Tag Archives: Legal

A Postmortem of the 103rd Congress

You might wish to read the Prelude to this post. Below is a reprint of an article I wrote back in 1997. It was originally titled by me as “Politics as Usual?  It was published by the Columbia Missourian on January 16, 1997, under the title, “Our Busy Congress.”

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It’s hard not to notice the political feuds in Congress these days.  On one hand we have President Bill Clinton, the highest-ranking Democrat in the country, immersed in a scandal over accepting illegal campaign contributions.  On the other hand, we have Newt Gingrich, re-elected Speaker of the House, and one of the highest-ranking Republicans in the country, immersed in a scandal over illegal use of legally donated campaign funds. 

For those of you who have managed to remain totally news-free, or in a padded cell for the past two months, it seems the President accepted large contributions (in excess of $2 million) from overseas interests in Asia, and Newt funneled domestic campaign contributions through tax-exempt GOP organizations to sponsor his own politically-oriented college classes.  Clinton returned the money, or so that’s the official position, and Newt followed up his digressions by lying to a Congressional Subcommittee. So now that money is back in Asia, and Newt has admitted to his lies, many people feel everything is just wonderful again. 

Such is politics.

Continue reading A Postmortem of the 103rd Congress

And the Evidence Shows . . .

There are two categories of blog postings of mine that I have not posted to very often. Law and politics. You can see them listed on the left-hand sidebar. 🙂

Although admittedly, I did post a piece on administrative law that gives you a peek into how executive agencies have the power to create legislation and how that power is exercised. See: Framers, Federalists, and the Reality of the Administrative State. And I did do a series on marriage and divorce.* There are a few other posts there as well.

I’ve intentionally avoided these categories during the past four years because politics, in my country anyway, has been a very contentious topic. To say the least. And when I’ve tried to explain the Constitution and statutes, well, let’s just say that people have notions about how the law is “supposed” to work that are largely based on TV shows and outright fantasy.

But today, I’m going to go ahead and post something, very brief, about evidentiary law. Which is relevant to all of the litigation currently swirling about the US election.

But first, a disclaimer. Whenever I write about the law, it should never be construed to be legal advice. I have no attorney-client relationship with any of my readers. If you are involved in a legal situation, I suggest you seek out the advice of competent legal counsel.

And finally, obviously, this is not supposed to be entire encapsulation of evidentiary law. What I’m presenting is a very boiled down summary of what constitutes evidence that attorneys spend their entire legal careers practicing and learning about the various nuances of how to present it. Moreover, the rules of evidence are different in different states and there are differences between the state and federal rules of evidence.

With that disclaimer in mind . . . read on. 🙂

Continue reading And the Evidence Shows . . .

To Have and to Hold – Part 8 – Dodge the Bullets

Four years after my first divorce, in a courtroom on the other side of the state, the parties were gathering to complete their divorce case.  Apparently, things were going really bad for the husband.  He knew he was going to lose it all, so it lost it all in a different way.

Mentally.

There was limited security in the courthouse.  No metal detectors.  The court relied mainly on its bailiffs to keep order.

The husband, seemingly an ordinary guy of even temperament, an aerospace technician, had stashed two pistols in his briefcase.  It wasn’t long before the gunfire began.

He shot and killed his wife.  Shot both his attorney and her attorney.  Shot a bailiff and a sheriff’s deputy.  Shot at, but missed the judge.  All before the police responded and took him down.

He sustained nine gunshot wounds – two to his head.

Before the paramedics arrived, and while he was still conscious, the story is that he exclaimed:

“Did I kill the bitch?!!  Did I kill the bitch?!!!”

Now that is some powerful hatred.  From a man who presumably, at least at one time, loved the woman he just killed.

