judicialsupport

Legal Writing for Legal Reading!

Archive for the tag “light”

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.

Advertisements

Speed cameras for Roosevelt Blvd. face hard road in Pa. legislature

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).  Evidently Philadelphia is trying to install speed cameras on Roosevelt Boulevard.  Thankfully the efforts to install them may not be fruitful as described in the article below.

__________________________________

Philadelphia planners hope speed cameras will play a significant role in the city’s effort to make streets safer, but first, the technology needs to be legalized. 

The path to legalization might be a rough one.

The effort was the focus of a panel Thursday morning at the Center City law offices of Montgomery, McCracken, Walker & Rhoads that was equal parts policy discussion, rally, and fund-raising event. The event was designed to boost support for pending legislation to allow the city to install speed cameras on Roosevelt Boulevard.

“It is absolutely necessary, and I don’t know another way to slow people down,” said Republican State Rep. John Taylor of Philadelphia, one of the bill’s sponsors.

Philadelphia has about 100 traffic-related fatalities a year (93 in 2017), and typically 10 percent happen on the Boulevard, she said. Of the nine fatal crashes on the Boulevard last year, seven involved pedestrians.

If authorized, cameras would snap an image of any vehicle driving 11 mph over the speed limit. The fine would be $150 for a first offense. The Boulevard would have up to nine speed cameras along nearly 12 miles, advertised by warning signs every two miles.

The legislation has been approved by the House transportation committee, which Taylor chairs. The challenge, he said, will be convincing House leadership to list the bill for a vote. That would need to happen by spring to give time for a vote in this legislative session, he said.

And there’s another deadline approaching: Taylor, who has championed the bill, is retiring when his term expires this year.

Taylor also noted the political landscape in Harrisburg, which just completed a grueling budget process. The Pennsylvania House speaker, Republican Mike Turzai, is running for governor, and the majority leader, Republican Dave Reed, is running for Congress.

In that environment, he said, getting legislators to focus on a bill that will result in more speeding violations for their constituents is a tough sell. Taylor has combined the  authorization for cameras on the Boulevard with another proposal for the cameras to be used on highway work zones to protect workers, something he thinks will be more palatable to legislators.

The Vision Zero Alliance, which is pushing safe streets efforts in Philadelphia, has hired a lobbying firm, Arena Strategies, to promote the bill and pitched to business leaders at Thursday’s session the need for $50,000 to fund the effort, said Jason Duckworth, a developer and member of the Delaware Valley Smart Growth Alliance.

One of the most horrific crashes on the Boulevard killed a woman and three of her children. Samara Banks, 27, was crossing Roosevelt Boulevard with her sister and four children in July 2013 when she was struck by a car that had been drag racing. The driver of that vehicle was found guilty of homicide by vehicle, involuntary manslaughter, and reckless endangerment, though convictions on third-degree murder were later reversed by an appeals judge.

“There’s people who don’t agree with the speed cameras,” said LaTanya Byrd, Banks’ aunt, who spoke at Thursday’s event. “We all want our lives to be safe. I just feel like we need to do this.”

Byrd noted that some call the road “the Killovard.”

Among the opponents is Thomas McCarey of the National Motorists Association, who says speed cameras are primarily a revenue generator for government. Making roads safer, he said, could be accomplished by timing traffic lights differently, adding more traffic enforcement, and putting crosswalks underground.

The Pennsylvania bill is written to keep the cameras from being a revenue generator, said Jana Tidwell, a spokeswoman from AAA. It ensures that the contractor responsible for the cameras would not make more money if more violations are issued, requires signs posted on roads to warn drivers that speed cameras are active in the area, and specifies that all revenue would go to the state’s motor vehicle license fund, she said.

The speed camera program would likely be operated by the Philadelphia Parking Authority, which is now responsible for the red light cameras in Philadelphia. Fifty of Philadelphia’s 134 red-light cameras are at nine Boulevard intersections, and violations have dropped there. Tidwell has said the cameras decreased right-angle crashes at those intersections.

