VIRGINIA: Federal Court Denies Motion To Dismiss Marriage Equality Lawsuit

And the hits just keep coming! Via a joint press release from Lambda Legal and the ACLU:

A federal court denied a motion from the Staunton Circuit Court Clerk today seeking dismissal of a lawsuit challenging Virginia’s ban on marriage for same-sex couples. The lawsuit, filed earlier this year on behalf of two couples by the American Civil Liberties Union, the ACLU of Virginia, Lambda Legal, and the law firm Jenner and Block, will move forward with the Staunton Circuit Court Clerk and the Registrar of Vital Records remaining as named defendants. The court today also removed the governor as a named defendant in the case.  “We’re grateful that we have the chance to move ahead to challenge this discriminatory ban on behalf of loving and committed Virginia couples,” said Claire Guthrie Gastañaga, executive director of the ACLU of Virginia. “We will continue to fight for families in Virginia and all across the country,” said Joshua Block, staff attorney with the ACLU Lesbian Gay Bisexual and Transgender Project. “All loving families deserve the protection and dignity that come with marriage.” “The court recognized that ‘[i]t is abundantly clear that plaintiffs’ alleged harm is actual, concrete, and particularized,’” noted Lambda Legal Counsel Greg Nevins. “We couldn’t agree more, and we are happy that the court is going to force Virginia to defend its marriage exclusion on the merits.”

Is your Christmas stocking feeling especially heavy?

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Posted in: ACLU,Lambda Legal,marriage equality,Virginia

PENNSYLVANIA: State Demands To Know Sexual Histories Of Marriage Plaintiffs

Back in September, Pennsylvania Gov. Tom Corbett hired former state Supreme Court Justice William Lamb (left) to defend the state against a marriage equality lawsuit brought by the ACLU. This week Lamb filed a demand to know the sexual histories of the plaintiffs.

Attorneys defending Pennsylvania in a federal court challenge to the commonwealth's prohibition on same-sex marriage have asked for "irrelevant," highly private information about the plaintiffs, their lawyer said, including whether they engaged in previous heterosexual relationships and who the natural parents of their children are. Witold "Vic" Walczak, the legal director for the American Civil Liberties Union of Pennsylvania, wrote in a letter to U.S. District Judge John E. Jones III Monday that the requests made as part of the ongoing federal lawsuit are beyond the scope of what is allowed in discovery and a violation of his clients' privacy rights.

Among the items requested, Mr. Walczak wrote in the letter, are documents showing "the natural parents" of both biological and adoptive children, which the lawyer noted would include any sperm donors; whether the plaintiffs were involved in any previous heterosexual relationships, and if so, the details of those; detailed information dating back 10 years for any other person with whom the plaintiffs resided; and the identification of "any and all health care providers from whom you have sought or received medical or psychological treatment or counseling for harm you have alleged to have suffered as a result of allegations" in the lawsuit.

Lamb  is earning $400/hour and members of his team will bill the state $325/hour each. The case is due to go to trial in June.

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Posted in: ACLU,lawsuits,marriage equality,pennsylvania

Think Tank Report: Major LGBT Rights Groups Had $186M In 2012 Revenues

The Movement Advancement Project has issued its annual report on the finances of 32 major LGBT rights groups in the United States. Included in their 2012 recap is data from the Human Rights Campaign, the ACLU LGBT Project, Lambda Legal, GLAAD, Freedom To Marry, and several state organizations such as Equality California.

Hit the link for the full 24-page report.

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Posted in: ACLU,activism,Equality California,freedom to marry,GLAAD,GLSEN,HRC,Lambda Legal,LGBT rights,PFLAG

ACLU's Big Gay Illegal Wedding Contest

The New York Times explains:

The A.C.L.U. is sponsoring a contest for same-sex couples who live in states that prohibit gay marriage but are next to where it is legal, places like Nevada, Pennsylvania, Virginia and Wisconsin. Those couples are being asked to submit imaginative ideas for weddings — balloon rides, kayak trips and so on — that involve crossing the border from their home states, where same-sex marriages are barred, to states where they are legal. Based on votes on the microsite, five couples from five states will win prizes like cash, assistance from a wedding planner and a trip to New York for an event, planned for March, styled like a wedding reception. The winning couples will be encouraged to return home and present to their governors in April “guest books” signed by visitors to the microsite that will double as petitions calling for marriage equality. “We want to push the envelope on marriage equality in a fun, creative way,” said Anthony D. Romero, executive director of the A.C.L.U. in New York.

Here's their promo clip. Enter at this website.

