doctrine [People v. Washington (1965) 62 Cal.2d 777], a person may be convicted for murder if he sets in motion certain acts which lead to the murder of another, irrespective of whether he was an actual participant.  Cervantes attempted to murder a rival gang member (and was convicted thereof) which allegedly provoked retaliation by that rival gang in which one of Cervantes' gang members was killed.

This ruling could describe a larger class of murder defendants, or it could be the first domino in a successive barrage of changes now used to convict - especially in gang-related crimes.

Posted:  January 20, 2000

... But From What Planet?

Noted criminal defense attorney, Harlan Braun, recently commented, regarding a recent decision in which the U.S. Supreme Court which approved the police practice of  stop and frisk of an individual merely because they ran away when spotted, "I don't think the [Supreme Court] is mean-spirited.  I just think they're in outer space."

Posted:  January 20, 2000

The "liberal wing" of the 9th Cir. Court of Appeals has stated, criticizing a ruling by the "conservative wing", that the opinion "...defies common sense."  Attorneys have been saying this for years about certain appellate decisions, but it took a jurist to get noticed.  This occurred when the Court refused to reconsider an appeal, citing a 1998 decision, claiming that the defendant could not have committed conspiracy to commit second degree murder since that requires a specific mental state (premeditation and deliberation) not present in second degree murder; therefore, all conspiracies to commit murder must be first degree.

January 25, 2000

As prophesied ...

By a vote of 7-2, the U.S. Supremes reaffirmed the 1966 Miranda decision,  declaring that the Miranda warnings a "constitutional right". Dickerson vs. U.S., 2000 DAR 6789.

The Chief Justice Rehnquist opinion for the majority stated that the Miranda warnings are "...not merely a prophylactic rule [but] a constitutional right that is part of our nation's culture".

In a related matter, the Supremes let stand a 9th Circuit ruling allowing police officers to be sued for abridgement of that right.

In a stunning ruling, federal Judge William J. Rea has permitted suit by two civil rights lawyers against the LAPD under the RICO statute.  RICO (Racketeer Influenced and Corrupt Organizations Act) has been a federal tool that for years has been employed to prosecute organized crime; however, now the law is allowed to sue the LAPD over the ever-widening "Rampart scandal".  

What a country!

Posted 9/1/00

Other Important Stuff

There has been much negative publicity regarding upcoming props 30 and 31, but the jury's still out.  Many believe that it is still the only way to get insurance companies to deal fairly with legitimate claims and encourage binding arbitration in smaller cases.

This referendum, on the March 7th ballot sponsored by a cartel of seven out-of-state insurance companies seeks to prevent enforcement of Gov. Gray Davis' October bill which restored to consumers the right of innocent victims to sue insurance companies for bad faith dealings in settlement of insurance claims.

One only needs to see the proliferation of TV ads to see how much $$$ the insurance industry has sunk into this ballot measure.  Don't be swayed by  these "lawyer-bashing" ads.  Sometimes, our profession deserves a little bashing, but not this time.

Posted:  January 17, 2000

Unification - At Last!

L.A. has finally decided to join the rest of us!  The Superior Court bench has approved the unification of the Superior and Municipal courts.  L.A. Superior Court is now (or will be when the Municipal Court judges are sworn in on January 22, 2000) the largest trial court in the country.

To all those voters in the March primary ballot, don't believe everything you read!  You won' actually be electing Municipal Court judges, as reflected on the ballot, since the ballots were finalized prior to the recent vote.

Transition may take a little time, they've seen the light!

Posted:  January 19, 2000

The new statistics are out!  Find out if your vehicle is "tops" on the hit list of stolen cars. [Hit List]

Posted:  January 20, 2000

E-Legislation

Congress has been inundated with internet regulation, the breadth of which span bills concerning online privacy, spam (junk e-mail), free speech, encryption, intellectual property, ad nauseum.  Here's a thumbnail of legislative action recently passed and now pending before Congress:

It also appears that cybersquatting (wherein domain names are registered for future profit (e.g. www.bradpitt.com) will be outlawed - mandating a fine of up to $100,000 for bad faith domain name registration.  The Aleagle Perspective will continue keep its jaundiced eye on this and other issues insofar as meddling input from consumer groups and the ACLU.

