winona rosa
Saturday, October 29, 2011
§ 2255. Federal custody; remedies on motion attacking sentence
U.S. Court of Appeals For The Eighth Circuit
http://www.ca8.uscourts.gov/oralargs/oaFrame.html
enter court case, no dash
Oral Arguement for 11-1462 or 11-1463 No dashes
http://www.ca8.uscourts.gov/oralargs/oaFrame.html
http://www.ca8.uscourts.gov/webcal/oct11stp.pdf full report
TUESDAY, OCTOBER 18, 2011 BEGINNING AT 9:00 AM
BEFORE JUDGES RILEY, LOKEN, BENTON
JMB
1 11-1462 ND United States v. Michael Reed
11-1463 ND United States v. Gregory Davis 15
2 11-1046 MN Katia Guimaraes v. Supervalu 15
3 11-1473 MN Karen Chambers v. The Travelers
Companies 15
4 11-1789 MN BP Group v. David Kloeber, Jr. 15
5 10-3477 MN United States v. Gregg Pickar
How Current is This?
(a) A prisoner in custody under sentence of a court established by Act of Congress claiming the right to be released upon the ground that the sentence was imposed in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack, may move the court which imposed the sentence to vacate, set aside or correct the sentence.
(b) Unless the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief, the court shall cause notice thereof to be served upon the United States attorney, grant a prompt hearing thereon, determine the issues and make findings of fact and conclusions of law with respect thereto. If the court finds that the judgment was rendered without jurisdiction, or that the sentence imposed was not authorized by law or otherwise open to collateral attack, or that there has been such a denial or infringement of the constitutional rights of the prisoner as to render the judgment vulnerable to collateral attack, the court shall vacate and set the judgment aside and shall discharge the prisoner or resentence him or grant a new trial or correct the sentence as may appear appropriate.
(c) A court may entertain and determine such motion without requiring the production of the prisoner at the hearing.
(d) An appeal may be taken to the court of appeals from the order entered on the motion as from a final judgment on application for a writ of habeas corpus.
(e) An application for a writ of habeas corpus in behalf of a prisoner who is authorized to apply for relief by motion pursuant to this section, shall not be entertained if it appears that the applicant has failed to apply for relief, by motion, to the court which sentenced him, or that such court has denied him relief, unless it also appears that the remedy by motion is inadequate or ineffective to test the legality of his detention.
(f) A 1-year period of limitation shall apply to a motion under this section. The limitation period shall run from the latest of—
(1) the date on which the judgment of conviction becomes final;
(2) the date on which the impediment to making a motion created by governmental action in violation of the Constitution or laws of the United States is removed, if the movant was prevented from making a motion by such governmental action;
(3) the date on which the right asserted was initially recognized by the Supreme Court, if that right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review; or
(4) the date on which the facts supporting the claim or claims presented could have been discovered through the exercise of due diligence.
(g) Except as provided in section 408 of the Controlled Substances Act, in all proceedings brought under this section, and any subsequent proceedings on review, the court may appoint counsel, except as provided by a rule promulgated by the Supreme Court pursuant to statutory authority. Appointment of counsel under this section shall be governed by section 3006A of title 18.
(h) A second or successive motion must be certified as provided in section 2244 by a panel of the appropriate court of appeals to contain—
(1) newly discovered evidence that, if proven and viewed in light of the evidence as a whole, would be sufficient to establish by clear and convincing evidence that no reasonable factfinder would have found the movant guilty of the offense; or
(2) a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable.
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U.S. Court of Appeals For The Eighth Circuit
http://groups.yahoo.com/group/Truth_Research/Oral%20Arguement%20for%2011-1462%20or%2011-1463%20No%20dashes
enter court case, no dash
Oral Arguement for 11-1462 or 11-1463 No dashes
http://www.ca8.uscourts.gov/oralargs/oaFrame.html
http://www.ca8.uscourts.gov/webcal/oct11stp.pdf full report
TUESDAY, OCTOBER 18, 2011 BEGINNING AT 9:00 AM
BEFORE JUDGES RILEY, LOKEN, BENTON
JMB
1 11-1462 ND United States v. Michael Reed
11-1463 ND United States v. Gregory Davis 15
2 11-1046 MN Katia Guimaraes v. Supervalu 15
3 11-1473 MN Karen Chambers v. The Travelers
Companies 15
4 11-1789 MN BP Group v. David Kloeber, Jr. 15
5 10-3477 MN United States v. Gregg Pickar
Declarations of independence: encyclopedia of American autonomous ... - Page 86
books.google.com James L. Erwin - 2007 - 240 pages - Google eBook - Preview
The Little Shell Pembina Band is a branch of the Chippewa tribe. During the Plains Wars of the nineteenth century, the band fled their home in North Dakota and found refuge in Montana. Their chief Little Shell, from whom the band took ...
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Hearings
books.google.com United States, United States. Congress. Senate. Committee on the Judiciary, Congress - 1955 - Snippet view
Mr. Hart, in your experience as an Indian atfairs commissioner for the State of North Dakota, do you have any ... the State of Montana are descendants of Chief Little Shell's band of Chippewa Indians, who never participated in a treaty; ...
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Condition of Indians in the United States: Hearings before the ...: Volume 2
books.google.com United States. Congress. House. Committee on Indian Affairs - 1936 - Snippet view
Cordially yours, NP LA FRAMBOISE, Secretary to Chief, Little Shell Rand. BELCOURT, N. DAK., March 18, 1936. A bill, S. 1786 Referring to the claims of the Turtle Mountain Band of Chippewa Indians of North Dakota : Thus I do hereby give ...
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Tribal Perspectives on American History, Vol. II: Great Plains – ...
books.google.com Sally Thompson, Happy Avery, Kim Lugthart, Elizabeth Sperry - Preview
... Indians Russell Boham – Little Shell Chippewa There was another treaty that was about to be negotiated in North Dakota ... And the reason that the Little Shell Tribe is the Little Shell Tribe is the name is taken after Chief Little ...
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American Indian nations: yesterday, today, and tomorrow - Page 30
books.google.com George P. Horse Capture, Duane Champagne, Chandler C. Jackson - 2007 - 322 pages - Google eBook - Preview
Little Shell and the others returned to North Dakota and were informed that they were no longer recognized by the government ... had disappeared and traditional lifestyles came to an end for the Chippewa who followed Chief Little Shell. ...
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North Dakota history: Volumes 71-72
books.google.com State Historical Society of North Dakota - 2005 - Snippet view
Charles Green's own oral account of the event, conveyed by translator Roger St. Pierre in a 1906 letter to Libby, states that "Little Shell was chief at the time of this hunt." This was probably the second of three Chippewa chiefs of ...
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Native Americans: an encyclopedia of history, culture, and peoples: Volume 1 - Page 493
books.google.com Barry Pritzker - 1998 - 868 pages - Google eBook - Preview
In 1882, the United States recognized the Turtle Mountain Band's claim to 20 townships in north- central North Dakota. Two years later, however, it decided that the reservation was too large. The Little Shell Band, away hunting buffalo ...
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The Province and the States: Minnesota, Montana, North Dakota, ... - Page 384
books.google.comWeston Arthur Goodspeed - 1904 - Free Google eBook - Read
Two townships had been set apart in 1884, as a reservation for Chief Little Shell's band, but the tract had never been made the subject of a treaty. Consequently the Indians still claimed all the land in the Turtle Mountain country, ...
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The North Dakota quarterly: Volume 64, Issues 3-4
books.google.com University of North Dakota - 1997 - Snippet view
Had Hemingway wished to create yet another novel where the chief protagonist also writes the novel sometime after the ... The parabolic trajectory of the mortar or artillery shell that slammed into the ground, shattering into shrapnel, ...
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Montana's Indians: yesterday and today - Page 95
books.google.com William L. Bryan - 1996 - 143 pages - Preview
... descendents of the Pimbina Chippewa from the Turtle Mountain Reservation in North Dakota. These people, with some mixed blood of Metis and Cree, left the reservation in 1892 to hunt in Montana under their chief, Thomas Little Shell. ...
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BUDGET CHALLENGES AND THE SUPER COMMITTEE
Budget Control Act of 2011
http://www.gpo.gov/fdsys/pkg/PLAW-112publ25/pdf/PLAW-112publ25.pdf
As the Presidential primaries continue to heat up, Congressional lawmakers face an
extensive list of legislative priorities requiring attention before the holiday
recess. While many of the pressing issues revolve around the sluggish economy,
health care is still on the radar.
Continuing Budget Challenges and the Super Committee
Due to the failure of Congress to pass a budget for both fiscal year 2011 and 2012,
the federal government has had to operate on a series of continuing budget
resolutions. At the time of this update, the U.S. House of Representatives has
only passed six of the 12 appropriations bills and the U.S. Senate has only
passed one of the 12 appropriations bills necessary to keep the wheels of
government turning. This budgetary impasse is having a negative effect on the
nation’s economy. In order to attempt to bridge this gap, both houses approved
legislation called The Budget Control Act of 2011 (the Act) that created a temporary joint
committee, called the Joint Select Committee on Deficit Reduction, to hammer
out a grand budget compromise.
The legislation authorized the ranking majority member of each house respectively
to appoint six members each to what has come to be called, the “Super
Committee.” The members of the Committee can be found here. As you might expect, the Republican House appointees are not interested in many defense cuts or new taxes, and the
Democrat Senate members of the Committee are generally opposed to any cuts to
the welfare/entitlement programs and are actively seeking new tax revenues.
Each side appears to represent a microcosm of the two houses they
represent.
The Act amends the 2012 budget resolution. The House and Senate Appropriations
Committees are tasked with finding an additional $24 billion in cuts to the
existing 2012 continuing budget resolution. In order to attempt to protect the
current fragile economy, the compromise will seek limited reductions in FY 2012
and 2013, and will significantly increase the reductions in the latter
years.
The total federal budget amount that will have to be cut is $1.5 trillion over the
next 10 fiscal years. The Super Committee must vote on an initial
recommendation to cut spending no later than November 23. To see a more
detailed listing of the deficit reduction timelines, click here.
If by January 2, 2012, both houses of Congress have not adopted the Super
Committee’s report to reduce the deficit by at least $1.5 trillion, the Act
implements automatic spending cuts to both defense and non-exempt domestic
programs. If spending levels remain as projected, the anticipated cuts to
defense spending will be around 8.4% and the cut to non-exempt, domestic
programs (other than Medicare) will be around 6.7%.
By the end of this calendar year, the Act also requires that both houses vote on a
Balanced Budget Amendment to the U.S. Constitution.
Members of the Republican leadership have gone on record as saying that the
recommendations of the Super Committee may be the best possible outcome they
will find in 2012. Majority Whip McCarty (R-CA) has already started rounding up
support for the anticipated recommendations. The Democrat side is reserving its
options for now, but has stated that it expects to raise new tax revenues. We
will report further developments to you as this process unfolds.
Beyond Deficit Reduction
While the Super Committee is grabbing all the headlines, it’s important to keep
an eye on the other legislative activities – including Patient Protection and
Affordable Care Act (PPACA).
Senate Agenda
When the Senate majority isn’t focused on the Super Committee and the impending
impact on the budgets, they are focused on the economy and jobs. The Senate
refused to approve the President’s job proposal and is now moving to address
many of the elements of the job proposal piece-by-piece. Of the 10 issues
highlighted by Senate Majority Leader Reid at the beginning of this legislative
session, jobs and the deficit are consuming most of the oxygen on that side of
Capitol Hill.
The Democrat majority in the Senate is in a tough spot. The Washington Post recently reported:
“House Republicans have the energy. President Obama has the
spotlight. And thus (the Senate has) become the third wheel of democracy — with
a lesser role in Washington’s broader debates, and without the votes to
overcome Republican filibusters in their own chamber.
"In response, Senate Democrats have adopted a minimalist
agenda. They have blocked bills from the GOP-led House but proposed few broad
ideas of their own — hoping to keep vulnerable incumbents from having to make
controversial decisions before the 2012 elections.”
The thin agenda is not sitting well with Obama’s fellow Democratic senators, but
none were offering alternatives.
The House Agenda
On the other side of the Capitol, the Republicans who control
the U.S. House of Representatives are working on an aggressive economic agenda.
The Republican committee chairs and congressional leadership are focused on key
issues involving deficit reduction, health care reform, job creation and
economic recovery. The House has introduced more than one thousand bills since
the 112th session commenced in January. However, due to the gridlock in
Congress, most if not all will not be approved in the Senate.
Earlier this year, a bill to repeal PPACA passed the House
by a substantial margin, but failed to pass the Senate on a party line vote.
Having failed to repeal PPACA, a new effort surfaced in the House to freeze
PPACA implementation.
House Budget Committee Chairman Paul Ryan (R-WI) is calling for Republicans to
support a comprehensive "replacement" of PPACA. He proposes the
federal government provide limited financial contribution to help Americans
obtain health insurance coverage. In a presentation made at the Hoover Institute at Stanford
University, Rep Ryan recently noted: "While Republicans have advanced many
good ideas on health care, it is my candid opinion that the party as a whole
has yet to coalesce around a complete reform agenda aimed at dealing with the
underlying problem, which is runaway inflation in the cost of health care.”
Health Care Legislative Highlights
OpenCongress is reporting and tracking hundreds of bills that
have been introduced directly impacting health care. Here are some
highlights in terms of subject matter:
General health issues - 565 bills
Health care costs and insurance - 267 bills
Health care quality - 71 bills
Health facilities and institutions - 129 bills
Health information and medical records - 144 bills
Health personnel - 171 bills
Health program administrative and funding - 231 bills
Health promotion and preventive care - 149 bills
Health technology, devices and supplies – 69 bills
Insurance industry and regulation – 29 bills
Medicaid - 97 bills
Medical education – 72 bills
Medical ethics – 22 bills
Medical research – 168 bills
Medical tests and diagnostic methods – 100 bills
Medicare – 201 bills
Here are some highlights relating to several specific bills:
The Freeze and Investigate Affordable Care Act
Rep. Sam Johnson has introduced the Freeze and Investigate Affordable Care Act,
H.R. 3095, which would freeze the provisions of the
health reform law that are not yet in effect until its full impact has been
studied. “This law is not what Americans asked for,” said Johnson. “Already,
insurance premiums have skyrocketed, forcing employers to pass on the financial
burden to their employees. Continuing to implement this ill-advised policy is
harmful to the economic recovery of our nation.”
H.R. 1184: Health Care Waiver Transparency Act
Another bill introduced by Rep. Darrell Issa (R-CA) would mandate transparency
in the waiver process. This bill would “require greater transparency concerning
the criteria used to grant waivers to the job-killing health care law and
ensure that applications for such waivers are treated in a fair and consistent
manner, irrespective of the applicant's political contributions or association
with a labor union, a health plan provided for under a collective bargaining
agreement, or another organized labor group.” No further action has been taken
on this bill.
