Legal Briefs

Birth Control and Religious Freedom

2012-02-10T16:42:00.002-05:00

The nation’s Catholic bishops and some other religious leaders are protesting the Obama administration’s determination that church operated schools, hospitals and charitable institutions that provide health insurance to their employees (most of whom are lay people) must include coverage for contraceptive pills and devices. They argue that religious institutions and those who operate them cannot be made to spend money for things that violate their religious beliefs.

Let’s be clear. Nothing in the law requires any person or institution to use or provide contraceptive services. All that is mandated is that employee health plans include coverage for them.

The principle that people cannot be made to pay for things they do not want for themselves and do not believe in could have broad ramifications. Residents of Texas must pay taxes that are used to carry out executions in capital cases. The federal government requires that we pay taxes that are used to support wars, even if we think war is morally wrong.

Now, you might argue that opposition to capital punishment or war is moral, not religious, in nature, and therefore the First Amendment protection for religious freedom doe not apply. However, conscientious objector status has been accorded to exempt persons from the draft if they oppose war on religious or deeply held moral grounds. So, if the bishops are correct, shouldn’t conscientious objectors be allowed to withhold that portion of their tax obligation that supports the military budget?

As for the death penalty, the Anglican and Episcopalian churches oppose it.

The bishops might argue that requiring persons to pay taxes is different from requiring them to buy health insurance. But don’t the bishops lobby to prevent federal tax dollars from going to support abortion?

These are some of the thorny issues that must be engaged as this fight between the bishops and their allies and the federal government plays out.

A SECOND LOOK AT AN ISSUE IN CHURCH-STATE RELATIONS

2011-10-25T11:33:00.001-04:00

In September, 2008 the New York Court of Appeals was scheduled to hear oral argument on the issue of whether the Archdiocese of New York could demolish historic St. Brigid Church without the permission of the parishioners. The parishioners claimed that Section 5 of the Religious Corporation Law required their permission before the chief asset of a religious corporation could be used for a purpose other than the support and maintenance of the corporation.

The Archdiocese argued that the hierarchical nature of the Roman Catholic Church exempted it from that stricture. The parishioners responded that the Archdiocese waived any such special treatment when it elected to incorporate St. Brigid and many other parishes under the Religious Corporation Law; it could not claim the benefit of corporate status (such as limited liability) without abiding by its requirements.

On May 19, 2008, before the case was to be heard, the Archdiocese announced that an anonymous donor had come forward with $20 million to restore and reopen St. Brigid. The appeal became moot and this important legal issue was not decided by New York’s highest court.

On November 15, 2011, however, the Court of Appeals will hear argument on the same legal issues in a case involving Our Lady of Vilna Church in lower Manhattan, built by Lithuanian immigrants in the early twentieth century. The outcome of the case will determine the fate of this and other churches among the hundreds of incorporated parishes in New York.

I will be arguing on behalf of the parishioners. Peter Johnson, Jr. will appear for the Archdiocese.

WILL THE EDWARDS PROSECUTION UNRAVEL CAMPAIGN FINANCE REGULATION?

2011-06-14T10:49:00.002-04:00

John Edwards has been indicted for receiving large gifts from friends that he used to cover up his affair and love child with Rielle Hunter during his presidential campaign. According to federal prosecutors, these were campaign contributions and expenditures and should have been reported as such. In addition the amounts given to Edwards exceeded the $2,500 contribution limit.

The theory of the prosecution appears to be that the gifts and expenditures were meant to benefit the campaign by avoiding disclosure of what would surely have damaged Edward’s status as presidential contender.

As a candidate in a presidential primary, Edwards received $12,882,877.42 in federal primary matching funds. These funds are available to a candidate to be used for “qualified campaign expenses.” It follows under the prosecutions’ theory that Edwards could have used federal money to conceal his sexual peccadilloes.

