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Monthly Archives: October 2007

Take my wife, please (but pay $112K in punies)

[UPDATE: The Supreme Court denied cert in the case. See more here.] 

Average salary of a plumber: $37,000

Plumber finding true love: Priceless

Losing true love to a millionaire: $754,500 ($112,000 in punitive damages).

Now that millionaire, Mississippi real estate mogul Jerry Fitch, is asking the U.S. Supreme Court to step in and toss the punitive damage award in the “alienation of affection” case filed by his wife’s plumber ex-husband.

Fitch’s wife, Sandra, met her current husband when she went to work for his real estate company. At the time she was married to plumber Johnny Valentine, but she soon began an affair with – and became pregnant by – Fitch. After initially denying the affair, DNA testing on the child revealed what Valentine suspected.

While most states have eliminated the “alienation of affection” cause of action, reasoning that it is based on the antiquated notion that a man’s wife is his property, Mississippi has not – and Valentine sued Fitch on the theory and won the $754,000 award. Fitch appealed and lost. (If you are looking for more details on the case, you can find them in the Supreme Court of Mississippi decision here.)

Now Fitch wants the punitive award of $112,000 kicked (Perhaps he’s not as bothered by the $642K regular damages award for taking another man’s “property?”).  His argument: punishing adultery went out with the dark ages.

“There is simply no rational basis for state-sanctioned punishment of intimate association between consenting adults,” stated Fitch’s Court filing, seeking to stay the award until the Court can hear the appeal.

 UPDATE: SCOTUSBlog reports that Mr. Fitch is out of luck, as Justice Antonin Scalia denied his petition.

Roberts mum on Mitt, Roe and Gitmo

The Supreme Court justices are hot on the talk circuit this non-sitting week.

In addition to Justices Clarence Thomas, Samuel Alito, Jr., Ruth Bader Ginsburg and Antonin Scalia — all of whom have spoken at schools, churches and other venues over the past week or so — Chief Justice John Roberts, Jr. took the lectern before a crowd at Brigham Young University yesterday.

But during the Q&A session, Roberts steered clear of any political or Court case-related subjects — meaning those who asked his opinion about abortion cases, presidential candidate and former Massachusetts Gov. Mitt Romney, Guantanamo Bay detainees and gay marriage were out of luck.

Roberts did talk about the Constitution though, the Associated Press reports. When asked if the historic document is flawed, he said, “Any flaws? Ah, sure.”

“But the Constitution has endured through 220 years, through war and peace and all sorts of struggles,” he added.

Putting in her two dissents

The folks over at SCOTUSBlog got a hold of the text of Justice Ruth Bader Ginsburg’s speech at the 20th annual Leo and Berry Eizenstat Lecture in Atlanta Sunday, where she told the crowd what we already knew – her two dissents from the bench last term were meant not only to attract attention, but also to spur change.

In her speech about the importance of dissents in the U.S. judicial system, Ginsburg said she read her dissent from the bench in the “partial-birth” abortion case Gonzales v. Carhart to “appeal to the intelligence of a future day.”

Ginsburg said her second dissent from the bench in the employment discrimination case Ledbetter v. Goodyear Tire & Rubber Co. was aimed at lawmakers across the street from the Court. In that case, the Court’s majority held that the plaintiff’s gender discrimination case was barred by the statute of limitations, and that each new paycheck she received that was lower than those of her male counterparts did not restart the clock. She called on Congress to act.

“Several members of Congress responded within days after the Court’s decision [was]  issued,” Ginsburg said. “A corrective measure passed the House on July 31, 2007. Senator [Edward] Kennedy introduced a parallel bill, with 21 co-sponsors. The response was just what I contemplated when I wrote: ‘The ball is in Congress’ court . . . . to correct [the Supreme] Court’s parsimonious reading of Title VII.’

“But the fate of the proposed legislation has been clouded,” Ginsburg continued. “On July 27, the Administration announced that if the measure ‘were presented to the President, his senior advisors would recommend that he veto the bill.’”

Alito not ready for his close up

Justice Samuel Alito, Jr., isn’t a big fan of television cameras – inside or outside of the hallowed halls of the Supreme Court.

