San Francisco Paralegal Association

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  • 09/29/2017 7:22 AM | Denise Bashline (Administrator)

    Slate Magazine

    September 27, 2017

    By Henry Grabar

     

    The first time Shane Moon lost his driver’s license was in 2013, when his girlfriend was pregnant with his first child. Moon, a construction worker in Lapeer, Michigan, near Flint, was having trouble making ends meet and had let his car insurance lapse. “I don’t make a whole lot of money,” Moon said. “It’s the only thing I could possibly get away with not paying.” He got a ticket for driving without insurance and a special Michigan penalty called a “driver responsibility fee,” which can cost violators up to $1,000 over two years. He couldn’t afford to pay that either and missed his court appearance. His license was suspended, bringing on an additional reinstatement fee. But he had to keep driving to get to construction jobs, often 90 miles from home. Each time he was pulled over—often for his outdated tags—the state hit him with another ticket for hundreds of dollars.

     

    Four years later, Moon is homeless and struggling to keep up with tickets that have him paying as much as a third of his income to local and state governments each year for fines and fees alone. “My ship has sank. I don’t know how I’ll make it out of it this time. I feel like a total loser failing my family,” he told me. “If I can’t pay my tickets, shame on me, but don’t take my license away from me. Don’t take my standard of living away from me.” He continues to drive to work every day, without insurance or a license.

     

    Moon is one of tens of thousands of Michiganders who have been trapped in a cycle of debt and criminality stemming from a suspended driver’s license and the accompanying series of fines that begin with the state’s driver responsibility fee. The penalty was first proposed in 2003, by Michigan state Sen. Jud Gilbert, who sponsored a bill to create an automatic fine tacked onto vehicular offenses both mundane ($100 for hitting seven points on a license) and serious ($1,000 for murder). The state was in a financial crisis, but as the fee’s name implied, Gilbert thought the new penalties—suggested to him by the majority leader at the time—would improve driver safety. They were portrayed that way in the press, too: The Detroit Free Press’ driving columnist called the fee an “immaturity penalty.”

     

    In 2014, the Republican-controlled statehouse voted by an overwhelming majority to abolish the policy, in recognition that the fee had simply been a “money grab,” in the words of Joe Haveman, the representative who sponsored the repeal. Gilbert agreed with that view and regretted his sponsorship. “Quite frankly, before it was all said and done, it seemed like it was all about the money,” he told the Holland Sentinel at the time. The fee will be phased out by the end of 2019.

     

    In the meantime, however, it remains a heavy burden on Michigan’s poor. In the 2016 fiscal year, according to documents obtained through Freedom of Information Act requests by Equal Justice Under the Law, a group that is challenging the practice, the state assessed $40.4 million in fees for driving with a suspended license alone, collecting $26.7 million. Suspended license violations accounted for about half the state’s responsibility fees. Many of those people had their licenses suspended not for dangerous driving but because they were broke and couldn’t pay fees they had previously been assessed—in some cases, court debt for nondangerous offenses like parking tickets. The fee is a way that Michigan, after punishing debtors with license suspension, binds license suspendees with debt.

     

    The state had set a trap for hundreds of thousands of low-income residents. Without a license, drivers can find it nearly impossible to make the money to pay the fines and the ever-compounding late fees. Many of those caught driving with a suspended license—more than 40,000 Michiganders every year—find themselves drowning in debt.

     

    Over the past 15 years, dozens of U.S. states have moved to suspend more licenses for court debt, fines, and fees, and unrelated offenses. In 2006, nearly 40 percent of license suspensions in the U.S. originated with offenses like unpaid traffic tickets, drug possession, or unpaid child support—violations the American Association of Motor Vehicle Administrators, or AAMVA, categorizes as “social non-conformance.” That was a 34 percent increase from 2002, according to research by Robert J. Eger. The surge has left millions of Americans the choice between driving illegally and reorganizing their lives around alternative transportation. The first option leads to debt and trouble with law enforcement, the second to poverty and unemployment. Three in four Americans with suspended licenses choose to keep driving, according to the AAMVA. California Gov. Jerry Brown called the predicament “a hellhole of desperation.”  

     

    Michigan is one of a handful of states where lawsuits are underway against driver’s license suspensions for nondriving penalties and in which legislators are working to undo the policies. Virginia and Washington state both passed reforms to reduce punishments. In June, California abolished the practice, which has suspended more than 2.7 million licenses over the past five years for failure to appear in court or make payments.

     

    But in all those cases, advocates are finding that these laws are difficult to completely banish, thanks to courts that have become dependent on the lucrative status quo. What makes the suspensions so debilitating to Americans is exactly what has made them essential to cash-strapped state and local governments. In Michigan, the fee was adding approximately $100 million a year to the state’s coffers from people like Shane Moon. For the millions of drivers like Moon, however, a political change of heart about revenue-driven policing has brought no relief.

     

    As a punishment, license suspension has a lot in common with the revenue-driven policing practices that the Department of Justice found were rampant in Ferguson, Missouri, in its 2015 report on civil rights abuses in the St. Louis suburb. Like Ferguson, many cities and counties now consider fines and fees to be an important source of revenue, and design criminal justice policies accordingly. The threat of license suspension backs up the fines that keep the government funded.