OK, so I am running for president and the recipient of primary matching funds. My teenage daughter gets pregnant, and I am concerned it might damage my campaign, so I arrange for an abortion, with her consent of course. Can I use matching funds for this? Or, I am accused by a masseuse of making a pass at her during a massage. She threatens to go public if I don’t give her $250,000. Can I use matching funds for this? What if a young woman threatens to expose a titillating tweet I sent her? Under the theory of the Edwards prosecution, the answer would have to be yes.

Should the government compile a list that states which such expenditures are allowed and which are not? If they don’t, and surely Edwards will contend, they have not, how is a candidate to know what is legal and illegal. And if the funds are so used and reported, how much information must be given about their purpose? Would not a filing that disclosed the purpose defeat the purpose of spending the money in the first place? What is a candidate to do?

Tune in to the John Edwards trial to find out.

TO BAIL OR NOT TO BAIL

2011-05-26T13:40:00.001-04:00

There is certainly an issue as to whether or not Dominique Strauss-Kahn posed a sufficient flight risk to be denied bail. After all, he is a citizen of France (a country that does not have an extradition treaty with the U.S.), and he was arrested on an airplane about to take off for Paris.

On the other hand, his crime, while serious, is not murder, and he had to post one million in cash and five million in collateral to remain free pending trial. Cleary, no matter what decision the court made on the issue of bail, it was bound to cause controversy. Since his arrest, the tabloids have bombarded us with headlines like, “LePerv’s Palace, Outrage as Dom Gets Bail” and “Pepe Le Pew! East Side High Rises Slam Door on Skunk.”

Part of what is fueling the controversy is that a clean decision was not made. There appears to have been a negotiation with the court, the prosecutor and the defense team in which, in addition to bail, Strauss-Kahn and has family agreed to pay a private security firm to place him under house arrest and electronic monitoring. So was he granted bail or wasn’t he? Was he allowed to substitute arrest in more comfortable surroundings (at his expense) for being housed at Rikers Island with the regular folks who have been denied bail? According to the NY Post Strauss-Kahn has rented a Tribeca townhouse for $50,000 per month.

What appears to have been an effort to cover both sides of the controversy may have actually exacerbated it. It is the spectacle of justice negotiated that is so questionable. Who can afford such a negotiation? And who is allowed to engage in it even if they could afford it? We elect and pay our judges to make decisions and take the heat, not to avoid hard choices by compromising the values that underlie our legal system, in particular, “equality before the law.”

Independents Tie the Score

2011-03-31T09:59:00.001-04:00

Yesterday, in the second U.S. District Court decision this month on the subject of open primaries, Judge J. Michelle Childs threw out an attempt by the Republican Party of South Carolina to close the State's primary elections. On March 2, Idaho District Court Judge B. Lynn Winmill ruled in favor of the Republicans. In both cases independent voters, IndependentVoting.org, and other supporters of open primaries intervened. A copy of the SC decision can be viewed at http://www.ballot-access.org/2011/16314846926.pdf . Independents have filed an appeal from the Idaho decision.

I am proud to be working with attorneys Gary Allen of Boise and Fletcher Smith of Greenville on these important cases.

YOU CAN’T UNDERSTAND THE CONSTITUTION WITHOUT READING ALL OF IT

2011-01-11T16:16:00.001-05:00

There has been some controversy generated over the reading of the United States Constitution during the opening session of the new Congress, organized by the new Speaker of the House, John Boehner. It had to do with “scrubbing” the document, ostensibly to conform it to the amendments (which affected some of the original text) and, in particular, the failure to read the part of Article I, Section 2 stating that each slave shall count as 3/5 of a person in determining the number of seats in the House allotted to each state.

To understand the history of the Constitution, and of our country, the original text should not be “scrubbed.” The 3/5 compromise with the slaveholding states was integral to our nation’s founding, just as the abolitionist movement and the civil war that led to amendments ending slavery and according former slaves full citizenship are to what followed. How can you understand what the amendments mean without understanding what they are amending?