Continue reading To Have and to Hold – Part 8 – Dodge the Bullets

To Have and to Hold – Part 7 – Bedtime Stories

They say time heals all wounds.  But that’s just a cliché.  Sometimes our minds gift us with the ability to forget, maybe selective dementia, erase the slate, ease the pain.  But other times, not-so-much.  And while writing about this stuff is therapeutic, it also raises those dead memories from the past.  Tears the scab off the old wounds and brings the pain right back to the surface again . . .

Oh, and I still have the paperwork. . . I’m afraid to throw it away.

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Continue reading To Have and to Hold – Part 7 – Bedtime Stories

To Have and to Hold – Part 5 – The Alpha and Omega

* Ok folks, my apologies.  This chapter is a bit long at over 2500 words.  I had no idea where I’d go when I started writing this morning, but I thought it was important to provide some more personal history before getting to the technicalities of marital asset division.  To provide a better understanding.  Yeah, I was stupid.  Love is blind.  So at the risk of my own personal embarrassment here goes:

It’s said that every story has a beginning, a middle, and an end.  Of course, it’s a little more interesting to jump around a bit, so if you’re looking for chronological order in the tales of my marriages and divorces, well, you might have to string some of my posts together in a completely different way.

For instance, today, I’ll jump towards the end.  And then towards the beginning of my first marriage.  The Alpha and the Omega – in reverse order, of course.  Time to set the stage for the grand dissolution.  The first one.  Then wash, rinse, and repeat, maybe.  😊

Continue reading To Have and to Hold – Part 5 – The Alpha and Omega

Speaking Freely

**Disclaimer: By writing this post, I am in no way claiming to be a constitutional expert.  I am commenting as a now retired attorney, who did ace Con Law, and did have many opportunities to see all this stuff play out in the legal arena for almost 20 years.  Give it whatever credibility you choose.  It’s my blog, and I’m speaking freely 🙂

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I have intentionally not posted too many articles to the political section on my blog because we seem to live in a time where such issues are truly filled with volatility.   By that, I mean people tend to get a bit EXPLOSIVE (imagine that word in flaming font that WP sadly doesn’t support) about their political opinions and there is plenty of hate-speech circulating about the Net without me stirring the pot on Word Press.

Word Press is more of a happy place for us writers, as it should be.

And while there are many web forums where people do speak freely, and at times in threatening manners, from what I’ve read, not many people understand what this means from a legal perspective at all.  Not even close.

So, today I thought I would speak about speaking.  😊  It seems like a particularly appropriate topic given CEO Jack Dorsey’s announcement that Twitter would ban political ads on its social media platform.

And before people start screaming that Twitter’s decision is somehow violating someone’s rights, let me just say from the beginning, it’s not.  Plain and simple.  Not even close.

And, I hate to tell you, there are no Constitutional rights to smoke cigarettes or eat cheeseburgers either.   That statement may actually irritate some people a lot more than Twitter’s decision to ban campaign ads.  But it’s also true.

Continue reading Speaking Freely

“Dooced” Anyone?

I had grown a bit weary of my current job in the legal profession, so I thought I’d back track and check out the market in nursing.  After all, all of my colleagues had remarked, at one time or another, that I always had my first career to fall back on.

And, I was excited because I found a job where I thought I could put both my nursing and legal expertise to work as the director of nursing for a long-term care facility.  The hiring manager was even more so excited when he reviewed my resume.  It was the fastest phone call I ever received in response to an online job application.

My interview was set for just a few days away, but by the time I arrived at the facility, something drastic had changed in the way I was treated and by the demeanor of everyone I encountered in the building.  I was shuffled off to a dark conference room and told to wait.

Continue reading “Dooced” Anyone?

The FB Dilemma

As you know, I’ve been away from the keyboards for a while now.  I’ve been out breaking all of my previous hiking records.  Not that those records were all that impressive to begin with, certainly not in comparison to people who have made truly long treks, like the Arizona Trail, or the Pacific Coast Trail, or the Appalachian Trail.

But to me, they are milestones.

