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Cert. Denied In Challenge To Alabama Prisoner Grooming Restrictions

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

“The U.S. Supreme Court yesterday denied review in Knight v. Thompson, (Docket No. 15-999, cert. denied 5/2/2016). (Order List.) In the case, the U.S. 11th Circuit Court of Appeals upheld the Alabama prison system’s grooming requirement that prohibited Native American inmates from wearing long hair, even for religious reasons. (See prior posting.) AP reports on the denial of certiorari.”

You can learn more about this issue here.

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When Are Prison Chaplains “State Actors”?

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

In an opinion recommending dismissal of an inmate’s First Amendment and RLUIPA claims, a California federal magistrate judge held that some decisions by prison staff chaplains do not amount to “state action” for constitutional purposes.  In Wolcott v. Board of Rabbis of Northern and Southern California, 2016 U.S. Dist. LEXIS 57528 (ED CA, April 29, 2016), plaintiff sued the former and current Jewish chaplains at the California Substance Abuse Treatment Facility because he was not allowed to convert to Judaism.  The refusal to allow his conversion stemmed from policies of the Southern California Board of Rabbis and the California Commission of Jewish Chaplains — to whom the various Department of Corrections Jewish Chaplains report– that disallow conversion by inmates serving life sentences. The court concluded that the chaplains were not state actors, finding that neither the “public function” nor the “joint action” doctrines applied here. The opinion reads in part:

Whether an inmate is a follower of a particular religion is an ecclesiastical answer to a religious doctrine, not an administrative determination; whereas a decision whether an inmate should be put on an internal prison list as following a particular religion is an administrative determination…, and Plaintiff does not allege that he is not on the list identifying him as Jewish for purposes within the facility, nor do his allegation imply this….

The only religious activities that Plaintiff alleges have been infringed on are that he was not allowed to attend [clergy visits from] the Aleph Institute … [or] purchase religious packages [from] the Aleph Institute that regarded him as a non-Jew…. Plaintiff was prohibited from engaging in religious activities in these instances by the Aleph Institute — which is an outside, religious organization that has not been, and cannot be, pursued in this action.

You can learn more about this issue here.

Christian Retreat Center Not Subject To Hotel Room Tax

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

“In Susquehanna County Commissioners v. Montrose Bible Conference, (PA Commonwlth. Ct., April 21, 2016), a 3-judge appellate court panel upheld a lower court’s ruling that a retreat center operated by a Christian religious organization is not subject to the county’s hotel room rental tax.  While most of the decision focused on a procedural issue, in a footnote the court set out the substantive conclusion:

Even if the County had preserved its issue in a post-trial motion, the trial court properly concluded that MBC is not subject to the hotel tax because the County failed to establish that MBC is a “hotel.”… [S]ection 3 of the Ordinance defines a “hotel” as a structure that holds itself out “as being available to provide overnight lodging . . . for consideration to persons seeking temporary accommodations.” Here, MBC holds itself out as a religious facility and does not provide lodging to persons merely seeking overnight accommodations.

PennRecord reports on the decision.”

You can learn more about this issue here.

Death, Divorce and the Division of Property and Estates

When a party dies during the pendency of a divorce matter, a question immediately arises: will the matter be resolved pursuant to the Divorce Code (i.e.: 23 Pa.C.S.A. Section 3323(d.1)) or the Probate Code (i.e.: 20 Pa.C.S.A. Section 6111.2)? While the statutes are fairly clear, there are times where a circumstance still needs to be sorted out by the court. Such a case arose in the Superior Court of Pennsylvania matter of In re Estate of Michael J. Easterday, Deceased, 171 A.3d 911 (2017).

In the Easterday matter, the decedent, Michael Easterday, passed from this life on Sept. 21, 2014, and was survived by his two sons, a daughter and his second wife. About a year before Easterday’s death (Aug. 13, 2013), the wife filed for divorce against Easterday. In or about December 2013, Easterday and the wife entered into a postnuptial agreement in which the parties agreed to waive any and all rights to the pension and retirement plan of the other, including any and all rights possibly available as a surviving spouse or beneficiary. The agreement also specifically states that it would remain in full force and effect without regard to future reconciliation, change in marital status, and entry of divorce decree absent a future written agreement.

 In November 2013, the wife furnished Easterday with an affidavit of consent to divorce pursuant to 23 Pa.C.S.A. Section 3301(c). Not long after, Easterday executed the aforesaid affidavit and returned it to the wife. The wife, for an unknown reason, retained the aforesaid affidavit for approximately six weeks (until mid-January 2014) before providing it to her attorney for filing. Pursuant to Pennsylvania law, an affidavit of consent must be filed within 30 days of its execution (i.e., approximately December 2013). Later in January 2014 the wife proceeded with the divorce and filed for a final decree, but Easterday died before a decree was entered. A decree in divorce was ultimately never entered as Easterday’s affidavit of consent was stale.

