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Archive for the month “August, 2018”

Tactical Retreat: Maximum Gaines

My friend and co-worker Brian M. Lambert has founded an online sketch comedy project called Tactical Retreat which you can find here on Facebook and here on Youtube.

As Tactical Retreat releases new videos, I will post them here.  So far, I have found them rather funny and clever and they seem to get better with each release.

Here are the links to Tactical Retreat‘s previously released sketches:

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Yessource: Live in Bristow, 6/23/98

Here are my latest uploads to YesSource, my Yes rarities youtube page (about which you can read here).  This post is another addition to my series of Yes music posts and a collection of all my Yes-related posts is here.  Yes, of course, is a, if not the, premier progressive rock band, and I am an enormous fan of it.

You can see all of my Yessource uploads here.

My latest YesSource uploads can be found here:

Traffic Light Cameras Featured on Tucker Carlson Tonight

I have been writing in opposition to traffic cameras for a few years now (you can find all of my articles and posts on traffic cameras here).  They are consistently controversial and violative of basic rights and now they have been featured on Tucker Carlson Tonight!.

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Yessource: Live at the Hard Rock Cafe, NY, 6/15/98

Here are my latest uploads to YesSource, my Yes rarities youtube page (about which you can read here).  This post is another addition to my series of Yes music posts and a collection of all my Yes-related posts is here.  Yes, of course, is a, if not the, premier progressive rock band, and I am an enormous fan of it.

You can see all of my Yessource uploads here.

My latest YesSource uploads can be found here:

 

 

NBI Seminar: Child Custody and Visitation Rights: Motion for a Change of Custody or Visitation

As I have posted recently (see here), I  had the great opportunity to lead (perhaps “teach”) a continuing legal education seminar hosted by the National Business Institute (a.k.a. NBI, see here).  The subject was “Family Law From A to Z” and I had opportunity to speak on two main topics in particular: Custody and Ethics.  I was joined by four other capable attorneys who each had their own topics to present.

Although NBI published the materials, I retain the ownership of the portions I wrote, which I will post here in this blog.

Copied below are the materials I wrote for the section entitled “Child Custody and Visitation Rights: Motion for a Change of Custody or Visitation.”

Thanks!

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III.       CHILD CUSTODY AND VISITATION RIGHTS

B.   Motion for a Change of Custody or Visitation

A party to a custody order has a right to seek its modification.  Contrary to popular belief, one does not need to allege that there has been a change in circumstances in order to seek, or have, a modification of a custody order.  The form and process of drafting and filing a petition to modify custody is substantially the same as a complaint for custody and the series of hearings which follow are also the same.

            There are instances where an attorney files something entitled a complaint (or petition) to “Confirm Custody.”  It does not appear that such a filing is derived from an actual procedural category or practice.  Instead, it merely appears to be a standard complaint or petition for custody given a different title for, apparently, the sole purpose of giving the filer some sort of rhetorical capital or high ground, as “confirming custody” implies that person is already entitled to custody and is merely filing to “confirm” it.  Alternatively, it is sometimes used in situations where there is already an existing “informal” custody arrangement (i.e.: without a court order), and the person filing merely wishes to “confirm” that custody arrangement in a court order.  This merely appears to be a stylistic preference, and not based on any law or procedure, and, therefore, has no practical effect on a custody matter.

 

 

Native American Cannot Claim Religious LiIberty Defense In Prosecution for Unlawful Hunting

This is from religionclause.blogspot.com which you can find here:

In State of Washington v. McMeans, (WA App., Aug. 9, 2016), a Washington state appeals court upheld a trial court’s refusal to give the jury an instruction on a free exercise defense asserted by a Yakima Tribe designated hunter in a prosecution of him for unlawful hunting.  Defendant Ricky Watlamet killed 4 elk to provide meat for the funeral of a tribal elder.  The elk harvesting took place outside of elk hunting season on land of co-defendant who sought help to get rid of elk damaging her property.  Under an 1855 treaty, the Yakima tribe is allowed to hunt on “open and unclaimed lands,” but not private property.  The court said in part:

The defense presented substantial evidence that Mr. Watlamet had sincere religious beliefs and that he used the elk meat for religious purposes. However, he did not provide any evidence that the McMeans property was the only available location to obtain the elk meat. In fact, the record shows that Mr. Watlamet could lawfully hunt elk on State land, Federal land, tribal land, or any open and unclaimed land. The record also indicates that at the time in question there were numerous elk on the reservation as well as elk on state land adjacent to the McMeans property. Mr. Watlamet could have hunted these elk without running afoul of any regulation. He presented no evidence that either these particular elk or this particular place were necessary, preferable, or even convenient, nor has he presented any evidence that hunting the lawfully available elk was in any way burdensome.