H.R. 1206: Access to Professional Health Insurance Advisors Act of ...
Introduced by Reps. Mike Rogers (R-MI) and John Barrow (D-GA), this bill would
remove insurance broker fees from the calculation of the Medical Loss Ratio
(MLR) formula. The current MLR formula penalizes insurance companies that pay
commissions to brokers. A committee hearing was held on this bill, but no
further action was taken.
This is only a snapshot of the more than 4,200 bills introduced in the 112th Congress. Both
chambers are beginning to focus on the 2012 elections that are now just over
one year away. As Congress moves closer to that November 6, 2012 date, the
opportunity to find compromise on these issues will continue to shrink. The
bipartisan effort earlier this year to successfully repeal the PPACA 1099 clause has proven to be the rare exception. It appears increasingly clear that substantive amendments to PPACA, if any, will
have to await the 2012 election results.
Tags:
NOTICE BUDGET CHALLENGES ON THE HEALTH CARE FRAUD AND ABUSE CONTROL
125 STAT. 244 PUBLIC LAW 112–25—AUG. 2, 2011
‘‘(II) the term ‘redetermination’ means redetermination
of eligibility under sections 1611(c)(1) and
1614(a)(3)(H) of the Social Security Act; and
‘‘(III) the term ‘additional new budget authority’
means the amount provided for a fiscal year, in excess
of $273,000,000, in an appropriation Act and specified
to pay for the costs of continuing disability reviews
and redeterminations under the heading ‘Limitation
on Administrative Expenses’ for the Social Security
Administration.
‘‘(C) H
EALTH CARE FRAUD AND ABUSE CONTROL.—(i)
If a bill or joint resolution making appropriations for a
fiscal year is enacted that specifies an amount for the
health care fraud abuse control program at the Department
of Health and Human Services (75–8393–0–7–571), then
the adjustments for that fiscal year shall be the amount
of additional new budget authority provided in that Act
for such program for that fiscal year, but shall not exceed—
‘‘(I) for fiscal year 2012, $270,000,000 in additional
new budget authority;
‘‘(II) for fiscal year 2013, $299,000,000 in additional
new budget authority;
‘‘(III) for fiscal year 2014, $329,000,000 in additional
new budget authority;
‘‘(IV) for fiscal year 2015, $361,000,000 in additional
new budget authority;
‘‘(V) for fiscal year 2016, $395,000,000 in additional
new budget authority;
‘‘(VI) for fiscal year 2017, $414,000,000 in additional
new budget authority;
‘‘(VII) for fiscal year 2018, $434,000,000 in additional
new budget authority;
‘‘(VIII) for fiscal year 2019, $454,000,000 in additional
new budget authority;
‘‘(IX) for fiscal year 2020, $475,000,000 in additional
new budget authority; and
‘‘(X) for fiscal year 2021, $496,000,000 in additional
new budget authority.
‘‘(ii) As used in this subparagraph, the term ‘additional
new budget authority’ means the amount provided for a
fiscal year, in excess of $311,000,000, in an appropriation
Act and specified to pay for the costs of the health care
fraud and abuse control program.
‘‘(D) D
ISASTER FUNDING.—
‘‘(i) If, for fiscal years 2012 through 2021, appropriations
for discretionary accounts are enacted that
Congress designates as being for disaster relief in
statute, the adjustment for a fiscal year shall be the
total of such appropriations for the fiscal year in discretionary
accounts designated as being for disaster relief,
but not to exceed the total of—
‘‘(I) the average funding provided for disaster
relief over the previous 10 years, excluding the
highest and lowest years; and
‘‘(II) the amount, for years when the enacted
new discretionary budget authority designated as
being for disaster relief for the preceding fiscal
Definition.
UNJUSTIFIED PSYCHIATRIC COMMITNENT IN THE U.S.A
http://www.antipsychiatry.org/unjustif.htm
by Lawrence Stevens, J.D.
In 1992, U.S. Representative Patricia Schroeder of Colorado held hearings investigating the practices of psychiatric hospitals in the United States. Rep. Schroeder summarized her committee's findings as follows: "Our investigation has found that thousands of adolescents, children, and adults have been hospitalized for psychiatric treatment they didn't need; that hospitals hire bounty hunters to kidnap patients with mental health insurance; that patients are kept against their will until their insurance benefits run out; that psychiatrists are being pressured by the hospitals to increase profit; that hospitals 'infiltrate' schools by paying kickbacks to school counselors who deliver students; that bonuses are paid to hospital employees, including psychiatrists, for keeping the hospital beds filled; and that military dependents are being targeted for their generous mental health benefits. I could go on, but you get the picture" (quoted in: Lynn Payer, Disease- Mongers: How Doctors, Drug Companies, and Insurers Are Making You Feel Sick, John Wiley & Sons, Inc., 1992, pp. 234-235).
A headline on the front page of the July 6, 1986 Oakland, California Tribune reads: "Adolescents are packing private mental hospitals But do most of them belong there?" The newspaper article says: "...mental patients advocates say many adolescents in private hospitals are not seriously mentally ill, but merely rebellious. By holding the adolescents, who often dislike hospitalization, advocates say private hospitals reap profits and please parents. ... Some county mental health officials and psychiatrists at private hospitals acknowledge there are hospitalized adolescents who, ideally, shouldn't be there. ... 'It distresses me to see kids in these facilities; it distressesme to see the profits going on,' Jay Mahler, of Patients Rights Advocacy and Training, said two weeks ago at a Concord Public forum. 'It's a hot business,' Tim Goolsby, a Contra Costa County Probation Department adolescent placement supervisor, later agreed. 'If your kids like sex, drugs, and rock'n'roll, that's the place to put them. I'm not sure insurance companies know what's going on, but they're being ripped off.' Goolsby estimated 80 percent of adolescents in Contra Costa private psychiatric hospitals are not mentally ill... University of Southern California sociologists Patricia Guttridge and Carol Warren say these adolescents have been transformed from delinquents to emotionally disturbed children. After studying 1,119 adolescents in four Los Angeles-area psychiatric hospitals, they found that less than a fifth were admitted for serious mental illnesses" (Susan Stern, The Tribune (Oakland, California), Sunday, July 6, 1986, p. A-1 & A-2).
In the February 1988 Stanford Law Journal Lois A. Weithorn, Ph.D., a former University of Virginia psychology professor, said "adolescent admission rates to psychiatric units of private hospitals have jumped dramatically, increasing over four-fold between 1980 and 1984. ... I contend that the rising rates of psychiatric admission of children and adolescents reflect an increasing use of hospitalization to manage a population for whom such intervention is typically inappropriate: 'troublesome' youth who do not suffer from severe mental disorders" (40 Stanford Law Review 773 at 773-774).
Psychiatric and psychological "diagnosis" is arbitrary and unreliable. Furthermore, the supposed experts responsible for these "diagnoses" are usually biased in favor of commitment because of their personal economic concerns or their affiliation with the psychiatric "hospital" where the "patient" is or will be confined. Psychiatric "hospitals", like all businesses, need customers. In the case of psychiatric "hospitals", they need patients. They not only want patients, they need them to stay in business. Similarly, individual psychiatrists and psychologists need patients to make money and earn a living. A magazine article published in 1992 criticizing the trend towards locking up troublesome teenagers alleged that teenagers are locked up in psychiatric hospitals today more than in the past because "busy parents are less willing to deal with their behavior and because inpatient psychiatric business represents a profitable market in the health-care field." The result has been an increase in the number of psychiatric hospitals in recent years, "from 220 in 1984 to 341 in 1988". This increase in the number of psychiatric hospitals has resulted in keen competition between hospitals and psychiatrists for patients. "Keeping all those psychiatric beds filled is critical, and administrators are aggressively ensuring that they will be. Hard-sell TV, radio, and magazine ads (up to tenfold in the past few years, according to Metz) are ubiquitous ... Some facilities even resort to paying employees and others bonuses of $500 to $1,000 per referral. ... Rebellious teenagers used to be grounded. New they're being committed. Increasingly, parents are locking up their unruly kids in the psychiatric wards of private hospitals for engaging in what many therapists call normal adolescent behavior. Adolescent psychiatric admissions have gone up 250 or 400 percent since 1980, reports Holly Metz in The Progressive (Dec. 1991), but it's not because teens are suddenly so much crazier than they were a decade ago. Indeed, the Children's Defense Fund suggests that at least 40 percent of these juvenile admissions are inappropriate, while a Family Therapy Networker (July/Aug. 1990) youth expert puts that figure at 75 percent" (Lynette Lamb, "Kids in the Cuckoo's Nest Why are we locking up America's troublesome teens?", Utne Reader, March/April pp. 38, 40).
In her book And They Call It Help - The Psychiatric Policing of America's Children, published in 1993, Louise Armstrong laments "the 65 percent of kids in private, for-profit psych hospitals who simply do not need to be there but are given severe-sounding labels nonetheless" (Addison-Wesley Pub. Co., p. 167 - italics in original).
Unjustified involuntary commitment to psychiatric hospitals has become so blatant Reader's Digest published an article in the July 1992 issue exposing the unethical practice:
"Similar storm clouds are appearing over the mental - health field. Alarmed by exploding costs, insurance companies began scrutinizing payments more carefully - and ultimately trimmed the average patient's length of hospital stay. As a result, 'private hospitals that once made a great deal of money are now desperate for patients,' says Dr. Alan Stone, former president of the American Psychiatric Association.
"That desperation has opened the door for fraud. Among the alleged abuses: patients abducted by 'bounty hunters'; others hospitalized against their will until their insurance runs out; diagnoses and treatments tailored to maximize insurance reimbursement; kickbacks for recruiting patients; unnecessary treatments; gross overbilling.
"The most infamous charges were leveled in Texas. On April 4, 1991, two private security agents showed up at the Harrell family home in Live Oak to pick up Jeramy Harrell, 14, and admit him on suspicion of drug abuse to Colonial Hills Hospital, a private psychiatric facility in San Antonio.
"Family members believed the agents to be law-enforcement officers. If Jeramy didn't cooperate, the agents said, they could obtain a warrant and have him detained for 28 days. 'They acted just like the Gestapo,' the boy's grandmother - and legal guardian - later told a Texas state senate committee.
"According to that testimony, Jeramy was denied any contact with his family for six days and released only after a state senator [Frank Tejeda, now in Congress] intervened. State officials discovered the boy had been ordered detained by a staff doctor after his disturbed younger brother lied about Jeramy's supposed drug use. The guards who brought him in worked for a private firm paid by Colonial Hills for each patient delivered. ...
"Soon after the ordeal, the Harrells got a bill for Jeramy's six-day stay, a stunning $11,000. The hospital's owner denied any wrongdoing.
"The Harrell case led to those Texas senate hearings, which in turn brought to light other allegations of fraud and abuse involving some 12 other Texas facilities and at least three other national hospital chains. Similar charges have been made against hospitals in New Jersey, Florida, Alabama and Louisiana; three federal agencies have opened investigations, and more than a dozen states have probes under way" (Gordon Witkin, "Beware These Health Scams", Reader's Digest, July 1992, p. 142 at 144-146).
In 1991 or 1992 an administrator at a psychiatric "hospital" told me competition between psychiatric hospitals is what she called "cut throat". Combine this intense competition with America's poorly written involuntary commitment laws and judges who refuse to impose protection from unwarranted commitment that bona-fide due process requires, and the result is a lot of people being deprived of liberty and suffering psychiatric stigma unjustifiably. In the field of so-called mental health where large amounts of money can be made, in large part because of health insurance, and where there is a competitive environment where there are too few psychiatric "patients" to fill psychiatric beds, self-interest biases the supposed psychiatric or psychological experts in favor of a "diagnosis" which justifies commitment, including involuntary commitment where necessary. As Harvard Law professor Alan M. Dershowitz has said, psychiatry "is not a scientific discipline" ("Clash of Testimony in Hinkley Trial Has Psychiatrists Worried Over Image", The New York Times May 24, 1982, p. 11). The opinion of many legislators and judges that impartiality, objectivity, and scientific expertise of mental health professionals makes the kind of due process needed elsewhere unnecessary in psychiatric commitment is mistaken.
As was noted in the above quoted Reader's Digest article, much of this unjustified involuntary psychiatric commitment of normal and law-abiding people to the prisons called psychiatric hospitals is motivated by the financial needs of psychiatric hospitals and the people who work in them. Although it has been reaching newspaper headlines in only the last several years, unwarranted psychiatric commitment has been going on for over a century, including in the USA where freedom is supposedly a cherished value and where human rights are supposedly respected. Recent inventions such as health care insurance have made the abuses more frequent, but the willingness of mental health "professionals" to violate the sacred right of each law-abiding person to liberty isn't new.
What is most needed is recognition that there is no such thing as "mental illness". That alone undermines the justification for most involuntarily imposed so-called psychiatric care. Rather than being a bona-fide illness, the mental "illness" label is value judgment about a person's behavior. But as long as incarceration for so-called mental illness continues, those accused of it should be given the same rights as defendants in criminal cases. America's established history of unwarranted psychiatric commitment shows this protection is necessary. These rights include trial by jury, a procedure for assuring the defendant or so-called proposed patient has been advised of when and how to invoke his or her right to jury trial, an absolute prohibition of incommunicado confinement (particularly during the pre-trial period), the right to confront and cross-examine opposing witnesses, the right to call one's own witnesses, conviction or commitment only if there is proof beyond a reasonable doubt, freedom from double-jeopardy, and assistance of legal counsel. The prohibition of incommunicado confinement must be absolute, because if psychiatrists are permitted by law to hold prisoners ("patients") incommunicado in "emergencies", that power will often be used routinely (without emergency). Another safeguard prisoners of psychiatry need is protection from being mentally disabled by forcibly administered psychiatric drugs or electric shock treatment prior to their day in court. Of all these due-process rights, the right to jury trial and the right to not be mentally disabled by psychiatric drugs or electric shock treatment prior to one's day in court are unquestionably the most important. Many states have provided a right to jury trial in psychiatric commitment cases by statute, but many have not; and judges often refuse to grant it as a constitutional right. Judges are as capable as psychiatrists of deciding what to do with people accused of mental illness, but few will even attempt to do so and will instead approve a psychiatrist's request for commitment without even the slightest attempt at real judicial review. The importance of the right to jury trial is illustrated by the remark of a court clerk who told me, in the judge's presence, that the judge felt if he didn't follow the doctor's recommendation regarding commitment, "the Court would be practicing medicine without a license." This illogical statement, which the judge seemed to agree with (indicated by his silence as he listened to his clerk say this and by his conduct in court) reveals the extent to which judges have abdicated their responsibility in this area to psychiatrists. The invalidity and unreliability of psychiatric "diagnosis", often complicated by the psychiatrist's financial stake in getting the so-called patient committed, combined with the immutable reluctance of most judges to use their own independent judgment, makes a jury absolutely essential for a fair trial in psychiatric commitment cases. This is truly a case of "NO JURY - NO JUSTICE".