     

    With license suspension in particular, those policies can be counterproductive, generating short-term revenue but forcing thousands out of the workforce. A 2007 study of the practice in New Jersey provides the most detailed evidence to date. New Jersey began slapping violation surcharges on drivers in 1983 to pay off a bond issue but subsequently used the money to plug various budget holes. Nearly a third of the state’s license suspensions stem from unpaid surcharges. Those suspensions, in turn, have had a devastating effect on employment. Forty-two percent of people lost their jobs after their licenses were suspended. Nearly half of them couldn’t find new ones. Nine in 10 experienced income loss.

     

    It’s a vivid demonstration of how work in this country is contingent on car ownership, even in the nation’s biggest cities. Nationally, barely 1 in 5 metropolitan jobs are located within three miles of the central business district, according to Brookings. More than 30 percent are three to 10 miles from downtown; nearly 45 percent are between 10 and 35 miles away. Historically, those who have lost the most from this arrangement are urban black populations, ghettoized in inner cities and suburbs by discriminatory housing policy. Woefully inadequate public transportation networks ensure that a car is the key to unlocking the job market.

     

    That’s only half the problem, explains David Silva, an employment specialist in Newark, New Jersey. Silva racked up nearly $20,000 in debt for suspended license infractions. It took him nearly a decade, and a personal bankruptcy, to pay it all off. Now, he has his license, lives in the tony suburb of Maplewood, and helps people like him find work. The jobs aren’t just suburban, Silva said. It’s also that having a valid license is a requirement for a whole range of low-skill positions, from car washes, parking garages, cab driving and delivery, to a swath of jobs at one of the region’s largest employers, Newark Liberty International Airport. “I get them a license, I get them a job like that,” he said, snapping his fingers.

     

    When California ended the practice in June, the state acknowledged the deleterious effects of debt-driven suspensions. “Often, the primary consequence of a driver’s license suspension is the inability to legally drive to work or take one’s children to school,” Gov. Brown wrote in his January budget proposal, endorsing an idea by Bob Hertzberg, a state senator from Los Angeles. The governor emphasized that there appeared to be no evidence that suspending licenses led to improved debt collection, rejecting a central argument for the practice.

     

    California is a case study in the obstacles that confront reformers. A previous iteration of Hertzberg’s bill was opposed by the California Police Chiefs Association and the California State Association of Counties, which noted that the bill “eliminates any incentive for individuals to pay outstanding debt for traffic violations … and does not address the underlying problem of exorbitant fines and assessments.” This year’s iteration of the bill was opposed by the California District Attorneys Association, whose director of legislation wrote to Hertzberg: “Some amount of responsibility must come with operating a motor vehicle and promising to appear in court when violating the rules of the road.”

     

    The repeal is a major victory for advocates, but nearly 500,000 Californians whose licenses were suspended will not get amnesty. In most places, legislative efforts to undo the harm come up against counties where user-funded courts fear reduced punishments. Tennessee’s law, which went into effect in 2012—around the time other states were starting to turn against the policy—was sponsored by a state senator at the behest of court clerks struggling to collect fines. The law, which has claimed more than 250,000 licenses, is being challenged in court.

     

    Other states have successfully limited the use of license suspensions, including Washington and Missouri. In New Jersey, Gov. Chris Christie approved a delay in suspensions stemming from unpaid parking tickets. Most of these policies are piecemeal. In Virginia, Gov. Terry McAuliffe called this January for scrapping license suspension altogether. Stopping people who owe money from getting to work and making money, he said, “makes no sense.” As of 2015, 900,000 Virginians—1 in 6 of the state’s drivers—had their licenses suspended for unpaid fines and court debt. The bill that passed both chambers of the Virginia statehouse gave courts more flexibility in fine assessments but fell short of several more substantive versions that had been proposed.

     

    As Republicans and Democrats in state legislatures have started to confront the devastating impact of license suspensions, another front has opened up in the courts. In California, Michigan, Tennessee, and Virginia, civil rights groups have filed lawsuits alleging that suspending the licenses of Americans who can’t pay fees or fines violates the 14th Amendment.  

     

    In November, the U.S. Department of Justice took the plaintiffs’ side in the Virginia case. Depriving a person of a driver’s license without notice or an adequate hearing constituted a due process violation, federal lawyers argued in a statement of interest. Suspending the license without figuring out whether the driver was simply unwilling or unable to pay, meanwhile, might result in punishing people for being poor, a violation of the Equal Protection Clause.

     

    A case in Michigan goes a step further, alleging that the loss of a driver’s license for nondriving issues is tantamount to a kind of geographic imprisonment, impinging on a “fundamental right to travel.” “They can take away someone’s right to travel, but there has to be a compelling need or a finite term,” said Phil Telfeyan, the executive director of Equal Justice Under the Law, which brought the suit. “Unless we can win this lawsuit or she wins the lottery,” he said of one of the plaintiffs, “she’s never going to get her license back.” In a country where transportation without a car can be impossible, a suspended license can be a kind of house arrest.

     

    Michigan may have rolled back its driver responsibility fees, but the state maintains it has the right to suspend licenses for unpaid fines. “A license to drive entails many financial responsibilities,” the state responded to the Equal Justice suit in a June court filing. “Driving privileges come with state-created strings that should not be severed by scissors sharpened on a wheel of unfounded claims of purported federal constitutional violations.”

     

    Lawyers who have challenged license suspension want states to institute more flexible payment schemes (like Virginia has done), recognize that different policies are required for indigent defendants, or restructure court funding to eliminate the incentive for judges to levy fees and fines. “As the amount of uncollected court debt increases and more driver’s licenses are suspended, everybody loses. The state Legislature loses, the counties lose, employers lose, our clients lose the most,” Theresa Zhen, who works at the East Bay Community Law Center in Oakland, California, told me before the state’s bill passed. Some of her clients use public assistance to pay off court debt. “They’ll never be able to collect that money.” One man I met in Newark, New Jersey, lobbied, unsuccessfully, to have his fines converted to jail time in an effort to escape his license debt.