Critically, at the time of Easterday’s passing, the wife remained the beneficiary of his pension and life insurance policy. Upon Easterday’s death, the wife immediately withdrew the divorce matter and collected on Easterday’s pension and life insurance policy.

In response to the wife’s petition with the court seeking to compel the wife to preserve and return the pension and insurance money she received. The estate contended that the postnuptial controlled the distribution of the aforesaid funds (specifically that the wife was not entitled to receive them) and Easterday’s designation of the wife as beneficiary of his insurance policy became ineffective pursuant to 20 Pa.C.S.A. Section 6111.2. In response, the wife argued that the postnuptial did not apply as the beneficiary designations were never changed, that 20 Pa.C.S.A. Section 6111.2 did not apply as the affidavit of consent was “stale,” that the parties were reconciling at the time of his death, and because of those reasons, Easterday intended that the wife remain his beneficiary.

After a hearing, the trial court ruled that the estate was entitled to Easterday’s pension, as it was addressed in the postnuptial, while the wife could retain the life insurance proceeds as they were not addressed in the postnuptial. Both parties filed exceptions, which were unsuccessful, leading to appeals by both parties to Superior Court which issued the decision described herein.

23 Pa.C.S.A. Section 3323(g), which is part of the Divorce Code, states: “(g) Grounds established . . . (2)  In the case of an action for divorce under section 3301(c), both parties have filed affidavits of consent or, if the presumption in section 3301(c)(2) is established, one party has filed an affidavit of consent … (3)  In the case of an action for divorce under section 3301(d), an affidavit has been filed and no counter-affidavit has been filed or, if a counter-affidavit has been filed denying the affidavit’s averments, the court determines that the marriage is irretrievably broken and the parties have lived separate and apart for at least one year at the time of the filing of the affidavit.” In the Probate Code, 20 Pa.C.S.A. Section 6111.2(a)(3)(ii) states “this section is applicable if an individual … dies during the course of divorce proceedings, no decree of divorce has been entered pursuant to 23 Pa.C.S. Section 3323 (relating to decree of court) and grounds have been established as provided in 23 Pa.C.S. Section 3323(g).” When evaluating the applicable law mentioned above, the court raised Pa.R.C.P. 1920.17 as also applicable herein. Rule 1920.17 prohibits the withdrawal of a divorce (and its economic claims) if divorce grounds have been established and the Estate does not the consent. While the aforesaid Rule directly applies to 23 Pa.C.S. Section 3323, the court opined that the Rule should also apply to 20 Pa.C.S.A. Section 6111.2(a)(3)(ii) as it would be inappropriate to allow a surviving spouse the power to negate 20 Pa.C.S.A. Section 6111.2(a)(3)(ii) by simply discontinuing the divorce action unilaterally.

In reviewing the underlying facts of this matter, the court took note of the fact that the affidavit of consent was not filed within thirty days of its execution. As a result, the lower court determined that divorce grounds were never established. Although the Estate argued that the lateness of the affidavit does not negate what it argued was an intent to consent to the divorce, the court, relying on public policy considerations, ruled that a strict compliance with the Divorce Code is required. In the court’s view, the integrity of the family is to be protected and the seriousness of the dissolution of marriage warrants strict compliance with the deadlines and requirements laid out in the statute. Indeed, the court pointed out, the establishment of divorce grounds takes on an added significance when, not only is the dissolution of a marriage at issue, but, in this case, it would also determine whether the Divorce Code or the Probate Code applies. Furthermore, the court observed that Easterday had an extended opportunity of several months to rectify the “stale” affidavit before his passing, but chose not to do so. Based on the above, the court ruled that a “stale” affidavit of consent is insufficient to establish divorce grounds, especially in a matter where it is, in its estimation, far from clear that the decedent possessed an intent to divorce at the time of his death.  As a result, the Probate Code controls this case.

Ultimately, the court, applying 20 Pa.C.S.A. Section 6111.2, ruled that Easterday’s beneficiary designation on his life insurance is, therefore, valid, and the wife may retain the proceeds from the same.

In opposition to the estate’s arguments, the wife asserted that Easterday made a deliberate and conscious choice to give his pension to her through an irrevocable election that she be his beneficiary. Of course, the above is in direct conflict with the postnuptial, which, by its terms described above, definitively prohibits the wife from being such a beneficiary. The estate pointed out that the postnuptial was executed after the beneficiary election was made.

In reviewing the above, the court first noted that spouses may waive their right to the pension of the other if the waiver is specific. In its estimation, the postnuptial in the instant matter was clear and unambiguous, therefore its terms, namely that the wife waived her right to Easterday’s pension without regard to reconciliation, which could only be changed by a subsequent signed agreement, applies hereto.