You can learn more about this issue here.

State board concedes it violated free speech rights of red-light camera critic

I have been writing in opposition to traffic cameras for a few years now (you can find all of my articles and posts on traffic cameras here).  They are consistently controversial and violative of basic rights as described in the article below.

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A state panel violated a Beaverton man’s free speech rights by claiming he had unlawfully used the title “engineer” and by fining him when he repeatedly challenged Oregon’s traffic-signal timing before local media and policymakers, Oregon’s attorney general has ruled.

Oregon’s Board of Examiners for Engineering and Land Surveying unconstitutionally applied state law governing engineering practice to Mats Järlström when he exercised his free speech about traffic lights and described himself as an engineer since he was doing so “in a noncommercial” setting and not soliciting professional business, the state Department of Justice has conceded.

“We have admitted to violating Mr. Järlström’s rights,” said Christina L. Beatty-Walters, senior assistant attorney general, in federal court Monday.

The state’s regulation of Järlström under engineering practice law “was not narrowly tailored to any compelling state interests,” she wrote in court papers.

In April, Järlström joined with the national Institute for Justice in filing a federal civil rights lawsuit against members of the state engineering board. The suit contends state law and the board’s actions that disallow anyone from using the word “engineer” if they’re not an Oregon-licensed professional engineer amount to an “unconstitutional ban on mathematical debate.”

Järlström and his lawyers argued that’s not good enough.

They contend Järlström isn’t alone in getting snared by the state board’s aggressive and “overbroad” interpretation of state law.

They contend others have been investigated improperly and want the court to look broader at the state law and its administrative rules and declare them unconstitutional. In the alternative, the state law should be restricted to only regulating engineering communications that are made as part of paid employment or a contractual agreement.

“The existence of these laws and the way they’ve been applied time and time again has violated free speech rights,” argued attorney Samuel Gedge, of the national Institute for Justice. “Past history suggests the board can’t be trusted on how the laws should be applied constitutionally.”

Red light camera critic says state board quashing his free speech

Mats Jarlstrom, who has a bachelor of science degree in engineering from Sweden and has repeatedly challenged Oregon’s timing of yellow traffic lights as too short, was investigated by a state engineering board for the “unlicensed practice of engineering” and fined $500. He’s not alone.

Jarlstrom has a bachelor of science degree in engineering and has repeatedly challenged the state’s timing of yellow traffic lights as too short. The state board had fined him $500 for “unlicensed practice of engineering.” Järlström identified himself as an engineer in emails he sent to city officials and the Washington County sheriff challenging the traffic light signal timing.

Järlström’s interest in the matter stemmed from a red-light-running ticket that his wife received in the mail in 2013. Since then, Järlström has conducted his own studies, presented his findings to local media and “60 Minutes” and even to the annual meeting last summer of the Institute of Transportation Engineers.

Järlström is a Swedish-born electronics engineer. After serving as an airplane-camera mechanic in the Swedish Air Force, he worked for Luxor Electronics and immigrated to the United States in 1992, settling in Oregon. Currently, he’s self-employed, testing audio products and repairing and calibrating test instruments.

Another case cited in Järlström’s lawsuit, for example, is the state board investigation of Portland City Commissioner Dan Saltzman, launched after receiving a complaint in 2014 that the Voters’ Pamphlet described Saltzman’s background as an “environmental engineer.” Saltzman earned a bachelor of science degree in environmental and civil engineering from Cornell University and a master’s degree from MIT School of Civil Engineering.

He isn’t, however, an Oregon-licensed professional engineer. The board ended up warning Saltzman against using the word “engineer” in incorrect ways.

