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One Vt. sugar maker takes fight to U.S. court
Court Watch |
2007/03/10 21:12
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Berndt, 56, owns the Maverick Farm in Sharon, a 16,000-tree property that's one of the largest maple producers in the state. He's planning on sugaring another 20 years before passing the property on to his children or a conservation group. But warmer winters are threatening to cut the tapping season over the next several decades and, with the migration of Southern tree species, crowd out maples over the next century. What to do? Berndt, a member of Greenpeace and Friends of the Earth, heard about the environmental groups' lawsuit against two U.S. government agencies - the Export-Import Bank and the Overseas Private Investment Corp. - for investing $32 billion in taxpayer money in overseas subsidies to such energy companies as Exxon Mobil Corp., General Electric Co., Halliburton and the now-defunct Enron. According to the lawsuit, the two federal agencies should have followed the National Environmental Policy Act and reviewed the projected impacts of the resulting oilfields, pipelines and coal-fired power plants. Had the government done so, it would have realized that the greenhouse-gas emissions from the subsidized fossil-fuel projects equal one-third of the nation's yearly output and almost 10 percent of the world's total, the lawsuit says. Because scientists blame such gases for global warming, the review would have required the agencies to consider investing in alternatives such as renewable energy and efficiency projects. Berndt supports such efforts. And so he and his wife, Anne, decided to join several other citizens and cities including Boulder, Colo., and Oakland, Calif., as plaintiffs in the lawsuit. "We're trying to stimulate some change in policy," he says. "The United States needs to be a leader in the world to bring solutions to climate change." Berndt isn't the only Vermonter involved in the lawsuit. The Burlington law firm of Shems Dunkiel Kassel & Saunders is representing all the plaintiffs. "What we're asking for isn't novel," lawyer Ronald Shems says. "We're hoping federal agencies start complying with federal laws." And stop fueling global warming, Berndt adds. "If my wife and I have no maple trees, we have no farm income, and the aesthetic value of the land will also be devastated," he says in court papers. "If climate change has the predicted impacts, we should start culling trees now as the timber market will become saturated rather quickly once maples start disappearing in large numbers. However, like many people, we are in denial because it is too depressing to consider the loss." Lawyers argued the case in U.S. District Court in San Francisco last April. The hearing came after a judge rejected the government's claims that the case should be dismissed because the agencies hadn't taken any action subjecting them to judicial review and were exempt from the National Environmental Policy Act. "We're just waiting for a decision," Shems says. "It can take a few weeks to approximately a year." The government has declined to comment until a ruling is reached. Berndt, for his part, is hopeful, although he doesn't know how much time the maple industry has left. "There are more people who are starting to get concerned," he says. "We know if we continue along the course we're on, ultimately at some point all the sugar makers will be out of business." |
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Court Calls District Gun Laws Unconstitutional
Court Watch |
2007/03/09 13:45
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The US DC Circuit Court of Appeals Friday invoked the Second Amendment to reverse a lower court ruling and strike down a three-decades old ban on individuals in the District of Columbia having handguns in their homes. The 2-1 ruling is likely to be appealed to the US Supreme Court. The Second Amendment to the US Constitution provides: "A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms shall not be infringed." Senior Judge Laurence Silberman wrote for the majority: ...the Second Amendment protects an individual right to keep and bear arms. That right existed prior to the formation of the new government under the Constitution and was premised on the private use of arms for activities such as hunting and self-defense, the latter being understood as resistance to either private lawlessness or the depredations of a tyrannical government. In addition, the right to keep and bear arms had the important and salutary civic purpose of helping to preserve the citizen militia. The civic purpose was also a political expedient for the Federalists in the First Congress as it served, in part, to placate their Antifederalist opponents. The individual right facilitated militia service by ensuring that citizens would not be barred from keeping the arms they would need when called forth for militia duty. Despite the importance of the Second Amendment’s civic purpose, however, the activities it protects are not limited to militia service, nor is an individual’s enjoyment of the right contingent upon his or her continued or intermittent enrollment in the militia. In dissent Judge Karen Henderson, a Reagan appointee, countered that the Second Amendment did not properly apply to the case, as prior caselaw, statute, and the Constitution itself recognized that the District of Columbia is not a state subject to the jurisdiction of the Bill.
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Failed Abortion Sparks Child Care Lawsuit
Court Watch |
2007/03/07 05:53
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A woman who had an abortion but still gave birth has filed a lawsuit against two doctors and a family planning organization seeking the costs of raising her child.