The program, however, was marred by technical problems and mismanagement in 2016. Poorly calibrated cameras generated hundreds of thousands of false violations, which then had to be weeded out by PPA workers. That cost the agency $123,000 in overtime payments in 2016.

“Speed cameras will be an even bigger failure,” McCarey said. “Speed cameras won’t stop the 3 percent of wanton speeders endangering us all, only traffic cops can.”

Overtime costs were significantly lower in 2017 after adjustments made to the cameras, PPA officials said.

The National Transportation Safety Board studied the role of speed in fatal crashes and found it was a factor in almost a third of all traffic-related deaths nationwide from 2005 to 2014. The federal transportation watchdog recommended speed cameras as an effective way to slow down drivers, noting another study found the cameras reduced all crashes by 49 percent and serious injuries and deaths by 44 percent.

If the House passes the speed camera bill, it would need to go back to the Senate for a vote on amendments and then return to the House for a final approval before going to the governor.

By: Jason Laughlin, originally published on January 25, 2018 in the Philadelphia Inquirer and can be seen here.

 

 

 

RFRA Does Not Impact Bankruptcy Code’s Denial of Discharge

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

The Bankruptcy Code, Sec. 727(a)(2)(A) provides that a bankruptcy court should deny a discharge if the debtor has within one year of filing for bankruptcy transferred property with the intent to hinder, defraud or delay a creditor.  In In re Crabtree2016 Bankr. LEXIS 2922 (MN Bkr., Aug. 8, 2016), a Minnesota federal bankruptcy judge held that the Religious Freedom Restoration Act does not prevent applying this provision to a family’s donation of a box of 500 silver coins, valued at $12,000.00, to their church, Firestarters Worship Center.

You can learn more about this issue here.

Football Coach Sues Seeking Right To Pray At 50-Yard Line

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

Yesterday Bremerton, Washington, High School assistant football coach Joe Kennedy who was placed on paid leave for insisting on praying at mid-field at the end of games (see prior posting) filed suit against the Bremerton school district alleging free exercise, free speech and Title VII violations.  The complaint (full text) in Kennedy v. Bremerton School District, (WD WA, filed 8/9/2016), contends that Kennedy is compelled by his sincerely held Christian religious beliefs to engage in brief private religious expression at the conclusion of school football games. He offers a prayer of thanksgiving as part of a covenant he made with God.  The complaint argues that the school district’s directive which bans any “demonstrative religious activity” that is “readily observable” to students or members of the public is unconstitutional. The suit seeks declaratory relief as well as an order reinstating Kennedy and granting him a religious accommodation that allows him to pray at the 50-yard line at the conclusion of games.  Seattle Times reports on the lawsuit.  First Liberty has also created a website with details of the case.

You can learn more about this issue here.

Sikh Center Sues Under RLUIPA After Work On New Temple Is Ordered Stopped

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

NBC News reports on a federal lawsuit filed in the Eastern District of New York last week by the Guru Gobind Singh Sikh Center against the Town of Oyster Bay, New York.  In July– almost 17 months after approving the Center’s site plan for its new gurdwara– the town issued a stop work order and ordered an environmental review, saying that the construction departed from the site plan. Claiming that the town’s actions were taken to appease some residents who are hostile to the temple and its worship, the suit alleges violations of RLUIPA as well as the 1st and 14th Amendments. The new building, which replaces an older one that was on the same site, is already 82% complete. The Center has spent over $3 million on construction and on costs subsequent to the stop work order.

You can learn more about this issue here.

The Process of Subsidiarity

This article is part of my posts on the economic system of distributism.  This is from practicaldistributism.blogspot.com which you can find here:

____________

Many critics of distributism claim that what we want to achieve would require the expansion of state power and that we really want an all powerful state. What we actually advocate is the decentralization of government power. We want to distribute the various powers of government as close to the local level as can be practically achieved. This is because we promote the principle known as “subsidiarity.” Subsidiarity states that,

“A community of a higher order should not interfere in the internal life of a community of a lower order, depriving the latter of its functions, but rather should support it in case of need and help to coordinate its activity with the activities of the rest of society, always with a view of the common good.”                                      – Pope St. John Paul II

That sounds great, but how would it work?

