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Movin’ on Up?

Sherman Alexander Hemsley, a native of Philadelphia, better known for his role as George Jefferson in “All in the Family” and “The Jeffersons”, and later as Deacon Ernest Frye on “Amen”, died in Texas on July 24, 2012, yet remained unburied in a freezer until November 21, 2012, due to a will contest in the El Paso, Texas probate court.  Although the court there recently upheld the will and authorized the executrix to make burial arrangements, the court’s order may be appealed, leaving Mr. Hemsley, while now interred and hopefully “moving on up”, potentially in limbo.  What law applies to burial in similar situations in Pennsylvania?

As a general rule, the Courts of the Commonwealth have long recognized that “the duty to determine when, where and in what manner the body shall be buried rests with the executor or administrator.”  Pettigrew v. Pettigrew, 207 Pa. 313 (1904).  But, this presumes that the Register accepted a will for probate, and that no one challenged the will, so that the Register granted letters testamentary to a personal representative of testator’s estate, which actually has instructions as to the disposition of testator’s remains.  Absent such clear instruction deciding on the disposition of testator’s remains generally does not fall to the personal representative of the estate.  See, Hodge v. Cameron, 132 Pa. Super 1 (1938).  A person cannot become the executor until the will is filed with the Register of Wills, it is accepted, and letters testamentary issue under seal of the Register confirming the appointment of the individual as executor of the estate.

Problematically, most Registers of Wills in Pennsylvania will not issue letters testamentary prior to disposition of the remains of the decedent and issuance of the death certificate.  Nothing in the Probate, Estate and Fiduciary Code (Title 20, “PEF”) specifically states that a death certificate must be produced to the Register in order for the Register to accept into probate testator’s will.  Among the prerequisites that the proponent of the will must produce to the Register is “a death certificate (or other appropriate proof of death)”.  Register of Wills of Philadelphia County Manual, Chapter 2 of Blue Book.  The Register may issue the letters testamentary on affidavit that someone died, provided that the death certificate is actually filed within a set period of time, subject to revocation of the letters testamentary if not timely filed.  The foregoing is uncommon and presumably the affidavit would require counsel executing the affidavit to state something regarding the disposition of decedent.  Consequently, the Courts of this Commonwealth have long recognized that under Pennsylvania’s probate system you cannot determine who is the executor or administrator and can act under the will until the party has duly qualified and has received his commission from the Register of Wills.   Potentially the executor could not qualify.  Hodge, supra.  11.

The Orphans’ Court Division has mandatory jurisdiction over the control of the decedent’s burial.  20 Pa. C.S. § 711(1).  However, the Courts have not relied on this section of the statute on its own.  See, In re Fontana, 72 Pa. D. & C.2d 287 (Allegheny County, Orphans’ Court Division, 1975) (holding that the Orphans’ Court Division lacks subject matter jurisdiction to consider a dispute between brothers regarding the use of crypts in a mausoleum).  Likewise, jurisdiction presumably includes disposition of the body via other means such as cremation, other than the granting of anatomical gifts of the body or parts of it which are governed by separate sections of the PEF.

The Courts have long held that a testator’s wishes regarding the disposal of his remains are entitled to respectful consideration, whether or not the decedent’s directions are followed.  Pettigrew v. Pettigrew, 207 Pa. 313 (1904).

A review of the case law does not indicate any Superior Court decisions addressing a situation where a decedent provided for disposition of his remains in his will, including which cemetery/plot to use and if cremation was selected or not, which someone challenged in court prior to internment.  The common law developed several factors in determining burial disputes, such as the desire of the testator in stipulating a specific burial location or method, requesting that his remains not be disturbed, requesting that no re-internment occur, requesting that burial occur in a specific religious method, etc…  See, Florence E. Novelli and Lloyd E. Carroll v. Pamela Kay Carroll and Whitemarsh Memorial Park, 278 Pa.Super. 141 (1980).  Indeed, in Novelli, the Court relied in part on Judge Cardozo (then sitting on the New York Court of Appeals) who established not a rule, but a process, to guide a court of equity to act in an equitable manner to protect someone’s grave while allowing for the possibility of the need of survivors to make decisions regarding the deceased.  Novelli at 151 citing Judge Cardozo in Yome v. Gorman, 242 N.Y. 395, 403-05, 152 N.E. 126, 129 (1926).

In 1998 the Legislature codified the law on this subject.  Thereafter, absent clear language in a will, or provision in a power of attorney granting an agent authority to make an anatomical gift of part or all of a body (20 Pa C.S. § 8611(a)), or waiver and agreement by those individuals entitled to make burial decisions, 20 Pa. C.S. § 305 governs who may direct the disposition of decedent’s remains.  If a person died intestate or without a valid will, or valid anatomical grant (see, 20 Pa.C.S. § 305(a)), the surviving spouse has priority in deciding the disposition of the remains of their spouse, absent an allegation of enduring estrangement, incompetence, contrary intent or waiver and agreement which is proven by clear and convincing evidence.   20 Pa.C.S. § 305(b).  If decedent did not leave a spouse, the next of kin shall have sole authority in all matters pertaining to the disposition of the remains of the decedent.  20 Pa. C.S. § 305(c).