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Posted in: ACLU,activism,gay weddings,marriage equality

COLORADO: Court Rules That Bakery Broke The Law By Refusing Gay Customers

Via press release from the ACLU:

A Colorado judge today determined that the bakery unlawfully discriminated against the couple by refusing to sell them a wedding cake. David Mullins and Charlie Craig visited Masterpiece Cakeshop last year, with Craig's mother, to order a cake for their upcoming wedding reception. Mullins and Craig planned to marry in Massachusetts and then celebrate with family and friends back home in Colorado. Masterpiece owner Jack Phillips informed them that because of his religious beliefs the store’s policy was to deny service to customers who wished to order baked goods to celebrate a same-sex couple’s wedding.

Longstanding Colorado state law prohibits public accommodations, including businesses such as Masterpiece Cakeshop, from refusing service based on factors such as race, sex, marital status or sexual orientation. Mullins and Craig filed complaints with the Colorado Civil Rights Division (CCRD) contending that Masterpiece had violated this law. Earlier this year, the CCRD ruled that Phillips illegally discriminated against Mullins and Craig. Today’s decision from Judge Robert N. Spencer of the Colorado Office of Administrative Courts affirms that finding.

Can you hear that sound? That there's some sadz coming down the track.

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Posted in: ACLU,Colorado,public accommodations,religion

Declassification of Foreign Intelligence Surveillance Court Opinions

By:  Timothy P. Flynn

Well, you had to see this one coming.  Something just does not seem right when a federal court adjudicates in secret, even if done under the provisions of the Patriot Act.

When Edward Snowden released a cashe of classified national security-related information earlier this summer, many in the legal blogosphere began to take note, and the Federal Intelligence Surveillance Court [FISC] was suddenly in the spotlight.

Much of the Snowden-generated furor involved government tracking and storage of email and cell phone transmissions; data, big and raw.  Here is our take on the issue in this post.

Thanks to the ACLU of Washtington, D.C., the FISC is again in the spotlight on a motion, brought pursuant to the Freedom of Information Act, to release certain opinions of the secret court which deal directly with the constitutionality of the court.  Opinions deciding the FISC's own constitutionality; now there is an interesting method of judicial review.

Here is the FISC Opinion, authored by Judge Dennis Saylor, ordering the federal government and the ACLU to submit a list of constitutional-threshold FISC opinions and a proposed declassification process by which the opinions can be submitted to the judge that authored the opinion for the author's judicial consideration as to whether they should be publicized.

Sound complicated?  Well, at least it is some progress toward openness.  The government list of opinions deemed suitable for publication and a proposed declassification procedure are due by October 4th.

The ACLU's filing sought publication of the FISC opinions directly from the stealth court itself, rather than as a component of separate litigation.  As noted in Judge Saylor's opinion, a similar request was lodged in 2011 by the ACLU in federal court in Manhattan which continues to be litigated.

When they are finally made public, these opinions will be very interesting.  We here at the Law Blogger cannot wait to see how the FISC passed muster on itself.

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Posted in: ACLU,Edward Snowden,FISA Court,FISC,Foreign Intelligence Surveillance Court,Judge Dennis Saylor,Patriot Act

Michigan State Police Extracting Cellphone Data During Traffic Stops

Since 2008, the Michigan State Police apparently have used devices in their patrol cruisers capable of extracting data from a driver's cell phone.  The troubling part is that it may be possible to tap your cell phone during a routine traffic stop.

The data extraction device, Cellbrite UFED, can pull existing, hidden, and deleted phone data, including your call history, text messages, contacts, and images; even your geotags. It can also extract ringtones which can be highly incriminating in some situations. These devices can crack into more than 3000 cellphone models and easily blow-thru passwords.

All this, of course, raises some legitimate concerns under the Fourth Amendment's "search and seizure" clause.   Do you have a reasonable expectation of privacy in the data contained in your cell phone once you take that puppy on the road?

Along these lines, the Michigan Chapter of the ACLU has filed a freedom of information act request with the MSP seeking detailed information on how the device is used.  In response, the MSP has issued their own press release asserting that they do not use the data extraction device during routine traffic stops, do not use the device without a prior search warrant, and cannot extract data from the phone without first having possession of the phone.

The MSP has also asserted that compliance with the ACLU's document request would be costly but they would be delighted to produce the records in exchange for a half million dollars to cover the costs.

Stay tuned for the law suit.  In the meantime, to protect your privacy when the lights and sirens erupt behind you on your next traffic stop, you should probably power down your phone.

Cellbrite UFED

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Posted in: ACLU,American Civil Liberties Union,Cellbrite UFED,FOIA,Fourth Amendment,freedom of information act,Michigan State Police,MSP,search and seizure

Nice Try: Mich Supreme Court Takes a Pass on Constitutionality of Appointed-Attorney System

Last March, we posted on the ACLU's constitutional challenge to Michigan's court-appointed attorney system. Duncan v Michigan was then heading for oral argument before the Michigan Supreme Court and it looked like the challenge was going to acquire some legs.  Here is an update.

