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A Deeper Look Into Your Vote.

By John Dietz - Email Editor

Date : July 1, 2008

Dear Valued Reader,

Consider for a moment that your vote toward a particular party may have a greater effect than your vote towards a particular candidate; a representative elected or appointed represents a set of core beliefs and ideals that are more important than particular issues. Who would have believed twenty years ago that the deciding issue over the presidential election would end up in the Florida Supreme Court?

GALLUP POLL PRINCETON, NJ -- Less than a majority of Americans approve of the job performance of each of the three branches of the federal government, with the Supreme Court rated most positively and Congress least positively. The ratings for all three branches approach the lowest Gallup has measured historically.

The checks and balances spread across the government, including the President, the Congress and the Supreme Court. Our participation in one political party or another makes more of a difference than a vote for a person.

The Supreme Court and their decisions do not always seem relative to our daily business decisions or our lifestyles. Although some decisions will have imminent affects, others will shape the future of our country over time.

Supreme Court appointees, appointed only by Presidential recommendation, are the single most important aspect of your vote and the power that you delegate to a particular party with legislative considerations being second. When a justice is nominated, Congress scrutinizes the position of that candidate to see on which side of the fence their beliefs will fall upon, liberal or conservative.

So how does a case get to the Supreme Court? One thing is that the “appellant” has gone through many “denials” or losses that greatly influence the outcome of future cases even before a Supreme Court decision can be rendered. These future cases do imminently affect our decisions in law, business and lifestyle; some of them you know from our newsletters on pension plans and insurance rulings.

The Supreme Court has discretionary jurisdiction to select from the approximately 7,000 to 10,000 petitions they receive every year. Of this certiorari (grant to move) between 100 and 150 are accepted, which is generally less than five percent. The justices meet to decide which cases have merit. The court currently has nine justices, but Congress has the power to increase or reduce this number. At the present time, to decide if a case is granted certiorari, the court uses The Rule of Four (four justices agree to move forward).

These cases answer the questions (over simplified due to incredibly complicated cases),

1. Do you have the right to bear arms in your home?

2. Is the death penalty for rape of a child cruel and unusual punishment?

3. In a dysfunctional financial market, can a public utility pass the “excess burden” onto the consumer?

4. Was the Exxon Company overly punished for the environmental disaster caused by the Exxon Valdez?

5. Does a Tribal Court have any jurisdiction over non-native citizens and visa versa?

6. When an assignee of a contact has pledged the proceeds to another assignee in litigation, does another creditor have the right to pursue the assignee’s contract?

7. Can the government, on its own, through the course of court procedure (such as appeals) increase a defendant’s sentence?

8. Does an initial appearance before a magistrate trigger the defendant’s sixth mmendment rights?

9. Does a candidate have the right to pursue litigation in the federal district of his candidacy pertaining to standing and jurisdiction against the Federal Election Committee?

In a nutshell, here is what the Supreme Court heard and decided this term.

District of Columbia et. al. v. Heller – District of Columbia law bans handgun possession by making it a crime to carry an unregistered firearm and prohibiting the registration of handguns; provides separately that no person may carry an unlicensed handgun, but authorizes the police chief to issue 1-year licenses; and requires residents to keep lawfully owned firearms unloaded and dissembled or bound by a trigger lock or similar device. Respondent Heller, a D. C. special police officer, applied to register a handgun he wished to keep at home, but the District refused.

Held - The Second Amendment protects an individual right to possess a firearm unconnected with service in a militia, and to use that arm for traditionally lawful purposes, such as self-defense within the home.

Kennedy v. The Supreme Court of Louisiana – Held - The Eighth Amendment (Cruel and Unusual Punishment) bars Louisiana from imposing the death penalty for the rape of a child where the crime did not result, and was not intended to result, in the victim’s death.

(This is an example of the powers in conflict between the state Supreme Court and the federal Supreme Court giving headway to the interpretation that gives power to the individual rights.)

Morgan Stanley Capital Group INC. v. Public Utility District No. 1 of Snohomish County et al – Held - The burden placed by the dysfunctional market in the consumption of energy (electricity), whether or not the contract adequately projected the “excessive burden” to the consumer, rates was the burden. Sierra’s “excessive burden” on customers was the current burden, not just the burden imposed at the contract’s outset.

Exxon Shipping Co. et al v. Baker et.al. – This is a consolidated civil case against the Exxon Valdez crash. Baker et al represents the consolidation of the Prince William Sound population who lost their livelihood.

At Phase I of the trial, the jury found Exxon and Hazelwood reckless (and thus potentially liable for punitive damages) under instructions providing that a corporation is responsible for the reckless acts of employees acting in a managerial capacity in the scope of their employment. In Phase II, the jury awarded $287 million in compensatory damages to some of the plaintiffs; others had settled their compensatory claims for $22.6 million. In Phase III, the jury awarded $5,000 in punitive damages against Hazelwood and $5 billion against Exxon. The Ninth Circuit upheld the Phase I jury instruction on corporate liability and ultimately remitted the punitive damages award against Exxon to $2.5 billion.