Subsidiarity goes beyond the typical “states’ rights” argument put forward by the political conservatives of the United States of America. While some in the USA who argue for states’ rights might regard it as a necessary first step to further decentralization of government authority, others voice a “let the states decide” attitude which seems to indicate that their only real objection to certain government laws is the fact that it is the federal government imposing them. Their statements suggest that the same laws would be fine if imposed at the state level without any further decentralization of authority. Listening to some of their arguments seems to give the impression that they don’t really recognize that the centralization of power, even to the state government, makes government less democratic. The more power gets centralized, the more undemocratic the government becomes. They only seem to be concerned when the exercise of power crosses the line from state to federal authority. In reality, however, it is only at the local level that the average citizen really has a voice. Therefore, the more localized the authority, the more democratic the society.

The sad truth is that so many of us have become too accustomed to the idea that the higher levels of government is where problems really get solved. We pay more attention to state and federal elections than to local ones precisely because the authority which naturally belongs at the local level has been usurped by state and federal governments. “I will write my congressman,” and “I’ll take this all the way to the Supreme Court” became the reaction, and the reality, of how we view the political process. While we in the USA believe ourselves to be a bastion of democracy, we have allowed (and assisted) the gradual stripping of our democratic voice. This has gone beyond the making of our laws and the defending of our rights, but even to how we assist those in need. As a society, we have gotten to the point that we automatically look to higher and higher levels of government to resolve even local issues. It is sad, but it seems that most people believe that the higher the level of government, the broader its scope of authority.

Distributism, on the other hand, argues that the higher the level of government, the narrower its scope of authority. The question is how this can be applied in a practical and workable way. While there may be variations in application due to cultural differences in different regions, a basic outline can be presented as a starting point. The foundation of this outline is to understand the “orders of society” and their relationship to each other.

The “lowest” order of society is the family, not because it is the least important but because it is the most. It is the very foundation of society. Above that are religious, occupational and social groups which are free institutions for the mutual support and benefit of their members. The remaining “orders of society” would refer to the different levels of government starting with the local community and moving up from there, each fulfilling only those functions that, by their nature, cannot be fulfilled by the level immediately below it. From the distributist perspective, local issues should be handled as locally as possible. Even if an issue exists across a larger region, each locality should be left to direct how to handle it within its jurisdictional boundary to the greatest extent possible, even if assistance is needed from higher levels of society. This is a fundamental concept to understand about subsidiarity.

When an issue arises that needs to be addressed, the level of society where that issue arises is the natural point where the issue should be addressed. In cases where it cannot be addressed there, the members of that level would petition the next higher level of the orders of society for assistance. Therefore, if a family is in financial need and needs immediate assistance, they should naturally turn to those societal organizations like church, work association (guild) or other social organizations for assistance. If a particular vocation needs a school to provide training in the skills it needs, it should first look to the members of that vocational guild. If it cannot provide for itself, it can look to other guilds of the same vocation, or even discuss combining resources with other guilds to establish schools to meet their combined needs.

It is only if these first attempts cannot resolve the issue that governmental bodies should get involved, and then only by petition of the immediate lower level. If, for example, a lot of families in the community needed assistance and churches and other local associations found themselves unable to adequately provide that assistance, they could raise the issue to the city or to related organizations in other areas. If a city was not able to address an issue, it could ask nearby cities for assistance or raise the issue to the county. In this way, each level of society would render assistance based on the need asserted by the level immediately below it, and that assistance would not usurp any functions of the lower orders of society even if the higher order needs to coordinate the activities of the lower orders due to the nature of the situation at hand, like a natural disaster.

This process keeps as much authority as possible at the local level and, by doing so, preserves the ability of citizens to effectively curtail the usurpation of authority by higher levels of government. Because the greatest level of influence is the most local level, and because the individual citizen’s vote has its greatest influence at the most local level, this process preserves the greatest level of democracy for all.