Far from anything idealistic like law or concern for human rights, the primary forces curtailing unnecessary involuntary psychiatric "hospitalization" in the USA have been insurance companies motivated not by idealism but by monetary concerns. As Tim Goolsby remarked in 1986 (above), "they [the health insurance companies] [a]re being ripped off." Eventually the health insurance companies became aware of the needless psychiatric treatment they were paying for. According to a front-page article in the August 3, 1992 issue of Investor's Business Daily: "Last Thursday...eight major insurance companies sued NME [National Medical Enterprises] for alleged fraud involving hundreds of millions of dollars in psychiatric hospital claims. Their complaint, filed in federal court in Washington, accused the company of a 'massive' scheme to admit and treat thousands of patients regardless of their need for care. ...some institutions were paying 'bounty fees' for patient referrals or misdiagnosing patients to get maximum reimbursement" (Christine Shenot, "Bleeder at National Medical Insurers Cry Of 'Fraud' Reopened A Big Wound", Investor's Business Daily, Monday, August 3, 1992, p. 1). Time magazine later reported NME settled the case for a record $300 million (April 25, 1994, p. 24). An article about a similar suit filed in Dallas, Texas appeared in the September 15, 1992 issue of New York Newsday, saying: "Two of the country's largest insurance companies filed suit yesterday against a national chain of private psychiatric and substance abuse hospitals, charging it with illegally admitting patients who did not need treatment and then not releasing them until their insurance benefits ran out" Michael Unger, "Hospitals Called Cheats Insurers say health-care chain pulled off nationwide scam", New York Newsday, Thursday, September 15, 1992, Business section, page 33).
Insurance fraud involving psychiatrists treating people who do not want or need treatment illustrates a more serious underlying problem that still has not been adequately addressed: Loss of liberty based on the opinions of psychiatrists rather than on unlawful conduct by the accused has no place in a nation that claims to respect the rights of each individual.
THE AUTHOR, Lawrence Stevens, is a lawyer whose practice has included representing psychiatric "patients". His pamphlets are not copyrighted. You are invited to make copies for those who you feel will benefit.
2000 UPDATE
"The confusing aspect about this is that many adolescents are irritable, aggressive, and impulsive because they are upset about their life circumstances. In recent years some of these teenagers have found their way into psychiatric hospitals, labeled with the diagnosis of bipolar disorder and placed on medications. Some psychiatric hospitals made a practice of admitting adolescents in distress, using the diagnosis of bipolar disorder inappropriately in order to increase their billing to insurance companies. This practice was so widespread that the federal government finally intervened, charging the hospitals with fraud and assessing fines of millions of dollars. Many of these children did not have bipolar disorder at all, but were acting inappropriately because of stresses in their families, with their friends, and at school." Edward Drummond, M.D., Associate Medical Director at Seacoast Mental Health Center in Portsmouth, New Hampshire, in his book The Complete Guide to Psychiatric Drugs (John Wiley & Sons, Inc., New York, 2000), pages 13-14. Dr. Drummond graduated from Tufts University School of Medicine and was trained in psychiatry at Harvard University.
Wednesday, October 26, 2011
Uncovered FDA Documents Reveal 26 More Gardasil Deaths
Uncovered FDA Documents Reveal 26 More Gardasil Deaths
Anthony Gucciardi
Infowars.com
October 21, 2011
Judicial Watch, a public-interest group that has leaked countless government reports, has recently uncovered FDA documents that reveal an additional 26 deaths associated with Merck’s HPV vaccine Gardasil.
In addition to the 26 deaths occurring between Sept. 1, 2010, and Sept. 15, 2011, the adverse-reaction reports also detail a number of severe side effects including seizures, paralysis, blindness, pancreatitis, speech problems, short-term memory loss and Guillain-Barré Syndrome.
According to both the documents and the Judicial Watch, side effects associated with Gardasil include:
The information was received from the patient’s mother … concerning her healthy 14-year-old daughter who in August 2007, January 2008, and June 2008, was vaccinated with a first, second and third dose of Gardasil … It was reported that the patient experienced several symptoms including numbness and tingling in her fingers and toes, fatigue, a really hard time falling asleep, urinary tract infections, ovarian cyst, moody, trouble getting out of bed and seizures. The patient had had upwards of 150 seizures following her third shot in June 2008. During her seizures she stopped breathing for periods of 30 to 40 seconds. The patient was diagnosed with Neurocardiogenic syndrome and seizures. It was reported that the patient died due to ovarian cyst. The reporter felt that the patient’s symptoms were related to vaccination with Gardasil.
Additional information was received from a newspaper article concerning a 18-year-old female …who on 10-MAY-2007 was vaccinated with Gardasil … in the right arm … The patient who was a college freshman traveled on 05-OCT-2007 to visit her family for the weekend. The patient reportedly felt “slightly ill” upon her arrival and subsequently took an aspirin and went to bed awakening at 1:30 PM the following afternoon “appearing refreshed.” The patient became feverish again that night and woke at 1:00 a.m. the morning of 07-OCT-2007 with chills and a severe headache complaining that “my headache is about to explode.” The patient was taken to a local hospital, where a brain computed axial tomography (CAT) scan was performed and the brain revealed meningococcal disease in her brain and brain stem. The patient was immediately transferred to another hospital and died the evening of 07-OCT-2007 due to complications of meningitis.
Information has been received from a physician regarding a 15-year-old female who on 26-SEP-2007 was vaccinated with her second dose of Gardasil for prevention of HPV … Thirty minutes after the vaccination, the patient experienced a headache and that night went home and slept until the next morning. The patient woke up the next day and went to school. The school nurse called the patient’s mother and informed her that the patient felt tingling in both hands. Later that day, the patient was again sent to the nurse’s office due to a shaking sensation all over. Later that evening, things became worse and the patient started crying from the pain and burning in her back. The patient was taken to the emergency room by her parents. In the emergency room, the patient collapsed and was not able to walk; she was paralyzed from the waist down. It was reported that the patient was hospitalized for two months.
The documents add to the mountain of evidence that Gardasil is one of the most deadly vaccinations ever pushed on young children. Gardasil has already been linked to more than 49 deaths and thousands of negative reactions. These FDA documents simply add more reason to discontinue the Gardasil vaccine, however even in the face of compelling evidence it is actually being more widely distributed than ever. This is due to the corrupt nature of Gardasil manufacturer Merck, who utilized financial incentives to help pass a popular California law that allows children as young as 12 to receive the Gardasil shot without parental consent.
The deceptive history of Merck’s Gardasil HPV vaccine
Even beyond the large-scale political deception, Merck is actively deceiving consumers as well. By omitting the death link and serious side effects from their Gardasil advertisements, Merck is tricking consumers into thinking that the popular HPV shot is virtually harmless.
In fact, on the official Merck website there is no mention of death, seizures, or even Guillain-Barré Syndrome. Instead, Merck lists the most common symptoms as the only symptoms outside of allergic reaction. According to Merck, these symptoms include:
pain, swelling, itching, bruising, and redness at the injection site
headache
fever
nausea
dizziness
vomiting
fainting
Of course this is absolutely false, and more severe symptoms were identified long before these recently uncovered FDA documents. Between May 2009 and September 2010 alone, Gardasil was linked to 3,589 harmful reactions and 16 deaths. Of the 3,589 adverse reactions, many were debilitating. Permanent disability was the result of 213 cases; 25 resulted in the diagnosis of Guillain-Barre Syndrome; and there were 789 other “serious” reports according to FDA documents. None of these are discussed on Merck’s website, or even in their widely-distributed print ads.
It seems that Merck is deceiving consumers into thinking Gardasil is safe through the intentional omission of vital facts. These leaked FDA documents reveal even more deaths caused by Gardasil, yet medical professionals still recommend the shot to their patients. Even more unbelievable is the fact that HPV is only responsible for 1% of cancer deaths, while 70% of all HPV infections resolve themselves within a year. That number increases to 90% after two years.
The Gardasil shot is simply not worth the risk of paralysis, death, or countless other side effects.
read original:http://www.infowars.com/uncovered-fda-documents-reveal-26-more-gardasil-deaths/
“Child abuse offenses” for “Customs and slave trade violations”
http://www.law.cornell.edu/uscode/uscode18/usc_sec_18_00003283----000-notes.html
Source
(June 25, 1948, ch. 645, 62 Stat. 828; Pub. L. 103–322, title XXXIII, § 330018(a), Sept. 13, 1994, 108 Stat. 2149; Pub. L. 108–21, title II, § 202, Apr. 30, 2003, 117 Stat. 660; Pub. L. 109–162, title XI, § 1182(c), Jan. 5, 2006, 119 Stat. 3126.)
Historical and Revision Notes
Based on title 18, U.S.C., 1940 ed., § 584 (R.S. § 1046; July 5, 1884, ch. 225, § 2, 23 Stat. 122).
Words “customs laws” were substituted for “revenue laws,” since different limitations are provided for internal revenue violations by section 3748 of title 26, U.S.C., 1940 ed., Internal Revenue Code.
This section was held to apply to offenses under the customs laws. Those offenses are within the term “revenue laws” but not within the term “internal revenue laws”. United States v. Hirsch (1879, 100 U.S. 33, 25 L. Ed. 539), United States v. Shorey (1869, Fed. Cas. No. 16,282), and United States v. Platt (1840, Fed. Cas. No. 16,054a) applied this section in customs cases. Hence it appears that there was no proper basis for the complete elimination from section 584 of title 18, U.S.C., 1940 ed., of the reference to revenue laws.
Meaning of “revenue laws”. United States v. Norton (1876, 91 U.S. 566, 23 L.Ed. 454), quoting Webster that “revenue” refers to “The income of a nation, derived from its taxes, duties, or other sources, for the payment of the national expenses.” Quoting United States v. Mayo (1813, Fed. Cas. No. 15,755) that “revenue laws” meant such laws “as are made for the direct and avowed purpose of creating revenue or public funds for the service of the Government.”
Definition of revenue. “Revenue” is the income of a State, and the revenue of the Post Office Department, being raised by a tax on mailable matter conveyed in the mail, and which is disbursed in the public service, is as much a part of the income of the government as moneys collected for duties on imports (United States v. Bromley, 53 U.S. 88, 99, 13 L. Ed. 905).
“Revenue” is the product or fruit of taxation. It matters not in what form the power of taxation may be exercised or to what subjects it may be applied, its exercise is intended to provide means for the support of the Government, and the means provided are necessarily to be regarded as the internal revenue. Duties upon imports are imposed for the same general object and, because they are so imposed, the money thus produced is considered revenue, not because it is derived from any particular source (United States v. Wright, 1870, Fed. Cas. No. 16,770).
“Revenue law” is defined as a law for direct object of imposing and collecting taxes, dues, imports, and excises for government and its purposes (In re Mendenhall, D.C. Mont. 1935, 10 F. Supp. 122).
Act Cong. March 2, 1799, ch. 22, 1 Stat. 627, regulating the collection of duties on imports, is a revenue law, within the meaning of act Cong. April 18, 1818, ch. 70, 3 Stat. 433, providing for the mode of suing for and recovering penalties and forfeitures for violations of the revenue laws of the United States (The Abigail, 1824, Fed. Cas. No. 18).
Changes were made in phraseology.
Amendments
2006—Pub. L. 109–162 inserted “, or for ten years after the offense, whichever is longer” after “of the child”.
2003—Pub. L. 108–21 substituted “Offenses against children” for “Child abuse offenses” in section catchline and amended text generally. Prior to amendment, text read as follows: “No statute of limitations that would otherwise preclude prosecution for an offense involving the sexual or physical abuse of a child under the age of 18 years shall preclude such prosecution before the child reaches the age of 25 years.”
1994—Pub. L. 103–322 substituted “Child abuse offenses” for “Customs and slave trade violations” as section catchline and amended text generally. Prior to amendment, text read as follows: “No person shall be prosecuted, tried or punished for any violation of the customs laws or the slave trade laws of the United States unless the indictment is found or the information is instituted within five years next after the commission of the offense.”
§3283. Offenses against children
No statute of limitations that would otherwise preclude prosecution for an offense involving the sexual or physical abuse, or kidnaping, of a child under the age of 18 years shall preclude such prosecution during the life of the child, or for ten years after the offense, whichever is longer.
(June 25, 1948, ch. 645, 62 Stat. 828; Pub. L. 103–322, title XXXIII, §330018(a), Sept. 13, 1994, 108 Stat. 2149; Pub. L. 108–21, title II, §202, Apr. 30, 2003, 117 Stat. 660; Pub. L. 109–162, title XI, §1182(c), Jan. 5, 2006, 119 Stat. 3126.)
Historical and Revision Notes
Based on title 18, U.S.C., 1940 ed., §584 (R.S. §1046; July 5, 1884, ch. 225, §2, 23 Stat. 122).
Words “customs laws” were substituted for “revenue laws,” since different limitations are provided for internal revenue violations by section 3748 of title 26, U.S.C., 1940 ed., Internal Revenue Code.
This section was held to apply to offenses under the customs laws. Those offenses are within the term “revenue laws” but not within the term “internal revenue laws”. United States v. Hirsch (1879, 100 U.S. 33, 25 L. Ed. 539), United States v. Shorey (1869, Fed. Cas. No. 16,282), and United States v. Platt (1840, Fed. Cas. No. 16,054a) applied this section in customs cases. Hence it appears that there was no proper basis for the complete elimination from section 584 of title 18, U.S.C., 1940 ed., of the reference to revenue laws.
Meaning of “revenue laws”. United States v. Norton (1876, 91 U.S. 566, 23 L.Ed. 454), quoting Webster that “revenue” refers to “The income of a nation, derived from its taxes, duties, or other sources, for the payment of the national expenses.” Quoting United States v. Mayo (1813, Fed. Cas. No. 15,755) that “revenue laws” meant such laws “as are made for the direct and avowed purpose of creating revenue or public funds for the service of the Government.”
Definition of revenue. “Revenue” is the income of a State, and the revenue of the Post Office Department, being raised by a tax on mailable matter conveyed in the mail, and which is disbursed in the public service, is as much a part of the income of the government as moneys collected for duties on imports (United States v. Bromley, 53 U.S. 88, 99, 13 L. Ed. 905).
“Revenue” is the product or fruit of taxation. It matters not in what form the power of taxation may be exercised or to what subjects it may be applied, its exercise is intended to provide means for the support of the Government, and the means provided are necessarily to be regarded as the internal revenue. Duties upon imports are imposed for the same general object and, because they are so imposed, the money thus produced is considered revenue, not because it is derived from any particular source (United States v. Wright, 1870, Fed. Cas. No. 16,770).