In a speech at the University of Virginia’s Center for Politics Friday, he said Supreme Court arguments would simply make for boring TV, and would pale in comparison to the riveting courtroom drama of “Judge Judy,” the Associated Press reported.

“I am concerned that if our arguments were televised we’d be competing neck and neck with Congress … for the lowest ratings that have ever been recorded by the Nielsen system,” Alito said.

The apparently camera-shy Alito also banned cameras and recording devices from the U.Va. talk, although he allowed reporters to attend and report on his comments.

Getting in on the action

Poker pros beware – starting next year Uncle Sam will know if luck was a lady for you.

Starting in March, casinos and other sponsors will be required to report players’ poker tournament winnings in excess of $5,000 to the IRS, the agency announced.

From the IRS press release:

Tournament sponsors who comply with this reporting requirement will not need to withhold federal income tax at the end of a tournament. If any tournament sponsor does not report the tournament winnings, the IRS will enforce the reporting requirement and also require the sponsor to pay any tax that should have been withheld from the winner if the withholding requirement had been asserted. The withholding amount is normally 25 percent of any amounts that should have been reported.

Something tells DC Dicta that sponsors would rather report winnings than fork over 25 percent of the players’ booty to the IRS, so poker players should come ready to give their tax ID numbers to the casino starting next year.

Meanwhile, other poker lovers, including former New York Sen. Alphonse D’Amato, are in Washington today to join with the Poker Players Alliance in lobbying to end the federal ban on online gaming for cash, at least for poker play.

D’Amato – who gave up his weekly poker game to come to the nation’s capital, USA Today reports, will tell lawmakers that poker is a game of skill – not chance – and therefore should not be subject to a ban. More here.

Ginsburg shows funny side away from Court

She may not leave them laughing inside the halls of the Supreme Court, but Justice Ruth Bader Ginsburg showed she does have a funny bone during a speech Sunday at an Atlanta synagogue.

The Atlanta Journal-Constitution recounts the following from Ginsburg’s talk to the congregants:

Speaking in the dry wit appropriate to her station, she explained that when she was one of nine women entering Harvard University Law School in 1956, the dean asked why they were filling positions that could have been filled by men.

One female student explained that since there were more than 500 male law students, Harvard was ideal husband-hunting territory. The woman, Bader Ginsburg added, never married and probably never had that intent.

The future Supreme Court justice’s response was equally disingenuous. The woman, who had entered Harvard married and with a baby, told the dean that her husband also was a law student.

“And I thought it was important,” the now 70-year-old woman said seconds before the congregation erupted in laughter, “for a wife to understand her husband’s work.”

Ginsburg also said if Roe v. Wade were overturned – something she doubts will happen – it would have a bigger impact on poorer women than on women of means. “It would have a devastating impact on poor women,” Ginsburg said.

Mukasey: A-C privilege waiver memo is no “club” (access required)

Last week’s confirmation hearings for AG nominee Michael Mukasey hit on the issue of the attorney-client privilege, and the controversial “McNulty Memorandum” which outlines federal prosecutors’ ability to encourage defendants to waive attorney-client privilege in order to cut a better deal.

Sen. Arlen Specter, who sponsored the “Attorney-Client Privilege Protection Act” now before Congress, which is designed to curtail that practice, had some questions for Mukasey on the subject:

“My concern arises on two fundamental propositions,” Specter said. “One is that the commonwealth, the government, the state has the burden to prove its case, and secondly, the right to counsel is a constitutional right. And the attorney-client privilege is an indispensable part of the constitutional right to counsel. . . . Is there any real justification for having a waiver on anything other than a purely, purely voluntary basis?”

“First of all, I should start out agreeing with you on how fundamental the privilege is,” Mukasey responded. “Absent the privilege, the right to counsel is nearly meaningless. You can’t be expected to disclose the facts to your lawyer so as to get good counsel if what you think you’re doing is disclosing them ultimately to the prosecutor.