The statute provides clear guidance on procedural aspects of obtaining a decision from the Orphans’ Court.  An interested party desiring to block the disposition of decedent’s remains must file with the Clerk of Orphans’ Court an emergency petition within 48 hours of the death or discovery of the body of the decedent, whichever is later.  Upon the filing of such a petition, the Orphans’ Court Division may order that no final disposition of the decedent’s remains take place until a final determination is made on the petition.   The Court then must hold a hearing to determine that “clear and convincing evidence establishes enduring estrangement, incompetence, contrary intent or waiver and agreement” and only then shall the court “enter an appropriate order regarding the final disposition which may include appointing an attorney in fact to arrange the final disposition, with reasonable costs chargeable to the estate”.   See, 20 Pa. C.S. § 305(d)(1).

However, in those instances when “two or more persons with equal standing as next of kin disagree on disposition of the decedent’s remains, the authority to dispose shall be determined by the court, with preference given to the person who had the closest relationship with the deceased.” See, 20 Pa. C.S. § 305(d)(2).

In order to minimize the filing of petitions without merit, the statute specifically authorizes the court to award attorney’s fees if the court makes a determination regarding when the petition is not supported by clear and convincing evidence, which if brought by an heir or beneficiary would be offset against their distribution from the estate.  See, 20 Pa. C.S. § 305(d)(3).

The statute specifically authorizes the that court may require the filing of a bond, but the amount is not set.  Whether the filing of the bond will be required concurrent to the filing of the petition, or perhaps only prior to the court issuing a decree enjoining the disposition of the remains of decedent is uncertain, and presumably each county can decide their own procedure in this regards.

While the codification would appear to simplify matters, case law on the subject continues to provide guidance in this matter.  Indeed, Judge Herron recently provided some guidance on this matter and noted that Section 305 should be construed in light of the prior relevant precedent.   See, Estate of Rose Weiss, Phila O.C. No.  1463 DE of 2009 (Judge Herron citing Kulp v. Kulp, 2007 Pa. Super. 70, 920 A.2d 867 (2007).  Judge Herron examined the issue in depth and determined that courts should look to objective criteria, particularly when it is clear that each sibling loved and cared for their parent.  Among objective criteria utilized was who the decedent chose as their agent for making health care and personal decisions.  Judge Herron noted that “although the statutory language of Section 305 became effective in 1998, the recent appellate precedent of Kulp v. Kulp, 2007 Pa. Super. 70, 920 A.2d 867 (2007) emphasizes that the provisions of section 305 should be construed in light of the prior relevant precedent”.

In another court, the judge utilized the “closeness” test and received into evidence the emotional closeness of one interested party and the decedent, in terms of the number of telephone communications, among other factors.  See also Estate of N.P., 22 Fid. Rep. 2d 473 (Berks Cty. O.C. 2002).

So, in Pennsylvania, if a relative who is the next of kin learns that decedent died, they can block probate of the will, engage in a will contest and obtain an order delaying the burial of decedent, just like what occurred to Mr. Hemsley.  His unfortunate situation illustrates the importance of having detailed funeral, burial and related instructions in a will, power of attorney, trust and related documents, as well as the necessity of coordination between the agent under a power of attorney and proposed executor and other fiduciaries, the providers of medical services, and the funeral home.  Relatives concerned about the funeral and burial arrangements of their next of kin need to inquire into the matter, and may have to engage in costly litigation at a time when they will be emotionally disturbed by the death of a loved relative.

Judge Cardozo, more than 90 years after his opinion in  Yome, supra, remains correct in his statement that it ultimately rests with the court as a matter of equity to determine disputes about burial arrangements.

By Adam S. Bernick, Esquire, Law Office of Adam S. Bernick and of counsel to the Law Office of Faye Riva Cohen, P.C.

2nd Circuit Enjoins Pending Appeal Vermont’s Exclusion of Catholic High School Students From Dual Enrollment Program

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

As previously reported, earlier this year a Vermont federal district court refused to issue a preliminary injunction to require the state to allow a student enrolled in a Catholic high school to participate in the Dual Enrollment Program that pays for high schoolers to take college courses. This week, in E.M. v. French, (2d Cir., Aug. 5, 2020), the U.S. 2nd Circuit Court of Appeals in a brief order granted an emergency injunction pending appeal, saying:

In light of the Supreme Court’s recent decision in Espinoza v. Montana Department of Revenue, 140 S. Ct. 2246 (2020), Appellants have a strong likelihood of success on the merits of their claims.
ADF issued a press release  announcing the 2nd Circuit’s action.
You can learn more about this issue here.

Templeton Project: Discipleship in Matthew and Apologetics XVII–The Judgment

Back in October 2015 I wrote about the inauguration of the Abington Templeton Foundation (see here).  The project is now underway (see here) and I will be posting our writing here.

Check out the latest piece entitled “Discipleship in Matthew and Apologetics XVII–The Judgment.”

See also:

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Moderns of whatever generation are not comfortable with the idea of judgment with some exceptions.    When judgments are made, another cries out, “Judge not.”  Of course, without judgment we could not have a court system or a church.  Criticism of judgments usually has to do with those made in reference to sex.  Our modern American culture is allergic to limits on sexual behavior except that pertaining to minors.  It is to be greatly feared that strictures in this regard will eventually fall.  Then, there will be no limits.  America needs to change direction in terms of its attitudes about this matter.  We need to teach our children that sex should remain within the bounds of the marriage covenant.  People will fall short, but this failure is no excuse for changing the rules.