“Revenue law” is defined as a law for direct object of imposing and collecting taxes, dues, imports, and excises for government and its purposes (In re Mendenhall, D.C. Mont. 1935, 10 F. Supp. 122).
Act Cong. March 2, 1799, ch. 22, 1 Stat. 627, regulating the collection of duties on imports, is a revenue law, within the meaning of act Cong. April 18, 1818, ch. 70, 3 Stat. 433, providing for the mode of suing for and recovering penalties and forfeitures for violations of the revenue laws of the United States (The Abigail, 1824, Fed. Cas. No. 18).
Changes were made in phraseology.
Amendments
2006—Pub. L. 109–162 inserted “, or for ten years after the offense, whichever is longer” after “of the child”.
2003—Pub. L. 108–21 substituted “Offenses against children” for “Child abuse offenses” in section catchline and amended text generally. Prior to amendment, text read as follows: “No statute of limitations that would otherwise preclude prosecution for an offense involving the sexual or physical abuse of a child under the age of 18 years shall preclude such prosecution before the child reaches the age of 25 years.”
1994—Pub. L. 103–322 substituted “Child abuse offenses” for “Customs and slave trade violations” as section catchline and amended text generally. Prior to amendment, text read as follows: “No person shall be prosecuted, tried or punished for any violation of the customs laws or the slave trade laws of the United States unless the indictment is found or the information is instituted within five years next after the commission of the offense.”
Source
(June 25, 1948, ch. 645, 62 Stat. 828; Pub. L. 103–322, title XXXIII, § 330018(a), Sept. 13, 1994, 108 Stat. 2149; Pub. L. 108–21, title II, § 202, Apr. 30, 2003, 117 Stat. 660; Pub. L. 109–162, title XI, § 1182(c), Jan. 5, 2006, 119 Stat. 3126.)
Historical and Revision Notes
Based on title 18, U.S.C., 1940 ed., § 584 (R.S. § 1046; July 5, 1884, ch. 225, § 2, 23 Stat. 122).
Words “customs laws” were substituted for “revenue laws,” since different limitations are provided for internal revenue violations by section 3748 of title 26, U.S.C., 1940 ed., Internal Revenue Code.
This section was held to apply to offenses under the customs laws. Those offenses are within the term “revenue laws” but not within the term “internal revenue laws”. United States v. Hirsch (1879, 100 U.S. 33, 25 L. Ed. 539), United States v. Shorey (1869, Fed. Cas. No. 16,282), and United States v. Platt (1840, Fed. Cas. No. 16,054a) applied this section in customs cases. Hence it appears that there was no proper basis for the complete elimination from section 584 of title 18, U.S.C., 1940 ed., of the reference to revenue laws.
Meaning of “revenue laws”. United States v. Norton (1876, 91 U.S. 566, 23 L.Ed. 454), quoting Webster that “revenue” refers to “The income of a nation, derived from its taxes, duties, or other sources, for the payment of the national expenses.” Quoting United States v. Mayo (1813, Fed. Cas. No. 15,755) that “revenue laws” meant such laws “as are made for the direct and avowed purpose of creating revenue or public funds for the service of the Government.”
Definition of revenue. “Revenue” is the income of a State, and the revenue of the Post Office Department, being raised by a tax on mailable matter conveyed in the mail, and which is disbursed in the public service, is as much a part of the income of the government as moneys collected for duties on imports (United States v. Bromley, 53 U.S. 88, 99, 13 L. Ed. 905).
“Revenue” is the product or fruit of taxation. It matters not in what form the power of taxation may be exercised or to what subjects it may be applied, its exercise is intended to provide means for the support of the Government, and the means provided are necessarily to be regarded as the internal revenue. Duties upon imports are imposed for the same general object and, because they are so imposed, the money thus produced is considered revenue, not because it is derived from any particular source (United States v. Wright, 1870, Fed. Cas. No. 16,770).
“Revenue law” is defined as a law for direct object of imposing and collecting taxes, dues, imports, and excises for government and its purposes (In re Mendenhall, D.C. Mont. 1935, 10 F. Supp. 122).
Act Cong. March 2, 1799, ch. 22, 1 Stat. 627, regulating the collection of duties on imports, is a revenue law, within the meaning of act Cong. April 18, 1818, ch. 70, 3 Stat. 433, providing for the mode of suing for and recovering penalties and forfeitures for violations of the revenue laws of the United States (The Abigail, 1824, Fed. Cas. No. 18).
Changes were made in phraseology.
Amendments
2006—Pub. L. 109–162 inserted “, or for ten years after the offense, whichever is longer” after “of the child”.
2003—Pub. L. 108–21 substituted “Offenses against children” for “Child abuse offenses” in section catchline and amended text generally. Prior to amendment, text read as follows: “No statute of limitations that would otherwise preclude prosecution for an offense involving the sexual or physical abuse of a child under the age of 18 years shall preclude such prosecution before the child reaches the age of 25 years.”
1994—Pub. L. 103–322 substituted “Child abuse offenses” for “Customs and slave trade violations” as section catchline and amended text generally. Prior to amendment, text read as follows: “No person shall be prosecuted, tried or punished for any violation of the customs laws or the slave trade laws of the United States unless the indictment is found or the information is instituted within five years next after the commission of the offense.”
§3283. Offenses against children
No statute of limitations that would otherwise preclude prosecution for an offense involving the sexual or physical abuse, or kidnaping, of a child under the age of 18 years shall preclude such prosecution during the life of the child, or for ten years after the offense, whichever is longer.
(June 25, 1948, ch. 645, 62 Stat. 828; Pub. L. 103–322, title XXXIII, §330018(a), Sept. 13, 1994, 108 Stat. 2149; Pub. L. 108–21, title II, §202, Apr. 30, 2003, 117 Stat. 660; Pub. L. 109–162, title XI, §1182(c), Jan. 5, 2006, 119 Stat. 3126.)
Historical and Revision Notes
Based on title 18, U.S.C., 1940 ed., §584 (R.S. §1046; July 5, 1884, ch. 225, §2, 23 Stat. 122).
Words “customs laws” were substituted for “revenue laws,” since different limitations are provided for internal revenue violations by section 3748 of title 26, U.S.C., 1940 ed., Internal Revenue Code.
This section was held to apply to offenses under the customs laws. Those offenses are within the term “revenue laws” but not within the term “internal revenue laws”. United States v. Hirsch (1879, 100 U.S. 33, 25 L. Ed. 539), United States v. Shorey (1869, Fed. Cas. No. 16,282), and United States v. Platt (1840, Fed. Cas. No. 16,054a) applied this section in customs cases. Hence it appears that there was no proper basis for the complete elimination from section 584 of title 18, U.S.C., 1940 ed., of the reference to revenue laws.
Meaning of “revenue laws”. United States v. Norton (1876, 91 U.S. 566, 23 L.Ed. 454), quoting Webster that “revenue” refers to “The income of a nation, derived from its taxes, duties, or other sources, for the payment of the national expenses.” Quoting United States v. Mayo (1813, Fed. Cas. No. 15,755) that “revenue laws” meant such laws “as are made for the direct and avowed purpose of creating revenue or public funds for the service of the Government.”
Definition of revenue. “Revenue” is the income of a State, and the revenue of the Post Office Department, being raised by a tax on mailable matter conveyed in the mail, and which is disbursed in the public service, is as much a part of the income of the government as moneys collected for duties on imports (United States v. Bromley, 53 U.S. 88, 99, 13 L. Ed. 905).
“Revenue” is the product or fruit of taxation. It matters not in what form the power of taxation may be exercised or to what subjects it may be applied, its exercise is intended to provide means for the support of the Government, and the means provided are necessarily to be regarded as the internal revenue. Duties upon imports are imposed for the same general object and, because they are so imposed, the money thus produced is considered revenue, not because it is derived from any particular source (United States v. Wright, 1870, Fed. Cas. No. 16,770).
“Revenue law” is defined as a law for direct object of imposing and collecting taxes, dues, imports, and excises for government and its purposes (In re Mendenhall, D.C. Mont. 1935, 10 F. Supp. 122).
Act Cong. March 2, 1799, ch. 22, 1 Stat. 627, regulating the collection of duties on imports, is a revenue law, within the meaning of act Cong. April 18, 1818, ch. 70, 3 Stat. 433, providing for the mode of suing for and recovering penalties and forfeitures for violations of the revenue laws of the United States (The Abigail, 1824, Fed. Cas. No. 18).
Changes were made in phraseology.
Amendments
2006—Pub. L. 109–162 inserted “, or for ten years after the offense, whichever is longer” after “of the child”.
2003—Pub. L. 108–21 substituted “Offenses against children” for “Child abuse offenses” in section catchline and amended text generally. Prior to amendment, text read as follows: “No statute of limitations that would otherwise preclude prosecution for an offense involving the sexual or physical abuse of a child under the age of 18 years shall preclude such prosecution before the child reaches the age of 25 years.”
1994—Pub. L. 103–322 substituted “Child abuse offenses” for “Customs and slave trade violations” as section catchline and amended text generally. Prior to amendment, text read as follows: “No person shall be prosecuted, tried or punished for any violation of the customs laws or the slave trade laws of the United States unless the indictment is found or the information is instituted within five years next after the commission of the offense.”
Tuesday, October 25, 2011
'Kids for cash' judge sentenced to 28 years for racketeering scheme
Judicial corruption Judges Lock-Up Kids For Cash
'Kids for cash' judge sentenced
to 28 years for racketeering scheme
A former juvenile court judge in Pennsylvania was sentenced to 28 years in prison on Thursday for his part in an alleged “kids for cash” scam considered one of the worst judicial scandals in US history.
Mark Ciavarella Jr., 61, a former judge in Luzerne County, was also ordered to pay $1.17 million in restitution.
Mr. Ciavarella was convicted in federal court in Scranton, Pa., in February on charges that he and a second judge, Michael Conahan, ran the local court system as a racketeering enterprise.
QUIZ: How well do you know the Constitution?
The federal indictment says the two judges accepted $2.8 million in kickbacks from the owner and builder of two privately-run juvenile detention facilities. In exchange, the judges agreed to close down the county’s own juvenile detention center, which would have competed with the new, privately-run facilities. In addition they guaranteed that juvenile offenders from their court would be directed to the privately-run facilities.
Mr. Conahan, pleaded guilty last year to a single count of racketeering and is awaiting sentencing.
In comments to the court, Ciavarella apologized to the community and to the children whose cases he had adjudicated. “I blame no one but myself for what happened,” he said, according to the Associated Press.
But the former judge rejected claims that he engaged in a "kids for cash" racketeering scheme.
He said prosecutors used the claim to sabotage his reputation prior to his trial. “Those three words made me the personification of evil,” he told the court, according to the Associated Press. “They made me toxic and caused a public uproar the likes of which this community has never seen.”
Ciavarella had a reputation as a no-nonsense jurist who would not hesitate to sentence young, first-time offenders to juvenile detention. He also gained a reputation as a judge prone to cut constitutional corners.
An investigation revealed that half of the children who appeared in his courtroom were not represented by a lawyer and were never advised of their right to counsel. Of those unrepresented children, up to 60 percent were ordered by Ciavarella to serve time at a detention facility.
What was not known, prior to the federal investigation, was that Ciavarella and Conahan were receiving secret payments from the private detention centers. The centers stood to profit from the higher number of juveniles they were housing.
Amid mounting questions about Ciavarella’s actions as a juvenile judge, the Pennsylvania Supreme Court in 2009 directed that all adjudications involving children appearing before Ciavarella from 2003 to 2008 be vacated and their records expunged. The directive is estimated to involve 4,000 cases.
One of those cases involved 16-year-old A.A., who was arrested for gesturing with her middle finger at a police officer who had been called during a custody dispute involving her parents and her sister.
read more: http://www.csmonitor.com/USA/Justice/2011/0811/Kids-for-cash-judge-sentenced-to-28-years-for-racketeering-scheme
'Kids for cash' judge sentenced
to 28 years for racketeering scheme
A former juvenile court judge in Pennsylvania was sentenced to 28 years in prison on Thursday for his part in an alleged “kids for cash” scam considered one of the worst judicial scandals in US history.
Mark Ciavarella Jr., 61, a former judge in Luzerne County, was also ordered to pay $1.17 million in restitution.
Mr. Ciavarella was convicted in federal court in Scranton, Pa., in February on charges that he and a second judge, Michael Conahan, ran the local court system as a racketeering enterprise.
QUIZ: How well do you know the Constitution?
The federal indictment says the two judges accepted $2.8 million in kickbacks from the owner and builder of two privately-run juvenile detention facilities. In exchange, the judges agreed to close down the county’s own juvenile detention center, which would have competed with the new, privately-run facilities. In addition they guaranteed that juvenile offenders from their court would be directed to the privately-run facilities.
Mr. Conahan, pleaded guilty last year to a single count of racketeering and is awaiting sentencing.
In comments to the court, Ciavarella apologized to the community and to the children whose cases he had adjudicated. “I blame no one but myself for what happened,” he said, according to the Associated Press.
But the former judge rejected claims that he engaged in a "kids for cash" racketeering scheme.
He said prosecutors used the claim to sabotage his reputation prior to his trial. “Those three words made me the personification of evil,” he told the court, according to the Associated Press. “They made me toxic and caused a public uproar the likes of which this community has never seen.”
Ciavarella had a reputation as a no-nonsense jurist who would not hesitate to sentence young, first-time offenders to juvenile detention. He also gained a reputation as a judge prone to cut constitutional corners.
An investigation revealed that half of the children who appeared in his courtroom were not represented by a lawyer and were never advised of their right to counsel. Of those unrepresented children, up to 60 percent were ordered by Ciavarella to serve time at a detention facility.
What was not known, prior to the federal investigation, was that Ciavarella and Conahan were receiving secret payments from the private detention centers. The centers stood to profit from the higher number of juveniles they were housing.
Amid mounting questions about Ciavarella’s actions as a juvenile judge, the Pennsylvania Supreme Court in 2009 directed that all adjudications involving children appearing before Ciavarella from 2003 to 2008 be vacated and their records expunged. The directive is estimated to involve 4,000 cases.