After hearing arguments in the case in April, the Supreme Court at first affirmed the 2-1 decision of the Michigan Court of Appeals, sending the matter back to the Ingham County Circuit Court (the trial court) for further trial proceedings to determine whether our court-appointed criminal defense system supplied criminal defendants their constitutional right to legal counsel. The Supreme court held that it was too early to dismiss the case below and the Ingham Circuit Judge did so prematurely.

The Supreme Court reversed course in July, granting the Attorney General's motion for reconsideration, vacating its previous order, and expressly adopting Judge William C. Whitbeck's 35-page dissent in favor of dumping the case at the summary disposition level.

What changed? What happened?

The high court was divided 4 justices to 3 on this reversal, with Justices Corrigan and Young joining Justice Markman's statement of concurrence. The majority simply pronounced that their prior order was wrong.  Four justices held that allowing the case to proceed further would amount to having the judiciary inappropriately determine Michigan's system of local funding and control of legal services to indigent people.

Justices Cavanagh and Hathaway joined Justice Marilyn Kelly's dissent, claiming that the certified class of litigants did have a "justiciable" action; that nothing new had been raised on reconsideration to justify reversing the high court's prior order; and that, "[t]oday's order slams the courthouse door in plaintiffs' face for no good reason."

Among others, we here at the Law Blogger eagerly anticipated seeing how the proofs would have developed regarding the delivery of legal services to the poor people of neighboring Genesee County. For the moment, however, and probably forever, the appellate courts have passed on deciding the issue.

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Posted in: ACLU,criminal defense,Justice Marilyn Kelly,Justice Maura Corrigan,Lee Duncan,Michigan Court of Appeals,Michigan Supreme Court

ACLU Tests Constitutionality (i.e. Quality) of Court-Appointed Criminal Defense

Prior to the Civil War, Michigan was one of the first states to get in on the ground-floor of providing legal defense to the poor and the accused.  The constitutional right of the accused to an attorney was enshrined in the seminal case of Gideon v Wainwright, 372 US 335 (1963).

Things have changed.  Michigan has gone from the "first-floor" to the cellar in terms of the quality of court-appointed criminal defense; at least as measured in terms of compensation.

The ACLU is challenging the public defender system in the case of Duncan v State of Michigan.  The ACLU's brief argues that the quality of court-appointed legal defense in Berrien, Muskegon and Genesse Counties falls below the Sixth Amendment's guarantee of effective legal counsel.

The case was filed in the Ingham County Circuit Court where the trial judge certified Plaintiff's case as a class-action.

Defendants Governor Jennifer Granholm and the State of Michigan are represented by the Michigan Attorney General, Mike Cox.  The AG's brief asserts that the duty to appoint and compensate public defenders falls to the local circuit court judges.

The AG brought a motion for summary disposition which was denied by the trial court.  The court, however, granted the AG's motion to stay further proceedings until appeals from the decision were decided.  The Court of Appeals affirmed the Ingham Circuit Court's rulings granting class certification and denying summary disposition.  In a lengthily dissent, Appeals Judge William C. Whitbeck asserted that the case, which he described as a "fundamental challenge to Michigan’s system for operating and funding legal services for indigent criminal defendants" essentially could result in an unconstitutional violation of the separation of powers doctrine.

The case is scheduled for oral argument before the Michigan Supreme Court on April 13, 2010.  Meanwhile, the state legislature is considering HB 5676 which seeks to establish a state-wide public defender system, along with the essential funding.  The sponsors of the proposed legislation, Bob Constan and Justin Amash acknowledge they will have a very tough time to get this type of funding approved in the midst of the sustained economic downturn.

Never short on resources, however, the ACLU is bringing their game, on this same issue, to the United States Supreme Court in the case of Vermont v Brillon.

The ACLU's suit, and the proposed legislation have attracted national attention.  (The Law Blogger picked-up on a National Public Radio feature that addressed the critical state of Michigan's court-appointed criminal defense.)  The most likely result of all these efforts will be, "more of the same".  The defense bar will continue to soldier on, as underpaid under-resourced champions of the constitution.

Defendants, for the most part, will continue getting convicted.  No tears shed here, unless the accused is truly innocent.  Then it's a real tragedy as well as a threat to our individual rights and the criminal justice system.

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Posted in: ACLU,Attorney General Mike Cox,Bob Constan,Judge William C. Whitbeck,Justin Amash,Michigan Court of Appeals,Sixth Amendment