On Monday, U.S. Magistrate Judge Stacie F. Beckerman presented the state’s lawyer with several hypothetical scenarios, attempting to understand what constitutes professional or commercial speech: What if someone had paid Järlström to present his points, would that be commercial speech regulated by the state board? What if someone had hired Järlström pro bono to do research on the traffic light timing and present his findings, would that constitute professional speech?

If the court and the state’s lawyer are having trouble properly defining what constitutes “commercial or professional” speech on engineering that the state board can regulate, “how can we expect the board to apply these rules in a constitutional way?” Beckerman asked.

The judge pressed further: “If the board got it wrong in this case, why should the court defer to the board going forward?”

That’s why the state engineering board would have to exercise caution with each case, Beatty-Walters replied.

Järlström’s lawyer argued that the state essentially is trying to close Järlström’s case without allowing him to seek the relief he wants.

“The board’s proposed judgment goes nowhere close to what Mr. Järlström is seeking,” Gedge said. “Mr. Järlström should have the right to present his case for all of the relief he’s seeking.”

The judge said she will issue her findings in two to three weeks.

Both sides can then challenge the findings, and the matter would be referred to U.S. District Judge Anna J. Brown, who would decide whether to adopt the magistrate judge’s decision.

By: Maxine Bernstein and published on Oregon Live on December 4, 2017 and can be seen here.

NBI Seminar: Child Custody and Visitation Rights: A Petition for Visitation and/or Custody

As I have posted recently (see here), I  had the great opportunity to lead (perhaps “teach”) a continuing legal education seminar hosted by the National Business Institute (a.k.a. NBI, see here).  The subject was “Family Law From A to Z” and I had opportunity to speak on two main topics in particular: Custody and Ethics.  I was joined by four other capable attorneys who each had their own topics to present.

Although NBI published the materials, I retain the ownership of the portions I wrote, which I will post here in this blog.

Copied below are the materials I wrote for the section entitled “Child Custody and Visitation Rights: A Petition for Visitation and/or Custody.”

Thanks!

__________

CHILD CUSTODY AND VISITATION RIGHTS

  1. A. Petition for Visitation and/or Custody

Like nearly any other court case, all custody actions – regardless of how much custody is being sought (e.g.: primary, partial, or visitation, etc) – begin with the filing a complaint.  The Pennsylvania Rules of Civil Procedure provide for a standard form for a complaint, which can be found in Pa.R.C.P. Rule 1915.15 and 1915.16.

The various county courts in the Philadelphia area offer forms for custody complaints, and they can be found at the following websites:

 

  • Elements of a Complaint

As one can see from reviewing the forms mentioned above, a standard complaint for custody is to include, more or less, the following information:

Unlike a civil complaint, very little additional information or advocacy needs to be included in the complaint for custody.  The opportunity to advance additional information and/or advocacy is when interacting with the opposing party or attorney and/or at a hearing scheduled pursuant to the filing of the Complaint.  The purpose of the custody complaint is merely to get the most basic information before the court: who the case involves, what the Plaintiff wants, and an assertion that no other court has jurisdiction.

When requesting relief in the complaint, it is important to use the proper language which best describes why the Plaintiff is seeking.  23 Pa.C.S.A. §5322 lays out the terms and their definitions.  Pursuant 23 Pa.C.S.A. §5322, the relevant terms are as follows (as quoted directly from the statute):

  • legal custody: the right to make major decisions on behalf of the child, including, but not limited to, medical, religious and educational decisions.
  • sole legal custody: the right of one individual to exclusive legal custody of the child.
  • shared legal custody: the right of more than one individual to legal custody of the child.
  • physical custody: the actual physical possession and control of a child.
  • sole physical custody: the right of one individual to exclusive physical custody of the child.
  • primary physical custody: the right to assume physical custody of the child for the majority of time.
  • shared physical custody: the right of more than one individual to assume physical custody of the child, each having significant periods of physical custodial time with the child.
  • partial physical custody: the right to assume physical custody of the child for less than a majority of the time.
  • supervised physical custody: custodial time during which an agency or an adult designated by the court or agreed upon by the parties monitors the interaction between the child and the individual with those rights.
  • In a statutory provision other than in this chapter, when the term “visitation” is often used in reference to child custody, and may be construed to mean:

(1) partial physical custody;

(2) shared physical custody; or

(3) supervised physical custody.