One of those cases involved 16-year-old A.A., who was arrested for gesturing with her middle finger at a police officer who had been called during a custody dispute involving her parents and her sister.
read more: http://www.csmonitor.com/USA/Justice/2011/0811/Kids-for-cash-judge-sentenced-to-28-years-for-racketeering-scheme
Out of the Darkness The Story of Mary Ellen Wilson
In 1874, an amazing event took place. A little girl, severely abused and locked away in the horrid tenement buildings of Hell's Kitchen in New York, was finally rescued. A volunteer church worker helping the poor eventually asked Henry Bergh, the founder of the American Society for the Prevention of Cruelty to Animals (ASPCA) to save her -- and to her great joy, he did. I'm Eric Shelman. Most of you know me for the music videos I make, but I'm also the co-author of "Out of the Darkness: The Story of Mary Ellen Wilson," and "The Mary Ellen Wilson Child Abuse Case and the Beginning of Children's Rights in 19th Century America." The books recount the events leading up to and after the rescue of "Little Mary Ellen" from her abusive home back in 1874 New York. She was rescued through the efforts of Henry Bergh, founder of the American Society for the Prevention of Cruelty to Animals (ASPCA). The organization call the New York Society for the Prevention of Cruelty to Children (NYSPCC) was founded in 1875 as a direct result of her case, also by Henry Bergh. It's a fascinating story and something you may have never heard of before. You may also find it interesting that the original SPCA founded in England by "Humanity Dick," also known as Richard Martin MP, 44 years before the American version of the organization was founded by Bergh, in 1825. The organization was granted its "Royal" status by Queen Victoria in 1840 to become the RSPCA.
Sunday, October 23, 2011
sold for adoption: Haunting BBC documentary exposes 50-year scandal of baby trafficking by the Catholic church in Spain
300,000 babies stolen from their parents - and sold for adoption: Haunting BBC documentary exposes 50-year scandal of baby trafficking by the Catholic church in Spain
Read more: http://www.dailymail.co.uk/news/article-2049647/BBC-documentary-exposes-50-year-scandal-baby-trafficking-Catholic-church-Spain.html#ixzz1basQBZHB
Up to 300,000 Spanish babies were stolen from their parents and sold for adoption over a period of five decades, a new investigation reveals.
The children were trafficked by a secret network of doctors, nurses, priests and nuns in a widespread practice that began during General Franco’s dictatorship and continued until the early Nineties.
Hundreds of families who had babies taken from Spanish hospitals are now battling for an official government investigation into the scandal.
Several mothers say they were told their first-born children had died during or soon after they gave birth.
Identity crisis: Randy Ryder as a baby being cradled in a Malaga hospital in 1971 by the woman who bought him
But the women, often young and unmarried, were told they could not see the body of the infant or attend their burial.
In reality, the babies were sold to childless couples whose devout beliefs and financial security meant that they were seen as more appropriate parents.
Official documents were forged so the adoptive parents’ names were on the infants’ birth certificates.
In many cases it is believed they were unaware that the child they received had been stolen, as they were usually told the birth mother had given them up.
Journalist Katya Adler, who has investigated the scandal, says: ‘The situation is incredibly sad for thousands of people.
‘There are men and women across Spain whose lives have been turned upside-down by discovering the people they thought were their parents actually bought them for cash. There are also many mothers who have maintained for years that their babies did not die – and were labelled “hysterical” – but are now discovering that their child has probably been alive and brought up by somebody else all this time.’
Reunited: Randy Ryder with Manoli Pagador, who believes she may be his real mother
Experts believe the cases may account for up to 15 per cent of the total adoptions that took place in Spain between 1960 and 1989.
It began as a system for taking children away from families deemed politically dangerous to the regime of General Franco, which began in 1939. The system continued after the dictator’s death in 1975 as the Catholic church continued to retain a powerful influence on public life, particularly in social services.
It was not until 1987 that the Spanish government, instead of hospitals, began to regulate adoptions.
The scandal came to light after two men, Antonio Barroso and Juan Luis Moreno, discovered they had been stolen as babies.
Mr Moreno’s ‘father’ confessed on his deathbed to having bought him as a baby from a priest in Zaragoza in northern Spain. He told his son he had been accompanied on the trip by Mr Barroso’s parents, who bought Antonio at the same time for 200,000 pesetas – a huge sum at the time.
‘That was the price of an apartment back then,’ Mr Barroso said. ‘My parents paid it in instalments over the course of ten years because they did not have enough money.’
Bought for cash: Journalist Katya Adler with Juan Luis Moreno, who was sold as a baby
DNA tests have proved that the couple who brought up Mr Barroso were not his biological parents and the nun who sold him has admitted to doing so.
When the pair made their case public, it prompted mothers all over the country to come forward with their own experiences of being told their babies had died, but never believing it. One such woman was Manoli Pagador, who has begun searching for her son.
A BBC documentary, This World: Spain’s Stolen Babies, follows her efforts to discover if he is Randy Ryder, a stolen baby who was brought up in Texas and is now aged 40.
In some cases, babies’ graves have been exhumed, revealing bones that belong to adults or animals. Some of the graves contained nothing at all.
The BBC documentary features an interview with an 89-year-old woman named Ines Perez, who admitted that a priest encouraged her to fake a pregnancy so she could be given a baby girl due to be born at Madrid’s San Ramon clinic in 1969. ‘The priest gave me padding to wear on my stomach,’ she says.
It is claimed that the San Ramon clinic was one of the major centres for the practice.
Many mothers who gave birth there claim that when they asked to see their child after being told it had died, they were shown a baby’s corpse that appeared to be freezing cold.
The BBC programme shows photographs taken in the Eighties of a dead baby kept in a freezer, allegedly to show grieving mothers.
Despite hundreds of families of babies who disappeared in Spanish hospitals calling on the government to open an investigation into the scandal, no nationally co-ordinated probe has taken place.
As a result of amnesty laws passed after Franco’s death, crimes that took place during his regime are usually not examined. Instead, regional prosecutors across the country are investigating each story on a case-by-case basis, with 900 currently under review.
But Ms Adler says: ‘There is very little political will to get to the bottom of the situation.’
There are believed to be thousands more cases that will never come to light because the stolen children fear their adoptive parents will be seen as criminals.
Many of the families of stolen babies have taken DNA tests in the hope of eventually being matched with their children. Some matches have already been made but, without a nationally co-ordinated database, reuniting lost relatives will be a very difficult process.
This World: Spain’s Stolen Babies is on BBC2 on Tuesday at 9pm
Read more: http://www.dailymail.co.uk/news/article-2049647/BBC-documentary-exposes-50-year-scandal-baby-trafficking-Catholic-church-Spain.html#ixzz1batEWFDM
Read more: http://www.dailymail.co.uk/news/article-2049647/BBC-documentary-exposes-50-year-scandal-baby-trafficking-Catholic-church-Spain.html#ixzz1basQBZHB
Up to 300,000 Spanish babies were stolen from their parents and sold for adoption over a period of five decades, a new investigation reveals.
The children were trafficked by a secret network of doctors, nurses, priests and nuns in a widespread practice that began during General Franco’s dictatorship and continued until the early Nineties.
Hundreds of families who had babies taken from Spanish hospitals are now battling for an official government investigation into the scandal.
Several mothers say they were told their first-born children had died during or soon after they gave birth.
Identity crisis: Randy Ryder as a baby being cradled in a Malaga hospital in 1971 by the woman who bought him
But the women, often young and unmarried, were told they could not see the body of the infant or attend their burial.
In reality, the babies were sold to childless couples whose devout beliefs and financial security meant that they were seen as more appropriate parents.
Official documents were forged so the adoptive parents’ names were on the infants’ birth certificates.
In many cases it is believed they were unaware that the child they received had been stolen, as they were usually told the birth mother had given them up.
Journalist Katya Adler, who has investigated the scandal, says: ‘The situation is incredibly sad for thousands of people.
‘There are men and women across Spain whose lives have been turned upside-down by discovering the people they thought were their parents actually bought them for cash. There are also many mothers who have maintained for years that their babies did not die – and were labelled “hysterical” – but are now discovering that their child has probably been alive and brought up by somebody else all this time.’
Reunited: Randy Ryder with Manoli Pagador, who believes she may be his real mother
Experts believe the cases may account for up to 15 per cent of the total adoptions that took place in Spain between 1960 and 1989.
It began as a system for taking children away from families deemed politically dangerous to the regime of General Franco, which began in 1939. The system continued after the dictator’s death in 1975 as the Catholic church continued to retain a powerful influence on public life, particularly in social services.
It was not until 1987 that the Spanish government, instead of hospitals, began to regulate adoptions.
The scandal came to light after two men, Antonio Barroso and Juan Luis Moreno, discovered they had been stolen as babies.
Mr Moreno’s ‘father’ confessed on his deathbed to having bought him as a baby from a priest in Zaragoza in northern Spain. He told his son he had been accompanied on the trip by Mr Barroso’s parents, who bought Antonio at the same time for 200,000 pesetas – a huge sum at the time.
‘That was the price of an apartment back then,’ Mr Barroso said. ‘My parents paid it in instalments over the course of ten years because they did not have enough money.’
Bought for cash: Journalist Katya Adler with Juan Luis Moreno, who was sold as a baby
DNA tests have proved that the couple who brought up Mr Barroso were not his biological parents and the nun who sold him has admitted to doing so.
When the pair made their case public, it prompted mothers all over the country to come forward with their own experiences of being told their babies had died, but never believing it. One such woman was Manoli Pagador, who has begun searching for her son.
A BBC documentary, This World: Spain’s Stolen Babies, follows her efforts to discover if he is Randy Ryder, a stolen baby who was brought up in Texas and is now aged 40.
In some cases, babies’ graves have been exhumed, revealing bones that belong to adults or animals. Some of the graves contained nothing at all.
The BBC documentary features an interview with an 89-year-old woman named Ines Perez, who admitted that a priest encouraged her to fake a pregnancy so she could be given a baby girl due to be born at Madrid’s San Ramon clinic in 1969. ‘The priest gave me padding to wear on my stomach,’ she says.
It is claimed that the San Ramon clinic was one of the major centres for the practice.
Many mothers who gave birth there claim that when they asked to see their child after being told it had died, they were shown a baby’s corpse that appeared to be freezing cold.
The BBC programme shows photographs taken in the Eighties of a dead baby kept in a freezer, allegedly to show grieving mothers.
Despite hundreds of families of babies who disappeared in Spanish hospitals calling on the government to open an investigation into the scandal, no nationally co-ordinated probe has taken place.
As a result of amnesty laws passed after Franco’s death, crimes that took place during his regime are usually not examined. Instead, regional prosecutors across the country are investigating each story on a case-by-case basis, with 900 currently under review.
But Ms Adler says: ‘There is very little political will to get to the bottom of the situation.’
There are believed to be thousands more cases that will never come to light because the stolen children fear their adoptive parents will be seen as criminals.
Many of the families of stolen babies have taken DNA tests in the hope of eventually being matched with their children. Some matches have already been made but, without a nationally co-ordinated database, reuniting lost relatives will be a very difficult process.
This World: Spain’s Stolen Babies is on BBC2 on Tuesday at 9pm
Read more: http://www.dailymail.co.uk/news/article-2049647/BBC-documentary-exposes-50-year-scandal-baby-trafficking-Catholic-church-Spain.html#ixzz1batEWFDM
Tuesday, October 11, 2011
Judge's Ruling On Domestic Violence Draws Concern
NEWARK, N.J. -- Women's rights groups and the state Attorney General's Office are preparing to challenge a judge's ruling that determined it's too easy to get a restraining order in New Jersey.
The decision is not binding on any other state judge and appears headed for an ultimate ruling by the New Jersey Supreme Court. That showdown could be many months away, and the outcome could have broad impact.
Although the numbers have declined over the past five years, about 40,000 domestic violence complaints are filed annually in New Jersey. From those, roughly 30,000 temporary restraining orders are issued, with most of the rest withdrawn by the accuser. Nearly 80 percent of the complaints are filed by women.
The recent ruling by a Hudson County judge, however, threatens to make it more difficult for victims to prove they have been beaten or threatened and could scuttle the state's Prevention of Domestic Violence Act.
State Superior Court Judge Francis B. Schultz found that some elements of the 17-year-old law are unconstitutional. Among them: a low threshold of evidence -- just a "preponderance" -- to get a restraining order violates due process protections. Instead, judges need "clear and convincing" evidence to issue a restraining order, Schultz said.
Schultz also found the law violated the New Jersey Constitution's separation of powers mandate because the Legislature usurped the state Supreme Court's role by dictating court procedures, including what to consider in setting bail.
"If it's allowed to stand, it certainly would be a significant problem for victims of domestic violence," said Sandy Clark, associate director of the New Jersey Coalition for Battered Women.
"They are typically the only witnesses to the abuse. So to have to show by clear and convincing standard would certainly be challenging," Clark said.
She considers New Jersey's law among the best in the country, since it provides restraining orders of indefinite length, along with mandatory training for police and judges. Other states have tougher standards to obtain restraining orders, she said.
Prosecutors are also alarmed at what would happen if the ruling stands.
"You're going to have a chilling effect. That's the bottom line," said Deputy Chief Assistant Essex County Prosecutor Debra Cannella, who led the office's domestic violence unit for 11 years.
"We're very concerned about this because elevating the standard of proof will make it more difficult for victims of domestic violence who desperately need relief," Cannella said. "The next time that victim is assaulted, they may not come back to court because there were rebuffed."
On the other side of the debate are groups that include fathers who maintain the domestic violence law has been unfairly used against them in divorce proceedings.
Michael Argen, president of the New Jersey Council for Children's Rights, said that a parent will not get custody of children once a restraining order is issued.
"If this ruling continues, it would help truly battered people more, because it would limit the resources that are being used on truly frivolous cases," Argen said.
About 1.3 million women and 835,000 men nationwide are physically assaulted by an intimate partner each year, according to a U.S. Justice Department study published in 2000.
In New Jersey, about 9,000 people bring criminal charges each year that a restraining order has been violated, sometimes with tragic results.
For example, prosecutors in Essex County have charged Kenneth Duckett with murdering his estranged wife, Monica Paul, by shooting her to death in front of one of their children at the Montclair YMCA on June 26. The couple had separated in August, and Paul obtained a temporary restraining order in October. It was made final later that month, according to prosecutors.
Bruce Eden, civil rights director for the state chapter of Dads Against Discrimination, contended that such cases are rare, and that a majority of domestic violence complaints involve no physical contact. Complaints can be filed for making threats.
He applauded Schultz' decision. "This will make it more difficult for false allegations," Eden said.
Although the domestic violence law had been upheld on several occasions since its enactment, Schultz, who sits in Jersey City, decided that the constitutional issues raised by a divorced husband, Anibal Crespo, merited examination.
Anibal and Vivian Crespo divorced in 2001 after about 17 years of marriage, but lived in the same two-family home in North Bergen: She was on the first floor with the children; he was on the second floor with his parents.
In 2004, Vivian Crespo obtained a final restraining order from a different judge after claiming that her former husband hit her face and pulled her arms when she sought the child support money. Anibal Crespo responded that his ex-wife attacked him while he was in his car and any injury she suffered came when he closed the car window to protect himself. As a result of the restraining order, Anibal Crespo had to move.
