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Archive for the tag “rule”

Ethics Complaints Are Newest Tool In Wars Over Same-Sex Marriage

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

Legal ethics complaints appear to have become the most recent weapon in the culture wars.  After the Southern Poverty Law Center filed a series of complaints with the Alabama Judicial Inquiry Commission against Alabama Chief Justice Roy Moore (see prior posting), an ally of Moore’s has turned the tables.  On July 28, Alabama attorney Trent Garmon and his wife Holly filed a complaint against Richard Cohen, president of the Southern Poverty Law Center, over Cohen’s comments attacking Moore for Moore’s actions opposing same-sex marriage.  As reported by AL.com, the complaint alleges that Cohen’s statements violated Alabama Rules of Professional Conduct, Rule 8.2 that provides;

A lawyer shall not make a statement that the lawyer knows to be false or with reckless disregard as to its truth or falsity concerning the qualifications or integrity of a judge,

Cohen’s comments included a statement that Alabama “elected [Moore] to be a judge, not a pastor;” Cohen called Moore a demagogue and the “Ayatollah of Alabama,” and said he is unfit for office.

You can learn more about this issue here.

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Settlement Reached In Suit Over Sheriff’s Religious Use of Department’s Facebook Page

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

A settlement agreement has been reached in American Atheists, Inc. v. Watson, a suit alleging that Bradley County, Tennessee Sheriff Eric Watson used the sheriff department’s Facebook page to promote the sheriff’s Christian religious beliefs. (See prior posting.)  According to an American Atheists press release yesterday, under the settlement the county will pay $15,000 in damages to American Atheists and the local plaintiffs as well as $26,000 in attorney’s fees.  Also under the settlement, the Sheriff’s Department  will create a new, information-only, Facebook page that will not be used to “promote or further any religion, religious organization, religious event or religious belief.” The original Facebook page has already been deactivated.  Sheriff Watson will be allowed to maintain a clearly marked personal Facebook page reflecting his personal opinions.

You can learn more about this issue here.

Traffic Light Cameras Featured on Tucker Carlson Tonight

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

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

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

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

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

You can learn more about this issue here.

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

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

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

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

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

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

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

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

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

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

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

Red light camera critic says state board quashing his free speech

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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.

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.

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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.

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