In the vast majority of case, the only issue in dispute is physical custody as, unless there is unusual and/or extenuating custody (e.g.: incarceration, absence, abuse), the parents of a child are both presumed to have a right to shared legal custody.  As defined above, physical custody is when a parent actually has a child personally with him.  By contrast, legal custody is the right of a parent to have access to, and make decisions regarding, important parenting and lifestyle issues.

It is also important to observe the fact that the specific definitions of/for the terms above do not always coincide with popular or colloquial usage.  It is very common for a client, when consulting with his attorney, to use one or more of the terms above without reference to its technical, legal, definition; therefore, it is important to discern precisely what a client is seeking instead of assuming even a vague familiarity, much less a fluency, with the terms mentioned above.  For example, many clients, when consulting with their attorney or filing a custody petition on a pro se basis, frequently indicate they are seeking “full custody” of their children, despite the fact that no such designation exists; similarly, they often refer to “sole custody” in the same way.  In addition, it is not uncommon for someone to use the term “visitation” when he really means “partial custody.”  So, it is important to discern what the client actually means sometimes despite the precise words being used.

Armed Forces Court of Appeals Interprets RFRA In Military Context

This is from religionclause.blogspot.com which you can find here:

In United States v. Sterling, (US Armed Forces Ct. App., Aug. 10, 2016), the U.S. Court of Appeals for the Armed Forces held that a Marine Lance Corporal failed to establish a prima facie case under RFRA in defending against charges growing out of her work space posting of unauthorized signs containing Biblical quotations.  Appellant, in the wake of other personnel issues, posted 3 signs reading “[n]o weapon formed against me shall prosper.”  The signs did not indicate that these were Bible verses. She refused orders to remove them and was court martialed.  The majority held in part:

while the posting of signs was claimed to be religiously motivated at least in part and thus falls within RFRA’s expansive definition of “religious exercise,” Appellant has nonetheless failed to identify the sincerely held religious belief that made placing the signs important to her exercise of religion or how the removal of the signs substantially burdened her exercise of religion in some other way. We decline Appellant’s invitation to conclude that any interference at all with a religiously motivated action constitutes a substantial burden, particularly where the claimant did not bother to either inform the government that the action was religious or seek an available accommodation.

The court spelled out its understanding of what must be shown to establish that the government imposed a substantial burden on appellant’s religious exercise:

[W]hile we will not assess the importance of a religious practice to a practitioner’s exercise of religion or impose any type of centrality test, a claimant must at least demonstrate “an honest belief that the practice is important to [her] free exercise of religion” in order to show that a government action substantially burdens her religious exercise…. A substantial burden is not measured only by the secular costs that government action imposes; the claimant must also establish that she believes there are religious costs as well, and this should be clear from the record….

In contrast, courts have found that a government practice that offends religious sensibilities but does not force the claimant to act contrary to her beliefs does not constitute a substantial burden…. We reject the argument that every interference with a religiously motivated act constitutes a substantial burden on the exercise of religion.

Contrary to Appellant’s assertions before this Court, the trial evidence does not even begin to establish how the orders to take down the signs interfered with any precept of her religion let alone forced her to choose between a practice or principle important to her faith and disciplinary action.

Judge Ohlson dissented, saying in part:

Unfortunately, instead of remanding this case so that it can be properly adjudicated by the court below, the majority instead has chosen to impose a stringent, judicially made legal standard in this and future religious liberty cases that is not supported by the provisions of RFRA. Contrary to the majority’s holding, the plain language of the statute does not empower judges to curtail various manifestations of sincere religious belief simply by arbitrarily deciding that a certain act was not “important” to the believer’s exercise of religion.  Neither does the statute empower judges to require a believer to ask of the government, “Mother, may I?” before engaging in sincere religious conduct. And further, nowhere in the statute are service members required to inform the government of the religious nature of their conduct at the time they engage in it.

You can learn more about this issue here.

Yessource: Live in Budapest, 3/31/98

Here are my latest uploads to YesSource, my Yes rarities youtube page (about which you can read here).  This post is another addition to my series of Yes music posts and a collection of all my Yes-related posts is here.  Yes, of course, is a, if not the, premier progressive rock band, and I am an enormous fan of it.

You can see all of my Yessource uploads here.

My latest YesSource uploads can be found here:

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