I’m not only learning more about and experiencing Nature in its great diversity, which makes me really happy.  🙂 But I’m beginning to test my own limits and learning where I need to “tone-up.”  Both physically and mentally.

I’ve also been able to disconnect for a while from the machines – the computers, the touch screens, the digital world.

And now it may be difficult to come back – at least in part.

You see, now I have severe questions about social media, its supposed purpose, and what’s actually happening with it.

Continue reading The FB Dilemma

Bullshit – Take 2 – Being “Woke” – Part 2

Ok, so yesterday I talked about how I had attempted to write a story about the use of the slang word “Woke,” and how I didn’t quite land on the mark with that first draft.  The post I was working on is part of a series I’ve waded into about the fray between gender roles, well, maybe gender behavior says it better.  See my previous posts, “Query” and “Tse’itsi’nako – Thought Woman ‘Being Woke’ – Part 1.”

So, here’s take two – on the Bullshit post. 😊

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Continue reading Bullshit – Take 2 – Being “Woke” – Part 2

Winter Solstice

It’s that time of year.  Gray skies.  Light-time fades.  Contracting days.  A barren landscape.

It’s the first day of winter.  The season of dying, or the twilight of life as people sometimes analogize.

For me, it’s an appropriate time to end a cycle.  The death of a lifetime within a lifetime.

Continue reading Winter Solstice

Framers, Federalists, and the Reality of the Administrative State

The Framers of the Constitution wanted to avoid the problems of the governments they were all running away from in Europe, so while they wanted a centralized government for certain functions, like taxation, printing a common currency and conducting wars, they also wanted less power in that centralized government to prevent abuses and more power vested in the individual states who theoretically would better be able to determine their specific jurisdictional policies and priorities.

They also wanted to form a Union, and concessions were required to get all of the states on board.

Of course, terminology in law is often stood on its head and “Federalism” has become one of those terms.  Federalism, generically speaks to the relationships between the federal and state governments and the original “Federalists” wanted some form of centralized government as opposed to those who did not.  But the term does not mean more “Federalization” of government, it means less.

The philosophy of the Federalist Society today advocates for a very limited federal government, for a strict constructionist view of the Constitution, and for strong adherence to the separation of powers doctrine.  That doesn’t sound so bad.

Except, “strict construction” and “strong adherence” are just as susceptible to legislative and executive manipulation and to judicial activism as is applying the “spirit” of the Constitution.  And laws and social policy are shaped and changed just the same by “textualists” as they are by “living documentalists.”

It is all a fight over words, definitions, and semantics, and it’s all highly partisan and politicized regardless of any faction claiming otherwise.

And, the reason I bring this up is because how this all intertwines with what has become the modern “Administrative State,” and the massive amount of power being wielded by federal and state agencies that weren’t created in the Constitution.  This seems not to have been contemplated by the Founders and certainly seems opposed to what modern-day Federalists all talk about.  So how did this come to be?

And again, standing language on its head we have the “Non-Delegation” doctrine flowing from Article I and the Separation of Powers doctrine.  So we have three branches of government that are supposed to stay put in their respective arenas, provide checks and balances, and not run around giving their authority away to the other branches or interfering with the authority of the other branches.

For example, Congress can’t pass a law that would allow the executive branch to pass legislation – they can’t delegate that authority away.  But the Non-Delegation doctrine has been stood on its head and has become a means of defining the opposite.  It is used to define just what authority Congress can delegate away and who gets to control that authority.

And while Congress largely gives away authority to the executive branch, it will at times, muck around with the authority of the courts by tinkering with structure and jurisdiction, and by dangling the power of the purse over the heads of the judiciary when they get upset over an unconstitutional law being struck down.

Turns out, the Constitution, over time, probably to the chagrin of the Federalists, has been interpreted to allow Congress to create executive branch level agencies.  They create agencies with what we refer to as “Organic” or “Enabling” statutes and while the agencies’ powers are limited by these statutes, Congress gave agencies a little boost by allowing them to promulgate “rules.”  And, gee whiz, rules, if properly promulgated, have the same force and effect as statutes.  Lawmaking.