The Senate has also passed a bill banning most internet gambling (excepting sports fantasy leagues and lotteries; it also prohibits advertising of same.  The House will doubtless address this issue later this year.

The Juvenile Justice Reform Act and other similar legislation seeks to govern filtering inappropriate internet material from schools and libraries.  Further, the Children's Online Protective Act (COPA) Commission seeks the same safeguards.

The Senate has passed a bill concerning digital signatures, according e-contracts the same force of law as paper contracts.  The House has its own version of this bill.

Expect a glut of legislation favoring (and disfavoring) big business, also.  The same government that mercilessly examines every action of Bill Gates & Co. under a microscope (operated by Joel Siegel or otherwise) finds intellectual property rights in browser buttons (Amazon.com vs. Barnesandnoble.com), links (Linkshare) and double-mouse-clicks (DoubleClick).

Also, let's keep an eye on Vermont Senator Patrick Leahy's proposed The Electronic Rights For The Twenty-First Century Act which seeks law enforcement standards-setting.

Posted:  January 20, 2000

The March 7th primary ballot will carry an important decision regarding juvenile offenders.  Prop. 21, generally favored by law enforcement and opposed by children's rights advocates, gives prosecutors unfettered discretion to charge juveniles as adult offenders and, thus, have them tried in adult court.  The ballot measure also provides for increased sentences for specific violent offenses and gang-related crimes, as well as reducing confidentiality protections for youth offenders.  This law, if passed, would strengthen the 1999-enacted law (SB334).

Posted:  January 24, 2000

Our State Supreme Court has granted a hearing to review the nation's first court decision allowing an injured party to sue a gun manufacturer for injuries sustained in a shooting spree.  Merrill v. Navegar, SO83466.  While this case is pending, the lower court's precedent-setting ruling is wiped out.

Posted:  January 24, 2000

There may be trouble for Mr. Siegel!  What was once thought of as a united front on the part of 19 states' Attorney's General joining with the DOJ in their Microsoft witch hunt, is starting to falter.  Several Attorneys General have expressed their reticence in breaking up the software giant, leaning more toward other remedies/punishment such as a conduct resolution.  One of the fears seems to be that a breakup might result in a larger problem for the industry and the consumer - different, incompatible, versions of Windows and other products.

Posted:  January 27, 2000

In a related story, Sun Microsystems has won a first round victory over Microsoft in their suit alleging that Microsoft is illegally distributing versions of its Java software.

Keep in mind that Sun Microsystems was one of the initial complainers that Microsoft was not allowing others to use their Windows code.  Combine that with the fact the the other main complainer was Netscape, now owned by AOL, which has now swallowed Time-Warner.  

Am I the only one who sees the ludicrousness of the DOJ anti-trust action?  Or will it become apparent when the judge rules that Microsoft must pay damages to the much larger AOL for purported damages sustained by its subsidiary Netscape?  

Am I truly the only Illuminati in this dispute?

Posted:  January 27, 2000

Gloria Allred's law firm, Allred, Maroko & Goldberg, has been sued for professional negligence.  The firm's response (per a partner) is that, "This is a sanctionable outrage by a client unhappy with an arbitrator's rulings."  

And the beat goes on!

Posted:  January 28, 2000

Two wanna-be lawyers (defendants #3 and #4) were sentenced to one year in custody and payment of a $96,000 fine for their part in a high tech cheating scam that enabled them to report in the 99th percentile of the LSAT.  Get this... defendant #1 ran from the LSAT test with the questions in hand, then had defendant #2 transmit them, via alphanumeric pagers to defendants #3 and #4.  Defendant #1 is also paying a fine; defendant #2 has never been identified.

I, for one, am glad they were caught early - we wouldn't want them giving lawyers a bad name!

Posted:  January 28, 2000

Hot in pursuit, attorney Stephen Yagman - longtime gadfly of the LAPD -  has obtained the names of an additional 1,200 possibly tainted Rampart Division cases.  The total now being reviewed as a result of the LAPD scandal is now 12,000.

