Saturday, May 31, 2008

Democratic Rules Committee Decides Florida, Michigan

It has been a long day of back-room deliberations at the DNC Rules and Bylaws Committee meeting at Washington.

At stake - the votes of 368 delegates from Florida and Michigan.

Just after 6:00 p.m., MSNBC News reported that a compromise may have been reached:

  • Florida delegates will be seated a their convention, but their delegates' votes will only get one half value. Clinton will net 13 to 19 delegates, according to NBC news.
  • Michigan delegates will also be seated and receive half votes of their 69-59, with a net gain for Mrs. Clinton of about 4 or 5 delegates.
  • Mrs. Clinton would net about 25 additional delegates from these decisions. Barack Obama's lead remains at about 175 delegates.
  • According to MSNBC, this would leave Mr. Obama about 20 superdelegate votes away from securing the nomination, if this week's remaining primary votes yield anticipated results.

The Committee reconvened at 6:15 p.m., to consider resolutions.

- Garry J. Wise, Toronto



A vote to restore the Florida delegation with full votes has been denied by a Committee vote of 15-12, amid a chorus of "boos" from the audience, and chants of "Denver...Denver..."

A vote to recognize the Florida delegation with one-half votes has passed 27-0 with one person not voting. Under the compromise, Mrs. Clinton is to receive 52.5 delegates, John Edwards 6.5 delegates, and Mr. Obama 33.5 delegates - all of which will receive one-half votes. Unpledged superdelegate votes also are reduced to only one-half weight.



A compromise resolution has passed 19-8 amid a raucus audience response. Under the resolution, the Michigan delegation will be fully seated, with the pledged and unpledged delegates' votes to receive one-half weight.

Under the compromise, enacted over the stated, high objection of Clinton advocate Harold Ickes who accused the committee of hijacking the process and substituting its will for those of Michigan's voters, Mrs. Clinton will receive 69 delegates and Mr. Obama will receive 59 delegates, all of which will receive only one-half weight. Unpledged superdelegates will also receive only one-half votes.

Mr. Ickes explicitly reserved Mrs. Clinton's right, on the candidate's instruction, to pursue the matter to the Credentials Committee at the Denver convention.

If Mr. Ickes is to be taken seriously, it looks like this nomination process may be going all the way to Denver.


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Friday, May 30, 2008

Where Do the Children Play?

Cat Stevens (Yusuf Islam) - now and then....

One of my favorite songs, ever.

This first clip was apparently recorded in Mr. Islam's own living room in 2006. The second is from 1976's Earth Tour.

His politics may be controversial in the eyes of some, but his music still rings as true today as it did way back when.

For a documentary look at the man behind the well-known changes, see: Cat Stevens' transition to Yusuf Islam

- Garry J. Wise, Toronto

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New Ontario Adoption Disclosure Law In Effect

Reader Cathy Henderson was kind enough to provide an update on the status of Ontario's adoption disclosure amendments.

She advises that Bill 12, the Access to Adoption Records Act has passed Third Reading and received assent on May 14, 2008.

A news release at Canada News Wire provides more detail:

A new Ontario law will soon give adult adoptees and birth parents access to information that is currently sealed in their adoption records. For years, adoptees and birth parents have worked to get personal and family information from their original birth certificates and adoption records. Ontario's new law will help adoptees find out what their original names were, as well as who their birth parents were. It could also help birth parents learn the name their child was given after he or she was adopted.

The law includes a new disclosure veto...

Adoptees and birth parents can begin to apply for disclosure vetoes in September 2008. Adoptees and birth parents will be able to apply for information from their adoption records starting in June 2009....

Ontario is the fifth Canadian province to open its adoption records.

The new law replaces a previous Ontario adoption disclosure law which was struck down in September 2007.

- Garry J. Wise, Toronto

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Wednesday, May 28, 2008

How Tough is John McCain?

Biting satire, from The Onion:

(h/t: Red Tory)

b- Garry J. Wise, Toronto

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D.A.: "It's Our Job to Prosecute Criminals, Not Barbers"

City News delivers a true gem with this report about a Houma, Louisiana barber charged with the heinous offense of...

Brace yourselves....

Being open for business on a Monday.

May 19th may have been a holiday in Canada, but it wasn't in the U.S. and they don't have the same closing laws we do. So when Clyde Scott began business as usual in his barbershop on the first day of the work week and gave a few students getting ready for their graduation ceremony a haircut, a cop quickly moved in and issued him a ticket.

The stylist was stunned when he saw the reason for the citation. There's apparently an obscure law on the books there that barbers aren't allowed to open on a Sunday or a Monday or any of a number of different holidays.

...Prosecutors are refusing to forge ahead with the idiotic charge and plan to ask the courts to strip it from the law books. "It's our job to prosecute criminals, not barbers," states District Attorney Joe Waitz Jr.

- Garry J. Wise, Toronto

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Tuesday, May 27, 2008

A Tale of Three Judges: The Need for Family Law Reform in Ontario

Has the time arrived for fundamental, overall reform of Ontario's system for handling family law cases?

As a quiet, but steady undercurrent of judicial discontent emerges from the Province's courts, it is becoming apparent the status quo is increasingly unsatisfactory, if not yet wholly untenable.

Three unrelated, recent comments by Ontario judges will illustrate the fork in the road we may be approaching.

Collectively, they make a compelling case for change.

In Shaw v. Shaw, [2008] O.J. No. 1111, Mr. Justice Bruce Pugsley of the Ontario Court of Justice at Orangeville was highly critical of the procedural and philosophical disconnect between Ontario's criminal courts and family courts in cases of family breakdown involving allegations of domestic violence:

"the events after the arrest of Ms. Shaw do not, in retrospect, show the police, the Crown, counsel or the criminal judicial system in a good light, although her story is commonplace.