In Matthew 18 Jesus warns those who would corrupt children.  “Whoever humbles himself like this child is the greatest in the kingdom of heaven.  Whoever receives one such child is the greatest in the kingdom of heaven.  Whoever receives one such child in my name receives me, but whoever causes one of these little ones who believe in me to sin, it would be better for him to have a great millstone fastened around his neck and to be drowned in the depth of the sea. Woe to the world for temptations to sin! For it is necessary that temptations come, but woe to the one by whom the temptation comes!”  (Matthew 18: 4-7 ESV)  Little ones, mentioned here, can also refer to adult Christians as well as children.

“Judge not, that you be not judged,” Jesus teaches in the Sermon on the Mount.  What does this mean?  It can not mean that all judgment is suspended.  Jesus teaches procedures for excommunication in Matthew 18 where he explicitly mentions the church as the agent of judgment on behalf of the Lord.  Jesus says to Peter and the other disciples here,” . . . whatever you bind on earth shall be bound in heaven, and whatever you loose on earth shall be loosed in heaven.”  (Matthew 18: 18 ESV)  This same command, described as the giving of the keys of heaven, is addressed to Peter and the other disciples at Caesarea Philippi in Matthew 16: 19. It is interesting to note that the word church, not used in any of the other Gospels, is used in both Chapters 16 and 18 of Matthew.  Christ gives the church the power of judgment against sin.

“Judge not that you be not judged.”  What Jesus means in this command is that one who judges will be judged in the same way.  The passive voice here refers to God.  God will judge us in the same way that we judge others.  Further we are to be aware of our own sins and shortcomings when we judge.  The speck in our brother’s or sister’s eye (members of the church) is matched by the log in our own eye.  We are to take the log out of our own eye before we attempt to take the speck out of another’s eye.  In other words,  we are to be aware of our own sin and take the recourse of repentance.  Any judgment must include judgment of ourselves.

So far, we have been talking about judgment among humans and in the church.  Let’s proceed to the judgment of God.  God judges through the church.  He will judge at the end of time when the Son of Man comes on the clouds of heaven.

In the Gospel of Matthew Jesus mentions the final judgment several times.  In the mission discourse in chapter 10 Jesus tells the disciples that judgment in the land of Sodom and Gomorrah will be more bearable than for that town that rejects them.  Similarly, the cities of Chorazin and Bethsaida where Jesus performed miracles will be judged because the people did not repent  In Tyre and Sidon the people would have repented long ago if they had seen the miracles of the Lord.  On the day of judgment it will be more bearable in Tyre and Sidon than in those towns.  The people of Nineveh “will rise up with this generation and condemn it, for they repented at the preaching of Jonah, and behold, something greater than Jonah is here.” (Matthew 12: 41 ESV)

In Matthew 19 the apostles are given the task  of judging the twelve tribes of Israel.  Responding to Peter’s exclamation, “See, we have left everything and followed you.  What then will we have?” (Matthew 19: 27 ESV)  Jesus responded, “Truly, I say to you, in the new world, when the Son of Man will sit on his glorious throne, you who have followed me will also sit on twelve thrones, judging the twelve tribes of Israel.” (Matthew 19: 27-28 ESV)

In Matthew 24-25 we find parables about judgment and a grand judgment scene.  The parable of the ten virgins is about readiness.  Five of the virgins had their lamps filled with oil; five do not.  When the coming of the bridegroom was announced, those who did not have oil went to buy some.  When they returned, the bridegroom told them that he did not know them. The moral is, “Watch therefore, for you know neither the day nor the hour.” (Matthew 25: 13 ESV)

The parable of the talents follows. In this story the individual given by his master only one talent does not produce more, that is fruit, and is thus thrown into outer darkness where there is “weeping and gnashing of teeth.” (Matthew 25: 30b ESV)

In the last section of chapter 25 Jesus describes a judgment scene where the sheep and the goats are gathered before the Son of Man, that is Himself.  The sheep reached out to those in need; and, therefore are invited into the kingdom; the goats, who were not obedient to the Lord, are sent to the eternal fire.  Jesus told both groups that when they served or did not serve those in need they served or did not serve Him.

In Chapter 24, just previous to the one we have been considering we read a version of what is commonly known as “the little apocalypse,”  found in all three of the Synoptic Gospels (Matthew, Mark, and Luke) with variation.  Jesus’ disciples ask Him, “Tell us, when will these things be, and what will be the sign of your coming and of the close of the age?”  (Matthew 24: 3b ESV)  The age is this time before the full coming of the kingdom; the age to come will occur when the kingdom of heaven comes in its fulness.  Jesus describes the signs of the end, the beginning of the birth pains, and warns against false Christs. He tells them of the persecutions against disciples that are coming.

In this time, “. . . many will fall away and betray one another and hate one another.  And many false prophets will arise and lead many astray. And because lawlessness will be increased, the love of many will grow cold. But the one who endures to the end will be saved. And the gospel will be proclaimed throughout the world as a testimony to all nations and then the end will come.” (Matthew 24: 10-14 ESV) While we await the end, our task is to extend the kingdom, commanded by the resurrected Jesus at His parting.