Held - The punitive damages award against Exxon was excessive as a matter of maritime common law. In the circumstances of this case, the award should be limited to an amount equal to compensatory damages.

Giles v. California – Regarding the Sixth Amendment – The Sixth Amendment guarantees a criminal defendant the fundamental right to be clearly informed of the nature and course of the charges in order to permit adequate preparation of a defense.

The Prosecutors introduced testimony from the dead victim regarding prior domestic abuse from defendant Giles.

Held - It concluded that Giles had forfeited his right to confront the victim’s testimony because it found Giles had committed the murder for which he was on trial—an intentional criminal act that made the victim unavailable to testify. The State Supreme Court affirmed on the same ground.

Plains Commerce Bank v. Long Family Land & Cattle Co. INC. et. al. – Petitioner Plains Commerce Bank (Bank), a non-Indian bank, sold land it owned in fee simple on a tribal reservation to non-Indians. Respondents the Longs, an Indian couple who had been leasing the land with an option to purchase, claim the Bank discriminated against them by selling the parcel to nonmembers of the Tribe on terms more favorable than the Bank offered to sell it to them.

The Eighth Circuit affirmed, concluding that the Tribe had authority to regulate the business conduct of persons voluntarily dealing with tribal members, including a nonmember’s sale of fee land.

Held - 491 F. 3d 878, reversed. - The Tribal Court did not have jurisdiction to adjudicate a discrimination claim concerning the non-Indian Bank’s sale of its fee land.

Sprint Communications Co., L.P., et al. v. APCC Services INC. et al. - Held: An assignee of a legal claim for money owed has standing to pursue that claim in federal court, even when the assignee has promised to remit the proceeds of the litigation to the assignor.

Many payphone operators assign their dial-around claims to billing and collection firms (aggregators) so that, in effect, these aggregators can bring suit on their behalf. After entering into these agreements, the aggregators (a group of pay phone contract holders) filed federal-court lawsuits seeking compensation from petitioner long-distance carriers.

Greenlaw v. United States - Petitioner Greenlaw was convicted of seven drug and firearms charges and was sentenced to imprisonment for 442 months. In calculating this sentence, the District Court made an error.

Held - Absent a Government appeal or cross-appeal, the Eighth Circuit could not, on its own initiative, order an increase in Greenlaw’s sentence.

Rothgery v. Gillespie County Texas – Texas police relied on erroneous information that petitioner Rothgery had a previous felony conviction to arrest him as a felon in possession of a firearm. After a probable-cause determination was made, bail was set, and Rothgery was formally apprised of the accusation against him. After the hearing, the magistrate judge committed Rothgery to jail, and he was released after posting a surety bond. Rothgery had no money for a lawyer and made several unheeded oral and written requests for appointed counsel. He was subsequently indicted and rearrested, his bail was increased, and he was jailed when he could not post the bail. Subsequently, Rothgery was assigned a lawyer, who assembled the paperwork that prompted the indictment’s dismissal.

Held - 491 F. 3d 293, vacated and remanded - A criminal defendant’s initial appearance before a magistrate judge, where he learns the charge against him and his liberty is subject to restriction, marks the initiation of adversary judicial proceedings that trigger attachment of the Sixth Amendment right to counsel. Attachment does not also require that a prosecutor (as distinct from a police officer) be aware of that initial proceeding or involved in its conduct.

Davis v. Federal Election Committee – A jurisdictional argument over which court has the authority to hear Davis’s case; Federal-law limits on the amount of contributions a House of Representatives candidate and his authorized committee may receive from an individual, and the amount his party may devote to coordinated campaign expenditures.

After the FEC informed him it had reason to believe he had violated §319 by failing to report personal expenditures during the 2004 campaign, he filed this suit for a declaration that §319 is unconstitutional and an injunction preventing the FEC from enforcing the section during the 2006 election. The District Court concluded sua sponte that Davis had standing, but rejected his claims on the merits and granted the FEC summary judgment.

Held - 501 F. Supp. 2d 22, reversed and remanded – Davis has standing to challenge the FEC in the District Court for the District of Columbia.

In viewing these cases, you may think that the subject matter has nothing to do with you, but analyzing the core concepts, you will begin to see that your vote in this election is a determination for your position on The Constitution of the United States.

This is the heart and most fundamental issue in Asset Protection. Rights to protect the world, begin with the individual. Without rights, we swim in a turbulent sea; without protection, civil obedience would surely decline. The order of our civilization at home sets the tone for our global challenges.

I think the 4th of July is a great time to mull over these thoughts. During the fireworks, take the time to think about how politics does affect us all.

MURPHY’S EIGHTEENTH LAW
The more urgent the need for a decision, the less apparent becomes the identity of the decision maker.

Until next time,
 
John

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