These events have become routine and predictable in almost every allegation of spousal assault such that there is presumably some policy guiding the police and the Crown attorney and forestalling professional discretion in all such matters, no matter how remote the assault may be in time or indeed how trivial the contact.

Spouses of every walk of life and often with completely unblemished prior character are routinely detained for a formal bail hearing for such assaults. Invariably, the defendant (not yet convicted) is excluded from his or her home and prevented from exercising custody of, or access to, the defendant's children without any consideration of the factors that this [family] court must apply by law before determining incidents of custody or access.

This is not for one moment to diminish the impact of spousal abuse on family members and children in Canada. Spousal assaults are by nature serious and there are very sound policy reasons to lay such charges and have them proceed through the judicial system to ultimate resolution if not diverted.

I observe, however, that the damage of which I speak is not from the laying of the charge - this will happen in any event, regardless of the manner in which the defendant is brought before the court. The way that the criminal justice system approaches the commencement of these matters, however, often wreaks family law havoc with the family unit of the defendant and the complainant, and in particular the children of those parties.

Family courts decide custody and access issues on the basis of statute and case law defining the best interests of the children. The criminal justice system pays no attention to such interests because it is not geared up to do so nor are the participants widely trained in how the actions of the system - from the officer who refuses to release the defendant at the station, to the duty counsel who allows the defendant to agree to inappropriate conditions of release out of expediency - effect the lives of the members of the defendant's family. Similarly the Superior Court is tasked with the duty of adjudicating the respective rights of the parties to remain in the matrimonial home pending the resolution of the matrimonial litigation. Routine orders excluding a party from the common home of the parties until the end of the criminal matter without thought to the consequences thereof, and without a remedy short of a bail review, place one party in a position of immediate superiority over the other party for as long as it takes (perhaps a year) for defended criminal charges to be resolved.

Such rote treatment of all matters of domestic assault can lead, on the one hand, to concocted or exaggerated claims of criminal behaviour or, on the other hand, to innocent defendants pleading guilty at an early stage out of expediency or a shared desire with the complainant to start to rehabilitate the family unit."

Secondly, I'll revisit a recent comment by Mr. Justice Joseph Quinn, of the Ontario Superior Court of Justice at St. Catharines, that directly questions whether our Courts are an appropriate forum at all for determination of custody and access disputes:

The parties have gorged on court resources as if the legal system were their private banquet table. It must not happen again... Both sides have shown an inability to abide by court orders such that their access to this court should be restricted by the requirement to obtain leave.

Some day, a wise person in a position of authority will realize that a court of law is not the best forum for deciding custody and access disputes, where principles of common sense masquerade as principles of law.

Finally, I'll once again highlight the sharp criticism levelled on March 13, 2007 by Madame Justice Margaret Scott regarding the chronic shortage of judges at the Ontario Superior Court of Justice (Family Court Branch) at Newmarket:

It is obvious that the system here is so judicial-resource poor that it is in crisis.

Taken together, these comments demonstrate the degree to which family law increasingly finds itself on the very fault line of Ontario's overburdened justice system.

A recent report of the Ontario Bar Association, Getting It Right, recognized many of these issues and responded with a call for sweeping, but significantly costly, changes to the administration of justice in the Province, with particular emphasis on family law.

While the report, in fact, does hit many of the right chords, a truly practical solution may well be considerably simpler than the expansive measures contemplated by the OBA.

As our judges now begin to openly question the very premise that our courts are optimal, able or even suited to deal with the very serious consequences of family breakdown and its many complexities and subtleties, the time may be drawing near for our legislators to reconsider whether mediation and alternate dispute resolution should be the norm, rather than the exception, in the Province's family law cases.

Mandatory mediation is by no means a new or novel process in Ontario.

Since January 4, 1999, Rule 24.1 of Ontario's Rules of Civil Procedure has required mediation of all civil cases in certain designated jurisdictions within the Province. Many mediators report an overwhelming rate of settlement in cases mediated pursuant to this Rule.

Settlement rates are particularly impressive in mediations of wrongful dismissal proceedings, in which the emotionally-charged consequences of soured, employer-employee relationships find their way to Ontario's courts for resolution.

Further, voluntary mediation services are provided free of charge to the public in many Ontario family courts. Legal Aid Ontario also offers family law mediation in cases where at least one party is legally-aided.

With this in mind, is it not odd that family law cases continue to be legislatively excluded from the Province's mandatory mediation regime?

I would argue it is time for that to change.

Mandatory family law mediation would save parties costs, divert numerous cases from the Courts, reduce the strain on the Province's judicial resources, and result in many expedited, satisfactory settlements outside of formal, court processes.

Beyond that, it will in many cases mitigate the human cost of protracted family law litigation, and secure child-centred, appropriate resolution of many parental conflicts that could readily be avoided by the enhanced communication that is carefully developed through mediation.

Ontario social worker and therapist Gary Direnfeld discusses the process and benefits of family law mediation in cases involving children:

Mediation is directed at resolving issues regarding the on-going care and management of children following parental separation or divorce such that a parenting plan is developed or specific issues are resolved. These may be referred to as child custody and/or access maters. In mediation, parents retain control of the outcome.

The role of the mediator is to facilitate discussion, help generate options and educate on matters of concern to the well-being of the children in the context of the parental separation/divorce. The mediator will endeavour to keep behaviour safe and civil to allow appropriate negotiation between the parents.

Parents may be seen together or separately depending on the level of conflict and matters of concern. If seen together, the mediator can separate the participants when necessary and move between separate rooms if required.

