The same-sex #marriage issue reached #Scotus Tuesday, as supporters of California's Prop. 8 ban on same-sex marriage filed their long-expected petition with the U.S. Supreme Court.

The petition filed by attorney Charles Cooper and his legal allies called the same-sex marriage issue "exceedingly important," and spelled out multiple arguments in support of Prop. 8.

"The profoundly important question whether the ancient and vital institution of marriage should be fundamentally redefined to include same-sex couples is currently a matter of great debate in our nation," the brief states.

The Prop. 8 forces' brief warns of "widespread and immediate negative consequences" if the Ninth Circuit Court of Appeals' decision striking down Prop. 8 is allowed to stand. More pointedly, from a practical standpoint, the brief cites ways in which the Ninth Circuit ruling differs from other courts that have considered the same-sex marriage issue; the Supreme Court will often take cases precisely in order to resolve these kind of judicial splits.

#Tax #Court #Judge Mark Holmes shows, once more, why he's one of the most compelling judicial writers around.

And in a case involving a once-prominent Illinois politician, no less.

In a U.S. Tax Court decision Monday, Judge Holmes took up the case of Betty Loren-Maltese, a colorful character and former town president of Cicero, Ill. Writing with his characteristic verve, Judge Holmes says of Cicero that it is

"a suburb of Chicago that sits on its western hip like a well-holstered gun, and that has a colorful history that reaches back into the 1920s when Al Capone took refuge there."

Ms. Loren-Maltese was convicted in 2002 of participating in a multi-million dollar insurance scam, and sentenced to some eight years in federal prison.

"Her tenure in office," Judge Holmes writes with some deft understatement, "was not tranquil."

The IRS claims that Ms. Loren-Maltese fraudulently underreported income on her 1994 income tax return by omitting two very substantial conversions of campaign funds to personal use. At certain points, she took the Fifth Amendment and declined to answer questions, which prompted Judge Holmes to make this observation:

"The original Cicero made the point 2,000 years ago in his oration exposing the plot of Lucius Catilina and his friends to plunder their government’s treasury. He observed that people have a natural tendency to defend their reputation, and that silence in the face of accusations suggests that there might be some merit to the charges. The Latin is more succinct: Cum tacent, clamant."

The facts of the case bear a closer reading; in the end, Judge Holmes agreed with the IRS that Ms. Loren-Maltese fraudulently underreported her income.

The top military #appeals #court concluded a #military contractor can be subjected to court martial, in a wartime decision that merits close attention.

On Wednesday, the five-member U.S. Court of Appeals for the Armed Forces ruled that former contractor Alaa Mohammad Ali properly fell under the jurisdiction of the U.S. Code of Military Justice even though he was not a member of the U.S. military. The decision could have wide-ranging implications, given the heavy U.S. reliance on contractors.

But the facts of the Ali case also set out some limitations on the rule; as the court took care to note, Ali was a non-U.S. citizen, serving overseas in a military contingency operation. The Defense Department employed 155,000 contractors in Iraq and Afghanistan as of last spring, according to the Congressional Research Service.

"Civilians serving alongside the military may be subject to courts-martial under the military justice system in some limited circumstances," Judge Charles Erdmann wrote for the court.

An Iraqi citizen, born in Baghdad, Ali was hired in December 2007 by L3 Communications, an American company, to provide linguist services in Iraq under L3’s contract with the United States Army Intelligence and Security Command. In 2008, while serving with the 1st Squad, 3rd Platoon, 170th Military Police Company, stationed in Hit, Iraq, he got into an altercation with another interpreter.

Ali was subsequently convicted by a military judge sitting as a general court-martial of making a false official statement, wrongful appropriation, and wrongfully endeavoring to impede an investigation.

Ali argued, among other things, that as an Iraqi national, serving in his native country, he should be excluded from the population covered by a U.S. statute that says individuals "serving with" the U.S. military are subject to the UCMJ. Ali further argued that he was outside the reach of military justice once L3 fired him. The court rejected his arguments, noting in part that:

"Regardless of whether Ali continued to 'serve with' an armed force after his civilian employment termination, he certainly continued to accompany the force while awaiting trial."