     

    It’s true that the policies seem aimed solidly at scaring those who can pay, even if that means creating a permanent crisis for those who can’t. The state of Michigan has assessed more than $40 million in fees in each of the past four fiscal years from drivers with suspended or expired licenses, not including those that cause serious injury or death. It has collected just 60 percent of those fines in that time, indicating that a good amount of the debt is more or less permanent.

     

    The other option is for municipalities to simply take reform up themselves. In the city of Muskegon, Michigan, officials realized that the system condemned defendants to a life of debt. “Very often someone who lacked the financial ability to take care of the first ticket got their license suspended, and they could never get out of that cycle,” explained city attorney John Schrier. The city started offering reduced charges and no future suspensions to drivers caught with suspended licenses, and the county followed suit. “The entire goal was to get people back legally driving.” 

     

    That was progress, but that was 10 years ago. In the past three years alone, according to the lawsuit, more than 100,000 Michiganders have lost their driver’s licenses because they are too poor to pay court fees or fines. Even as the driver responsibility fee sunsets, debt-generated suspensions remain state practice.

     

    For those whose infractions are years or decades old, the new wave of legislative remedies is little comfort.

     

    Gary Reddick, 54, of Newark, New Jersey, had his license suspended decades ago and estimates he owes between $4,000 and $5,000 in related fines and fees. For years, he worked at the Impact medical device plant in West Caldwell, a suburb 12 miles northwest of the city. It took about 20 minutes to drive there but more than an hour on the bus. He carpooled with friends from work. In 2014, new ownership shut down the plant, and Reddick was laid off. He has machine work skills—he can operate a CNC machine, for example, a computer-driven precision cutting tool—but he’s had to turn down jobs that he can’t reach. Two of them were last week, he told me when we met in July—field service jobs fixing washing machines that can only be done with a car. “The jobs aren’t around here,” he explained.

     

    He keeps up hope. “I think I’d be a commodity if the paperwork was OK,” he said ruefully, referring to his suspended license. “I dream about the day I could go buy a car.”

     

     

     https://slate.com/business/2017/09/state-lawmakers-have-trapped-millions-of-americans-in-debt-by-taking-their-licenses.html

     

     

  • 09/28/2017 9:57 PM | Denise Bashline (Administrator)

    The California Report

    September 27, 2017

    By Marisa Lagos

     

     A sign for bail bonds on Bryant Street in San Francisco on Feb. 16, 2016.

    A sign for bail bonds on Bryant Street in San Francisco on Feb. 16, 2016.

     

    Last year, San Francisco began using an algorithm to assess whether someone accused of a crime and awaiting trial is safe to be let out of jail.

     

    Fifteen months later, prosecutors say the risk assessment tool appears to be working: According to information provided to KQED by the San Francisco District Attorney’s Office, just 6 percent of defendants who were released from jail based on the “public safety assessment,” or PSA, over those 15 months committed a new crime; 20 percent failed to appear in court.

     

    The findings come at a crucial time: California leaders are weighing legislation that could expand this type of risk assessment tool to all 58 counties in the state. Democratic lawmakers are pushing a bill — which Gov. Jerry Brown and California Chief Justice Tani Cantil-Sakauye have promised to support —  that would reduce the use of money bail and create pretrial service agencies, like the one in San Francisco that administers the PSA tool.

     

    Proponents of the change say the current system — in which bail amounts are set by courts based on the offense — punish poor defendants who can’t afford to pay it, while allowing people with money who are potentially dangerous to go free.

     

    Max Szabo, a spokesman for District Attorney George Gascón, said the data compiled in San Francisco indicate that the “PSA tool is beating money bail,” when it comes to keeping the public safe and ensuring that defendants show up in court.

     

    It’s impossible to make a direct comparison, because San Francisco doesn’t keep track of what happens to defendants released on money bail. But Szabo pointed to data compiled by the U.S. Department of Justice examining pretrial release outcomes in the 75 largest counties in the nation — including San Francisco.

       

    One report showed that double the percentage of defendants — 12 percent — were arrested while they were out on bail or on their own recognizance during May 2006.

     

    Another showed that in all of 2009, 29 percent of people out on bail or their own recognizance either committed a new crime, failed to appear in court or were taken back into custody for violating the terms of their release.

     

    Szabo said these numbers show that the PSA tool is more accurate than money bail at predicting whether someone should be released as they await trial.

    “Whether you’re using an algorithm or money bail, the criminal justice system is in the very difficult business of predicting criminal behavior,” Szabo said. “The key difference is that the algorithm assists counties with custody decisions based on a statistically significant prediction of pretrial behavior, as opposed to how much money you have in your bank account.”

     

    The PSA tool being used in San Francisco isn’t without critics — and nor is the larger practice of relying on computer algorithms to make criminal justice decisions.

     

    Created by the Laura and John Arnold Foundation, the PSA tool was given to San Francisco and 37 other jurisdictions for free. In San Francisco, its use flew largely under the radar until this summer, when it was revealed that a man accused in a robbery and murder on Twin Peaks had been determined by the tool to be fit for release.

       

    City officials said at the time that the tool wasn’t at fault — human error was: An employee at the pretrial services agency entered incorrect data about the man’s past. But after we published this story, Eileen Hirst, a spokeswoman for the San Francisco Sheriff’s Department, told KQED that the calculation was not incorrect and that city officials re-ran the numbers multiple times to make sure. Hirst noted that a judge still could have overruled the PSA tool’s recommendation.