The complaint was filed by Jennifer Raper, 45, last week in Suffolk Superior Court and still must be screened by a special panel before it can proceed to trial.
Raper claimed in the suit that she found out she was pregnant in March 2004 and decided to have an abortion for financial reasons, The Boston Globe reported in its Wednesday editions.
Dr. Allison Bryant, a physician working for Planned Parenthood at the time, performed the procedure on April 9, 2004, but it "was not done properly, causing the plaintiff to remain pregnant," according to the complaint.
Raper then went to see Dr. Benjamin Eleonu at Boston Medical Center in July 2004, and he failed to detect the pregnancy even though she was 20 weeks pregnant at the time, the lawsuit alleges.
It was only when Raper went to the New England Medical Center emergency room for treatment of pelvic pain in late September that year that she found out she was pregnant, the suit said.
She gave birth to a daughter on Dec. 7, 2004.
Raper and her lawyer, Barry C. Reed Jr., refused comment when contacted by the newspaper, and a spokeswoman for Planned Parenthood said the organization does not comment on pending litigation.
Massachusetts' high court ruled in 1990 that parents can sue physicians for child-rearing expenses, but limited those claims to cases in which children require extraordinary expenses because of medical problems, medical malpractice lawyer Andrew C. Meyer Jr. said.
Raper's suit has no mentions of medical problems involving her now 2-year-old daughter. |
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Supreme Court rejects Ebbers fair-trial
Court Watch |
2007/03/06 09:40
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The U.S. Supreme Court on Monday rejected an appeal by the ex-WorldCom Inc. chief of his federal fraud and conspiracy conviction in the $11 billion accounting scandal that destroyed his former Clinton-based company and cost investors thousands of dollars. A former P.E. coach-turned-telecommunications king, Ebbers had challenged two facets of his federal trial that resulted in a 25-year prison sentence. The justices rejected without comment Ebbers' bid for review of his 2005 conviction based on his contention that he was denied a fair trial. Hearing the news, Thomas Harris of Brandon, a former WorldCom accountant, who at one time thought he might be able to retire at age 40, said, "I don't harbor any ill feelings against Bernie, but when we make decisions we have to live by them." Harris, a 13-year employee, left the company, then known as MCI, to open a business with his wife when it appeared he would have to move to stay with the company. "Hopefully all of this will be a deterrent to other executives making decisions not good for a company," Harris said. Ebbers began serving his sentence in the Federal Correctional Institution in Oakdale, La., in September, and the Federal Bureau of Prisons Web site lists July 4, 2028, as the 65-year-old Ebbers' projected release date. Absent a presidential pardon -which was less likely than Supreme Court intervention - Ebbers will serve his sentence, said Matt Steffey, a professor at Mississippi College School of Law. Steffey said he wasn't surprised the Supreme Court rejected Ebbers' appeal. "Other than Mr. Ebbers' status as a businessman, there was nothing noteworthy from a legal perspective," he said. "It seems he got a fair trial, he was ably represented and he had his conviction reviewed by the Court of Appeals. Everything went according to form. "Cases like this rarely get reviewed by the Supreme Court. If Mr. Ebbers weren't famous, there would be little public interest." Ebbers argued in court papers the trial judge improperly allowed prosecutors to use testimony from witnesses who had been given immunity but denied immunity to potential defense witnesses. The judge also instructed jurors they could find Ebbers guilty if they believed he suspected a crime was being committed but intentionally looked the other way. A federal appeals court upheld the conviction last year while acknowledging Ebbers' sentence for a white-collar crime was longer than sentences routinely imposed by many states for violent crimes. The 2nd U.S. Circuit Court of Appeals said Ebbers' actions to hide WorldCom's financial problems were substantial and had cost investors dearly. Stacey Wall, president and chief executive officer at Pinnacle Trust Wealth Management in Ridgeland, said he sympathizes with investors who lost money but thinks Ebbers' sentence was too harsh. "Relative to other corporate scandals and executives involved, he got very unfair treatment," he said. Ebbers was convicted of fraud and conspiracy in March 2005 for his role in the scheme that drove the former telecommunications giant into bankruptcy in 2002. Investigators uncovered $11 billion in fraud, much of it because accountants were classifying regular expenses as long-term capital expenditures. The company re-emerged under the name MCI and moved the headquarters to Virginia. Verizon later bought MCI. |
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New Jersey verdict for Vioxx drugmaker upheld
Court Watch |
2007/03/06 09:27