One thing the Congressional readers did not have to remove from the document is any reference to political parties. Why? Because there are none. One would hope that some Members reflected on the irony that the document which establishes the structure of Congress and the rest of our government is as nonpartisan as our government is partisan. If they did, they surely did not speak up about it, as to do so would, no doubt, hurt their chances for important committee assignments, and other perks of office, all of which are doled out on a partisan basis.

ENSNARING CRIMINALS OR CREATING CRIMES?

2010-11-03T15:11:00.001-04:00

The recent conviction of four men for plotting to blow up a New York synagogue presents one of the most peculiar and most troubling aspects of our criminal justice system, one which takes on new significance in the context of efforts to defend ourselves against terrorist attacks. The four were convicted for participating in a plot paid for and, for the most part, organized by a government informer. No synagogue was blown up. Indeed no one was harmed by the defendants' actions.

Lawyers representing defendants in such cases generally raise the defense of “entrapment,” arguing that their client was an innocent person caught in a web spun by the government to entrap them in criminal activity. In this case, the evidence showed that the defendants, poor persons, were promised $250,000 for their participation in the "conspiracy."

Under the law of entrapment, the government is not permitted to “originate a criminal design, implant the disposition to commit the charged criminal act into an innocent person’s mind, and then induce the person to commit the crime,” according to U.S. District Judge Colleen McMahon, who presided over the trial. It can, however, use undercover agents or paid informants to enforce laws and “resort to artifice and stratagem in order to catch persons who are criminally minded.”

Apparently, the critical distinction is between a person with an “innocent” as opposed to a “criminal” mind. What does that mean? The distinction on the one hand seems to be religious, yet most Western religions are premised on the fact that we are all sinners and can achieve innocence only through God’s Grace.

Is Judge McMahon saying that two people can do the exact same thing, but one is innocent and one is guilty because of a judgment about the state of their minds? And how is such a judgment to be made? If a person says that the impoverished conditions in which so many people live here and in other parts of the world create a breeding ground for terrorists, is that evidence of a less than innocent mind? Can membership in a particular ethnic or religious group be evidence of a criminal mind? There are many Americans who believe that Muslims have minds that, if not criminal, are surely not innocent.

The question of criminal or innocent minds is, of course, most relevant to prosecution for participation in a conspiracy. Under our conspiracy laws, a person can be charged and convicted if he or she agrees with the conspiracy’s object and commits an overt act in furtherance of it. In such a circumstance there is a critical difference between someone who shares the conspiracy’s objects and one who, perhaps, doesn’t even know of them but is simply asked by a friend to get some electrical wire from the hardware store down the street.

But what if the "conspiracy" is organized by a government informer whose object is not to blow up the synagogue, but to arrest persons with “guilty minds?” The threshold question, in my mind, is whether under such circumstance a crime has occurred at all. The mind of the defendant seems entirely irrelevant.

WHAT’S AT STAKE IN THE MOSQUE CONTROVERSY?

2010-08-16T11:44:00.000-04:00

This past week President Obama expressed support for those seeking to build a mosque near ground zero. He said that Muslims "have the same right to practice their religion as anyone else in this country." In other words, it is a matter of religious tolerance.

Earlier in the week another supporter of the project, New York Mayor Michael Bloomberg, focused on a different aspect of the controversy. “If somebody wants to build a mosque in a place where it’s zoned for it and they can raise the money, then they can do that,” he said. “And it’s not the government’s business.”

The Mayor introduced the element of property rights into how we view the situation. After all, a community could say "yes we support your right to worship as you see fit, but why not do it a few blocks from here.” In fact, Governor Patterson suggested as much when he offered his help in finding an alternative site. The promoters of the mosque have not publicly responded. The owners of the property where the mosque is to be built are standing not just on the right to worship but on the right to use their property as they see fit.

The tie between private property and the First Amendment -- which also guarantees the rights to freedom of speech and association -- is fundamental. A newspaper owner has the right to say what he wants in his publication. The editor in chief does not. She can be fired.