Posted:  February 1, 2000

If you're looking for that quick rise to financial freedom, explore the possibility of being an attorney.  Starting salaries (due to "salary wars" between northern and southern California law firms) now top $160,000 per...

All it takes is seven years of post-high school education, taking and passing the twice-yearly Bar Exam, continuing education as mandated by the State Bar, and (if working for one of the high-paying "big boys") selfless dedication to work without thought of a personal life for the next ten years, billing 7000 hours per year (try that without a handheld tape recorder)!

Posted:  February 1, 2000

Congratulations to the winner of the 1999 Franklin G. West Award - Mike Pursell, a longtime friend and one of the few practicing lawyers in the county older than me.  For those not "in the know", the Franklin G. West Award is presented each year to a member of the bench or bar who has made significant contributions in the advancement of justice and the law.

Posted:  February 2, 2000

The Racketeer Influence Corrupt Organizations Act, 18 USC §1961, originally enacted to enable speedier and more effective prosecution of organized crime, has been used in a plethora of situations never anticipated by its authors. If there is proof that [defendants] have violated one or more of the acts enumerated in the statute, if there is proof that there existed a proscribed "corrupt enterprise", and if sufficient causation exists between the "acts" and the damages sustain by [plaintiff] then RICO may come into play.

Whether that "enterprise" is organized crime or an HMO, the rules are [now] the same.

This notwithstanding, expect the U.S. Supreme Court to rule (possibly as many as four cases) on RICO - either expanding or restricting its application in both the civil and criminal arenas.

Posted:  February 2, 2000

In what might amount to a landmark decision, Justice William W. Bedsworth writing for the Fourth Dist. Court of Appeals (Santa Ana), stated that., "It cannot be seriously argued in this era of 'don't ask - don't tell' that homosexuals do not have a common perspective...based upon their membership in that community.  They share a history of persecution comparable to that [sic] blacks and women share."

The import of this decision is that, since gay and lesbian is now a "cognizable class", it cannot be used as a basis for juror exclusion.  It appears that there is no opinion of like import in the country presently.

Posted:  February 3, 2000

Addendums:  Hot on the heels of this recent decision, a San Francisco legislator (one would not have expected a legislator otherwise oriented) Carole Migden) says she will introduce a bill, ostensibly to codify the pending 4th DCA decision.

Posted:  February 7, 2000

California AG, Bill Lockyer, has said he does not plan to appeal this 4th DCA decision, with which he agrees.

Posted:  February 7, 2000

Please keep in mind that California prohibits the unauthorized (e.g. search warrant) recording of any telephone conversation without the permission of all parties to the call [Penal Code  §630, et seq.]

Posted:  February 7, 2000

The California Supremes will review the "at-will" employee's rights vis-a-vis suing their employers for wrongful termination.  Stay tuned for this decision - it promises wide-ranging changes in employment law.

Posted:  February 11, 2000

The U.S. 9th Circuit Court of Appeals has upheld a federal housing law which allows eviction of tenants in public housing based upon the conduct of their relatives or friends who engage in illegal drug-related activity on the premises - whether or not the tenant was so aware!

Posted:  February 17, 2000

In a significant ruling broadening the scope of a plaintiff's damages in certain false arrest cases, the 2d Dist Court of Appeals (L.A.) has held that a plaintiff in a false arrest trial may claim damages beyond the previous limitation of that which was sustained between the purported false arrest and the filing of the criminal complaint by the D.A.

[Editor's Note:  For our lay visitors - a court's "holding" is that portion of the published opinion which may be quoted as binding law on inferior courts; i.e. under our doctrine of "stare decisis" the previous rulings of a court may be relied upon (with certain restrictions) by other lower courts (even cited by higher courts in further rationale).  The other side of the holding coin is dictum which is not citable as law - and which many a lawyer refers to (aside) as a judicial fart!

Posted:  February 17, 2000

The California Supreme Court has held that an arbitrator's award may not be set aside, irrespective of whether it was wrongly decided -factually or legally.