A developmental perspective is taken in structuring parenting plans so parents are better prepared to handle natural changes that occur with time

While there will remain a small minority of family law cases that are legitimately ill-suited for mediation, the vast majority of family law cases would benefit from a requirement that, absent emergency, alternative dispute resolution must be undertaken - particularly in any contested matter involving children - before any court proceeding is litigated in earnest.

If a party seeks to be exempted from such a mediation process, the burden of demonstrating reasonable grounds to a court for such exemption ought plainly to be on that party.

In obvious cases of serious domestic violence, surely this burden would be reasonably simple to meet.

In his article, Are you thinking of Mediation to settle custody and access matters? Mr. Direnfeld elaborates on the alternative dispute resolution process and the special care that mediators must demonstrate in cases of serious domestic violence and abuse:

Mediation is an alternative to court.

Whereas in court the parents are bound by the decision of the judge, in mediation the role of the mediator is to help parents communicate and determine their own solution to the parenting of the children – a mutual agreement.

A mediator is a specially trained professional usually with expertise in child development, family dynamics and in helping people communicate. Some mediators will share their opinions and offer suggestions in the interests of the children while others may concentrate mainly on helping the parents communicate.

.... Mediation is a good and reasonable approach to developing and settling parenting plans, but there are certain instances where mediation is often not recommended. Generally mediation is not recommended where a parent is known to be violent or abusive. If parents want to enter mediation where there is a known history of violence or abuse by either parent to each other or any of the children, they are advised to be certain that the mediator is aware, agrees to continue and has specialized knowledge or training on such issues.

Will mandatory mediation of family law cases soon make a belated entry into the mainstream of Ontario's family court system?

While logistical and practical steps would be necessary to ensure the availability of an adequate contingent of trained and qualified mediators, formally mandated alternative dispute resolution in the province's family law system is long overdue.

Beyond that, if Ontario were to join the 11 U.S. states and the District of Columbia that have enacted legislation providing for a rebuttable, statutory presumption in favor of joint custody upon marital breakdown, a cultural sea-change might well emerge in the disposition of the Province's family law proceedings unlike that ever seen previously...

But that's a whole different topic, for another day.

- Garry J. Wise, Toronto

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Caucuses vs Primaries - By the Numbers

Denver lawyer Jeralyn Merritt's summary at Talk Left of Peniel Cronin's compelling report, 2008 Presidential Preference Election, looks at "the math:"

  • By the numbers, in 2008 primaries have averaged 400% greater voter turnout in eligible voters than caucuses.
  • Of the 33.5 million popular votes in the 2008 Democratic Primaries, caucus voters have collectively cast only 3.2% of the total or 1.1 million votes.
  • The 13 caucus states have 23.2 million eligible voters. The average Democratic voter turnout in 2008 caucuses has been 4.5% versus 19.92% in primaries.
  • 42% of Obama’s wins are caucus states, 95% of Clinton’s wins are primary states

  • 42% of Obama’s wins have been in caucus states wherein one-half have not voted Democratic since 1964, 70% voted Republican in 2004, 8 out of the 13 states had only 8,700 to 43,900 voters each and there is a total of 74 electoral votes for all caucus states.

  • Though voters in all 13 caucus states have cast only 3.2% of the total 33.5 million votes so far – those votes control 15.3% of the pledged delegates and 16.4% of the Super delegates sent to the DNC Convention – average 15.5% of the total delegates [626 caucus / 4047 total]. After all remaining primaries the total votes could easily top 36 million, dropping the caucus vote to 2.9% of the total. In that event, 1 out of every 34 votes will determine and control 1 of every 6.5 delegates.
  • Bottom line: caucus voters will have a grossly disproportionate role in determining the 2008 Democratic nominee.
  • 97% of pledged delegate difference between Obama and Clinton is directly related to the caucus victories, caucus delegates’ account for 1 in every 6.5 DNC delegates and nearly 2/3 of those delegates will vote pro-Obama essentially giving them substantially more clout in determining the 2008 Democratic nominee.

  • When the results of all 34 primaries are totaled and averaged there is only a .8% vote differential and .8% difference in total delegates –Obama is ahead by 259,000 votes out of 32.4 million and Clinton is ahead by 24 delegates out of 3,114.
  • When Florida is added in, Clinton leads by 62 delegates and 35,387 votes. These dead-heat Primary results closely parallel national polls in the two candidate match-up since Super Tuesday.
  • If Florida and Michigan are added to all election results, Clinton would gain another 27 and 17 electoral votes respectively and would have a total of 308 – 38 more than the 270 needed to win the Presidency in the General Election. Obama’'s 29 states won have 224 electoral votes which would be 46 short of the 270 needed to win.
  • Finally, if Florida and Michigan are added to the 47 state elections already concluded [34 primaries + 13 caucus states] there are 205.5 million total eligible voters [VEP]. Clinton has won states with 124.7 million eligible voters and Obama has won states with 80.8 million. In this instance, Clinton would have won 19 primaries versus 17 for Obama.

(According to Ms. Merritt, the report's author, Peniel Cronin, is President & CEO of Global Basics and

Sour grapes or astute analysis?

You be the judge.

For more background on Jeralyn Merritt, see LexBlog Q & A: Jeralyn Merritt of TalkLeft from Real Lawyers Have Blogs. Ms. Merritt previously acted as one of six principal trial lawyers for Timothy McVeigh in the Oklahoma City bombing case

- Garry J. Wise, Toronto

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Supreme Court of Canada to Fast-Track Bell Appeal

The Supreme Court of Canada has conditionally agreed to Bell Canada's request for an expedited appeal process, after last week's Quebec Court of Appeal ruling that scuppered the telecommunications giant's pending sale to the Ontario Teachers' Pension fund.