After the enactment of the post Watergate federal campaign finance regulation system, the Supreme Court struck down restrictions on what a person can spend on his own campaign. The same decision reiterated what had long been the law -- the First Amendment does not guarantee that all voices will be heard equally.

Likewise, America claims to stand for equal opportunity. Not equality. Will equal opportunity lead to equality? Unlikely. Has the promise of equal opportunity been fulfilled? Not yet.

The Limits of Disclosure

2010-06-25T13:51:00.003-04:00

Earlier this year Manhattan Surrogate Nora Anderson was acquitted by a jury on charges of false filing in conjunction with her successful campaign to be elected to preside over estate matters. Her prosecution came about because a colleague allegedly gave her a large sum of money which she transferred to her campaign. The charge was that this was a scheme to evade the campaign contribution limits and disclosure laws.

Because of some complicated procedural issues, the only charge that went to trial was “false filing.” The disclosure statements filed with the Board of Elections indicated that the contribution to the campaign came from Judge Anderson not from her colleague. A candidate is allowed to contribute an unlimited amount to their own campaign. Judge Anderson had very skillful attorneys at trial who argued, among other things, that the false filing charge made no sense. If Judge Anderson had reported the contribution to her campaign as coming from her colleague, it would have been literally untrue as the funds came from her account via a check she wrote.

Since the trial, the Manhattan District attorney’s office has asked the New York legislature to enact a law that would require every candidate for public office to disclose all gifts from any source that they received in the past year. If your mother gave you $10,000 to help pay your daughter’s college tuition, that would have to be disclosed. The theory is that if the government can see all the gifts you got and compare them to moneys received by your campaign, they might be able to detect an illegal contribution.

This is a dubious proposition at best. First, Judge Anderson’s contribution and its ultimate source was discovered without such a statute. Second, why should the government require citizens to disclose activity that is perfectly legal (like getting a $10,000 gift from your mother) in the hope of finding some illegality? It is an invasion of privacy and an imposition on those seeking to run for office.

It makes me think of the Mann Act, a federal statute that makes it a felony to “transport” a person across state lines to engage in “prostitution, or in any sexual activity for which any person can be charged with a criminal offense….” Under the logic of the Manhattan District attorney, the government would be justified in requiring every person who crosses state lines with another person to report that to the government just in case it turns out that the purpose of the trip was to engage in prostitution.

Something is wrong when the people charged with enforcing the law think this way.

IS IT ALWAYS REASONABLE TO ASK WHAT IS REASONABLE?

2010-06-01T15:45:00.001-04:00

A New York appellate court recently upheld the manslaughter conviction of John White, an African American man living on Long Island for shooting and killing one of 5 white high school students who came to his house shouting racial slurs and threatening to harm his teenage son. White’s defense was based on “justification,” that as a black man who, while growing up, had experienced racial discrimination and been told that two family members were killed by the KKK, he understandably armed himself with a pistol and used it to protect himself and his family without intending to shoot the victim.

Legally speaking, a person is justified in using deadly force if he or she “reasonably believes” it is necessary to protect their home against an intruder. The jury rejected this defense, and in reviewing the evidence, the appellate court concluded that the defendant did not have such a reasonable belief. The legal standard applied by the Court was:

“A determination of whether a defendant has a reasonable belief that deadly force is necessary to prevent or terminate a burglary requires the application of a reasonableness standard which has both objective and subjective elements. ‘The critical focus must be placed on the particular defendant and the circumstances actually confronting him at the time of the incident, and what a reasonable person in those circumstances and having defendant's background and experiences would conclude’"

This standard has as its premise that 12 jurors who may or may not have shared a defendant's life experiences can determine whether or not the defendant's fear of harm to himself, his home and his family was reasonable. What does that mean? If the fear was “unreasonable” but, nonetheless, the defendant experienced it, why does that make him guilty?