Perhaps the most significant legal challenge to the postnuptial was the requirements of the Employment Retirement Income Security Act (ERISA). Pursuant to ERISA, a pension must be administered, and the proceeds therefrom distributed, according to the terms of the plan documents, and not alternative agreements, such as a postnuptial agreement. While acknowledging the applicability of ERISA to the pension in this matter, the court also indicated that, although ERISA may require the pension to be distributed to wife, the terms of the postnuptial can also apply by requiring Wife to turn over to the estate any and all sums she receives as a pension beneficiary.

In the end, the court entered a Solomonic decision to cut the pension “baby” in half: the wife can keep the life insurance policy proceeds while the estate is to receive from the wife the pension proceeds she received.

Originally published on December 26, 2017 in The Legal Intelligencer and can be found here.

Armed Forces Court of Appeals Hears Oral Arguments On Court Martial For Refusing To Remove Religious Signs

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

Yesterday the U.S. Court of Appeals for the Armed Forces heard oral arguments in United States v. Sterling. In the case, the U.S. Navy-Marine Corps Court of Criminal Appeals upheld a court martial conviction of a marine corps member for disobeying a lawful order to remove signs containing Biblical verses that she had taped up around her desk.  (See prior posting.)  Stars and Stripes summarizes some of yesterday’s argument:

Keller [representing the government] argued the Sterling was not punished for putting up religious signs, but rather for defying orders….

He also argued because Sterling never sought a religious accommodation and only raised the religious protections issue later, there was no argument that her religious freedoms were “substantially burdened” under the Religious Freedom Restoration Act.

Clement [representing Lance Cpl. Monifa Sterling] rebutted that because she invoked religious freedom later doesn’t mean that it’s not a fair consideration.

 You can learn more about this issue here.

The Myth of the Pagan Origins of Christmas

It is that time of year again!

The idea that typical Christmas traditions – like Christmas Trees, Santa Claus, or even its date – all somehow derive from paganism is so common that it has become almost a truism.  The pagan source is either described as something the Christian Church coopted and Christianized or merely as something that has survived as a historical or cultural accident despite the influence of the Church in Western Civilization.

As it turns out, the assumption that Christmas traditions are just pagan holdovers may, indeed, not be based on reality or historical facts but, rather, on unquestioned presumptions – a “conventional wisdom” if you will – based merely on the similarity between the traditions.

It appears, for one reason or another, scholars have recently taken another look at the origin of Christmas traditions, and their findings have revealed that the conventional wisdom about their origin appears to be mistaken.

Instead of rehearsing the facts and arguments myself, I would suggest checking out this article (see here (“Yes, Christ was Really Born on December 25: Here’s a Defense of the Traditional Date of Christmas” by Dr. Taylor Marshall on his website)) and this article (see here (“Calculating Christmas” by William J. Tighe on Touchstone)).

In addition to the above articles, I highly suggest watching this video:

This additional video is primarily addressed to Christians who object to Christmas trees on biblical grounds:

As it turns out, a great article by Daniel Lattier on this subject was recently published in Intellectual Takeout and can be found here and below:

It’s generally accepted that early Christians adopted December 25th as the day of Christ’s birth to co-opt the pagan celebration of the winter solstice. Some believe this fact undermines Christianity.

But according to Professor William Tighe, this “fact” may actually be a myth.

Based on his extensive research, Tighe argues that the December 25th date “arose entirely from the efforts of early Latin Christians to determine the historical date of Christ’s death.” He also goes so far as to claim that the December 25th pagan feast of the “’Birth of the Unconquered Sun’… was almost certainly an attempt to create a pagan alternative to a date that was already of some significance of Roman Christians.”

Tighe explains…

In the Jewish tradition at the time of Christ, there was a belief in what they called the “integral age”—that the prophets had died on the same days of their conception or birth. Early Christians spent much energy on determining the exact date of Christ’s death. Using historical sources, Christians in the first or second century settled on March 25th as the date of his crucifixion. Soon after, March 25th became the accepted date of Christ’s conception, as well.

Add nine months—the standard term of a pregnancy—to March 25th, and Christians came up with December 25th as the date of Christ’s birth.

It is unknown exactly when Christians began formally celebrating December25th as a feast. What is known, however, is that the date of December 25th“had no religious significance in the Roman pagan festal calendar before Aurelian’s time (Roman emperor from 270-275), nor did the cult of the sun play a prominent role in Rome before him.” According to Tighe, Aurelian intended the new feast “to be a symbol of the hoped-for ‘rebirth,’ or perpetual rejuvenation, of the Roman Empire…. [and] if it co-opted the Christian celebration, so much the better.”