 Ali also argued his Fifth and Sixth Amendment protections were violated under the military justice system. The court concluded otherwise, stating:

"Ultimately, we are unwilling to extend constitutional protections granted by the Fifth and Sixth Amendments to a noncitizen who is neither present within the sovereign territory of the United States nor has established any substantial connections to the United States. Whatever rights (Ali)  had were met through the court-martial process."

 

A #judge has dismissed an #ACA challenge filed by a Roman Catholic college unhappy over the so-called contraceptive mandate.

Of course, this is not the end of it.

In a 24-page opinion Wednesday, U.S. District Judge James Boasberg threw out as essentially premature the suit brought by Belmont Abbey College in North Carolina. Belmont Abbey is a Benedictine college that shares the Catholic Church’s view that contraception, sterilization, and abortion are grave sins. The college maintains it would be ineligible for an exemption and so would be compelled, under the Patient Protection and Affordable Care Act,   to provide contraceptive coverage.

Stated Judge Boasberg:

"Because the government has indicated its intention to amend the regulations to better take into account religious objections and because (the college) is protected in the interim by a safe-harbor provision...Belmont’s injury is too speculative to confer standing and...the case is also not ripe for decision."

The safe-harbor provision means that no employer can be punished for failing to meet contraceptive requirments before January 2014.

#Bagram is more than a #legal black hole where, the Obama administration says, habeas corpus protections do not apply.

It is also a vexation for writers and copy editors who just want to get the stupid name right.

On Monday, U.S. District Judge John D. Bates held oral arguments in the case of non-Afghan Bagram detainees who want to challenge their detention. The legal questions are tricky. So is the seemingly simple question of what to call the facility.

The Justice Department should know, right? After all, Justice represents the Defense Department, which essentially owns the site. Justice, in its first brief, referred to Bagram Airfield. The Air Force web site does the same. The detainees' attorneys with the International Justice Network, though, refer to it in pleadings  as Bagram Air Base.

Appropriately, perhaps, Judge Bates in his September 2009 opinion, used Bagram Airfield. The next year, though, the D.C. Circuit Court of Appeals referred to Bagram Air Force Base in a decision striking down Bates. The well-informed folks at GlobalSecurity.org weigh in with Bagram Airbase, while the equally well-informed folks at Stars & Stripes call it Bagram Air Field.

Final answer is: Go with Associated Press Stylebook: Bagram Air Field it is.

A #judge has dropped one #piracy count against #Somali citizen Ali Mohamed Ali, in a unique case of international interest.

Ali cannot be prosecuted for conspiracy to commit piracy, the judge says. But in a 42-page decision Friday, U.S. District Judge Ellen Segal Huvelle said she would permit federal prosecutors to continue with other parts of their case against Ali. As Judge Huvelle noted: "contemporary prosecutions of pirates present novel legal questions."

To say the least.

In part, as Huvelle noted, the complications revolve around the fact that although the indictment charges Ali with violations of U.S. law, none of the charged conduct has direct ties to the United States. Neither the alleged perpetrators nor the victims were American, the ship was Bahamian, and it was sailing on the high seas.

Here, the judge had to sort through a thicket.

There is a realm called "general piracy," the classic international crime which any nation can prosecute regardless of whether there is a national nexus. General piracy is, however, is limited to those activities around which there is an international consensus. Then there is "municipal piracy," which any nation can define however it chooses, but which therefore can only be prosecuted if there is a national nexus.

The case goes back to the events of Nov. 7, 2008, when pirates seized the M/V CEC Future as it was sailing in the Gulf of Aden, near the Horn of Africa. They held the ship and its crew hostage, finally securing a $1.7 million ransom on Jan. 14, 2009. Huvelle explained what happened:

"Ali boarded the CEC Future two days after it was taken by the pirates. An English-speaker, he communicated the pirates’ demands to Clipper representatives during the remaining sixty-nine days while the vessel was held and departed the ship after the ransom was received. Ali was arrested by United States authorities more than two years later when, en route from Somalia to attend an educational conference in Raleigh, North Carolina, he landed at Dulles International Airport."