Natural signs in the heavens will bespeak the Son of Man coming on the clouds of heaven.  The elect will be gathered from all over the earth. Disciples must be ready at all times, for we do not know the day and hour when Christ will return (See Matthew 24: 42-44 ESV)  Like the wise virgins, we are to have our lamps full of oil when the bridegroom comes.

Disciples, committed to a defense of the faith and witness to others, learn from these texts of judgment that we are to witness to the Gospel right up to the end of time.  We need to pray for endurance to outlast persecution because of our commitment to Christ.  We are to anticipate an increase of wickedness and less commitment to the good.  We are not to predict when the end will occur, yet pray for its coming.  We are to serve people in need, especially brothers and sisters in Christ. The church is to render judgment toward those who live in persistent and unrepentant sin while members need to be very aware of their own sins and repent.

Our faith is one of the eschaton and telos, that is, we believe that history will end with the last things and the coming of the Son of Man on the clouds of heaven.  We believe in a judgment of sin and wickedness and the gathering of those chosen who have been faithful in word and deed, a faithfulness empowered by the forgiveness of sins in Jesus Christ, the Lord.

Michael G. Tavella

January 6, 2020

The Epiphany

Once Again, Progressive Anti-Christian Bigotry Carries a Steep Legal Cost

Last summer, in the days after the Supreme Court decided Masterpiece Cakeshop on the narrow grounds that Colorado had violated Jack Phillips’s religious-liberty rights by specifically disparaging his religious beliefs, a bit of a skirmish broke out among conservative lawyers. How important was the ruling? Did it have any lasting precedential effect?

For those who don’t recall, the Supreme Court ruled for Phillips in large part because a commissioner of the Colorado Civil Rights Commission called Phillips’s claim that he enjoyed a religious-freedom right not to be forced to design a custom cake for a gay wedding a “despicable piece of rhetoric.” The commissioner also denigrated religious-liberty arguments as being used to justify slavery and the Holocaust.

While all agreed that it would have been preferable had the court simply ruled that creative professionals could not be required to produce art that conflicted with their sincerely held beliefs, the question was whether Justice Anthony Kennedy’s strong condemnation of anti-religious bigotry would resonate beyond the specific facts of the case. For example, what would happen if, in a different case, state officials called faithful Christians who seek to protect the religious freedom of Catholic adoption agencies “hate-mongers”?

In the United States District Court for the Western District of Michigan, it turns out that such rhetoric has cost the state a crucial court ruling, granted a Catholic adoption agency a vital victory, and demonstrated — once again — that anti-religious bigotry can (and should) carry substantial legal costs.

The case is called Buck v. Gordon. My friends at Becket represent St. Vincent Catholic Charities, a former foster child, and the adoptive parents of five special-needs kids. The facts are relatively complicated, but here’s the short version: St. Vincent upholds Catholic teaching by referring same-sex and unmarried families who seek foster and adoption recommendations and endorsements to agencies that have no objection to providing those services. There is no evidence that St. Vincent has prevented any legally qualified family from adopting or fostering a child. In fact, same-sex couples “certified through different agencies” have been able to adopt children in St. Vincent’s care.

In 2015 the state of Michigan passed a statute specifically designed to protect the religious liberty of private, religious adoption agencies. In 2018, however, Dana Nessel, a Democratic attorney general, took office. During her campaign, she declared that she would not defend the 2015 law in court, stating that its “only purpose” was “discriminatory animus.” She also described proponents of the law as “hate-mongers,” and the court noted that she believed proponents of the law “disliked gay people more than they cared about the constitution.”

Then, in 2019, the attorney general reached a legal settlement in pending litigation with the ACLU that essentially gutted the Michigan law, implementing a definitive requirement that religious agencies provide recommendations and endorsement to same-sex couples and banning referrals. The plaintiffs sued, seeking to enjoin the relevant terms of the settlement, and yesterday Judge Robert Jonker (a Bush appointee) granted their motion for a preliminary injunction.

His reasoning was simple. There was ample evidence from the record that the state of Michigan reversed its policy protecting religious freedom because it was motivated by hostility to the plaintiffs’ faith. Because Michigan’s targeted St. Vincent’s faith, its 2019 settlement agreement couldn’t be truly considered a “neutral” law of “general applicability” that would grant the state a high degree of deference in enforcement.

Instead, the state’s targeting led to strict scrutiny. Here’s Judge Jonker:

Defendant Nessel made St. Vincent’s belief and practice a campaign issue by calling it hate. She made the 2015 statute a campaign issue by contending that the only purpose of the statute is discriminatory animus. After Defendant Nessel took office, the State pivoted 180 degrees. . . . The State also threatened to terminate its contracts with St. Vincent. The Summary Statement’s conclusion – that if an agency accepts even one MDHHS child referral for case management or adoption services, the agency forfeits completely the right to refer new parental applicants to other agencies based on its sincerely held religious beliefs – is at odds with the language of the contracts, with the 2015 law, and with established State practice. Moreover, it actually undermines the State’s stated goals of preventing discriminatory conduct and maximizing available placements for children.