In a diverse society with a history of racial conflict, how do we determine what is reasonable for another person to believe. Is the application of the “reasonableness” standard really another way of determining whether or not the defendants’ claim is credible. Perhaps, but it is one thing to ask do you believe that the defendant felt as he said he did and, given how he felt, was he justified in resorting to deadly force, and quite another to ask one group of people, called a jury, in this case one with ten white people, one black and one Latino, to determine whether or not another person’s, a black person’s, feelings of fear were reasonable.

When what is good for the Parent, is good for the Child

2010-05-19T14:50:00.002-04:00

A recent ruling by an appellate court in New York, in a case in which I represented the mother, provides some helpful insight into the relationship between what is best for a child, and what can be reasonably expected of a parent with custody. The client has allowed me to discuss the case in Legal Briefs.

The appellate court overturned a child visitation order that directed the mother of a two year old boy to take the child to a distant state one week a month for visitation with his father. We argued that the order was both hurtful to the child (an expert testified that such an extended period of separation of a young child from the primary caregiver can cause long term harm), and that it imposed an unreasonable burden on the mother who was directed to bring the child to the distant state on one week’s notice from the father.

In its decision, the appellate court did not explicitly address the latter issue, the burden on the mother. Instead, the judges wrote:

"Additionally, the existing monthly visitation schedule providing for the child to spend one week per month in [the distant state] and the remainder of each month in New York creates a situation in which the child has two homes and no real sense of permanency in either, since the father is permitted to schedule his visitation week upon one week's notice to the mother."

This was in keeping with the principle that issues of visitation are to be made on the basis of the best interests of the child. However, in my opinion the Court was, as well, attempting to redress the unfairness to the mother. In arguing a case such as this, don’t leave out the impact on the parent of a court’s visitation order. If you make this case effectively, the court may find a way to respond even if it does so indirectly.

HOW TO JUDGE A JUDGE

2010-05-10T10:56:00.001-04:00

President Obama has chosen his second Supreme Court nominee, Elena Kagan, and much of the dialogue centers around ideology. Kagan would replace John Paul Stevens, viewed as the leader of the Court’s liberal block. Liberals fear Kagan is too conservative, and conservatives point to her support for gay rights, when she was Dean of Harvard Law School, as an indication that she may be too liberal.

This made me think of what kind of judge I want to hear my clients’ cases, after almost 40 years of practicing law. It’s not about ideology. It’s about fairness, the ability to listen, respect for the law, and respect for the litigants who stand before them. Cases, like life, don’t fit into neat ideological categories. They are fact specific. The judge you want is one who will work to grasp the particulars of the case and the people he or she is judging. A conservative judge, for example, in a case involving the sale of drugs might see something that separates the case from others. A liberal judge with strong opinions about drugs and their impact on poor communities might ignore or not even see it.

I recall a case in which I represented a group challenging the conduct of a meeting of the county committee of a political party. There was intense speculation about which judge would be assigned to the case and where that judge fit on the political spectrum. The case, it turned out, was assigned to a judge whose political leanings were unclear. He just listened to the evidence and made a fair decision, one which a more “political” judge might have backed way from.

So, when judging judges, apply the same standards you would want the judge to apply to you. Fairness trumps ideology almost every time. And, by the way, when Justice Stevens was appointed to the Supreme Court by President Ford in 1975, he was considered a pro-business conservative.

The Sexual Harassment Bind

2010-04-30T15:38:00.001-04:00

How many of you followed the recent sexual harassment trial in which NY1, a cable news show, was sued for sexual harassment by one of its reporters? The plaintiff, Adele Sammarco, claimed that the newsroom of the station functioned like a frat house with lewd and sexist remarks, crude come ons and, in plaintiff’s case, the circulation of an email showing a picture of her with enlarged breasts and an unwelcome kiss.