There is no U.S. nexus to this particular act of piracy. That means only the universally accepted, general piracy realm can be prosecuted. On Friday, Judge Huvelle dropped a charge of conspiracy to commit piracy, reasoning that it would "violate international law" and that Congress had not explicitly stated its intention to do so.

Other piracy related counts, including hostage taking and aiding and abetting, will remain intact.

#House #Democrats on Tuesday filed a #DOMA brief, adding their voices to the effort to strike down part of the federal Defense of Marriage Act.

The 41-page amicus brief, signed by House Minority Leader Nancy Pelosi and 131 other House Democrats, was filed with the 9th Circuit Court of Appeals. The brief points out, among other things, that the House is not united on DOMA’s validity and that the lawyers hired by House Republicans to defend the law "do not speak for the entire institution."

The unspoken flip side of the 132 signatures is that 59 House Democrats did not, or would not, sign onto the brief.

Last month, Republican Sen. Orrin Hatch and nine other Senate GOP conservatives filed their own amicus brief defending the law. Oral arguments are scheduled for September.

#Judge Royce Lamberth shows #writing flair in his latest opinion. Thanks, your honor!

The U.S. District Court judge, who rarely pulls his punches, starts his opinion in a long-running case called Bond v. Department of Justice this way:

"The point of a motion to alter or amend a previous judgment under Rule 59(e) is not to cry over spilled milk; rather, litigants should use this opportunity to highlight new evidence that would correct clear error or prevent manifest injustice. Unfortunately, the plaintiff—who believes that he is a modern incarnation of David in his epic battle against Goliath (here, the Government and the Washington Post)—has illustrated none of these."

Dig it. The "cry over spilled milk" is a comfy phrase used to good effect, drawing the reader in to the serious point, while subtly scornful characterization of David v. Goliath captures the judge's bemused assessment of the plaintiff's state of mind.

The top #military #appeals #court agreed Monday to hear a high-profile case involving a wartime killing and alleged political interference.

The U.S. Court of Appeals for the Armed Forces said it would take up the case of Marine Sgt. Lawrence Hutchins III, convicted of murder in the 2006 death of an Iraqi man in the town of Hamdania. Hutchins, since busted to private and packed off to prison, was leader of a squad in the 3rd Battalion, 5th Marine Regiment that prosecutors said killed an innocent 52-year-old man.

Hutchins, convicted in 2007, served about four years in prison, won his release after an earlier appeals court ruling, and then was returned to prison when that appellate decision was reversed. Now, Hutchins' attorney Babu Kaza reported, the U.S. Court of Appeals for the Armed Forces will examine two additional issues.

The court will consider whether Secretary of the Navy Ray Mabus illegally influenced the case, and whether NCIS violated Hutchins' constitutional rights when they refused his request to speak to an attorney, and instead kept him in solitary confinement for 7 days before re-interrogating him.

Mabus spoke out forcefully concerning Hutchins' case.

Stated Kaza:

"The ongoing and persistent political interference in this case has been unconscionable, and the fact that the highest military Court has to reasonably ask itself if the Secretary of the Navy has unlawfully manipulated the process means that, regardless of who is ultimately victorious, the integrity of the military justice system as a whole has already been fatally compromised."

New #vocational #college rules got an F from a #judge over the long, hot Washington, D.C. weekend.

In a 38-page Saturday ruling, U.S. District Judge Rudolph Contreras struck down as "arbitrary and capricious" the Education Department's new debt repayment standard for evaluating a college's continuing eligibility to participate in the federal student loan program.

The Department proposed that programs with a repayment rate of at 45 percent would pass the debt repayment test. Those with repayment rates between 35 and 45 percent would face restricted eligibility, and programs with repayment rates below 35 percent would face ineligibility.

The Association of Private Colleges and Universities challenged the rules, and convinced Contreras.

"The Department has set out to address a serious policy problem," Contreras wrote, "but it has failed to provide a reasoned explanation for a core element of its central regulation."