The last point is key. As stated above, there was no evidence that St. Vincent prevented any qualified couple from adopting. In fact, if the state forced St. Vincent’s to choose between upholding the teachings of its faith or maintaining its contractual relationship with the state, then it risked shrinking the available foster or adoption options in the state of Michigan. The state demonstrated that it was more interested in taking punitive action against people of faith than it was in maintaining broader access to foster and adoption services for its most vulnerable citizens.

The judge rightly called the state’s actions a “targeted attack on a sincerely held religious belief.” Once again, Masterpiece Cakeshop pays religious-liberty dividends. Once again, a court declares — in no uncertain terms — that in the conflict between private faith and public bigotry, religious liberty will prevail.

by David French in the National Review on 9/27/19 and can be found here.

No I.D.? No Problem – Judge Blocks Pennsylvania Voter I.D. Law

            With the presidential election just a few weeks away, the upheaval in Pennsylvania over what voters must take with them to the polls has sparked a series of battles which is likely to continue.  Temporarily however, it seems that opponents of the photo I.D. law have garnered much success.

The new law, codified at 25 P.S. §§ 2602, 2626, 3050 and otherwise known as Act 18, signed in March 2012 by Republican Governor Tom Corbett in order to set a “simple and clear standard to protect the integrity of our elections,” mandates that potential voters furnish a standard government issued identification card in order to be able to cast a vote, has been a continual subject of political controversy especially in the wake of the upcoming presidential election.

The proposed law requires that “[a]t every primary and election each elector who appears to vote and who desires to vote shall first present to an election officer proof of identification.  The election officer shall examine the proof of identification presented by the elector and sign an affidavit stating that this has been done.”  25 P.S. § 3050.  Citizens voting in-person on Election Day must present one of several specified forms of photo identification.  This proof of identification must include the name of the individual, a photograph of the individual, and an expiration date that has not passed.  25 P.S. § 2602.

Several individuals and organizations (“Petitioners”) sought to enjoin the Commonwealth of Pennsylvania, Governor Thomas W. Corbett, the Secretary of the Commonwealth Carol Aichele, and their agents, servants, and officers from enforcing or otherwise implementing Act 18 and filed a request for preliminary injunctive relief with the Commonwealth Court of Pennsylvania for that purpose.  In this case, initially docketed under Applewhite, et. al. v. Commonwealth of Pennsylvania, 2012 WL 3332376 (Pa. Commw. Ct. 2012), Petitioners alleged that Act 18 and the photo identification requirement under the same violated the Pennsylvania Constitution on three (3) grounds:

  1. Act 18 unduly burdens the fundamental right to vote in violation of Article I, Section 5 of the Pennsylvania Constitution which states, in pertinent part, “Elections shall be free and equal…” PA. CONST. art. I, § 5.
  2. Act 18 imposes burdens on the right to vote that do not bear upon all voters equally under similar circumstances in violation of the equal protection guarantees of Article I, Section 1 and 26 of the Pennsylvania Constitution.
  3. Act 18 imposes an additional qualification on the right to vote in violation of Article VII, Section 1 of the Pennsylvania Constitution.

As the Petitioners did not possess a valid form of identification as required under Act 18, they argued that the new law would serve to cause them to be disenfranchised and/or severely burdened to comply with a new requirement.   The Commonwealth Court analyzed Act 18 under a standard that “weigh[ed] the asserted injury to the right to vote against the precise interests put forward by the State as justifications for the burden imposed by its rule.”  Crawford v. Marion County Election Board, 553 U.S. 181 (2008).  The burden “however slight … must be justified by relevant and legitimate state interests sufficiently weighty to justify the limitation.”  Crawford, 553 U.S. at 191.  Rather than apply a strict scrutiny standard in its analysis, the Commonwealth Court adopted the standard announced in Anderson v. Celebrezze, 103 S.Ct. 1564 (1983), and applied the “flexible standard” in their analysis.  Utilizing this standard, the Commonwealth Court found that the requirement of Act 18 is a “reasonable, nondiscriminatory, non-severe burden when viewed in the broader context of the widespread use of photo ID in daily life.  The Commonwealth’s asserted interest in protecting public confidence in elections is a relevant and legitimate state interest sufficiently weighty to justify the burden.”  Thus, the preliminary injunction was denied.  However, the Commonwealth Court noted that if strict scrutiny were to apply, they may have reached a different conclusion.

Upon appeal of the Commonwealth Court’s decision, the Supreme Court of Pennsylvania held that the Commonwealth Court erred by not conducting an assessment of availability of alternative photo identification cards prior to ruling on the preliminary injunction request seeking to delay the implementation of Act 18 stating that “the Commonwealth Court has made a predictive judgment that the Commonwealth’s efforts to educating the voting public, coupled with the remedial efforts being made to compensate for the constraints on the issuance of a PennDOT identification card, will ultimately be sufficient to forestall the possibility of disenfranchisement.  This judgment runs through the Commonwealth Court’s opinion, touching on all material elements of the legal analysis by which the court determined that Appellants are not entitled to the relief they seek.”  This case is docketed under Applewhite, et. al. v. Commonwealth of Pennsylvania, 2012 WL 4075899 (Pa. Sept. 18, 2012).  The Supreme Court’s ruling remanded the matter to Commonwealth Court to make a decision by October 2, 2012 and make a present assessment of the actual availability of the alternate identification cards, directing the Commonwealth Court to conduct a an analysis of whether the procedures used for deployment of the cards comport with the requirement of liberal access which the General Assembly attached to the issuance of PennDOT identification cards.  Applying this analysis, the Supreme Court stated that if the Commonwealth Court found that the law would not result in voter disenfranchisement, the court would be obliged to enter a preliminary injunction.