     

    But critics seized on the mistake as evidence that these tools shouldn’t replace a court’s judgment. Supporters of risk assessment agree, saying that the risk assessment should guide, not determine, decisions for judges.

     

    And there are plenty of instances where someone out on bail committed a new crime.

       

    In San Francisco, for example, Randall Stovall was recently arraigned on charges of attempted first-degree robbery, attempted carjacking and assault on a transportation employee. Stovall was already out on bail for alleged human trafficking of a minor, attempted pimping of a minor and other felony charges when the alleged attack on a Muni driver occurred.

     

    He made bail after the most recent charges and is currently out of jail awaiting trial. He was not recommended for release under the PSA tool, but under the California constitution he has a right to bail.

     

    This story has been updated since it was initially published to reflect comments made by a spokeswoman for the San Francisco Sheriff’s Department.

     

     

     https://ww2.kqed.org/news/2017/09/27/bail-or-jail-tool-used-by-san-francisco-courts-shows-promising-results/

     

     

  • 09/28/2017 9:55 PM | Denise Bashline (Administrator)

    Washington Post

    September 26, 2017

    By Justin Wm. Moyer

     

     

     

    A sample driver’s license provided by the Virginia Department of Motor Vehicles. (Virginia DMV)

     

    Millions of drivers in the ­United States have lost their licenses for failing to pay court debts, according to a new report, and advocates say the practice unfairly punishes the poor.

     

    The report, released Tuesday by the Falls Church, Va.-based Legal Aid Justice Center, which represents low-income Virginians, says that 43 states and the District suspend driver’s licenses because of unpaid fines and fees, trapping people in a “vicious court debt cycle.”

     

    The study indicates that the licenses of more than 4.2 million people were revoked in the five states it studied: Virginia, Texas, North Carolina, Tennessee and Michigan. Those states were chosen because of existing litigation or because the numbers were readily available.

     

    Texas led the way, with 1.8 million licenses suspended for failure to pay. North Carolina was second with 1.2 million, and Virginia was third with 977,000.

       

    Among all states, just four require officials to determine whether defendants can afford to pay fines before suspending their licenses, according to the study, which says “virtually all” states that suspend licenses can do so indefinitely. In addition, 19 states require that licenses be suspended for unpaid fines.

     

    “Across the country, millions of people have lost their licenses simply because they are too poor to pay, effectively depriving them of reliable, lawful transportation necessary to get to and from work, take children to school, keep medical appointments, care for ill or disabled family members, or, paradoxically, to meet their financial obligations to the courts,” the report says.

     

    The Legal Aid Justice Center released the report about a year after filing a class-action suit that alleged that the licenses of more than 940,000 Virginians were suspended in an “unconstitutional scheme.” The suit explained the struggles faced by four plaintiffs, including Damian Stinnie, a Charlottesville man diagnosed with lymphoma who became homeless after failing to pay about $1,000 in traffic fines.

     

    A federal judge dismissed the class action in March, saying the issue should be decided by a state court — a decision that is under appeal. The Stinnie case opened the door for similar cases across the country, including in Michigan, California and Texas.

     

    “We actually had people contacting us from other states to ask for our complaint and to look at the litigation,” said Angela Ciolfi, a legal director at the Legal Aid Justice Center. “It was clear to us it wasn’t just a Virginia problem.”

     

    Adrian Fowler, a 32-year-old single mother of a 4-year-old daughter in Detroit, is the plaintiff in a federal Michigan class action filed in May that challenges that state’s “unconstitutional wealth-based suspension scheme,” the lawsuit said.

     

    Fowler has lived without a license since 2012, when she tried to renew it and learned it was suspended for unpaid tickets she received while living in Georgia, according to the lawsuit brought by Equal Justice Under Law, a Washington-based nonprofit that fights wealth discrimination. The first ticket was a citation for “obstruction of view” for a small windshield crack, Fowler said.

     

    Now, she estimates she owes $2,000 in two states. Fowler makes $8.90 per hour, Michigan’s minimum wage, working part time as a security guard and turned down a higher-paying job with her employer because of a lack of transportation. She also got a speeding ticket while driving her daughter to the hospital, according to the lawsuit.

     

    “Hopefully they will take accountability to stop this and work with people,” Fowler said. “A lot of these courts, they don’t care if you’re trying to go to school, buy a house, save college funds — they just want their money.”

     

    In a response to the suit, attorneys for Michigan’s secretary of state, the defendant in the case, said in a court filing that the issue shouldn’t be decided by a federal court and that “fines are rational.”

     

    “Those who commit an offense and are in the system . . . consume the system’s resources,” the response said. “Recouping some of those costs is long-standing, reasonable and permitted under the law.”

     

    The issue gained prominence in 2015, when a Justice Department investigation of the Ferguson, Mo., police department found law enforcement acting as a “collection agency” for state and local governments trying to raise revenue.

     

    Advocates for the poor say those struggling under court debts, especially in areas without access to public transportation, have a difficult time getting back on their feet.

     

    “Suspended licenses can trap people who are poor in an impossible situation: they cannot afford to reinstate their licenses without steady employment, but they are unable to work without a license,” the Michigan suit says.