A speedy hearing of BCE's appeal will occur only if the Court grants leave to appeal the Quebec decision.

In a "leave to appeal" motion, the Court considers whether a case has adequate merit and national importance to justify moving forward to an actual appeal.

Leave to appeal is not an automatic "rubber stamp:"

As many as 600 applications for leave are filed each year but the Court grants approximately 70 leave applications per year. Applications for leave are usually decided by a panel of three judges of the Court.

If leave to appeal is granted to Bell, a tentative hearing date of June 17, 2008 has been suggested by the Supreme Court of Canada.

A statement by BCE Inc. sets out the details:

MONTREAL, Quebec, May 26 2008 -- BCE Inc. (TSX, NYSE: BCE) today announced that the Supreme Court of Canada has granted its motion to expedite the leave application pertaining to the decision of the Québec Court of Appeal released on May 21, 2008 denying approval for the plan of arrangement related to the proposed privatization of BCE. As previously indicated, BCE, BellCanada, together with the Purchaser will seek leave to appeal.

The Supreme Court has established the following schedule in connection with the application for leave to appeal.

  • The application for leave to appeal and motion to expedite the hearing shall be served and filed by May 28, 2008;
  • Any responses to the application for leave and motion to expedite shall be served and filed by May 30, 2008.

In the event leave to appeal is granted and the motion to expedite the hearing is granted, the Court suggests that the following timelines apply:

  • The appellants' factums, record and book of authorities to be served and filed by June 6, 2008;
  • Any applications for leave to intervene to be served and filed by June 6, 2008;
  • The respondents' factums, records and books of authorities to be served and filed by June 10, 2008;
  • The interveners' factums to be served and filed by June 10, 2008;
  • The reply factum, if permitted under the rules of the Supreme Court, to
  • be served and filed by June 12, 2008;
  • The appeal to be heard on June 17, 2008 at 9:30 a.m.
  • The appellants to share one hour for oral argument and the respondents to share one hour for oral argument.
  • Any intervener permitted to make an oral argument shall have 10 minutes to do so.

In light of the Québec Court of Appeal's decision, the closing of the transaction will be contingent on the Supreme Court of Canada granting leave to appeal and the reversal by the Supreme Court of the judgment of the Québec Court of Appeal relating to the plan of arrangement.

See CBC News: Canada's Supreme Court grants BCE a speedy hearing if appeal is heard.

Also see CBC's BCE shares rise as Supreme Court agrees to speedy hearing.

- Garry J. Wise, Toronto

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New Ontario Smoking Regulation Requires Retailers to Cover Up

If you've noticed some strange construction going on at your local convenience store lately, there is a very good reason.

Effective May 31, 2008, Ontario retailers will be required by the Smoke-Free Ontario Act to eliminate their "power walls," or visual displays of cigarettes that typically dominate the area behind convenience store counters.

As City News reports,

... come May 31st, the province is forcing convenience stores to cover them up. The idea is out of sight, out of mind - especially for teenagers.

"It's one of the most influential forms of advertising," warns marketing expert Jeffery Gottheil. "So influential that 70 percent of all purchase decisions are made in store. It's one of the most powerful advertising vehicles there is."

Acording to a Ministry of Health factsheet, the display ban for tobacco products "is fully in effect as of May 31, 2008. Its goal is to prevent young persons from beginning to smoke and to assist those who have quit to remain smoke-free."

It lists stringent, new cigarette-dispensing requirements as follows:


No tobacco products may be displayed in a retail store. This means:

  • Tobacco products must be stored in a way that prohibits consumers from seeing them before they are purchased.
  • Customers are not allowed to handle cigarettes or other tobacco products before they purchase them.
  • Store owners must ensure that tobacco products are not displayed to a potential consumer while re-stocking, conducting inventory checks or any other process that may require the storage device to be opened and tobacco products viewed.
  • The brief time when a seller opens and closes the storage device and transfers the product to a customer is not considered a “display” under section 3.1(2) of the Act.
  • Important: Any intentional or unintentional action to display tobacco products in the storage device could be subject to a charge under the Act.

Acceptable Storage

Examples of acceptable tobacco product storage and dispensing systems include:

  • Overhead containers that ensure tobacco products are only visible to the clerk;
    Below-the-counter drawers or cabinets that ensure tobacco products are only visible to the clerk;
  • Single package dispensing, gravity-fed devices;
  • Retrofit devices that cover shelves with a top-hinge “flip up” cover that close automatically or immediately by gravity. These must be no larger than 30.5 cm (or one foot) in height by 61 cm (2 feet) in length, and must open one at a time;
  • Slim drawers that open in sections and expose only the spine of cigarette packages;
  • On-the-counter devices and rotating trays of tobacco products only visible to the clerk.

Unacceptable Storage

Examples of unacceptable tobacco product storage and dispensing systems include:

  • Garage door style covers which open to display the whole or a large portion of the stock of tobacco products;
  • Large cupboards which open to permit the consumer to view the display of larger quantities of tobacco products;
  • Retrofit devices that cover shelves with a bottom hinge “flip down” cover that does not close automatically and would remain open unless lifted back into a closed position;
  • Curtains or blinds;
  • Horizontal sliding doors such as closet doors.
  • Small tags are permitted on the outside of tobacco product storage devices in order to help a clerk locate the particular tobacco product(s) contained in each storage device. Price information is not permitted on these identification tags.
  • The tags must:
    -Use black type on a white background
    -Use letters up to 14 point type size
    -Not use logos or colour
    -Not be larger than 2" x 1" (5 cm x 2.5 cm)


Local public health units will carry out inspections and investigations in tobacconist retail outlets in order to enforce the act.