“In the corporate setting, the overriding issue on whether to prosecute a corporation or not prosecute a corporation is what happened, who did it, how pervasive the conduct was, and whether all of this rises to the level that requires prosecution not only of individuals – because after all, corporations can act only through individuals – but of the corporation itself. And in the course of that, a lot of that has gotten lost with focus on looking for waivers of attorney-client privilege or other rights of the corporation.”

But Specter pressed on. “But the difficulty arises that if the privilege is not waived, there are tougher charges, you — the prosecuting attorney has vast discretion, as we all know, on charging. In many ways, the prosecuting attorney is the most powerful person in the government, said to have the keys to the jail in his pocket, not only on charging but on recommendation of sentence – an awful lot of coercive power. . . . If you plead guilty, it’s well-known to show contrition, that that’s to be taken into consideration as a mitigating factor. But why should failure to waive a constitutional right be an aggravating factor?”

“I think it’s not intended to be made an aggravating factor,” Mukasey answered, “but simply that if a corporation, through its individuals – which is the only way that a corporation can act – if there’s been a violation of laws, there’s always the question of whether the corporation should be prosecuted or not.”

“Do you think the McNulty memorandum is a solid approach to this issue?” Specter asked.

“I haven’t reviewed the McNulty memorandum recently,” Mukasey said. “I think it has to be examined very, very carefully. And there’s a point made that [it] is not to be used as a club, and a corporation is not to be told you’re not going to be [told that] if you haven’t waived the privilege, you haven’t been cooperative and the conversation stops here.”

Mukasey: A-C privilege waiver memo is no “club”

Last week’s confirmation hearings for AG nominee Michael Mukasey hit on the issue of the attorney-client privilege, and the controversial “McNulty Memorandum” which outlines federal prosecutors’ ability to encourage defendants to waive attorney-client privilege in order to cut a better deal.

Sen. Arlen Specter, who sponsored the “Attorney-Client Privilege Protection Act” now before Congress, which is designed to curtail that practice, had some questions for Mukasey on the subject:

“My concern arises on two fundamental propositions,” Specter said. “One is that the commonwealth, the government, the state has the burden to prove its case, and secondly, the right to counsel is a constitutional right. And the attorney-client privilege is an indispensable part of the constitutional right to counsel. . . . Is there any real justification for having a waiver on anything other than a purely, purely voluntary basis?”

“First of all, I should start out agreeing with you on how fundamental the privilege is,” Mukasey responded. “Absent the privilege, the right to counsel is nearly meaningless. You can’t be expected to disclose the facts to your lawyer so as to get good counsel if what you think you’re doing is disclosing them ultimately to the prosecutor.

“In the corporate setting, the overriding issue on whether to prosecute a corporation or not prosecute a corporation is what happened, who did it, how pervasive the conduct was, and whether all of this rises to the level that requires prosecution not only of individuals – because after all, corporations can act only through individuals – but of the corporation itself. And in the course of that, a lot of that has gotten lost with focus on looking for waivers of attorney-client privilege or other rights of the corporation.”

But Specter pressed on. “But the difficulty arises that if the privilege is not waived, there are tougher charges, you — the prosecuting attorney has vast discretion, as we all know, on charging. In many ways, the prosecuting attorney is the most powerful person in the government, said to have the keys to the jail in his pocket, not only on charging but on recommendation of sentence – an awful lot of coercive power. . . . If you plead guilty, it’s well-known to show contrition, that that’s to be taken into consideration as a mitigating factor. But why should failure to waive a constitutional right be an aggravating factor?”

“I think it’s not intended to be made an aggravating factor,” Mukasey answered, “but simply that if a corporation, through its individuals – which is the only way that a corporation can act – if there’s been a violation of laws, there’s always the question of whether the corporation should be prosecuted or not.”

“Do you think the McNulty memorandum is a solid approach to this issue?” Specter asked.

“I haven’t reviewed the McNulty memorandum recently,” Mukasey said. “I think it has to be examined very, very carefully. And there’s a point made that [it] is not to be used as a club, and a corporation is not to be told you’re not going to be [told that] if you haven’t waived the privilege, you haven’t been cooperative and the conversation stops here.”

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