When you think about it, Congress expanded the executive branch big time.  They created much more of it than the Constitution originally did and much more of it than people probably like.  And, then they delegated away some of their legislative power to the executive branch (rule-making), but we call this quasi-legislative authority.  And what the Legislature (Big “L”) giveth, it can taketh away.  Although changes may be slow.

This is true at both the Federal and State level and we have Administrative Procedures Acts at both levels to give agencies some guidance and fill in the gaps in the agency-specific Organic statutes.  And these procedures allow agencies to intrude into the Judicial branch too!  They give agencies quasi-judicial powers to hear and decide contested cases, subject to judicial review of course.

And guess what, since the executive branch enforces the law and agencies are by nature regulatory bodies, we naturally have executive prosecutorial functions as well.  So agencies can make the law, prosecute under that law, and convict you (so to speak) under that law, all under one roof.

Agencies do a little more than licensing and maintaining files of annual reports.

Of course, the legislature generally did not delegate any authority to agencies to run around imprisoning people as punishment for any types of violations, so once the agency “convicts” you, the only penalties agencies can implement have to be found in the statutes themselves or you have to go to court for yet another judicial proceeding.  The Sixth Amendment is still alive, for the moment.

Federal and State legislatures can’t be experts in everything and there is so, so much to regulate that we have evolved into a “Administrative State” that has multiple layers of regulation that come from authority delegated out to the Executive Branch by Congress or by State Legislatures.  And the executive agencies’ regulations and decisions are given considerable deference by the Courts because the agencies are the “experts” in their respective fields.

So while many people focus on the acts of the legislature, which is a good thing to do, they should also pay close attention to what’s happening at the state and federal agencies, because there is much more law and social policy setting going on there that has a much more immediate impact on the populous.  You can look at current environmental policies for example.

There, I just kind of laid out the framework for how agencies evolved.  I’m not trying to address how different administrations have used the agencies to implement particular agendas or the merits of specific agendas.  At least not today 🙂

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Photo:  My pocket Constitution.  These things are good little tools to have and it might be wise to read the Document once and a while.  The Constitution is actually pretty short.  And pretty amazingly well done.  The development of the Administrative State has shifted major powers to the executive branch, and that is partly why administrations do receive so much attention – because of the dramatic effect they can have on people’s day-to-day lives.

BTW: On a personal note.  Federal and state agencies have administrative law judges to preside over the quasi-judicial functions and trials at the agencies.  For part of my legal career I was a state Regulatory Law Judge.

About a year and a half ago, I applied to make the registry of qualified applicants for Federal Administrative Law Judges.  My understanding is they get 12,000 applicants when they open the registry, which is only opened about once every five years.  And they whittle that number down to 200 with an objective examination process.

They have been doing this since 1920 to ensure they get qualified applicants and to minimize the politicization of the process.

The competitive application process consisted of a series of examinations conducted by the Office of Personnel Management (OPM).  I made the list, scoring in that top 1.67% of the applicants 🙂 !! This didn’t guarantee me a position, but I could have been selected when there was a vacancy, subject to another interview process.

I recently received an email from the OPM informing me that our president, by executive order, terminated the competitive application process and eliminated the list of qualified applicants, thus doing what no other president has done since the registry’s creation and injecting politics into the selection process.  Selection by one, with no standard for qualifications.

Kind of sad, because the checks and balances set up by the Framers, and even those originally put in place by the independent branches, have been slowly getting whittled away, bit by bit . . .

 

 

All Lives Matter

Does anyone see anything wrong with this title?  I mean sure, we can add other value judgments and say maybe that criminals’ lives don’t matter, as much.  Or perhaps terrorists?  Surely their lives don’t matter, as much – compared to those doing good in the world.  But those are relative comparisons and still don’t affect the overall message.