An individual could be subject to a maximum fine of $4,000 for a first offence and $100,000 for a third offence or more. A corporation could be subject to a maximum fine of $10,000 for a first offence and $150,000 for a third offence or more.

Can you hear Ontario Premier Dalton McGuinty in the background, uttering his historic words for all ages?

Tear down that 'power wall,' Mr. Du Maurier!

- Garry J. Wise, Toronto

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Law Student Humour

Here's a fine bit of law student humour from Omar Ha-Redye of Law Is Cool:

How to Get a Law Job

Dear *,

Thank you for your letter of *. After careful consideration I regret to inform you that I am unable to accept your refusal to offer me employment with your firm. This year I have been particularly fortunate in receiving an unusually large number of rejection letters. With such a varied and promising field of candidates it is impossible for me to accept all refusals.

Despite *’s outstanding qualifications and previous experience in rejecting applicants, I find that your rejection does not meet with my needs at this time. Therefore, I will initiate employment with your firm immediately following graduation. I look forward to seeing you then. Best of luck in rejecting future candidates.


I had the pleasure of meeting Mr. Ha-Redye last week at my favorite, local caffeine dispensary. He penned a few thoughts on the weekend about our discussions.

Suffice to say, we have begun planning some interesting concepts for the fall of '08.

It was my first face-to-face encounter with one of my blogger friends (usually we do our linking online). I hope it will not be the last.

So here's a shout-out to some of my favourite Canadian bloggers - the coffee's on me...

- Garry J. Wise, Toronto

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Tarek Fatah on The Agenda

See Steve Paiken's interview with moderate Islamic author, Tarek Fatah, online here.

Mr. Fatah discusses his new book, Chasing a Mirage: The Tragic Illusion of an Islamic State, on TVO's The Agenda.

- Garry J. Wise, Toronto

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Friday, May 23, 2008

The 2008 You Tube Election Continues...

Robert Greenwald's "The Real McCain:"

- Garry J. Wise, Toronto

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University of Wisconson law professor Ann Althouse responds to yet another Andrew Sullivan armchair diatribe.

Wednesday, Mr. Sullivan contended that Hillary Clinton is a "sociopath... riddled with narcissism and pathology..."

Professor Althouse:

She's insane because she's fighting for the nomination using whatever arguments are available? If it's such a bad argument, it will lose and that will be the end of it. Obama is making the arguments that work for him. To exaggerate the hatefulness of her arguments and the virtuousness of his is to be too caught up in your personal preference for one candidate over the other.

Obama's taking his name off the Michigan ballot wasn't all about some sort of supreme respect for rules and agreements. If he'd thought he was going to do very well, wouldn't he have left his name on?

...This isn't insanity. It's litigation. Quite normal. If the rules help you, you insist on the importance of rules. If the rules hurt you, they are mere guidelines that must bend flexibly for the sake of justice.

Couldn't have said it better myself.

Personally, I deleted Mr. Sullivan from my RSS reader months ago because of this sort of ongoing chicanery masquerading as informed commentary.

Clearly, the man just can't help it...

- Garry J. Wise, Toronto

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Thursday, May 22, 2008

'It Began With Cavities' - Utah Woman Loses Home Over $68.00 Dental Bill

ABC News reports on a Salt Lake City, Utah woman's unlikely quest to retain her home - twelve years after it was sold at a judicial auction for $1,550.00 to satisfy a $68.00 dental debt:

Can you imagine losing your home over a $68 dental bill? That's what happened to one Utah woman.

Sonya Capri Ramos says her Salt Lake City home was sold out from under her in 1996 to pay a collections agency seeking payment for dental work performed on one of Ramos's daughters. And despite the fact that she had made three years of payments on a $51,000 mortgage, the title changed hands for just $1,550 at a sheriff's auction.

...Ramos said she paid for part of the treatment, but not all of it -- a $68 bill remained.

...According to a 10-page published decision by the Utah Court of Appeals, the judge ordered the sheriff "to collect the judgment, with costs, interest and fees, and to sell enough of defendant's non-exempt real property to satisfy" the amount due.

Kurt Johnson, the president of the North American Collection Agency Regulatory Association and a senior investigator with the Minnesota Department of Commerce, said it was highly unusual for a collections agency to recover payments through the sale of a home that isn't facing foreclosure.

"Typically, they just put liens on the property," he said. "I've never heard of it in my 20 years in Minnesota, and I've never heard of it in any other state..."

"The law is simply unjust when your home can be sold to satisfy such a small debt, when other property exists that could also be sold to satisfy the debt," said Ryan James, of Haskins & Associates, the Salt Lake City firm currently representing Ramos, in an e-mail to ABC News.

Ms. Ramos claimed to have had no notice or warning of the pending sale.

The Court dismissed Ms. Ramos' claim as barred by the state's Statute of Limitations.

For more reading, see the May 1, 2008 opinion of the Utah Court Of Appeals in Sonya Capri Bangerter v. Ralph Petty, et al.

- Garry J. Wise, Toronto

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Not Yet Sold On Obama

While the media's coronation of Barack Obama continues unabated, some rather credible Democratic Party leaders apparently remain determined to decide for themselves.

They have by default become the true deciders. They are the undeclared Superdelegates.