Schultz vacated the final restraining order but kept its conditions in place pending a hearing at which the original judge is to decide whether to restore the restraint. Schultz left it for that judge to determine whether to use the preponderance standard or the "clear and convincing" threshold of evidence.
__________________
IowaFathers
P.O. Box 2884
Waterloo, IA 50704-2884
support@IowaFathers.com
Website: http://www.IowaFathers.com
Visit us on facebook under Groups: Iowa Fathers
"Political reasons have not the requisite certainty to afford juridical interpretation. They are different in different men. They are different in the same men at different times. And when a strict interpretation of the Constitution, according to the fixed rules which govern the interpretation of laws, is abandoned, and the theoretical opinions of individuals are allowed to control its meaning, we have no longer a Constitution; we are under a government of individual men, who for the time being have the power to declare what the Constitution is, according to their own views of that it ought to mean." Dred Scott v.Sanford, 19 How. 393, 620 (1857) (Curtis, J., dissenting).
Fundamental Liberty Interest and Fundamental Human Rights
Here is a selection of cites from various federal and state cases on the fundmanental nature of parenting rights in the United States. We hope that after you read these you will understand the purpose of our quest in the protection of both children and parents!
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The rights of parents to the care, custody and nurture of their children is of such character that it cannot be denied without violating those fundamental principles of liberty and justice which lie at the base of all our civil and political institutions, and such right is a fundamental right protected by this amendment (first) and Amendments 5, 9, and 14. Doe v. Irwin 441 F Supp 1247; U.S. D.C. of Michigan, (1985)
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Even when blood relationships are strained, parents retain vital interest in preventing irretrievable destruction of their family life; if anything, persons faced with forced dissolution of their parental rights have more critical need for procedural protections than do those resisting state intervention into ongoing family affairs. Santosky v. Kramer, 102 S Ct 1388; 455 US 745, (1982)
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Parent's right to custody of child is a right encompassed within protection of this amendment (first) which may not be interfered with under guise of protecting public interest by legislative action which is arbitrary or without reasonable relation to some purpose within competency of state to effect. Reynold v. Baby Fold, Inc,, 369 NE 2d 858; 68 Ill 2d 419, appeal dismissed 98 S Ct 1598, US 963, Il, (1977)
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Parent's interest in custody of her children is a liberty interest which has received considerable constitutional protection; a parent who is deprived of custody of his or her child, even though temporarily, suffers thereby grievous loss and such loss deserves extensive due process protection. In the Interest of Cooper,621 P 2d 437; 5 Kansas App Div 2d 584, (1980).
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The Due Process Clause of the Fourteenth Amendment requires that severance in the parent-child relationship caused by the state occur only with rigorous protections for individual liberty interests at stake. Bell v. City of Milwaukee, 746 F 2d 1205; US Ct App 7th Cir WI, (1984).
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The U.S. Supreme Court implied that "a (once) married father who is separated or divorced from a mother and is no longer living with his child" could not constitutionally be treated differently from a currently married father living with his child. Quilloin v. Walcott, 98 S Ct 549; 434 US 246, 255-56, (1978).
--------------------------------------------------------------------------------
A parent's right to the preservation of this relationship with his child derives from the fact that the parent's achievement of a rich and rewarding life is likely to depend significantly on his ability to participate in the rearing of his children. A child's corresponding right to protection from interference in the relationship derives from the psychic importance to him of being raised by loving, responsible, reliable adult. Franz v. U.S., 707 F 2d 582, 595-599; US Ct App (1983).
--------------------------------------------------------------------------------
The United States Supreme Court held that the "old notion" that "generally it is the man's primary responsibility to provide a home and its essentials" can no longer justify a statute that discriminates on the bases of gender. No longer is the female destined solely for the home and the rearing of the family, and only the male for the marketplace and the world of ideas. Stanton v. Stanton, 421 US 7, 10; 95 LS Ct 1373, 1376, (1975).
--------------------------------------------------------------------------------
Law and Court procedures that are "fair on their faces" but administered "with an evil eye or a heavy hand" was discriminatory and violates the equal protection clause of the fourteenth Amendment. Yick Wo v. Hopkins, 118 US 356, (1886).
--------------------------------------------------------------------------------
There appears to be a wide gap between legislative intent and judicial application for the Virginia Code 20-107.2 as amended states the following: In awarding the custody of the child or children, the court may give consideration to joint custody or to sole custody, but shall give primary consideration to the welfare of the child or children, and, as between the parents, there shall be no presumption or inference of law in favor of either.
The State Bar Association, Family Law Section, addresses the bias in the courts by saying it was just a coincidence. When we have judges openly saying on record that "I don't award custody to fathers, children need to be with there mothers" and "I believe that children under the age of twelve need to be with their mothers and after twelve boys need to be with their fathers and girls need to be with their mothers" is not simply coincidence. Our children statewide are being raped by the court system of their parents, their birthrights, their heritage, and their civil rights.
State's power to legislate, adjudicate and administer all aspects of family law, including determinations of custodial; and visitation rights, is subject to scrutiny by federal judiciary within reach of due process and/or equal protection clauses of 14th Amendment...Fourteenth Amendment applied to states through specific rights contained in the first eight amendments of the Constitution which declares fundamental personal rights...Fourteenth Amendment encompasses and applied to states those pre-existing fundamental rights recognized by the Ninth Amendment. The Ninth Amendment acknowledged the prior existence of fundamental rights which it: "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people. "The United States Constitution Amendment IX in a long line of decisions, the supreme Court has recognized that matters involving marriage, procreation, and the parent-child relationship are among those fundamental "liberty" interests protected by the Constitution. Thus, that decision in Roe v. Wade, 410 US 113; 93 S Ct 705; 35 L Ed 2d 147, (1973), was recently described by the Supreme Court as founded on the "Constitutional undermining of ...a recognition that the "liberty" Protected by the Due Process Clause of the 14th Amendment includes not only the freedoms explicitly mentioned in the Bill of Rights, but also a freedom of personal choice in certain matters of marriage and family life. "The non-custodial divorced parent has no way to implement the constitutionally protected right to maintain a parental relationship with his child except through visitation. To acknowledge the protected status of the relationship as the majority does, and yet deny protection under Title 42 USC 1983, to visitation, which is the exclusive means of effecting that right, is to negate the right completely. Wise v. Bravo, 666 F 2d 1328, (1981).
Defendant Judge Harris has deprived the Plaintiff Steinberg from parental rights without due process or equal protection of the law and ignoring the paramount issue of what is in the child's best interest. Judge Harris by calculated, deliberate, intent has reduced the Plaintiff father to the role of a second class parent without rights of a parent, but with obligations of an indentured servant. In less than three years the Defendants have taken the father from a caring, nurturing, loving, full time parent and made him a visitor in the child's life and say that this visitation now is a "privilege".
As presently stated in the Virginia Code 20-61, "A father has the right at common law to maintain his children in his own home, and he cannot be compelled against his will to do so elsewhere, unless he has refused or failed to provide for them where he lives, and the statutes providing for the punishment of a father (now spouse) for the failure to support his children, were not intended to change the common law, with respect to the duty of a father to maintain and support his infant children, but merely to more effectually enforce the legal duty." Butler v. Commonwealth, 132 Va. 609, 110 S.E. 868 (1922).
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The right of a parent not to be deprived of parental rights without a showing of fitness, abandonment or substantial neglect is so fundamental and basic as to rank among the rights contained in this Amendment (Ninth) and Utah's Constitution, Article 1 \ 1. In re U.P., 648 P 2d 1364; Utah, (1982).
--------------------------------------------------------------------------------
The rights of parents to the care, custody and nurture of their children is of such character that it cannot be denied without violating those fundamental principles of liberty and justice which lie at the base of all our civil and political institutions, and such right is a fundamental right protected by this amendment (first) and Amendments 5, 9, and 14. Doe v. Irwin 441 F Supp 1247; U.S. D.C. of Michigan, (1985)
--------------------------------------------------------------------------------
Even when blood relationships are strained, parents retain vital interest in preventing irretrievable destruction of their family life; if anything, persons faced with forced dissolution of their parental rights have more critical need for procedural protections than do those resisting state intervention into ongoing family affairs. Santosky v. Kramer, 102 S Ct 1388; 455 US 745, (1982)
--------------------------------------------------------------------------------
Parent's right to custody of child is a right encompassed within protection of this amendment (first) which may not be interfered with under guise of protecting public interest by legislative action which is arbitrary or without reasonable relation to some purpose within competency of state to effect. Reynold v. Baby Fold, Inc,, 369 NE 2d 858; 68 Ill 2d 419, appeal dismissed 98 S Ct 1598, US 963, Il, (1977)
--------------------------------------------------------------------------------
Parent's interest in custody of her children is a liberty interest which has received considerable constitutional protection; a parent who is deprived of custody of his or her child, even though temporarily, suffers thereby grievous loss and such loss deserves extensive due process protection. In the Interest of Cooper,621 P 2d 437; 5 Kansas App Div 2d 584, (1980).
--------------------------------------------------------------------------------
The Due Process Clause of the Fourteenth Amendment requires that severance in the parent-child relationship caused by the state occur only with rigorous protections for individual liberty interests at stake. Bell v. City of Milwaukee, 746 F 2d 1205; US Ct App 7th Cir WI, (1984).
--------------------------------------------------------------------------------
The U.S. Supreme Court implied that "a (once) married father who is separated or divorced from a mother and is no longer living with his child" could not constitutionally be treated differently from a currently married father living with his child. Quilloin v. Walcott, 98 S Ct 549; 434 US 246, 255-56, (1978).
--------------------------------------------------------------------------------
A parent's right to the preservation of this relationship with his child derives from the fact that the parent's achievement of a rich and rewarding life is likely to depend significantly on his ability to participate in the rearing of his children. A child's corresponding right to protection from interference in the relationship derives from the psychic importance to him of being raised by loving, responsible, reliable adult. Franz v. U.S., 707 F 2d 582, 595-599; US Ct App (1983).
--------------------------------------------------------------------------------
The United States Supreme Court held that the "old notion" that "generally it is the man's primary responsibility to provide a home and its essentials" can no longer justify a statute that discriminates on the bases of gender. No longer is the female destined solely for the home and the rearing of the family, and only the male for the marketplace and the world of ideas. Stanton v. Stanton, 421 US 7, 10; 95 LS Ct 1373, 1376, (1975).
--------------------------------------------------------------------------------
Law and Court procedures that are "fair on their faces" but administered "with an evil eye or a heavy hand" was discriminatory and violates the equal protection clause of the fourteenth Amendment. Yick Wo v. Hopkins, 118 US 356, (1886).
--------------------------------------------------------------------------------
There appears to be a wide gap between legislative intent and judicial application for the Virginia Code 20-107.2 as amended states the following: In awarding the custody of the child or children, the court may give consideration to joint custody or to sole custody, but shall give primary consideration to the welfare of the child or children, and, as between the parents, there shall be no presumption or inference of law in favor of either.
The State Bar Association, Family Law Section, addresses the bias in the courts by saying it was just a coincidence. When we have judges openly saying on record that "I don't award custody to fathers, children need to be with there mothers" and "I believe that children under the age of twelve need to be with their mothers and after twelve boys need to be with their fathers and girls need to be with their mothers" is not simply coincidence. Our children statewide are being raped by the court system of their parents, their birthrights, their heritage, and their civil rights.
State's power to legislate, adjudicate and administer all aspects of family law, including determinations of custodial; and visitation rights, is subject to scrutiny by federal judiciary within reach of due process and/or equal protection clauses of 14th Amendment...Fourteenth Amendment applied to states through specific rights contained in the first eight amendments of the Constitution which declares fundamental personal rights...Fourteenth Amendment encompasses and applied to states those pre-existing fundamental rights recognized by the Ninth Amendment. The Ninth Amendment acknowledged the prior existence of fundamental rights which it: "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people. "The United States Constitution Amendment IX in a long line of decisions, the supreme Court has recognized that matters involving marriage, procreation, and the parent-child relationship are among those fundamental "liberty" interests protected by the Constitution. Thus, that decision in Roe v. Wade, 410 US 113; 93 S Ct 705; 35 L Ed 2d 147, (1973), was recently described by the Supreme Court as founded on the "Constitutional undermining of ...a recognition that the "liberty" Protected by the Due Process Clause of the 14th Amendment includes not only the freedoms explicitly mentioned in the Bill of Rights, but also a freedom of personal choice in certain matters of marriage and family life. "The non-custodial divorced parent has no way to implement the constitutionally protected right to maintain a parental relationship with his child except through visitation. To acknowledge the protected status of the relationship as the majority does, and yet deny protection under Title 42 USC 1983, to visitation, which is the exclusive means of effecting that right, is to negate the right completely. Wise v. Bravo, 666 F 2d 1328, (1981).
Defendant Judge Harris has deprived the Plaintiff Steinberg from parental rights without due process or equal protection of the law and ignoring the paramount issue of what is in the child's best interest. Judge Harris by calculated, deliberate, intent has reduced the Plaintiff father to the role of a second class parent without rights of a parent, but with obligations of an indentured servant. In less than three years the Defendants have taken the father from a caring, nurturing, loving, full time parent and made him a visitor in the child's life and say that this visitation now is a "privilege".
As presently stated in the Virginia Code 20-61, "A father has the right at common law to maintain his children in his own home, and he cannot be compelled against his will to do so elsewhere, unless he has refused or failed to provide for them where he lives, and the statutes providing for the punishment of a father (now spouse) for the failure to support his children, were not intended to change the common law, with respect to the duty of a father to maintain and support his infant children, but merely to more effectually enforce the legal duty." Butler v. Commonwealth, 132 Va. 609, 110 S.E. 868 (1922).
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The right of a parent not to be deprived of parental rights without a showing of fitness, abandonment or substantial neglect is so fundamental and basic as to rank among the rights contained in this Amendment (Ninth) and Utah's Constitution, Article 1 \ 1. In re U.P., 648 P 2d 1364; Utah, (1982).
The Constitutional Right to Be a Parent
Below are excerpts of caselaw from state appellate and federal district courts and up to the U.S. Supreme Court, all of which affirm, from one perspective or another, the absolute Constitutional right of parents to actually BE parents to their children.
No case authoritative within this circuit, however, had held that the state had a comparable obligation to protect children from their own parents, and we now know that the obligation does not exist in constitutional law.” K.H. Through Murphy v. Morgan, 914 F.2d 846 (C.A.7 (Ill.), 1990.
"Rights to marry, have children and maintain relationship with children are fundamental rights protected by the Fourteenth Amendment and thus, strict scrutiny is required of any statutes that directly and substantially impair those rights." P.O.P.S. v. Gardner, 998 F2d 764 (9th Cir. 1993)
"Parents right to rear children without undue governmental interference is a fundamental component of due process."