After hearing two (2) days of testimony, on October 2, 2012 Pennsylvania Commonwealth Court Judge Robert Simpson ruled that state officials can ask for photo I.D. at the polls but cannot restrain those who do not possess identification from voting as the underlying offending conduct is not the request to produce photo I.D. but rather one of voter disenfranchisement.

In his ruling, docketed under Applewhite, et. al. v. Commonwealth of Pennsylvania, 2012 WL 4497211 (Pa. Commw. Ct. October 2, 2012), Judge Simpson granted a preliminary injunction that temporarily halts enforcement of the law until after the November 6, 2012 presidential election citing the disqualification of eligible voters as the reason: “Consequently, I am not still convinced in my predictive judgment that there will be no voter disenfranchisement arising out of the Commonwealth’s implementation of a voter identification requirement for purposes of the upcoming election.  Under these circumstances, I am obliged to enter a preliminary injunction.”  Despite a rise in the number of state issued photo identifications, the number was not significant enough to convince Judge Simpson that potential eligible voters would be prevented from voting if the new law were implemented.  Even with the streamlined procedures outlined by the new law to allow voters without I.D. cards to obtain them, Judge Simpson stated, “I expected more photo ID’s to have been issued by this time.  For this reason, I accept Petitioners’ argument that in the remaining five weeks before the general election, the gap between the photo IDs issued and the estimated need will not be closed.”

The result?  Judge Simpson’s ruling means that: (1) the same policy that was in effect during the state’s primary earlier this year will continue to be in effect for the upcoming presidential election.  Voters, regardless of compliance with the law, will be able to have their vote count in the 2012 presidential election; (2) those who cast provisional ballots will not be required to return to their county election board within six days of the election to show proof of identification in order to have their vote count.

Pennsylvania, which is a swing state, has twenty (20) electoral votes up for grabs with President Obama currently leading according statewide opinion polls.  Yet, the Commonwealth of Pennsylvania has acknowledged that it has never seen a case of in-person voter fraud.

Although the new law may not be in effect in Pennsylvania for the upcoming November 2012 presidential election, this does not mean to say that it will never be implemented in future elections.  Judge Simpson’s ruling did not strike down the entire law as being unconstitutional.  In fact, he rejected efforts from those challenging the law to prevent state officials from educating voters about the Voter I.D. requirement.  Challengers to the law have also conceded that the part of the law which requires proof of identification for absentee voting does not harm would-be voters and may be implemented.

For Republicans who had hoped of having this law implemented for the upcoming presidential election in order to narrow the margin in favor of GOP presidential candidate Mitt Romney, all hope is not lost.  Although people may not be required to have photo identification for the presidential election, they are made aware of the law and believe that they will need it.  On the other hand, Democrats feel that the injunction is only a temporary victory, rather than an absolute victory.

Although the voter I.D. requirement may not have an impact on the upcoming November 2012 presidential election, Judge Simpson’s ruling is surely to invoke an appeal.  It waits to be seen whether future elections will be affected, but for now, at least temporarily, eligible voters can rest assured that they will be able to vote without fear of being turned away at the polls.

By Theodore Y. Choi, Esquire and originally published in Upon Further Review on October 24, 2012.

Satanic Temple Has Promissory Estoppel Claim After Its Permit To Erect Memorial Was Voided

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

In The Satanic Temple v. City of Belle Plaine, Minnesota(D MN, July 31, 2020), a Minnesota federal district court dismissed free exercise, free speech and equal protection claims by the Satanic Temple which objected to the city’s Resolution 17-090 which rescinded a prior resolution that created a limited public forum in Veterans Memorial Park. The earlier resolution allowed individuals and organizations to erect and maintain privately owned displays to honor local veterans and veterans’ organizations. The Satanic Temple had received a permit to erect a display, and spent substantial amounts for its design and construction, before the rescission. It argues that the rescission came about because of the controversial nature of its display.  The court said in part:

[A]lthough TST identifies the core tenants of its religion, TST fails to explain or allege facts that identify any central tenet of its religious beliefs that TST cannot exercise because of Resolution 17-090. Second, TST alleges no facts demonstrating that Resolution 17-090 prevents TST from expressing adherence to its faith. And third, TST fails to allege whether and how any activity that Resolution 17-090 prohibits is fundamental to TST’s religion.

The court however allowed Satanic Temple to move ahead with its promissory estoppel claim, saying in part:

TST sufficiently alleges that Belle Plaine should have reasonably expected that TST would expend time and resources to construct a display after receiving approval and that TST in fact expended such time and resources.

Finally, TST alleges sufficient facts that enforcement of Belle Plaine’s promise may be necessary to avoid injustice.

You can learn more about this issue here.