These are the people who will ultimately determine which candidate gets the nod as the Democratic Party's 2008 presidential nominee:


Bud Cramer (AL)
Gabrielle Giffords (AZ)
Nancy Pelosi (CA)
Jerry McNerney (CA)
Mike Honda (CA)
Sam Farr (CA)
Jim Costa (CA)
Bob Filner (CA)
Susan Davis (CA)
Mark Udall (CO)
John Salazar (CO)
Jim Marshall (GA)
Rahm Emanuel (IL)
Nancy Boyda (KS)
Dennis Moore (KS)
William Jefferson (LA)
Charlie Melancon (LA)
Don Cazayoux (LA)
Rep. Michael Michaud (ME)
John Sarbanes (MD)
Steny Hoyer (MD)
Chris Van Hollen (MD)
John Olver (MA)
Niki Tsongas (MA)
John Tierney (MA)
Edward Markey (MA)
Collin Peterson (MN)
Gene Taylor (MS)
Rep. Travis Childers (MS)
Rep. Rush Holt (NJ)
Rep. Bob Etheridge (NC)
Rep. Mike McIntyre (NC)
Rep. Tom Udall (NM)
Charlie Wilson (OH)
Marcia Kaptur (OH)
Rep. Zack Space (OH)
Rep. Dennis Kucinich (OH)
Rep. Dan Boren (OK)
Bob Brady (PA)
Jason Altmire (PA)
Tim Holden (PA)
Rep. Mike Doyle (PA)
John Spratt (SC)
Rep. Jim Clyburn (SC)
Lincoln Davis (TN)
Bart Gordon (TN)
Nick Lampson (TX)
Jim Matheson (UT)
Alan Mollohan (WV)

Distinguished Party Leaders

Jimmy Carter (GA)
Al Gore (TN)
Fmr. Senator and Majority Leader
George Mitchell (NY)
Fmr. DNC Chair Bob Strauss (TX)


Ken Salazar (CO)
Joe Biden (DE)
Tom Carper (DE)
Tom Harkin (IA)
Mary Landrieu (LA)
Ben Cardin (MD)
Carl Levin (MI)
Max Baucus (MT)
Jon Tester (MT)
Harry Reid (NV)
Frank Lautenberg (NJ)
Sherrod Brown (OH)
Ron Wyden (OR)
Jack Reed (RI)
Jim Webb (VA)
Herb Kohl (WI)


Bill Ritter (CO)
Steve Beshear (KY)
Brian Schweitzer (MT)
John Lynch (NH)
Phil Bredeson (TN)
Joe Manchin (WV)


Terry Goddard (AZ)
Jay Nixon (MO)
Rusty McAllister (NV)
Jerry Lee (TN)
37 Unnamed Add-Ons,
including 2 from Michigan

DNC Members

Joe Turnham (AL)
Nancy Worley (AL)
Don Bivens (AZ)
Lottie Shackleford (AR)
Art Torres (CA)
Hon. Carole Migden (CA)
Bob Mulholland (CA)
Christine Pelosi (CA)
Robert Rankin (CA)
Steve Ybarra (CA)
John Perez (CA)
Pat Waak (CO)
Nancy DiNardo (CT)
Donna Brazile (DC)
Christine Warnke (DC)
John Daniello (DE)
Harriet Smith-Windsor (DE)
Richard Ray (GA)
Ben Pangelinan (GU)
Chair - Vacant (HI)
Vice-Chair - Vacant (HI)
Edward Smith (IL)
Vacant (IL)
Helen Knetzer (KS)
Jennifer Moore (KY)
Nathan Smith (KY)
Chris Whittington (LA)
Claude "Buddy" Leach (LA)
Elsie Burkhalter (LA)
Sam Spencer (ME)
Jennifer DeChant (ME)
Hon. Heather Mizeur (MD)
Susan Turnbull (MD)
John Sweeney (MD)
Belkis Leong-Hong (MD)
Debra Kozikowski (MA)
James Roosevelt Jr (MA)
Carnelia Pettis Fondren (MS)
John Temporiti (MO)
Yolanda Wheat (MO)
Leila Medley (MO)
Hon. Robin Carnahan (MO)
Hon. Maria Chappelle-Nadal (MO)
Dennis McDonald (MT)
Margarett Campbell (MT)
Sam Lieberman (NV)
Hon. Yvonne Gates (NV)
Hon. Catherine Cortez Masto (NV)
Philip D. Murphy (NJ)
Raymond Buckley (NH)
Irene Stein (NY)
Ralph Dawson (NY)
David Parker (NC)
Muriel Offerman (NC)
Carol Peterson (NC)
David Strauss (ND)
Hon. Chris Redfern (OH)
Ronald Malone (OH)
Patricia Moss (OH)
Hon. Joyce Beatty (OH)
Ivan Holmes (OK)
Jim Frasier (OK)
Jay Parmley (OK)
Meredith Woods-Smith (OR)
Frank Dixon (OR)
Jenny Greenleaf (OR)
Wayne Kinney (OR)
Gail Rasmussen (OR)
Hon. Bill Bradbury (OR)
Eliseo Roques-Arroyo (PR)
Hon. Gilda Cobb-Hunter (SC)
Cheryl Chapman (SD)
Gray Sasser (TN)
Dr. Inez Crutchfield (TN)
Boyd Richie (TX)
David Hardt (TX
Denise Johnson (TX)
Betty Richie (TX)
Linda Chavez -Thompson (TX)
Helen Langan (UT)
Jim Leaman (VA)
C Richard Cranwell (VA)
Hon. Alexis Herman (VA)
Jerome Wiley Segovia (VA)
Howard Dean (VT)
Eileen Macoll (WA)
Ed Cote (WA)
Sharon Mast (WA)
David McDonald (WA)
Nick Casey Jr. (WV)
Alice Germond (WV)
Paula Zellner (WI)
Nancy Drummond (WY)
Cynthia Nunley (WY)
Marylyn Stapleton (VI)

To whom will these undeclared Superdelegates listen?