     

     

     https://www.washingtonpost.com/local/trafficandcommuting/millions-of-drivers-lost-their-licenses-for-failing-to-pay-court-fees-study-finds/2017/09/25/c495aed6-9f01-11e7-84fb-b4831436e807_story.html?utm_term=.73588a065423

  • 09/28/2017 7:26 AM | Denise Bashline (Administrator)

    Bloomberg Law

    September 27, 2017

    By Bob Van Voris and Matt Robinson, Bloomberg News

     

    Lynn Tilton, whose aggressive management style made her a success on male-dominated Wall Street, won a Securities and Exchange Commission trial she’d spent months fighting to avoid.

     

    SEC administrative law judge Carol Fox Foelak ruled in favor of Tilton over allegations that she and her firm, Patriarch Partners LLC, bilked investors out of more than $200 million.

     

    “It is concluded that the violations” alleged by the SEC are “unproven,” Foelak wrote in her ruling issued Wednesday. “Thus, the proceeding will be dismissed.”

     

    The decision follows a three-week trial that ended last November. Tilton, who repeatedly argued that the SEC’s internal legal process is unfair to defendants, went all the way to the U.S. Supreme Court in her unsuccessful efforts to have the case heard in federal court, rather than before an SEC administrative judge.

     

    Long Career

     

    In a finance career that’s spanned more than three decades, Tilton has gained notoriety for her unique spin on the common Wall Street practice of buying failing companies and then trying to turn them around. What set Tilton apart is that she owned the struggling businesses, while also controlling investment funds that lent them money. She did this by raising cash from clients and using it to buy securitized debt that was largely backed by loans to her portfolio companies.

     

    The SEC sued Tilton in March 2015, alleging she defrauded her investors by telling them the loans were sound even though the companies had made partial or no interest payments for years. The agency sought the return of more than $200 million in fees that Patriarch collected for managing clients’ money. In a 57-page decision, Foelak said the SEC failed to prove that Tilton overvalued loans to her portfolio companies in order to charge her investment clients higher management fees. The judge found that Tilton didn’t conceal material information, including the interest rate and principal on the loans, and the amount of interest that was actually being paid.

     

    “We said all along that Lynn Tilton was innocent of these charges, had been falsely accused and we’d prove it at trial,” Tilton’s attorney, Randy Mastro, said by telephone after the decision was released. “That’s exactly what we did. She’s an innocent person who never should have faced these charges. Now she has been vindicated and justice has been done, thank God.”

     

    Judy Burns, an SEC spokeswoman, declined to comment on the decision.

     

    Tilton’s Defense

     

    Tilton argued throughout the SEC’s investigation that her investors gave her discretion to change loan terms or forgive missed payments on the high-interest loans in order to boost the value of the companies. She has also challenged the SEC administrative law process, claiming that the manner in which the agency’s in-house judges are selected violates the U.S. Constitution.

     

    The SEC has defended its process as fair and efficient.

     

    Last year, the agency added new rules giving defendants as long as 10 months to prepare for trial and allowing for some pretrial depositions. The SEC, which spent five years investigating Tilton, has denied her claims of agency misconduct.

     

    The SEC judge disagreed with Tilton’s argument that its proceedings were unfair to her. Tilton had nine months to prepare for the hearing, plus the additional time it took for her to challenge the case in federal court. She had a 14-day hearing, during which her lawyers called their own witnesses and cross-examined the SEC’s.

     

    The case is In the Matter of Lynn Tilton, 3-16462, U.S. Securities and Exchange Commission (Manhattan).

     

    –With assistance from Chris Dolmetsch. 

     

     

     https://biglawbusiness.com/lynn-tilton-wins-sec-fraud-trial-she-worked-hard-to-avoid/

  • 09/28/2017 7:24 AM | Denise Bashline (Administrator)

    Bloomberg Law

    September 26, 2017

    By David McAfee, Bloomberg BNA

     

     Downtown Los Angeles. Photographer: Susan Goldman. Bloomberg News.

    Downtown Los Angeles. Photographer: Susan Goldman. Bloomberg News.

     

    A former Orange County Superior Court clerk was sentenced Sept. 22 to more than 11 years in federal prison for taking about $420,000 in exchange for dismissed charges and other legal favors.

     

    Jose Lopez Jr., from Anaheim, Calif., pleaded guilty in March to one count of conspiring to violate the federal Racketeer Influenced and Corrupt Organizations Act. He was arrested in September 2016 along with nine others accused of being a part of the scheme.

     

    Brian N. Gurwitz, of the Law Office of Brian Gurwitz APC in Tustin, Calif., counsel to Lopez, said he disagrees with the sentence but respects it.

     

    “Judges often impose particularly harsh sentences in high-profile public corruption cases,” Gurwitz told Bloomberg BNA in a Sept. 24 email. “Judges are part of the law enforcement system, and they can take particular offense at a breach of trust committed by defendants who once part of that system.”

     

    Gurwitz added that no decision on an appeal has been made.

     

    Judge Josephine L. Staton, of the U.S. District Court for the Central District of California, sentenced Lopez to 135 months in prison, and identified him as the head of the plot.

     

    “People who were facing their second drunk driving offense were able to bribe their way out of mandatory jail sentences,” Acting U.S. Attorney Sandra R. Brown said in a written statement.

     

    “Mr. Lopez led a long-running scheme that brought him well over $400,000 and caused untold damage to the operations and reputation of the criminal justice system in Orange County.”

     

    A Dozen Defendants

     

    Prosecutors say Lopez is one of 12 defendants to be convicted in the racketeering scheme. Most recently a federal jury return four guilty verdicts against the final defendant, Javed Asefi, who is scheduled to be sentenced Dec. 8.