Church Meeting Not Totally Immune From Judicial Examination

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

In Barrow v. Living Word Church, (SD OH, July 25, 2016), an Ohio federal magistrate judge refused to apply the ecclesiastical abstention doctrine to dismiss a suit by a former volunteer pastor who was removed from his position and from church membership, saying in part:

The Magistrate Judge agrees that the Free Exercise Clause requires this Court to abstain from judging the legitimacy of any Living Word decision about who is or can be a member or a clergyperson of their church or about whether it is proper to remove a person from either position on the basis of church moral judgment of that person’s behavior. If this were a case about those issues or indeed about interpreting church doctrine in any way, we would be required to abstain.  But the Free Exercise Clause does not shield church people from any secular court consideration of what happens in church meetings just because of where it happened. If a church meeting is used as a place to plan to commit torts involving third parties – which is what is alleged here regarding Living Word interference with Barrow’s book deals – ecclesiastical abstention will not shield the occurrences in the meeting from secular court consideration.

You can learn more about this issue here.

Following the ‘Wiseman’ Standard in Pa. Custody Battles Is Unwise

Although the so-called Wiseman standard, the standard by which shared custody arrangements were determined, stood for many years, the recent Pennsylvania Superior Court case of P.J.P. v. M.M., 2018 Pa. Super. 100, has officially declared the Wiseman standard obsolete and no longer applicable to Pennsylvania child custody matters.

In the matter of P.J.P., a custody case, the father appealed a decision in the trial court regarding his petition to modify a custody order that he believed was not sufficiently favorable for his custody goals.

The father and the mother are a divorced couple who obtained a child custody order in April 2016. This order granted the mother primary physical custody of the child. In January 2017, the father sought more custody, specifically shared physical custody, and filed a petition to modify.

At the trial, in August 2017, the court made many findings of facts that are directly relevant to its ultimate decision to deny granting shared custody to the father. For example, when the mother has custody she sends the father many photographs and videos and encourages the child to call the father. By contrast, the father does not want to call the mother during his custody times and sends no photographs and videos to the mother. The mother further claimed, and the father admitted, that he has insulted the mother in the presence of the child. He also admitted to telling the child to be sure to look up the instant case on Google Scholar when he is older to know what happened during the case. The mother is also conscientious in ensuring that the father has nice gifts from the child for holidays and such, while the father makes only modest efforts to reciprocate. The parties also had disagreements over the procedure and process for dropping the child off at preschool in the morning. The mother claimed the father refused to get the child ready and just dropped him off at her house, while the father claimed the mother “unilaterally” changed the procedure. Co-parenting counseling was also attempted by the parties. Unfortunately, while the mother was trying to fully invest herself in said counseling, The father refused to meaningfully participate, and the counselor believed the counseling was “not going anywhere.” Of course, the father has a different interpretation of much of the above, but the court made its findings, which favored the mother, after a complete review of the facts, testimony and evidence.

On appeal, the father challenged the denial of shared custody, arguing it was contrary to the best interests of the child. The Superior Court first noted that the trial court made certain credibility determinations that were within its discretion. The court then mentioned that child custody is governed by 23 Pa.C.S.A. Section 5328, which lays out 16  factors for the court to consider when making a custody determination. Superior Court observed that the trial court analyzed each factor and noted that most were either inapplicable or weighed equally for both; however, there were four factors (namely the likelihood to encourage and permit contact with the other party, availability of extended family, attempts to turn the child against the other parent, and the level of conflict and willingness to cooperate with the other party) which weighed heavily on the mother’s side. No factor weighed heavily on the father’s side.

The father argued that the trial court abused its discretion by failing to apply the Weisman standard. In Weisman v. Wall, 718 A.2d 844 (Pa. Super.1998), the court ruled that courts must make four findings when ruling on shared custody “both parents must be fit, capable of making reasonable child rearing decisions and willing and able to provide love and care for their children; both parents must evidence a continuing desire for active involvement in the child’s life; both parents must be recognized by the child as a source of security and love; a minimal degree of cooperation between the parents must be possible.” The father further argued that since he and the mother, in his view, meet the above four factors, shared custody should be awarded.