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A New Jersey superior court judge Monday upheld a Friday jury verdict for Merck & Co, finding that the company had given adequate warning to physicians of the risks associated with its painkiller Vioxx. Judge Carol Higbee rejected a motion by plaintiffs attorney Mark Lanier disputing a finding that the drug company had warned doctors prescribing Vioxx that a 2004 study showed the drug doubled the risk of heart attack or stroke in patients who took it for longer than 18 months; Lanier represents the estate of a deceased man whose fatal heart attack is alleged to have been caused by the drug. Merck faces more than 27,000 lawsuits from people who say they were harmed by the once $2.5 billion-a-year drug before it was pulled from the market in September of 2004. Merck has set aside $1 billion to fight every Vioxx court challenge. In November 2006, a federal judge declined to certify a national class action suit, ruling that it made more sense to try the cases in their respective states of origin. |
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Court denies GOP redistricting challenge
Court Watch |
2007/03/05 09:02
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The Supreme Court on Monday ruled against Colorado Republicans challenging a congressional redistricting plan favorable to Democrats. In a unanimous decision, the justices said that the four Republicans were not entitled to sue in an effort to replace a redistricting plan ordered by a court with one passed by a Republican-controlled state legislature. A Democratic state judge drew up the first redistricting plan in 2002, while the Republican Legislature drew one up in 2003. The court plan had been put in place when a divided Colorado General Assembly was unable to agree on one in time for the 2002 election. In their lawsuit, the Republican voters say the court-imposed map violates a right of citizens under the U.S. Constitution to vote for congressional candidates in districts created by state legislatures. In an unsigned opinion, the justices said that the only injury the Republican voters allege is that the Elections Clause had not been followed. "This injury is precisely the kind of undifferentiated, generalized grievance about the conduct of government that we have refused to countenance in the past," the court stated. Citing earlier rulings, the justices said the Republicans must have more than a general interest common to all members of the public in order to pursue the case. Last year, a U.S. District Court in Colorado had ruled that the Republicans could proceed with their lawsuit asserting an Elections Clause violation. The Colorado case is the Supreme Court's latest foray into congressional redistricting battles. Last year, the justices addressed a messy redistricting fight in Texas, ruling that the Constitution does not bar states from redrawing political lines in mid-decade when one party or the other senses an advantage. The decision grew out of a court review of a Texas redistricting plan orchestrated in 2003 by Tom DeLay, who was a Republican congressional leader at the time. The Colorado dispute also involved a lawsuit brought by the Democratic state attorney general. It led to a Colorado Supreme Court decision against the Republican legislative plan in 2003. The Colorado Supreme Court said the state constitution restricts congressional redistricting to once per decade and that the legislature's plan was the second plan. |
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Sixth Circuit rejects Ohio lethal injection challenge
Court Watch |
2007/03/03 13:27
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A three judge panel of the US Court of Appeals for the Sixth Circuit threw out a lawsuit challenging Ohio's death penalty procedure Friday on the grounds that the claim was filed too late. In the 2-1 opinion, judges Richard Fred Suhrheinrich and Edward Eugene Siler decided that the statute of limitations on the inmate's 42 USC 1983 method of execution challenge would have run at the latest two years following the 2001 decision that made lethal injection Ohio's only form of execution. Plaintiff Cooey did not file his challenge until December of 2004. Last year Ohio executed its first prisoner using modified lethal injection procedures aimed at preventing extreme pain during an execution. The procedures were changed last June following a difficult May execution where staff struggled to find a vein to administer the lethal injection cocktail, and the one they did use collapsed before injection. |
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Class action or a representative action is a form of lawsuit in which a large group of people collectively bring a claim to court and/or in which a class of defendants is being sued. This form of collective lawsuit originated in the United States and is still predominantly a U.S. phenomenon, at least the U.S. variant of it. In the United States federal courts, class actions are governed by Federal Rules of Civil Procedure Rule. Since 1938, many states have adopted rules similar to the FRCP. However, some states like California have civil procedure systems which deviate significantly from the federal rules; the California Codes provide for four separate types of class actions. As a result, there are two separate treatises devoted solely to the complex topic of California class actions. Some states, such as Virginia, do not provide for any class actions, while others, such as New York, limit the types of claims that may be brought as class actions. They can construct your law firm a brand new website, lawyer website templates and help you redesign your existing law firm site to secure your place in the internet. |
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