Templeton Project: Discipleship in Matthew and Apologetics XVI–The Resurrection

Back in October 2015 I wrote about the inauguration of the Abington Templeton Foundation (see here).  The project is now underway (see here) and I will be posting our writing here.

Check out the latest piece entitled “Discipleship in Matthew and Apologetics XVI–The Resurrection.”

See also:

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On the third day after the crucifixion Jesus rose from the dead.   An angel announced to two women who had come to the grave early in the morning that Jesus was raised from the dead. Though the angel told them that they would see Jesus in Galilee,  He appeared to them on their way to tell the disciples what they had seen and heard.  Jesus gave them the same instruction as the angel that they should tell the disciples that they would see Him in Galilee.  In the meantime, the guards at the tomb were bribed to tell other people that the disciples had stolen Jesus’ body.  The final scene takes place in Galilee where the resurrected Jesus commanded the disciples to go to all nations and baptize and teach them that they should observe all that He commands.

Jesus had announced several times to the disciples that after His death He would be raised up.  These predictions are found in Matthew 16, 17, and 20.  His predictions were fulfilled.

Jesus is involved in a dispute with the Sadducees who did not believe in the resurrection.  The Sadducees present Jesus with a bizarre example disproving the resurrection.  A woman marries seven brothers in succession.  Each one dies without leaving children.  Thus, his brother is obligated under the Law of levirate marriage (See Genesis 38: 12-30 and Deuteronomy 25: 5-10) to wed the wife of his dead brother so that the oldest son of this marriage could be regarded as the son of the dead brother.  In this way the name of the dead brother is not blotted out in Israel.  The antagonists ask Jesus who her husband would be in the resurrection.  Jesus responded by saying that marriage does not exist in heaven and that since God is the God of the living and the God of Abraham, Isaac, and Jacob who are with God there is a resurrection.

Two stories in the Gospel indicate the significance of the resurrection for us.  When Jesus died on the cross, the saints in Jerusalem left their graves and walked about in the holy city.  The death of Jesus is connected to the resurrection of His people.  The death of Jesus grants forigiveness of sins which opens the way to eternal life. It also indicates that Jesus’ own victorious resurrection is the event making our resurrection possible.

The second text appears at the very end of the Gospel where Jesus gives final instructions to the disciples.  They are to go to all nations, baptize them in the name of the Holy Trinity, and teach them to observe Jesus’ commandments.  And at the very end of this text (Matthew 28: 16-20), Jesus promises them that He would be with them until the end of the present age when His kingdom would come in all its fulness.   The promise is reflected in the text where Jesus tells the disciples, “Again I say to you, if two of you agree on earth about anything they ask, it will be done for them by my Father in heaven.  For where two or three are gathered in my name, there am I among them.”  (Matthew 18: 19-20 ESV) This text is reflected in a prayer in the Liturgy of Saint John Chrysostom and also in Morning Prayer in the Book of Common Prayer. This text is found only in Matthew. In Matthew the resurrection of Jesus means that we too will be raised with all the saints and that now before the end of this present age Christ is present among us.

When we are meeting the challenges of witness and the defense of the Gospel we are helped by our remembering that Christ is with us and that in the end we will share with Him in life everlasting.

Michael G. Tavella

January 1, 2020

The Circumcision and the Name of Jesus

Law360’s Weekly Verdict: Legal Lions & Lambs

Law360 (September 19, 2019, 3:25 PM EDT) — Akerman snagged a spot among the week’s legal lions after a jury awarded its model clients nearly $1 million for a swingers club’s unauthorized use of their images, while Hanshaw Burink was among the legal lambs with a loss at the Sixth Circuit for a client fired after golfing during medical leave.

Legal Lions

Akerman LLP clinched the top spot on this week’s legal lions list after a Miami federal jury on Monday ruled that a swingers club should pay the law firm’s clients, 32 models, a total of $892,500 in damages for using the women’s images to promote sex parties without getting their permission or paying them. The models are represented by Naim S. Surgeon, Lawrence D. Silverman, Akivia P. Bassaragh and Dianne O. Fischer of Akerman.

Next up on this week’s lions list are Hogan Lovells and King & Spalding LLP. A D.C. federal judge ruled in favor of their hospital clients Tuesday and found that the Centers for Medicare & Medicaid Services exceeded its authority last year when it cut payments by hundreds of millions of dollars for outpatient hospital care that’s not actually delivered on hospital campuses. The hospitals are represented by Catherine Emily Stetson and Susan Margaret Cook of Hogan Lovells and Mark PolstonChris Kenny, Joel McElvain and Nikesh Jindal from King & Spalding.

Dechert LLP earned a spot on the list Friday after a California federal jury cleared client Quest Diagnostics of allegations it stole Cedars-Sinai Medical Center’s trade secrets in a bid to develop a competing diagnostic blood test. Quest is represented by Jonathan D. Loeb, Christopher S. Ruhland, Blake Greene and Anna Do of Dechert.

Ogletree Deakins Nash Smoak & Stewart LLP secured a lion’s win for client Steak ‘n Shake Friday when the Sixth Circuit reversed a lower court decision, finding the restaurant chain didn’t have to notify a worker of her right to continued health coverage after she suffered an on-the-job knee injury. Steak ‘n Shake is represented by Eric P. Mathisen of Ogletree Deakins Nash Smoak & Stewart.