If you believe in the sanctity of life or truly practice any form of religion, then it is hard to get away from this statement.  And I would expand it beyond the limitation of only human lives and say this applies to all life – humans, animals, plants, etc.

A strange thing happened, which is why I brought this up today.  This phrase was used as an accusation that I was diluting a conversation because I put forth the implied notion that all lives matter when that person believed the subject had to be restricted to only women in certain situations, specifically health care treatment.

So how did we get from point A to point Z?  Good question.

You see, it’s like this.  An article was posted on a social media platform that can be summed up in its opening sentence: “Every year, thousands of women suffer life-altering injuries or die during childbirth because hospitals and medical workers skip safety practices known to head off disaster . . .”  I’ve no doubt this is true, and bad medical practice has not only been a topic of many articles I’ve gotten published, but it is a pet peeve of mine as an RN who was dedicated to providing safe and quality nursing care.

So, I responded with posting links to two other articles.  The first was a general article about the annual number of deaths in America attributed to preventable medical negligence.  We’re talking 200,000 to 400,000 preventable deaths caused by medical negligence each and every year in this country – shocking!

The second was an article about how a medical device company actually pays doctors to get them to use an implantable birth control device that has injured women.  This article was more specifically related to the topic of women receiving bad health care in relation to reproductive care.

So far so good.

Then a woman posted a comment about women receiving inferior medical care and claimed that men would automatically receive better care.  I pointed out that in my 24 years of experience in the medical arena I did not always find this to be true.  I observed, more generally, that people with better insurance receive better care, and I’ve witnessed plenty of men receiving inferior care as well.

The response was that plenty of research studies (none were cited) demonstrated women receive worse care than men and that person did not appreciate me “derailing” the conversation with my “all lives matter” comments.  Humm, let that sink in a little.  I will also note that the original person starting the discussion did not seem to have issues with the topic being broadened a bit.

I responded that I didn’t think I was derailing anything.  Remember, I agree with the posting.  Many women do receive sub-standard health care.  I just added that I was a first-hand witness to people of all sexes, races and ethnicities being treated badly in health care, and in general, health care can be a pretty iffy gamble for everyone.

What’s the deal here?  Was the objection related to trying to label the biggest victim?  Hey look at me, my group is treated worse than yours!  Is this some type of a bragging point?  I don’t know.

What I do know is I switched careers and became an attorney to specifically fight for anyone victimized by bad medical practice.  I advocated for my patients, women and men, when I was a nurse.  And I did the same as an attorney.  In fact, most of the medical malpractice law suits I handled involved women and children clients.  I support and have actually fought for women’s issues.

I’m not interested in labeling and segregating and trying to make claims about who might be the biggest victim of something.  I realize that all people are not treated fairly.  I realize there is real bigotry in this country and it can play out in all sorts of fashions.

I don’t believe, to be politically correct, that anyone should be expected to acknowledge only certain forms of discrimination over others.  I believe all people should be treated equally, and as an RN and compassionate human being, yes, all lives matter.  Sorry, I don’t see that as a deficiency.

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Photo: I found this photo on the Internet in the public domain.  I traced it back to an online publication called Missouri Blogspot.  I had my own picture of an elk in Missouri, but it was an old photograph from the 70s and was very blurred out in my attempts to upload it to the computer.  The reason I wanted that Elk was it was actually in a fenced wildlife enclosure run by the state.  The week after I took its picture some idiot used the same observation platform I used to photograph it in order to shoot it with a bow and arrow to kill it.  The moron just wanted to kill something apparently and left the body of the defenseless caged animal there.  All lives matter and play their role in the ecosystem.

BTW: I posted this under the topic of health, but I suppose it could go under the topics of society or even politics.  It’s one of those issues that bleeds over into many subject classifications, but since the original discussion came out of a dialog on health care I placed it there 🙂