Superior Court ruled that the father’s reliance on Weisman is misplaced. As noted above, Weisman was decided in 1998 while Section 5328 became law in 2011. The court does not believe the difference between Weisman and Section 5328 is trivial. Specifically Weisman “required the court, before awarding shared custody, ‘to make at least a minimal finding that the parties were able to cooperate before awarding shared custody” while, under Section 5328, the court “must determine the best interest of the child by considering all relevant factors, including but not limited to, ‘the level of conflict between the parties and the willingness and ability of the parties to cooperate with one another.”’

Superior Court noted that the plain language of Section 5328 contradicts Weisman. Unlike Weisman, the court is not obliged to make any specific findings before awarding shared custody. Instead, the court must consider all 16 of the relevant factors, and poor cooperation need not be dispositive. In sum, therefore, Superior Court specifically described Weisman as obsolete.

Finally, the court explained that its citing to Weisman in the recent case of R.S. v. T.T., 1133 A.3d 1254 (Pa.Super.2015) does not belie the above analysis. In R.S., the court used the Weisman factors to supplement its own analysis where it seemed Section 5328 did not appear to lead to a reasonable conclusion in light of the available evidence. Moreover, the court in R.S. never once said trial courts “must” make Weisman findings. Instead, Weismanmerely holds persuasive value as the its factors have been assimilated into Section 5328.

Upon full review of the decision, it appears that P.J.P. has hammered the final nail into the casket of the Weisman analysis. Weisman, for all intents and purposes, no longer appears to be the law for Pennsylvania child custody.

Originally published in The Legal Intelligencer on July 5, 2018 and can be seen here.

11th Circuit: Florida Prisons Must Offer Kosher Food

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

In United States v. Secretary, Florida Department of Corrections, (11th Cir., July 14, 2016), the US 11th Circuit Court of Appeals held that under the Religious Land Use and Institutionalized Persons Act, Florida must provide kosher meals for inmates with a sincere religious basis for demanding such meals. The court wrote in part:

The Secretary argues that denying a kosher diet statewide is the least restrictive means of furthering Florida’s interest in cost containment, but she fails to rebut three arguments to the contrary. First, she fails to explain why the Department cannot offer kosher meals when the Federal Bureau of Prisons and other states do so…. Second, the Secretary fails to explain why the Department cannot offer kosher meals when it offers vegan, medical, and therapeutic diets at similar marginal costs…. Third, the Secretary fails to explain why the less restrictive alternative of enforcing rules that limit access to, and continued participation in, the program would not further her stated interest. The United States produced evidence that the Department is not screening out insincere applicants or enforcing the rules of participation in the program, and the Secretary does not contest that evidence. She instead responds that enforcing the rules would be too time intensive….

AP reports on the decision, pointing out that it was handed down only two days after oral argument in the case.

You can learn more about this issue here.

Anti-Islamic Group Sues Claiming Federal Law Shields Social Media Censorship

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

Yesterday the American Freedom Defense Initiative, its President Pamela Geller, its Vice President and the organization Jihad Watch sued the federal government contending that Section 230 of the Communications Decency Act shields Facebook, Twitter and YouTube when they censor anti-Islamic postings by plaintiffs.  The complaint (full text) in American Freedom Defense Initiative v. Lynch, (D DC, filed 7/13/2016), alleges that censorship and discrimination by social media outlets violate California anti-discrimination laws, but the CDA section on “Protection for ‘Good Samaritan’ blocking and screening of offensive material” allows Facebook, Twitter and YouTube to engage in discriminatory conduct. Among the allegations in the complaint against the social media sites are:

The discriminatory way in which Facebook applies its restrictions is evidenced by the fact that Facebook allows vicious posts and pages against Israel to stand, but when Plaintiff Geller and others expose the truth behind that Islamic hatred, the speech is prohibited.,,,

The Twitter policy, in effect, mirrors Islamic blasphemy standards as applied to censor speech critical of Islam, such as Plaintiffs’ speech.

The Center for Security Policy issued a press release announcing the filing of the lawsuit.

You can learn more about this issue here.

Post Navigation