NY1’s defense was, in essence, that she joked about the email and was a willing participant in sexually charged office hijinks. The defense worked. Its success reminds me of the defense invoked by urban trolley car operators who argued that passengers “assumed the risk” by boarding the trolley and could not, therefore, claim damages for any injury they might suffer. This defense has gone by the wayside. After all, if you had to get to work, and the trolley was the available transportation you could afford, you had no choice but to ride on it.

Isn’t it also the case that a young reporter seeking to advance her career who finds herself in a “frat house” newsroom will go along with and even seem to enjoy the behavior that victimizes her? She may even actually enjoy it; after all what we enjoy and don’t enjoy is socially determined. My experience in working with victims of race or sex discrimination is that they are sometimes the last to see what is going on.

The problem, of course, is that the success of such a defense gives a green light to the continuation of hurtful and backward behavior. Sometimes the law impedes rather than contributes to human development.

If you find yourself in a situation where you are subject to this kind of sexual harassment, despite any reservations you might have about workplace reaction, it is best to report what is going on to the appropriate management person. And that might include a discussion of the bind it puts you in. At a minimum you will have put your employer on notice, and that can be critical if you later decide you have to “go legal.”

Some Recent Publications

2010-04-29T16:33:00.004-04:00

Check out these links to view some of my recent publications

Sacremento Bee - www.sacbee.com/2010/03/28/2636800/viewpoints-should-state-adopt.html

Huffington Post - www.huffingtonpost.com/harry-kresky/an-independent-look-at-ca_b_548894.html

2010-04-29T16:09:00.003-04:00

The Middle Game

In legal, and other, affairs, too little attention is paid to the middle game. It tends to be all about beginnings and endings. This insight has proved of great help in assisting clients deal with matrimonial and other family related matters. I recently helped a client settle a messy divorce. She graciously gave me permission to speak, in general terms, about it. There were two critical turning points. The first came after efforts to negotiate a fair early settlement failed. The other side made a “final” offer on the low end of what was acceptable. The client and I met, and she said that while she could live with this, she could never feel comfortable with herself unless she rolled the dice and let the Court decide some of the key issues. We then made a motion for interim relief, and got just about everything we were asking for.

The second occurred when we took another look at the husband’s valuation of some assets that were difficult to assess as they were luxury items that he was in the business of purchasing. A formal appraisal would have been expensive and sent out a signal (we are ready to litigate again) that we did not want to do. Instead, my client went online and found a company willing to give an informal valuation of the items in question. It turned out to be almost double what her husband had said.

A phone call to his attorney followed; the settlement negotiations got back on track, and the case was resolved fairly. At both points in the process we resisted the temptation to move too quickly to the end game. My client and I are glad that we played from the middle.

Mortgage Madness

A fall out of the financial meltdown is that routine real estate transactions have become more complex and stressful. It used to be that the buyer did some preliminary work with a bank or a mortgage broker to determine what type of financing was available. Then, once a bid was accepted on the property (a coop or condo, for example), a contract was signed and a deposit, usually 10 percent, put down. The contact allowed 45 days to secure a firm mortgage commitment with the seller agreeing to return the down payment if it was not.

Since the crisis, banks have made it much harder to obtain a mortgage and no longer give firm commitments. Sometimes you don’t know until days before closing whether financing is actually available. For the seller, this means that a deal might fall through at the last minute and other potential buyers lost; for the buyer it can mean forfeiting a substantial down payment. There is no easy solution to this problem. What used to be a straight forward, low risk arrangement is now fraught with uncertainty and even peril. Each situation must be examined carefully to determine the vulnerabilities on each side.

An important part of my job is helping the client weigh the risks and the scenarios that might unfold. Sometimes that leads to a smaller down payment (so less of the buyer’s money is at risk), and sometimes dispensing with the mortgage contingency at all, when financing is reasonably certain, even without a firm commitment. In one case it meant asking the seller to extend the mortgage deadline until the bank made up its mind; in another, in the case of property that was difficult to sell, it meant allowing the buyer to proceed without a mortgage deadline. Welcome to the brave new world of post meltdown real estate deals. In it we also have to learn to play from the middle.