Nunez by Nunez v. City of San Diego, 114 F3d 935 (9th Cir. 1997)
The rights of parents to the care, custody and nurture of their children is of such character that it cannot be denied without violating those fundamental principles of liberty and justice which lie at the base of all our civil and political institutions, and such right is a fundamental right protected by this amendment (First) and Amendments 5, 9, and 14. Doe v. Irwin, 441 F Supp 1247; U.S. D.C. of Michigan, (1985).
The several states have no greater power to restrain individual freedoms protected by the First Amendment than does the Congress of the United States. Wallace v. Jaffree, 105 S Ct 2479; 472 US 38, (1985).
Loss of First Amendment Freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury. Though First Amendment rights are not absolute, they may be curtailed only by interests of vital importance, the burden of proving which rests on their government. Elrod v. Burns, 96 S Ct 2673; 427 US 347, (1976).
Law and court procedures that are "fair on their faces" but administered "with an evil eye or a heavy hand" was discriminatory and violates the equal protection clause of the Fourteenth Amendment. Yick Wo v. Hopkins, 118 US 356, (1886).
Even when blood relationships are strained, parents retain vital interest in preventing irretrievable destruction of their family life; if anything, persons faced with forced dissolution of their parental rights have more critical need for procedural protections than do those resisting state intervention into ongoing family affairs. Santosky v. Kramer, 102 S Ct 1388; 455 US 745, (1982).
Parents have a fundamental constitutionally protected interest in continuity of legal bond with their children. Matter of Delaney, 617 P 2d 886, Oklahoma (1980). .
The liberty interest of the family encompasses an interest in retaining custody of one's children and, thus, a state may not interfere with a parent's custodial rights absent due process protections. Langton v. Maloney, 527 F Supp 538, D.C. Conn. (1981).
Parent's right to custody of child is a right encompassed within protection of this amendment which may not be interfered with under guise of protecting public interest by legislative action which is arbitrary or without reasonable relation to some purpose within competency of state to effect. Regenold v. Baby Fold, Inc., 369 NE 2d 858; 68 Ill 2d 419, appeal dismissed 98 S Ct 1598, 435 US 963, IL, (1977).
Parent's interest in custody of her children is a liberty interest which has received considerable constitutional protection; a parent who is deprived of custody of his or her child, even though temporarily, suffers thereby grievous loss and such loss deserves extensive due process protection. In the Interest of Cooper, 621 P 2d 437; 5 Kansas App Div 2d 584, (1980).
The Due Process Clause of the Fourteenth Amendment requires that severance in the parent-child relationship caused by the state occur only with rigorous protections for individual liberty interests at stake. Bell v. City of Milwaukee, 746 F 2d 1205; US Ct App 7th Cir WI, (1984).
Father enjoys the right to associate with his children which is guaranteed by this amendment (First) as incorporated in Amendment 14, or which is embodied in the concept of "liberty" as that word is used in the Due Process Clause of the 14th Amendment and Equal Protection Clause of the 14th Amendment. Mabra v. Schmidt, 356 F Supp 620; DC, WI (1973).
"Separated as our issue is from that of the future interests of the children, we have before us the elemental question whether a court of a state, where a mother is neither domiciled, resident nor present, may cut off her immediate right to the care, custody, management and companionship of her minor children without having jurisdiction over her in personam. Rights far more precious to appellant than property rights will be cut off if she is to be bound by the Wisconsin award of custody." May v. Anderson, 345 US 528, 533; 73 S Ct 840, 843, (1952).
A parent's right to care and companionship of his or her children are so fundamental, as to be guaranteed protection under the First, Ninth, and Fourteenth Amendments of the United States Constitution. In re: J.S. and C., 324 A 2d 90; supra 129 NJ Super, at 489.
The Court stressed, "the parent-child relationship is an important interest that undeniably warrants deference and, absent a powerful countervailing interest, protection." A parent's interest in the companionship, care, custody and management of his or her children rises to a constitutionally secured right, given the centrality of family life as the focus for personal meaning and responsibility. Stanley v. Illinois, 405 US 645, 651; 92 S Ct 1208, (1972).
Parent's rights have been recognized as being "essential to the orderly pursuit of happiness by free man." Meyer v. Nebraska, 262 US 390; 43 S Ct 625, (1923).
The U.S. Supreme Court implied that "a (once) married father who is separated or divorced from a mother and is no longer living with his child" could not constitutionally be treated differently from a currently married father living with his child. Quilloin v. Walcott, 98 S Ct 549; 434 US 246, 255^Q56, (1978).
The U.S. Court of Appeals for the 9th Circuit (California) held that the parent-child relationship is a constitutionally protected liberty interest. (See; Declaration of Independence --life, liberty and the pursuit of happiness and the 14th Amendment of the United States Constitution -- No state can deprive any person of life, liberty or property without due process of law nor deny any person the equal protection of the laws.) Kelson v. Springfield, 767 F 2d 651; US Ct App 9th Cir, (1985).
The parent-child relationship is a liberty interest protected by the Due Process Clause of the 14th Amendment. Bell v. City of Milwaukee, 746 f 2d 1205, 1242^Q45; US Ct App 7th Cir WI, (1985).
No bond is more precious and none should be more zealously protected by the law as the bond between parent and child." Carson v. Elrod, 411 F Supp 645, 649; DC E.D. VA (1976).
A parent's right to the preservation of his relationship with his child derives from the fact that the parent's achievement of a rich and rewarding life is likely to depend significantly on his ability to participate in the rearing of his children. A child's corresponding right to protection from interference in the relationship derives from the psychic importance to him of being raised by a loving, responsible, reliable adult. Franz v. U.S., 707 F 2d 582, 595^Q599; US Ct App (1983).
A parent's right to the custody of his or her children is an element of "liberty" guaranteed by the 5th Amendment and the 14th Amendment of the United States Constitution. Matter of Gentry, 369 NW 2d 889, MI App Div (1983).
Reality of private biases and possible injury they might inflict were impermissible considerations under the Equal Protection Clause of the 14th Amendment. Palmore v. Sidoti, 104 S Ct 1879; 466 US 429.
Legislative classifications which distributes benefits and burdens on the basis of gender carry the inherent risk of reinforcing stereotypes about the proper place of women and their need for special protection; thus, even statutes purportedly designed to compensate for and ameliorate the effects of past discrimination against women must be carefully tailored. the state cannot be permitted to classify on the basis of sex. Orr v. Orr, 99 S Ct 1102; 440 US 268, (1979).
The United States Supreme Court held that the "old notion" that "generally it is the man's primary responsibility to provide a home and its essentials" can no longer justify a statute that discriminates on the basis of gender. No longer is the female destined solely for the home and the rearing of the family, and only the male for the marketplace and the world of ideas. Stanton v. Stanton, 421 US 7, 10; 95 S Ct 1373, 1376, (1975).
Judges must maintain a high standard of judicial performance with particular emphasis upon conducting litigation with scrupulous fairness and impartiality. 28 USCA § 2411; Pfizer v. Lord, 456 F.2d 532; cert denied 92 S Ct 2411; US Ct App MN, (1972).
State Judges, as well as federal, have the responsibility to respect and protect persons from violations of federal constitutional rights. Gross v. State of Illinois, 312 F 2d 257; (1963).
The Constitution also protects "the individual interest in avoiding disclosure of personal matters." Federal Courts (and State Courts), under Griswold can protect, under the "life, liberty and pursuit of happiness" phrase of the Declaration of Independence, the right of a man to enjoy the mutual care, company, love and affection of his children, and this cannot be taken away from him without due process of law. There is a family right to privacy which the state cannot invade or it becomes actionable for civil rights damages. Griswold v. Connecticut, 381 US 479, (1965).
The right of a parent not to be deprived of parental rights without a showing of fitness, abandonment or substantial neglect is so fundamental and basic as to rank among the rights contained in this Amendment (Ninth) and Utah's Constitution, Article 1 § 1. In re U.P., 648 P 2d 1364; Utah, (1982).
The rights of parents to parent-child relationships are recognized and upheld. Fantony v. Fantony, 122 A 2d 593, (1956); Brennan v. Brennan, 454 A 2d 901, (1982). State's power to legislate, adjudicate and administer all aspects of family law, including determinations of custodial; and visitation rights, is subject to scrutiny by federal judiciary within reach of due process and/or equal protection clauses of 14th Amendment...Fourteenth Amendment applied to states through specific rights contained in the first eight amendments of the Constitution which declares fundamental personal rights...Fourteenth Amendment encompasses and applied to states those preexisting fundamental rights recognized by the Ninth Amendment. The Ninth Amendment acknowledged the prior existence of fundamental rights with it: "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people." The United States Supreme Court in a long line of decisions, has recognized that matters involving marriage, procreation, and the parent-child relationship are among those fundamental "liberty" interests protected by the Constitution. Thus, the decision in Roe v. Wade, 410 US 113; 93 S Ct 705; 35 L Ed 2d 147, (1973), was recently described by the Supreme Court as founded on the "Constitutional underpinning of ... a recognition that the "liberty" protected by the Due Process Clause of the 14th Amendment includes not only the freedoms explicitly mentioned in the Bill of Rights, but also a freedom of personal choice in certain matters of marriage and family life." The non-custodial divorced parent has no way to implement the constitutionally protected right to maintain a parental relationship with his child except through visitation. To acknowledge the protected status of the relationship as the majority does, and yet deny protection under Title 42 USC § 1983, to visitation, which is the exclusive means of effecting that right, is to negate the right completely. Wise v. Bravo, 666 F.2d 1328, (1981).
One of the most precious rights possessed by parents is the right to raise their children free of government interference. That right, "more precious than mere property rights," is a liberty interest, protected by the substantive and procedural Due Process Clauses of the Fourteenth Amendment. Stanley v. Illinois, 405 U.S. 645, 92 S.Ct. 1208, 31 L.Ed.2d 551 (1972). Moreover, the fact that the custodians are grandparents rather than parents is legally insignificant, because families headed by extended family members are entitled to the same constitutional protections as those headed by parents, Moore v. City of East Cleveland, 431 U.S. 494, 97 S.Ct. 1932, 52 L.Ed.2d 531 (1977) Even relatives who are licensed as foster parents enjoy the same constitutional rights as other custodial relatives. Rivera v. Marcus, 696 F.2d 1016 (2d Cir. 1982).
Because of the magnitude of the liberty interests of parents and adult extended family members in the care and companionship of children, the Fourteenth Amendment protects these substantive due process liberty interests by prohibiting the government from depriving fit parents of custody of their children. See Stanley v. Illinois, 405 U.S. 645, 651, 92 S.Ct. 1208, 31 L.Ed.2d 551 (1972); Santosky v. Kramer, 455 U.S. 745, 760, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982); Duchesne v. Sugarman, 566 F.2d 817, 824 (2d Cir. 1977); Hurlman v. Rice, 927 F.2d 74, 79 (2d Cir. 1991). In the United States Supreme Court’s view, the state registers "no gains toward its stated goals [of protecting children] when it separates a fit parent from the custody of his children." Stanley, 405 U.S. at 652.
Grandparents are also entitled to procedural due process. “An essential principle of due process is that a deprivation of life, liberty, or property ‘be preceded by notice and opportunity for hearing appropriate to the nature of the case.’” Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 542, 105 S.Ct. 1487, 84 L.Ed.2d 494 (1985) (quoting Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 70 S.Ct. 652, 94 L.Ed.2d 865 (1950)).
The grandchildren have a Fourth Amendment right not to be seized by the government for child protective purposes unless it has probable cause to believe that the children have been neglected. Tenenbaum v. Williams, 193 F.3d 581 (2d Cir. 1999), cert. denied, 529 U.S. 1098, 120 S.Ct. 1832, 146 L.Ed.2d 776 (2000). Probable cause exists only if the officials have persuasive evidence of serious ongoing abuse and reason to fear imminent recurrence. Robison v. Via, 821 F.2d 913, 922 (2d Cir. 1987).
Grandparents cannot be dismissed from the dependency case because the dependency case is the only legal way that the state can interfere with their custody. The state must prove that they are abusive or neglectful and that the children would be at risk of immediate serious harm if returned.
FROM THE COLORADO SUPREME COURT, 1910
In controversies affecting the custody of an infant, the interest and welfare of the child is the primary and controlling question by which the court must be guided. This rule is based upon the theory that the state must perpetuate itself, and good citizenship is essential to that end. Though nature gives to parents the right to the custody of their own children, and such right is scarcely less sacred than the right to life and liberty, and is manifested in all animal life, yet among mankind the necessity for government has forced the recognition of the rule that the perpetuity of the state is the first consideration, and parental authority itself is subordinate to this supreme power. It is recognized that: 'The moment a child is born it owes allegiance to the government of the country of its birth, and is entitled to the protection of that government. And such government is obligated by its duty of protection, to consult the welfare, comfort and interest of such child in regulating its custody during the period of its minority.' Mercein v. People, 25 Wend. (N. Y.) 64, 103, 35 Am. Dec. 653; McKercher v. Green, 13 Colo. App. 271, 58 Pac. 406. But as government should never interfere with the natural rights of man, except only when it is essential for the good of society, the state recognizes, and enforces, the right which nature gives to parents [48 Colo. 466] to the custody of their own children, and only supervenes with its sovereign power when the necessities of the case require it.
The experience of man has demonstrated that the best development of a young life is within the sacred precincts of a home, the members of which are bound together by ties entwined through 'bone of their bone and flesh of their flesh'; that it is in such homes and under such influences that the sweetest, purest, noblest, and most attractive qualities of human nature, so essential to good citizenship, are best nurtured and grow to wholesome fruition; that, when a state is based and builded upon such homes, it is strong in patriotism, courage, and all the elements of the best civilization. Accordingly these recurring facts in the experience of man resulted in a presumption establishing prima facie that parents are in every way qualified to have the care, custody, and control of their own offspring, and that their welfare and interests are best subserved under such control. Thus, by natural law, by common law, and, likewise, the statutes of this state, the natural parents are entitled to the custody of their minor children, except when they are unsuitable persons to be intrusted with their care, control, and education, or when some exceptional circumstances appear which render such custody inimicable to the best interests of the child. While the right of a parent to the custody of its infant child is therefore, in a sense, contingent, the right can never be lost or taken away so long as the parent properly nurtures, maintains, and cares for the child.
Wilson v. Mitchell, 111 P. 21, 25-26, 48 Colo. 454 (Colo. 1910)
No case authoritative within this circuit, however, had held that the state had a comparable obligation to protect children from their own parents, and we now know that the obligation does not exist in constitutional law.” K.H. Through Murphy v. Morgan, 914 F.2d 846 (C.A.7 (Ill.), 1990.