  • The once-credible Obama supporters in the blogosphere, now sounding nuttier and nuttier by the day, as they declare "war" and call this group out as "cowards"?
  • These leaders' own geographic constituencies?
  • The majority of Democratic primary voters who have cast their votes for Hillary Clinton?
  • The Democratic voters of Michigan and Florida, who rightfully insist that their electoral voices are heard?
  • Pollsters?

Or none of the above?

Bank on the latter.

This is not a group that is easily pushed around. They will vote based on their own consciences and judgments.

- Garry J. Wise, Toronto

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Texas Appeal Court: No Legal Right to Remove Children of Polygamous Sect

A breaking news report from Associated Press:

SAN ANGELO, Texas - A state appellate court has ruled that child welfare officials had no right to seize more than 400 children living at a polygamist sect's ranch.

The Third Court of Appeals in Austin ruled that the grounds for removing the children were "legally and factually insufficient" under Texas law. They did not immediately order the return of the children....

The appellate court ruled the chaotic hearing held last month did not demonstrate the children were in any immediate danger, the only measure of taking children from their homes without court proceedings.



We are excerpting extensively, below, from the Texas Court of Appeals' opinion in In re Sara Steed, et al.:

This original mandamus proceeding involves the temporary custody of a number of children who were removed from their homes on an emergency basis from the Yearning For Zion ranch outside of Eldorado, Texas. (1) The ranch is associated with the Fundamentalist Church of Jesus Christ of Latter-Day Saints (FLDS), and a number of families live there. Relators are thirty-eight women who were living at the ranch and had children taken into custody on an emergency basis by the Texas Department of Family and Protective Services based on allegations by the Department that there was immediate danger to the physical health or safety of the children.

Relators seek a writ of mandamus requiring the district court to vacate its temporary orders (2) in which it named the Department the temporary sole managing conservator of their children. (3) Relators complain that the Department failed to meet its burden under section 262.201 of the Texas Family Code to demonstrate (1) that there was a danger to the physical health or safety of their children, (2) that there was an urgent need for protection of the children that required the immediate removal of the children from their parents, or (3) that the Department made reasonable efforts to eliminate or prevent the children's removal from their parents. Tex. Fam. Code Ann. § 262.201 (West Supp. 2007). Without such proof, Relators argue, the district court was required to return the children to their parents and abused its discretion by failing to do so....

In this case, the Department relied on the following evidence with respect to the children taken into custody from the Yearning For Zion ranch to satisfy the requirements of section 262.201:

  • Interviews with investigators revealed a pattern of girls reporting that "there was no age too young for girls to be married";
  • Twenty females living at the ranch had become pregnant between the ages of thirteen and seventeen;
  • Five of the twenty females identified as having become pregnant between the ages of thirteen and seventeen are alleged to be minors, the other fifteen are now adults;
  • Of the five minors who became pregnant, four are seventeen and one is sixteen, and all five are alleged to have become pregnant at the age of fifteen or sixteen; (5)
  • The Department's lead investigator was of the opinion that due to the "pervasive belief system" of the FLDS, the male children are groomed to be perpetrators of sexual abuse and the girls are raised to be victims of sexual abuse;
  • •All 468 children (6) were removed from the ranch under the theory that the ranch community was "essentially one household comprised of extended family subgroups" with a single, common belief system and there was reason to believe that a child had been sexually abused in the ranch "household"; and
  • Department witnesses expressed the opinion that there is a "pervasive belief system" among the residents of the ranch that it is acceptable for girls to marry, engage in sex, and bear children as soon as they reach puberty, and that this "pervasive belief system" poses a danger to the children.

In addition, the record demonstrates the following facts, which are undisputed by the Department:

  • The only danger to the male children or the female children who had not reached puberty identified by the Department was the Department's assertion that the "pervasive belief system" of the FLDS community groomed the males to be perpetrators of sexual abuse later in life and taught the girls to submit to sexual abuse after reaching puberty;
  • There was no evidence that the male children, or the female children who had not reached puberty, were victims of sexual or other physical abuse or in danger of being victims of sexual or other physical abuse;
  • While there was evidence that twenty females had become pregnant between the ages of thirteen and seventeen, there was no evidence regarding the marital status of these girls when they became pregnant or the circumstances under which they became pregnant other than the general allegation that the girls were living in an FLDS community with a belief system that condoned underage marriage and sex; (7)
  • There was no evidence that any of the female children other than the five identified as having become pregnant between the ages of fifteen and seventeen were victims or potential victims of sexual or other physical abuse;
  • With the exception of the five female children identified as having become pregnant between the ages of fifteen and seventeen, there was no evidence of any physical abuse or harm to any other child;
  • The Relators have identified their children among the 468 taken into custody by the Department, and none of the Relators' children are among the five the Department has identified as being pregnant minors; and
  • The Department conceded at the hearing that teenage pregnancy, by itself, is not a reason to remove children from their home and parents, but took the position that immediate removal was necessary in this case because "there is a mindset that even the young girls report that they will marry at whatever age, and that it's the highest blessing they can have to have children."

The Department argues that the fact that there are five minor females living in the ranch community who became pregnant at ages fifteen and sixteen together with the FLDS belief system condoning underage marriage and pregnancy indicates that there is a danger to all of the children that warrants their immediate removal from their homes and parents, and that the need for protection of the children is urgent. (8) The Department also argues that the "household" to which the children would be returned includes persons who have sexually abused another child, because the entire Yearning For Zion ranch community is a "household." See id. § 262.201(d)(2).