In a "you-get-what-you-pay-for" mentality, George  and the Supremes found, in Moore vs. First Bank of San Luis Obispo, that even though the parties agreed to an award of attorney's fees to the prevailing party, the arbitrator may decide otherwise.

April 20, 2000

The U.S. Senate has recently passed a bankruptcy reform bill by what is a "veto-proof" vote (83-14).  The magnitude of the vote on this bill, which makes it more difficult for people to abrogate credit card debt, is important since Pres. Clinton has requested more, not less, protection under the bankruptcy laws for the public.

The House passed a similar bill last session; the House bill was limited to bankruptcy reform, whereas the Senate bill provides for small business tax breaks, includes an increase of the minimum wage and increased penalties for powder cocaine crimes (this is what we call "pork").

This is one reason that there are so many laws passed by proposition rather than legislated; to wit:  By law, a proposition must address only one issue, whereas a bill may contain a lot of pork.

Posted:  February 3, 2000

Those in the "know" (I'm not exactly sure who they are, reading what they have to say, I can't help but put guarded faith in their comments) are estimating that the legal fallout from the Rampart scandal will top $200,000,000.  

Good use of taxes! Eh?

Recent information from the U.S. Patent and Trademark Office indicates that California tops the other states in new patents applied for.  Californians accounted for 20% of all applications last year - 18,865 - exceeded only by ... Japan! with 32,515.

Never say that California can't cope with logistical legal problems.  Three youthful defendants in Napa have been charged with the death of a motorist which occurred during a gang war's hail of bullets.  Due to the logistical problems inherent in multiple defendant trials, the three are being tried by three separate juries!

The judge will decide which testimony each jury may hear against each defendant and retire the jury if necessary to protect that defendant's individual rights.

[It should be noted that yours truly participated in just such a criminal trial in LA Federal Court several years ago - it was indeed a novel experience!]

Posted:  March 17, 2000

Fallout from the Rampart scandal is just beginning to hit the fan.  

-- It is now estimated that as many as 1,000 cases may have been affected and may need to be retried.

-- The LA DA and LA Top Cop have been at each other's throats for months, and Mayor Riordan has referred to their dissent as "childish".

-- LA County prosecutors have commented that they are seeing more and more hung juries in lieu of convictions and attribute same to the lack of confidence juries have in the integrity of the LAPD and other police departments.

-- As much as $100M may be spent on resolving the juridical problem.

Posted:  March 17, 2000

No big surprises here.  Tobacco has won a major victory in the U.S. Supreme Court.  Not only did the majority opinion, authored by Justice Sandra Day O'Connor, hold that the FDA lacked authority to regulate the tobacco industry, irrespective of the contra argument that nicotine is a drug and should be regulated, but Justice O'Connor also stated in dicta (language that is tantamount to a judicial burp), that if the FDA were to have the authority to regulate the industry, tobacco products could not be sold since nicotine was such a harmful drug.

Posted:  March 24, 2000

A proposal now being drafted by the DOJ lawyers involved in the Microsoft-Klein-Jackson debacle [see April's Monthly Musings] provides that Microsoft spin off its MS Office software and other applications. The Office application alone accounts for 45% of Microsoft's total revenue.

The divestiture proposal also provides for strict guidelines for Microsoft's dealings with computer manufacturers and internet service providers - pending appeal! 

 Is no one familiar with the Fifth Amendment?!

Posted:  April 26, 2000

In their haste to pass new legislation implementing additional, stricter,  DUI penalties, the California Legislature has tripped over its ...!  As a result, many felony convictions are illegal and may result in new trials to all defendants who were either convicted or plead guilty to the improperly drafted statute.

Whereas the mistake has been corrected by emergency legislation, those felony convictions between July and October 1999 which were based on prior convictions of DUI within ten years may justify a retrial.

March 17, 2000

It appears that Mr. Whipple's opportunity for a second career in law enforcement has been unceremoniously curtailed.

The U.S. Supreme Court ruled 72 that police officers may not "squeeze" or manipulate carry-on luggage when searching for drugs.  Although arising in a border search, the decision will affect most all of law enforcement.