Last up on this week’s lions list are Quinn Emanuel Urquhart & Sullivan LLP and Coffey Burlington PL. The law firms’ client, tennis superstar Naomi Osaka, has prevailed over a former coach suing her for 20% of everything she’s worth after a Florida state judge said the contract in question was clearly unenforceable because Osaka was 15 when her father signed it. Osaka is represented by Paul J. Schwiep of Coffey Burlington and Alex Spiro and Luke Nikas of Quinn Emanuel Urquhart & Sullivan.

Legal Lambs

Kicking off this week’s legal lambs list is Hanshaw Burink PLC. The law firm’s client, a former mine worker who was fired after being caught golfing on days for which he took intermittent medical leave for shoulder pain, could not convince the Sixth Circuit to revive his retaliation suit, with the court saying Friday he was justifiably ousted for abusing his Family and Medical Leave Act rights. LaBelle is represented by Sandra Hanshaw Burink of Hanshaw Burink.

Next up on the lambs list are Lane Powell PC and Landman Corsi Ballaine & Ford. A federal jury awarded $16.75 million to three people in the first trial over a major Amtrak train derailment near DuPont, Washington, in 2017. Amtrak is represented by Andrew Yates of Lane Powell and John Bonventre of Landman Corsi Ballaine & Ford.

Bodman PLC ended up on the list Friday after the Federal Circuit affirmed that steakhouses at a Michigan hotel and New York’s John F. Kennedy Airport have confusingly similar names, rejecting the Inn at St. John’s argument that it was wrongly denied a trademark because the U.S. Patent and Trademark Office disregarded its own earlier decision. Inn at St. John’s LLC is represented by Justin Bagdady, Susan Kornfield and Michael Serra of Bodman.

The Third Circuit refused Tuesday to revive an American Airlines flight attendant’s suit claiming she was harassed by male colleagues in a Facebook group, saying the “crude” comments were not severe enough to trigger protection under federal workplace discrimination law, landing attendant Laura Medlin’s attorneys at the Law Office of Faye Riva Cohen PC on this week’s legal lambs list. Medlin is represented by Faye Riva Cohen and Brian M. Doyle of the Law Office of Faye Riva Cohen.

Last up on this week’s lambs list is Prince Lobel Tye LLP. The Federal Circuit delivered a likely end to a patent suit Uniloc brought against gaming company Big Fish Games over technology in data processing systems, refusing Friday to resurrect two patents a lower court found covered only an abstract idea. Uniloc is represented by James Foster, Paul Hayes and Aaron Jacobs of Prince Lobel Tye.

–Additional reporting by Cara Salvatore, Vin Gurrieri, Tiffany Hu, Adam Lidgett, Matthew Bultman, Nathan Hale, Craig Clough, Lauren Berg, Emily Brill and Ryan Boysen. Editing by Philip Shea.

Office Quarterly Newsletter: Employment Law Edition 7/20

My firm, the Law Office of Faye Riva Cohen, P.C., issues a newsletter from time to time, and, accordingly, we sent one out on July 21, 2020.  Our newsletter updates and informs our readers as to what articles we have published, what seminars we have led, what awards we have received, and what is going on with any other happening at our Firm.

In this newsletter we offer an update on Employment Law and Faye Riva Cohen’s appearance on WWDB-AM 860 radio program “Pain and Wellness Hour with Sonny Banks.”

If you wish to read our newsletter, you can do so here.  Thanks and be on the look out for our next newsletter!

2nd Circuit: Free Speech and Free Exercise Claims of Christian Adoption Agency Can Move Forward

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

In New Hope Family Services, Inc. v. Poole, (2d Cir., July 21, 2020), the U.S. 2nd Circuit Court of Appeals, in an 84-page opinion, reversed the dismissal of free exercise and free speech claims brought by a Christian adoption agency.  The court summarized the issues:

New Hope Family Services, Inc., is a voluntary, privately funded Christian ministry devoted to providing adoption services and authorized to do so in the State of New York for more than 50 years. New Hope professes that, consistent with its religious beliefs, it cannot recommend adoptions by unmarried or same-sex couples. It does not itself disapprove such couples; rather, it refers them to other adoption agencies. In 2018, the State’s Office of Children and Family Services (“OCFS”) informed New Hope that its policy respecting unmarried and same-sex couples violates the antidiscrimination mandate of N.Y. Comp. Codes R. & Regs. tit. 18, § 421.3(d). OCFS advised New Hope that it either had to change its policy or close its operation.

In reversing and remanding the case to the district court, the 2nd Circuit said in part as to plaintiff’s free exercise claim:

[W]e conclude that the pleadings give rise to a sufficient “suspicion” of religious animosity to warrant “pause” for discovery before dismissing New Hope’s claim as implausible.

In connection with plaintiff’s free speech claim, the court said:

New Hope asserts that, based on its religious beliefs about marriage and family, it does not believe and, therefore, cannot state, that adoption by unmarried or same-sex couples would ever be in the best interests of a child. It charges OCFS with requiring it to say just that—or to close down its voluntary, privately funded adoption ministry….

AP reports on the decision.

You can learn more about this issue here.

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