The Department failed to carry its burden with respect to the requirements of section 262.201(b). Pursuant to section 262.201(b)(1), the danger must be to the physical health or safety of the child. The Department did not present any evidence of danger to the physical health or safety of any male children or any female children who had not reached puberty. Nor did the Department offer any evidence that any of Relators' pubescent female children were in physical danger other than that those children live at the ranch among a group of people who have a "pervasive system of belief" that condones polygamous marriage and underage females having children. (9) The existence of the FLDS belief system as described by the Department's witnesses, by itself, does not put children of FLDS parents in physical danger. It is the imposition of certain alleged tenets of that system on specific individuals that may put them in physical danger. The Department failed to offer any evidence that any of the pubescent female children of the Relators were in such physical danger. The record is silent as to whether the Relators or anyone in their households are likely to subject their pubescent female children to underage marriage or sex. The record is also silent as to how many of Relators' children are pubescent females and whether there is any risk to them other than that they live in a community where there is a "pervasive belief system" that condones marriage and child-rearing as soon as females reach puberty.

The Department also failed to establish that the need for protection of the Relators' children was urgent and required immediate removal of the children. As previously noted, none of the identified minors who are or have been pregnant are children of Relators. There is no evidence that any of the five pregnant minors live in the same household as the Relators' children. (10) There is no evidence that Relators have allowed or are going to allow any of their minor female children to be subjected to any sexual or physical abuse. There is simply no evidence specific to Relators' children at all except that they exist, they were taken into custody at the Yearning For Zion ranch, and they are living with people who share a "pervasive belief system" that condones underage marriage and underage pregnancy. Even if one views the FLDS belief system as creating a danger of sexual abuse by grooming boys to be perpetrators of sexual abuse and raising girls to be victims of sexual abuse as the Department contends, (11) there is no evidence that this danger is "immediate" or "urgent" as contemplated by section 262.201 with respect to every child in the community. The legislature has required that there be evidence to support a finding that there is a danger to the physical health or safety of the children in question and that the need for protection is urgent and warrants immediate removal. Id. § 262.201(b). Evidence that children raised in this particular environment may someday have their physical health and safety threatened is not evidence that the danger is imminent enough to warrant invoking the extreme measure of immediate removal prior to full litigation of the issue as required by section 262.201.

Finally, there was no evidence that the Department made reasonable efforts to eliminate or prevent the removal of any of Relators' children. The evidence is that the Department went to the Yearning For Zion ranch to investigate a distress call from a sixteen year-old girl. (12) After interviewing a number of children, they concluded that there were five minors who were or had been pregnant and that the belief system of the community allowed minor females to marry and bear children. They then removed all of the children in the community (including infants) from their homes and ultimately separated the children from their parents. This record does not reflect any reasonable effort on the part of the Department to ascertain if some measure short of removal and/or separation from parents would have eliminated the risk the Department perceived with respect to any of the children of Relators.

We find that the Department did not carry its burden of proof under section 262.201. The evidence adduced at the hearing held April 17-18, 2008, was legally and factually insufficient to support the findings required by section 262.201 to maintain custody of Relators' children with the Department. Consequently, the district court abused its discretion in failing to return the Relators' children (13) to the Relators. The Relators' Petition for Writ of Mandamus is conditionally granted. The district court is directed to vacate its temporary orders granting sole managing conservatorship of the children of the Relators to the Department. The writ will issue only if the district court fails to comply with this opinion.

Also see:

- Garry J. Wise, Toronto

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Damage not Reasonably Foreseeable: Supreme Court Dismisses Fly-in-the-Water Case

We wrote yesterday that the Supreme Court of Canada was to rule on tort of pure psychiatric injury in the "fly-in-the-water" case, which they have done today.

Waddah Mustapha’s appeal has today been dismissed by Canada's highest court.

The court found that Culligan owed Mr. Mustapha a duty of care; that Culligan breached the standard of care; and that Mr. Mustapha sustained damage.

However, the court found that Mr. Mustapha failed to show that it was foreseeable that a person of ordinary fortitude would suffer serious injury that he did, from seeing the flies in the bottle of water.

Regarding whether Mr. Mustapha’s damages were caused by Culligan’s breach the court wrote:

Much has been written on how probable or likely a harm needs to be in order to be considered reasonably foreseeable. The parties raise the question of whether a reasonably foreseeable harm is one whose occurrence is probable or merely possible. In my view, these terms are misleading. Any harm which has actually occurred is 'possible'; it is therefore clear that possibility alone does not provide a meaningful standard for the application of reasonable foreseeability.

The remoteness inquiry depends not only upon the degree of probability required to meet the reasonable foreseeability requirement, but also upon whether or not the plaintiff is considered objectively or subjectively. One of the questions that arose in this case was whether, in judging whether the personal injury was foreseeable, one looks at a person of 'ordinary fortitude' or at a particular plaintiff with his or her particular vulnerabilities.…… the law expects reasonable fortitude and robustness of its citizens and will not impose liability for the exceptional frailty of certain individuals.

…. to put it another way, unusual or extreme reactions to events caused by negligence are imaginable but not reasonably foreseeable.

To say this is not to marginalize or penalize those particularly vulnerable to mental injury. It is merely to confirm that the law of tort imposes an obligation to compensate for any harm done on the basis of reasonable foresight, not as insurance. The law of negligence seeks to impose a result that is fair to both plaintiffs and defendants, and that is socially useful.

It follows that in order to show that the damage suffered is not too remote to be viewed as legally caused by Culligan's negligence, Mr. Mustapha must show that it was foreseeable that a person of ordinary fortitude would suffer serious injury from seeing the flies in the bottle of water he was about to install. This he failed to do.

Mr. Mustapha having failed to establish that it was reasonably foreseeable that a person of ordinary fortitude would have suffered personal injury, it follows that his claim must fail.

Read the full text of the Court's decision in Mustapha v. Culligan of Canada Ltd. here.

Also see CBC News coverage of this decision: Top court dismisses fly-in-water case

- Shashi K. Raina, Toronto

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