"Rights to marry, have children and maintain relationship with children are fundamental rights protected by the Fourteenth Amendment and thus, strict scrutiny is required of any statutes that directly and substantially impair those rights." P.O.P.S. v. Gardner, 998 F2d 764 (9th Cir. 1993)
"Parents right to rear children without undue governmental interference is a fundamental component of due process."
Nunez by Nunez v. City of San Diego, 114 F3d 935 (9th Cir. 1997)
The rights of parents to the care, custody and nurture of their children is of such character that it cannot be denied without violating those fundamental principles of liberty and justice which lie at the base of all our civil and political institutions, and such right is a fundamental right protected by this amendment (First) and Amendments 5, 9, and 14. Doe v. Irwin, 441 F Supp 1247; U.S. D.C. of Michigan, (1985).
The several states have no greater power to restrain individual freedoms protected by the First Amendment than does the Congress of the United States. Wallace v. Jaffree, 105 S Ct 2479; 472 US 38, (1985).
Loss of First Amendment Freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury. Though First Amendment rights are not absolute, they may be curtailed only by interests of vital importance, the burden of proving which rests on their government. Elrod v. Burns, 96 S Ct 2673; 427 US 347, (1976).
Law and court procedures that are "fair on their faces" but administered "with an evil eye or a heavy hand" was discriminatory and violates the equal protection clause of the Fourteenth Amendment. Yick Wo v. Hopkins, 118 US 356, (1886).
Even when blood relationships are strained, parents retain vital interest in preventing irretrievable destruction of their family life; if anything, persons faced with forced dissolution of their parental rights have more critical need for procedural protections than do those resisting state intervention into ongoing family affairs. Santosky v. Kramer, 102 S Ct 1388; 455 US 745, (1982).
Parents have a fundamental constitutionally protected interest in continuity of legal bond with their children. Matter of Delaney, 617 P 2d 886, Oklahoma (1980). .
The liberty interest of the family encompasses an interest in retaining custody of one's children and, thus, a state may not interfere with a parent's custodial rights absent due process protections. Langton v. Maloney, 527 F Supp 538, D.C. Conn. (1981).
Parent's right to custody of child is a right encompassed within protection of this amendment which may not be interfered with under guise of protecting public interest by legislative action which is arbitrary or without reasonable relation to some purpose within competency of state to effect. Regenold v. Baby Fold, Inc., 369 NE 2d 858; 68 Ill 2d 419, appeal dismissed 98 S Ct 1598, 435 US 963, IL, (1977).
Parent's interest in custody of her children is a liberty interest which has received considerable constitutional protection; a parent who is deprived of custody of his or her child, even though temporarily, suffers thereby grievous loss and such loss deserves extensive due process protection. In the Interest of Cooper, 621 P 2d 437; 5 Kansas App Div 2d 584, (1980).
The Due Process Clause of the Fourteenth Amendment requires that severance in the parent-child relationship caused by the state occur only with rigorous protections for individual liberty interests at stake. Bell v. City of Milwaukee, 746 F 2d 1205; US Ct App 7th Cir WI, (1984).
Father enjoys the right to associate with his children which is guaranteed by this amendment (First) as incorporated in Amendment 14, or which is embodied in the concept of "liberty" as that word is used in the Due Process Clause of the 14th Amendment and Equal Protection Clause of the 14th Amendment. Mabra v. Schmidt, 356 F Supp 620; DC, WI (1973).
"Separated as our issue is from that of the future interests of the children, we have before us the elemental question whether a court of a state, where a mother is neither domiciled, resident nor present, may cut off her immediate right to the care, custody, management and companionship of her minor children without having jurisdiction over her in personam. Rights far more precious to appellant than property rights will be cut off if she is to be bound by the Wisconsin award of custody." May v. Anderson, 345 US 528, 533; 73 S Ct 840, 843, (1952).
A parent's right to care and companionship of his or her children are so fundamental, as to be guaranteed protection under the First, Ninth, and Fourteenth Amendments of the United States Constitution. In re: J.S. and C., 324 A 2d 90; supra 129 NJ Super, at 489.
The Court stressed, "the parent-child relationship is an important interest that undeniably warrants deference and, absent a powerful countervailing interest, protection." A parent's interest in the companionship, care, custody and management of his or her children rises to a constitutionally secured right, given the centrality of family life as the focus for personal meaning and responsibility. Stanley v. Illinois, 405 US 645, 651; 92 S Ct 1208, (1972).
Parent's rights have been recognized as being "essential to the orderly pursuit of happiness by free man." Meyer v. Nebraska, 262 US 390; 43 S Ct 625, (1923).
The U.S. Supreme Court implied that "a (once) married father who is separated or divorced from a mother and is no longer living with his child" could not constitutionally be treated differently from a currently married father living with his child. Quilloin v. Walcott, 98 S Ct 549; 434 US 246, 255^Q56, (1978).
The U.S. Court of Appeals for the 9th Circuit (California) held that the parent-child relationship is a constitutionally protected liberty interest. (See; Declaration of Independence --life, liberty and the pursuit of happiness and the 14th Amendment of the United States Constitution -- No state can deprive any person of life, liberty or property without due process of law nor deny any person the equal protection of the laws.) Kelson v. Springfield, 767 F 2d 651; US Ct App 9th Cir, (1985).
The parent-child relationship is a liberty interest protected by the Due Process Clause of the 14th Amendment. Bell v. City of Milwaukee, 746 f 2d 1205, 1242^Q45; US Ct App 7th Cir WI, (1985).
No bond is more precious and none should be more zealously protected by the law as the bond between parent and child." Carson v. Elrod, 411 F Supp 645, 649; DC E.D. VA (1976).
A parent's right to the preservation of his relationship with his child derives from the fact that the parent's achievement of a rich and rewarding life is likely to depend significantly on his ability to participate in the rearing of his children. A child's corresponding right to protection from interference in the relationship derives from the psychic importance to him of being raised by a loving, responsible, reliable adult. Franz v. U.S., 707 F 2d 582, 595^Q599; US Ct App (1983).
A parent's right to the custody of his or her children is an element of "liberty" guaranteed by the 5th Amendment and the 14th Amendment of the United States Constitution. Matter of Gentry, 369 NW 2d 889, MI App Div (1983).
Reality of private biases and possible injury they might inflict were impermissible considerations under the Equal Protection Clause of the 14th Amendment. Palmore v. Sidoti, 104 S Ct 1879; 466 US 429.
Legislative classifications which distributes benefits and burdens on the basis of gender carry the inherent risk of reinforcing stereotypes about the proper place of women and their need for special protection; thus, even statutes purportedly designed to compensate for and ameliorate the effects of past discrimination against women must be carefully tailored. the state cannot be permitted to classify on the basis of sex. Orr v. Orr, 99 S Ct 1102; 440 US 268, (1979).
The United States Supreme Court held that the "old notion" that "generally it is the man's primary responsibility to provide a home and its essentials" can no longer justify a statute that discriminates on the basis of gender. No longer is the female destined solely for the home and the rearing of the family, and only the male for the marketplace and the world of ideas. Stanton v. Stanton, 421 US 7, 10; 95 S Ct 1373, 1376, (1975).
Judges must maintain a high standard of judicial performance with particular emphasis upon conducting litigation with scrupulous fairness and impartiality. 28 USCA § 2411; Pfizer v. Lord, 456 F.2d 532; cert denied 92 S Ct 2411; US Ct App MN, (1972).
State Judges, as well as federal, have the responsibility to respect and protect persons from violations of federal constitutional rights. Gross v. State of Illinois, 312 F 2d 257; (1963).
The Constitution also protects "the individual interest in avoiding disclosure of personal matters." Federal Courts (and State Courts), under Griswold can protect, under the "life, liberty and pursuit of happiness" phrase of the Declaration of Independence, the right of a man to enjoy the mutual care, company, love and affection of his children, and this cannot be taken away from him without due process of law. There is a family right to privacy which the state cannot invade or it becomes actionable for civil rights damages. Griswold v. Connecticut, 381 US 479, (1965).
The right of a parent not to be deprived of parental rights without a showing of fitness, abandonment or substantial neglect is so fundamental and basic as to rank among the rights contained in this Amendment (Ninth) and Utah's Constitution, Article 1 § 1. In re U.P., 648 P 2d 1364; Utah, (1982).
The rights of parents to parent-child relationships are recognized and upheld. Fantony v. Fantony, 122 A 2d 593, (1956); Brennan v. Brennan, 454 A 2d 901, (1982). State's power to legislate, adjudicate and administer all aspects of family law, including determinations of custodial; and visitation rights, is subject to scrutiny by federal judiciary within reach of due process and/or equal protection clauses of 14th Amendment...Fourteenth Amendment applied to states through specific rights contained in the first eight amendments of the Constitution which declares fundamental personal rights...Fourteenth Amendment encompasses and applied to states those preexisting fundamental rights recognized by the Ninth Amendment. The Ninth Amendment acknowledged the prior existence of fundamental rights with it: "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people." The United States Supreme Court in a long line of decisions, has recognized that matters involving marriage, procreation, and the parent-child relationship are among those fundamental "liberty" interests protected by the Constitution. Thus, the decision in Roe v. Wade, 410 US 113; 93 S Ct 705; 35 L Ed 2d 147, (1973), was recently described by the Supreme Court as founded on the "Constitutional underpinning of ... a recognition that the "liberty" protected by the Due Process Clause of the 14th Amendment includes not only the freedoms explicitly mentioned in the Bill of Rights, but also a freedom of personal choice in certain matters of marriage and family life." The non-custodial divorced parent has no way to implement the constitutionally protected right to maintain a parental relationship with his child except through visitation. To acknowledge the protected status of the relationship as the majority does, and yet deny protection under Title 42 USC § 1983, to visitation, which is the exclusive means of effecting that right, is to negate the right completely. Wise v. Bravo, 666 F.2d 1328, (1981).
One of the most precious rights possessed by parents is the right to raise their children free of government interference. That right, "more precious than mere property rights," is a liberty interest, protected by the substantive and procedural Due Process Clauses of the Fourteenth Amendment. Stanley v. Illinois, 405 U.S. 645, 92 S.Ct. 1208, 31 L.Ed.2d 551 (1972). Moreover, the fact that the custodians are grandparents rather than parents is legally insignificant, because families headed by extended family members are entitled to the same constitutional protections as those headed by parents, Moore v. City of East Cleveland, 431 U.S. 494, 97 S.Ct. 1932, 52 L.Ed.2d 531 (1977) Even relatives who are licensed as foster parents enjoy the same constitutional rights as other custodial relatives. Rivera v. Marcus, 696 F.2d 1016 (2d Cir. 1982).
Because of the magnitude of the liberty interests of parents and adult extended family members in the care and companionship of children, the Fourteenth Amendment protects these substantive due process liberty interests by prohibiting the government from depriving fit parents of custody of their children. See Stanley v. Illinois, 405 U.S. 645, 651, 92 S.Ct. 1208, 31 L.Ed.2d 551 (1972); Santosky v. Kramer, 455 U.S. 745, 760, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982); Duchesne v. Sugarman, 566 F.2d 817, 824 (2d Cir. 1977); Hurlman v. Rice, 927 F.2d 74, 79 (2d Cir. 1991). In the United States Supreme Court’s view, the state registers "no gains toward its stated goals [of protecting children] when it separates a fit parent from the custody of his children." Stanley, 405 U.S. at 652.
Grandparents are also entitled to procedural due process. “An essential principle of due process is that a deprivation of life, liberty, or property ‘be preceded by notice and opportunity for hearing appropriate to the nature of the case.’” Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 542, 105 S.Ct. 1487, 84 L.Ed.2d 494 (1985) (quoting Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 70 S.Ct. 652, 94 L.Ed.2d 865 (1950)).
The grandchildren have a Fourth Amendment right not to be seized by the government for child protective purposes unless it has probable cause to believe that the children have been neglected. Tenenbaum v. Williams, 193 F.3d 581 (2d Cir. 1999), cert. denied, 529 U.S. 1098, 120 S.Ct. 1832, 146 L.Ed.2d 776 (2000). Probable cause exists only if the officials have persuasive evidence of serious ongoing abuse and reason to fear imminent recurrence. Robison v. Via, 821 F.2d 913, 922 (2d Cir. 1987).
Grandparents cannot be dismissed from the dependency case because the dependency case is the only legal way that the state can interfere with their custody. The state must prove that they are abusive or neglectful and that the children would be at risk of immediate serious harm if returned.
FROM THE COLORADO SUPREME COURT, 1910
In controversies affecting the custody of an infant, the interest and welfare of the child is the primary and controlling question by which the court must be guided. This rule is based upon the theory that the state must perpetuate itself, and good citizenship is essential to that end. Though nature gives to parents the right to the custody of their own children, and such right is scarcely less sacred than the right to life and liberty, and is manifested in all animal life, yet among mankind the necessity for government has forced the recognition of the rule that the perpetuity of the state is the first consideration, and parental authority itself is subordinate to this supreme power. It is recognized that: 'The moment a child is born it owes allegiance to the government of the country of its birth, and is entitled to the protection of that government. And such government is obligated by its duty of protection, to consult the welfare, comfort and interest of such child in regulating its custody during the period of its minority.' Mercein v. People, 25 Wend. (N. Y.) 64, 103, 35 Am. Dec. 653; McKercher v. Green, 13 Colo. App. 271, 58 Pac. 406. But as government should never interfere with the natural rights of man, except only when it is essential for the good of society, the state recognizes, and enforces, the right which nature gives to parents [48 Colo. 466] to the custody of their own children, and only supervenes with its sovereign power when the necessities of the case require it.
The experience of man has demonstrated that the best development of a young life is within the sacred precincts of a home, the members of which are bound together by ties entwined through 'bone of their bone and flesh of their flesh'; that it is in such homes and under such influences that the sweetest, purest, noblest, and most attractive qualities of human nature, so essential to good citizenship, are best nurtured and grow to wholesome fruition; that, when a state is based and builded upon such homes, it is strong in patriotism, courage, and all the elements of the best civilization. Accordingly these recurring facts in the experience of man resulted in a presumption establishing prima facie that parents are in every way qualified to have the care, custody, and control of their own offspring, and that their welfare and interests are best subserved under such control. Thus, by natural law, by common law, and, likewise, the statutes of this state, the natural parents are entitled to the custody of their minor children, except when they are unsuitable persons to be intrusted with their care, control, and education, or when some exceptional circumstances appear which render such custody inimicable to the best interests of the child. While the right of a parent to the custody of its infant child is therefore, in a sense, contingent, the right can never be lost or taken away so long as the parent properly nurtures, maintains, and cares for the child.
Wilson v. Mitchell, 111 P. 21, 25-26, 48 Colo. 454 (Colo. 1910)
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