     

    Another defendant, Gibram Rene Lopez, pleaded guilty in the case. Gibram Lopez was sentenced Sept. 22 to one year and one day in prison.

     

    The co-conspirators were “middlemen” who recruited people who wanted to bribe Jose Lopez to get their cases dropped, according to the prosecution.

     

    “Defendant Lopez was entrusted with protecting the interests of justice but instead made a lucrative income operating an underground business for clients seeking a pass on criminal activity,” Danny Kennedy, the Assistant Director in Charge of the FBI’s Los Angeles Field Office, said in the statement.

     

    “The successful investigation and prosecution of Mr. Lopez and his many co-conspirators is a result of a collaborative effort by multiple agencies and should serve as a warning to public officials who use their access to benefit personally.”

     

    The U.S. Attorney’s Office in Santa Ana, Calif., prosecuted the case.

     

    The case is:  United States v. Lopez, C.D. Cal., No. 8:16-cr-00113, sentencing 9/22/17

     

    https://biglawbusiness.com/ex-court-clerk-gets-more-than-11-years-for-fixing-cases/

     

     

  • 09/28/2017 7:22 AM | Denise Bashline (Administrator)

    Bloomberg Law

    September 27, 2017

    By Thomas Korosec, Bloomberg News

     

    JPMorgan Chase & Co. was ordered by a Dallas jury to pay more than $4 billion in damages for mishandling the estate of a former American Airlines executive, but the verdict will probably be knocked down on appeal.

     

    Jo Hopper and two stepchildren won the probate court verdict over claims that JPMorgan mismanaged the administration of the estate of Max Hopper, who was described as an airline technology innovator in a statement issued by the family’s law firm.

     

    Large punitive damages verdicts like the one in the Hopper case are often scaled back because the U.S. Supreme Court has ruled they can’t be disproportionate to actual damages. In this case, the jury awarded less than $5 million in actual damages.

     

    The bank said it acted in a professional manner and in good faith on Hopper’s estate and is “highly confident” the jury verdict won’t stand under Texas law.

     

    “Clearly the award far exceeds any possible interpretation of Texas tort reform statutes,” Andrew Gray, a spokesman for the bank, said in an emailed statement. “There has been no judgment entered by the court based on this verdict.”

     

    Max Hopper, who pioneered a reservation system for the airline, died in 2010 with assets of more than $19 million but without a will and testament, according to the statement.

     

    JPMorgan was hired as an administrator to divvy up the assets among family members.

     

    Putters, Wine

     

    “Instead of independently and impartially collecting and dividing the estate’s assets, the bank took years to release basic interests in art, home furnishings, jewelry, and notably, Mr. Hopper’s collection of 6,700 golf putters and 900 bottles of wine,” the family’s lawyers said in the statement. “Some of the interests in the assets were not released for more than five years.”

     

    “The nation’s largest bank horribly mistreated me and this verdict provides protection to others from being mistreated by banks that think they’re too powerful to be held accountable,” Jo Hopper said in the statement.

     

    The court’s verdict form shows jurors awarded $8 billion in punitive damages against the bank. Alan Loewinsohn, attorney for Jo Hopper, said in an interview there may be duplication of some of the damage findings. As a result, he said, the punitive damage award could end up being “somewhere between $4 billion and $8 billion.”

     

    Loewinsohn said he asked the jury to take into account the bank’s worth and asked them for $2 billion in punitive damages.


    “I believe they used that figure for the other parties in the case as well,” he said.

    Fiduciary Duty

     

    The jury found that the bank committed fraud, breached its fiduciary duty and broke a fee agreement, according to court papers.

     

    At the lower end of that range, the jury’s award would erase almost two-thirds of the $6.6 billion profit that JPMorgan generated globally during the second quarter.

     

    And it would rank high among the largest sanctions ever levied against the bank — somewhere between the $2.6 billion it agreed to pay in 2014 for allegedly failing to stop Bernard Madoff’s Ponzi scheme, and a $13 billion settlement it reached with government authorities in 2013 for its handling of mortgage bonds that fueled the financial crisis.

     

    The verdict form shows jurors were advised to consider factors including “the net worth of JPMorgan.” Indeed, the bank has a stock market value of about $330 billion.

     

     https://biglawbusiness.com/jpmorgan-loses-4-billion-verdict-to-widow-in-probate-fight/

     

  • 09/28/2017 7:20 AM | Denise Bashline (Administrator)

    ABA Journal News

    September 28, 2017

    By Debra Cassens Weiss

     

     

     Feng Yu/Shutterstock.com.

      

     

    A Florida law firm’s failure to appeal an order assessing attorney’s fees doesn’t constitute excusable neglect when its email system apparently perceived the order to be spam and erased it, a Florida appeals court has ruled.

     

    The Aug. 10 decision by Florida’s First District Court of Appeal is being touted as a cautionary tale for lawyers, Law.com (sub. req.) reports.

     

    The law firm, Odom & Barlow, had asked the trial judge to re-enter the order assessing attorney’s fees so it could file an appeal within the deadline. After a hearing that included testimony by information technology experts, the trial judge refused. The appeals court affirmed.

     

    Among the experts who testified was William Hankins, who said he provided IT consulting for Odom & Barlow beginning in 2007. He said the law firm’s email system was configured to drop and permanently delete spam emails without alerting the recipient.

       

    Hankins recommended against this configuration because the email system could identify legitimate emails as spam. He recommended that the firm use a third party to handle spam filtering, but the firm rejected the proposal because it didn’t want to spend the money.