As Tighe points out, the now-popular idea that Christians co-opted the pagan feast originates with Paul Ernst Jablonski (1693-1757), who opposed various supposed “paganizations” of Christianity.

Of course, to Christians, it really doesn’t matter that much whether or not they co-opted December 25th from the pagans, or vice versa. The Christian faith doesn’t stand or fall on that detail. But it’s nevertheless valuable for all of us to give closer scrutiny to shibboleths—such as that of the pagan origins of Christmas—which are continually repeated without being examined.

 

Student Sues After Suspension From M.S. Program Over Refusal To Counsel Gay Couples

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

“A suit was filed last week in federal district court in Missouri by a former student in the Masters in Counseling program at Missouri State University alleging that he was removed from the program because of his religious views on counseling same-sex couples on their relationships.  The complaint (full text) in Cash v. Governors of Missouri State University, (WD MO, filed 4/19/2016), alleges in part:

Plaintiff’s experience at MSU has been devastating, crushing, and tormenting, culminating in his termination from the program — all because he interned with a Christian organization and expressed his religious beliefs on a hypothetical question about counseling a gay couple on relationship issues.

… Plaintiff was targeted and punished for expressing his Christian worldview … regarding a hypothetical situation…. Since he did not give the “correct” answer required by his counseling instructors, he was considered unsuitable for counseling and terminated from the program.

Thomas More Society announced the filing of the lawsuit. AP reports on the case.”

You can learn more about this issue here.

New York Court Refuses To Dismiss Suit To Declare Muslim Marriage Valid

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

“In Jackson K v. Parisa G, 2016 N.Y. Misc. LEXIS 1487 (NY Sup Ct New York County, April 8, 2016), a New York state trial court refused to dismiss a suit by plaintiff who believed he had validly married defendant in an elaborate Iranian Islamic ceremony in New York, attended by 200 guests, even though the couple did not obtain a New York marriage license.  Alternatively plaintiff sought damages for fraud and conversion of a $25,000 engagement ring. A 20-minute ceremony was performed by Ms. Sholeh Sham, who now says she is not a member of the clergy and had no authority to marry the couple. Plaintiff however claims the marriage was valid under NY Domestic Relations Law Sec. 12 that validates marriages solemnized “in the manner heretofore used and practiced” by a particular religious denomination. The court said in part:

The court need not decide at this point whether it is possible for the court to determine the validity of the purported marriage on neutral principles. The ultimate issue is whether the ceremony meets the requirements set forth in DRL §12. Plaintiff argues that, in Defendant’s denomination, no particular religious leader must solemnize a wedding ceremony. Under New York law, an officiant at a religious wedding ceremony need not be limited to a traditional concept of a member of the clergy or a minister ordained by a religious order….. Whether Ms. Shams was qualified to solemnize the marriage is an issue of fact….

The court also allowed plaintiff to move ahead with his claim of fraud, saying:

Here, the complaint includes detailed allegations to the effect that the Defendant accepted Plaintiff’s marriage proposal and engagement ring on July 29, 2009…; that the Defendant told him that her family wanted to select the wedding  officiant to be certain that the marriage would be recognized in the Islamic Republic of Iran and valid under Iranian law….

… Plaintiff alleges that Defendant convinced him that Ms. Shams was authorized to marry them at the time she officiated at the September 4, 2010 Ceremony, and that they were actually married on September 4, 2010. Only after years of purported marriage did Defendant tell Plaintiff they were not married.

You can learn more about this issue here.

A Collection of Family Law Writings by James W. Cushing, Esquire

Over the course of my career, I have written extensively on a wide variety of family law issues and legal principles.  These writings have been published in The Legal Intelligencer, Upon Further Review, and The Pennsylvania Family Lawyer as well as posted onto my blog.  I have collected these articles and blog posts and have listed them below.  Thanks for reading!

Articles:

Musings:

Former Kosher Supervisor At Manischewitz Sues Over Pressure To Compromise Standards

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

A lawsuit was filed Wednesday in state court in New York by Rabbi Yaakov Horowitz who was a kosher supervisor for the Union of Orthodox Jewish Congregations (“OU”) and who certified products of Manischewitz Co.– a major producer of Passover foods– for more than 20 years.  As reported by NJ Advance Media and AP, the suit, filed just days before Passover, claims that Horowitz was forced to take a long leave of absence after complaining that he was being pressured by the OU to be more lax in his inspections of certain products.  Horowitz claims that OU cooperated because it was afraid that Manischewitz would move to a different kosher certifying agency.  Manischewitz denies the charges. The lawsuit seeks millions of dollars in damages for emotional distress and damage to reputation.

You can learn more about this issue here.

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