Oh well, Mr. Whipple will just have to search for drugs the old fashioned way - he'll have to "sniff" them out!

April 20, 2000

The 6th U.S. Circuit Court of Appeals has ruled that Ohio's motto - "With God, all things are possible" (taken from Matthew 19:26) is a government endorsement of religion, and is, hence, violative of the U.S. Constitution.

Who brought the suit?  Why, the ACLU, of course!

Will the decision be appealed?  Only (you know who) knows!

Posted:  May 1, 2000

The meaning of the Boy Scout oath may have a whole new meaning if the U.S. Supremes agree with the NJ ban on gay scoutmasters (as is expected).

Stay tuned for the latest.

Posted:  May 1, 2000

Not known for her uproarious sense of humor, U.S. Supreme Court Justice Ruth Bader Ginsberg is trying harder - she never quips, either on the bench or in her opinions; however...

In a recent opinion, involving the torching of a private home, she quipped, "...the defendant was explosively angry... !  

Waiting now for the laughter to subside - the courtroom titters were negligible.

Posted:  June 1, 2000

Federal judge Thomas Penfield Jackson has made his ruling (at no surprise to anyone).  Want to see his opinion or other related matters? Go to [Legal Links / Freedom To Innovate Network]

Says Microsoft Chairman Bill Gates, "I believe very strongly that this is the first day of the rest of this case."

Will The Supremes "fast track" the case, utilizing the 1974 revision to the 1903 Congressional Act permitting same (last used in 1982 when Maryland objected to the settlement re AT&T), or will the case wend its way through the laboriously slow appellate process?  Stay tuned!

Posted:  June 12, 2000

Whereas the Microsoft prosecution has garnered most of the nation's legal attention, the "jackbooted thugs" of the DOJ have been quietly turning their unlimited energy (and our unlimited taxpayer dollars) in the direction of Visa and Mastercard.

Alleging that the two credit giants (accounting for 75% of general purpose credit transactions) have violated provisions of the Sherman Anti-Trust Act by using their success to stifle competition (Gee! Where have we heard that before?)

Rumor (started today at The Aleagle Perspective) has it that the DOJ may actually Xerox the briefs they used in the Microsoft prosecution to save featherbedding governmental work time (my guess is that the federal jurist hearing the New York District Court case won't even know the difference).

"... Cost to the taxpayer?  Priceless!"

Posted:  June 14, 2000

EXTRA!  EXTRA!

News just breaking this morning - MCI WorldCom and Sprint have postponed their merger plans in light of AG Reno's threat to fight any such attempt.

Posted:  June 27, 2000

Microsoft and the DOJ have agreed to expedite a Supreme Court ruling on Judge Jackson's Monday ruling.  The two foes have agreed to file their briefs before the U.S. Supremes a month early in order for the Court to rule on the DOJ and Judge Jackson's request for an immediate Supreme hearing rather than Microsoft's request to abide by normal channels through the lower Court of Appeals.

Posted:  July 7, 2000

Our 9th Circuit has held that attorney's contingent fees cannot be used to offset a punitive damages award.  The upshot?  After fees, costs and taxes, a plaintiff may end up with considerably less than he started with.

Posted:  July 26, 2000

The U.S. Court of Appeal (9th Cir.) has ruled that a cellular phone, if brandished in a threatening manner as a gun, may qualify as a dangerous weapon.

Posted 8/22/00

If you think that you you couldn't get away with writing that someone "the bastard child of a murderous worm with a hankering for sex with dead pigs" without being liable for libel, you'd be wrong!

An LA Superior Court judge ruled that such a reference by DC Comics in their "Jonah Hex" comic book series, referring to the Winter brothers (you know - Edgar and Johnny, the albino musicians) was not libelous.

Posted 9/1/00

The U.S. Supremes (7-1), irrespective of the will of California voters in their approval of the "medical marijuana" initiative (Prop 215) last last election, have barred distribution of marijuana to medically authorized patients.

Reacting favorably to a Clinton administration emergency request, the "High Court" is just the latest salvo in the Fed-vs-California dispute over the use of medical marijuana.

Posted 9/1/00