     

    Hankins said that, in 2015, he recommended the firm get an online backup system for emails that would cost between $700 and $1,200 a year, but the firm rejected the advice. Hankins said he quit working for the firm because it rejected the recommendations.

     

    Other experts said the order assessing attorney’s fees was apparently received by the law firm’s server, and could have been deleted as spam as a result of the email system’s configuration.

     

    “Based on this testimony,” the appeals court said, “the trial court could conclude that Odom & Barlow made a conscious decision to use a defective email system without any safeguards or oversight in order to save money. Such a decision cannot constitute excusable neglect.”

     

    The amount of attorney fees at stake is as high as $1 million, the Pensacola News Journal reports.

     

    The law firm didn’t immediately respond to a request for comment.

     

     http://www.abajournal.com/news/article/law_firms_automatic_deletion_of_spam_emails_is_blamed_for_failure_to_file_t

     

     

     

  • 09/27/2017 6:42 AM | Denise Bashline (Administrator)

    The California Report

    September 25, 2017

    By Marisa Lagos

     

     

    The two Democratic lawmakers who have been pushing for reforms to California’s bail system are now looking for a peek behind the curtain at how the bail industry operates.

     

    Assemblyman Rob Bonta (D-Oakland) and Sen. Bob Hertzberg  (D-Los Angeles) believe bail punishes people for being poor, and they want to fundamentally change how California decides whether to let people accused of crimes out of jail before their trial.

     

    But with their bill on hold until next year, they’re now alsolooking to learn more about the insurance companies that back bail bond agents. The duo introduced legislation (SB 779) in the final hours of this year’s legislative session that would require more oversight of both bail agents and the surety companies that back them, and would ask the Department of Insurance to study the industry.

     

    The lawmakers also announced they would hold a hearing this fall to examine the issue.

     

    “We’ve been working very hard on bail reform … and what we’ve learned in that process is that these bail companies are just making an exorbitant profit,” Hertzberg said, adding that he and Bonta continue to work with Gov. Jerry Brown, Chief Justice Tani Cantil-Sakauye and others on broader reforms that would require counties to set up pretrial service agencies that give courts an alternative to cash bail.

     

    But since the bail reform bill doesn’t eliminate money bail — voters would have to weigh in on that change — Hertzberg said it’s also worth probing the broader industry.

     

    He said the more he’s learned about bail, the more questions he has — particularly about the insurance companies that back bail bond agents. Hertzberg said unlike other forms of insurance — where prices are based on risk and companies regularly experience large losses  — bail surety companies appear to experience little or no losses.

     

    “We think one of the elements of the discussion is, are people being gouged? Is the government creating a monopoly that’s creating these crazy prices? Should you be charged where there’s no risk?”  he said.

     

    When someone in California is arrested and charged with a crime, a judge often sets a bail amount they must pay in order to get out of jail. If the defendant doesn’t have the money, they can pay a fee to a bail bond agent, who essentially promises the court they’ll pay the full bail amount if the defendant skips out on court.

     

    Those bail agents are backed by insurance companies that charge fees to agents for guaranteeing the bonds.

     

    Jeff Clayton represents the insurance companies as a lobbyist for the American Bail Coalition. He said he’s baffled by the bill.

     

    “We already do a lot of stuff that’s in this bill. We audit our agents regularly, at least annually. We are required to file a form with the Department of Insurance when we terminate somebody, and if there’s misconduct we have to tell the department. So I’m really kind of confused as to what they’re trying to do here,” he said.

     

    Clayton said he believes the lawmakers fundamentally misunderstand the bail surety industry.

     

    “You know, even though it’s considered an insurance product, it’s not an insurance product — it’s a financial guarantee is all it is,” he said, adding that it’s illogical to compare bail surety to auto insurance because individuals don’t purchase bail insurance.

     

    “What we do is underwrite what the agents do, so when a bail goes bad we are ultimately on the hook for that,” Clayton said. “(They say) losses are never paid but there’s a reason for that — because we require the agents to put money in what’s called a buildup fund so they’ve actually already guaranteed to us they have substantial funds available to pay their losses.”

     

    The legislation will be taken up in January when lawmakers return to Sacramento.

     

     

     https://ww2.kqed.org/NEWS/2017/09/25/LAWMAKERS-PUSHING-BAIL-REFORM-WANT-MORE-INFO-ON-BAIL-BOND-INSURERS/

     

     

  • 09/26/2017 6:34 AM | Denise Bashline (Administrator)

    ABA Journal

    September 25, 2017

    By Taylor Elizabeth Eldridge, The Marshall Project

     

     

    Shutterstock

     

     

    Early last year, two suicidal patients showed up at a hospital emergency room in Pierre, South Dakota, seeking help. Although the incidents happened weeks apart, both patients ended up in an unexpected place: jail.

     

    Across the country, and especially in rural areas, people in the middle of a mental health crisis are locked in a cell when a hospital bed or transportation to a hospital isn’t immediately available. The patients are transported from the ER like inmates, handcuffed in the back of police vehicles. Laws in five states — New Mexico, North and South Dakota, Texas and Wyoming — explicitly say that correctional facilities may be used for what is called a “mental health hold.” Even in states without such laws, the practice happens regularly.

     

    “It is a terrible solution…for what is, at the end of the day, a medical crisis,” said John Snook, executive director of the Treatment Advocacy Center, a national group that advocates for the severely mentally ill. Research shows that the risk for suicide, self-harm and worsening symptoms increases the longer a person is behind bars.

     

    But in a shift, Colorado recently outlawed using jail to detain people in a psychiatric crisis who have not committed a crime. The state delegated just over $9 million — with $6 million coming from marijuana tax revenue — to pay for local crisis centers, training for law enforcement and transportation programs.

     

    The new law was passed after Colorado’s sheriffs lobbied the state to extend the amount of time a person could be detained. In rural counties, sheriffs testified, lack of manpower meant they were forced to hold onto people longer than the 24-hour legal limit. A state task force instead recommended ending the practice entirely.

     

    There are no national figures on how many people are held each year in jail just because they have nowhere else to go in a mental health crisis. Reports from the federal agency overseeing hospitals — the Centers for Medicare and Medicaid Services — offer a glimpse. Since 2011, at least 22 hospitals in 16 states have been cited by CMS for failing to stabilize patients in need of mental health help, instead handing them over to law enforcement to wait for a psychiatric evaluation or a bed. The hospitals span the country, from Alabama and South Dakota to New York and Ohio.

     

    The practice affects patients of all ages. At Avera St. Mary’s Hospital in Pierre, South Dakota, children from 12 to 16 were sent to spend the night in jail on at least seven occasions, CMS inspection reports show. One 16-year-old girl came to the emergency room after overdosing on Motrin and was escorted to jail less than an hour after her arrival, without a psychiatric evaluation. Hospital staff waited until the morning to notify her parents. At the same hospital, a 12-year-old girl arrived in the emergency room after an attempted hanging. She was sent to spend the night in jail less than an hour later. The hospital did not respond to requests for comment.

     

    Few people think jail is an appropriate place for someone in a mental health crisis. Most jails, especially small rural facilities, do not have mental health staffers on site. For the suicidal, law enforcement agencies have few options other than periodically stopping by the cell to check on the person and putting potentially violent individuals in restraints and seclusion. Once someone has been held for 24 hours, he or she has to be charged, transferred to a treatment facility or released. “People should not, because of their mental illness, be in jail,” said Jennie Simpson, a public health analyst with Substance Abuse and Mental Health Services Administration, the federal agency that oversees national behavioral health policies.

     

    The problem highlights a nationwide scarcity of available doctors and inpatient beds for people in a mental health crisis, particularly the poor. The number of psychiatric beds decreased by 96% across the country over the past 50 years, research shows. At the same time, awareness of mental health needs has increased and more people have access to health insurance, allowing them to seek care.

     

    The issue was exacerbated by a 1972 federal law that was intended to help stop the widespread warehousing of people with mental illness. The law forbids the federal government from paying for inpatient mental health and drug treatment at psychiatric facilities with more than 16 beds. States are left to foot the entire medical bill for those on public insurance, straining budgets already struggling in the midst of the opioid crisis. A federal commission recently recommended that exemptions to the law be given immediately to states that request one.

     

    In New Hampshire, a long waitlist for beds led the state to begin sending non-criminals who were ordered committed for their own safety to a prison psychiatric unit for treatment. Patients and inmates participate in the same therapy programs. During group therapy, to protect patients and staff, particularly violent inmates are placed in metal cages with a bench.

     

    The decision of who gets sent to the sheriff and who gets to stay in the ER can have serious consequences. Baptist Memorial Hospital in Union City, Tennessee, was cited by CMS in 2012 for allowing an eye doctor to evaluate suicidal patients. The doctor discharged one patient to jail who returned to the hospital the next day after attempting suicide. He later died of his injuries.

     

    At another hospital in Tennessee, a suicidal man who waited 10 hours in a seclusion room was told he would have to finish his wait for a bed in jail. For the next two hours, the man banged on the door to his room, asking staff over and over what he had done to have to go to jail, according to federal inspection reports. Eventually he tried to escape. A security guard pushed him back into the room so hard that he was momentarily airborne before landing and fracturing his neck.

     

    Though local strategies have led to some improvement, it seems the real solution may be federal. “We’re never going to train our way out of this problem,” said Snook of the Treatment Advocacy Center, “The reality is we need much more.”

     

    This article was originally published by The Marshall Project, a nonprofit news organization covering the U.S. criminal justice system. 

     

     

     http://www.abajournal.com/news/article/when_a_mental_health_emergency_lands_you_in_jail

     

     

     

  • 09/24/2017 9:18 PM | Denise Bashline (Administrator)

     

     

     

     

     

    Meet Our Marin County Judges

     

     

     

    Enjoy lunch with friends old and new as we honor our Marin County Judges. Register early: This is our most popular event of the year.

     

    Questions for the bench? Please send your questions to MCBA by Oct 18: email

     

    Plated Lunch

    When registering online, you will be asked if you prefer Chicken Toscana, Butternut Squash Risotto and vegetables or Grilled Salmon.

     

    Contact:

    Karen Howard | Email  

     

    Registration

    Member Registration

    Non-member Registration

     

    Registration ends Oct 20, 2017

     

    Maximum attendance is 110. Register today!

    Early Bird Members: $45.00
    Early Bird Non-Members: $60

    Members: $50.00
    Non-Members: $65

     

    Early bird registration ends October 6th. $65 event day walk-ins.

     

    Date and Location:

    Wednesday | October 25, 2017
    11:45-1:30P

     

    McInnis Club Restaurant
    350 Smith Ranch Rd
    San Rafael, CA 94903

     

     http://marinbar.org/events/?type=event&id=149

     

San Francisco Paralegal Association • 1 Sansome St., Ste. 3500 • San Francisco, CA 94104-4448 • (415) 946-8935 • info@sfpa.com