Kurt X. Metzmeier's blog

Sotomayor Hearings Begin Today


Hearings of the Senate Judiciary Committee begin today.  The committee will decide whether to recommend that the full Senate confirm President Obama's nomination of U.S. Circuit Court Judge Sonia Sotomayor to fill the vacant seat that David Souter held prior to his retirement at the end of the Court's business in June.  They will be televised in their entirety on C-SPAN.

C-Span also has an interesting poll on its website that covers the American public's general knowledge of the Court [Link to PDF].  A recent CBS Poll finds that 62% of Americans are undecided on the Sotomayor nomination; the C-Span poll gives some reasons why that might be the case.  C-SPAN found that 49% of American cannot name single Supreme Court justice.  Only half know that the court has nine justices and 59% couldn't name the first woman to the high court.  Regarding Sotomayor, 57% could not even name who Obama nominated.

The Founders tried to insulate the Supreme Court from the whims of the mob.  They have succeeded--the mob couldn't pick a justice out of a line-up if he or she was wearing robes and carrying a gavel! 



Law of the Realm of the King of Pop


Yesterday's touching memorial service ends one chapter in the story of Michael Jackson, but the story is by no means over.  The stage is likely to shift from the Staples Center and Forest Grove to the courts of California.  There may be dozens of actions arising in coming months, but for the fan of celebrity law, I think four areas are worth watching:


Case 1:  X. v. Estate of Michael Joseph Jackson.

Although the 2002 will currently before the court seems well-drafted and clear as to Jackson's intentions, there appears to be some tension between the Jackson family and the two men that the will names as executors, John Branca, Jackson's lawyer, and John McClain, a music executive.  It is possible that other wills may surface and that the family may challenge many of the tough decisions that need to be made over the coming months.  The estate has a lot of creditors, and must figure out what to do with obligations over Jackson's planned tour.  Nonetheless, there is huge value inherent in the Michael Jackson brand; one need only look at the example of the Elvis Presley estate and its postmortem success to see the potential.  Executors will need to balance the need to pay up the estate's debts while preserving the potential for huge future income for the estate (and its beneficiary, the Michael Jackson Trust).  At all costs, they need to preserve Jackson's intellectual property rights and regain control over Neverland.  If the executors appear to be selling core assets essential to the future earnings of the Jackson Trust, the family will likely try to intervene.  Branca, the lawyer that engineered Jackson's purchase of a stake in the Sony/ATV Music Catalog, an asset reportedly worth $2 billion, is well placed to pull off the delicate balancing act, but there are lots of pitfalls.

Of course, the family is only the most likely of several routine suits by creditors against the estate for debts, real and imagined, and perhaps a few from persons purporting to have familial ties.  Of course, the arrangement Jackson chose, a narrowly drafted will that rolls estate assets into a trust, is the best defense against the out-of-the woodwork wife and lost-lost child.


Case 2: In RE Michael Jackson Trust
The Michael Jackson Trust (MJT) (a revocable living trust ) is the named recipient of the will and while the details are secret, press reports indicate that  Jackson's children will receive a 40% share, his mother, Katherine (not his father) also receives 40%, and charities take 20%.  Reportedly, the charities are not listed in the trust document, but are to be selected by the trustee(s).  Who the trustees are is likely to determine if there are future conflicts; if it is Branca and McClain, as at least some reports have speculated, there might be trouble.  In particular, the trustees need to make sure that the charities chosen conform to Jackson's vision, not the interest of the trustee(s).


Case 3: In the Matter of P.M., K.M. and P.M..

Debbie Rowe, presumptive mother of Jackson's first two children, never terminated her parental rights under California law and could challenge the court's grant of temporary custody to Katherine Jackson, Michael's mother. Regarding Jackson's third child, it is possible that a surrogate mother might appear and claim rights. Reports indicate that Rowe is at least considering such a course and California law gives her strong legal rights, as a presumed mother, towards a a grant of some form of custody.  Nonetheless, there are hurdles; she has not had contact with the children for many years and she reportedly has signed documents abjuring her rights.  There is also the possibility that she is not the biological mother; if so the Jackson lawyers likely have signed surrogacy agreements in their files.  Even greater obstacles exist for the unnamed surrogate mother.  Nonetheless, the financial and life style that goes with managing the inherited wealth of these wealthy minors may be irresistible.


Case 4:  State of California v. Doctor ...  [for the murder of Michael Joseph Jackson]
Was Jackson's death a case of [dramatic pause] murder?! Without a cause of death and tox reports still in the lab, the facts are murky, but what is (and, frankly, has long been) clear is that Michael Jackson has been ill-served by shadier elements of the medical community, one of whom might have killed him. Currently, California authorities are looking into the activities of five doctors. If Jackson died while a doctor or medical technician was administering anesthesia for the medically unsound purpose of treating a sleep disorder, that person's actions may be considered to be murder under California law.  There is a very interesting ALR Annotation relating to this topic. (Yes, that is probably a sentence that could only be uttered by a law librarian).  The annotation, Homicide: criminal liability for death resulting from unlawfully furnishing intoxicating liquor or drugs to another, 32 A.L.R.3d 589, focuses mainly cases involving the provision of illegal drugs from a dealer, but I think the case for homicide is even greater if, as appears possible here, the drug is provided by a physician who administers the drug.  Most of the cases involve the felony-murder doctrine, because the drugs like heroin are per se illegal, an issue that may or may not be involved in the Jackson death (depending whether the doctor properly prescribed them).  However, a resort to the felony-murder doctrine is not necessary if the doctor is at the scene and shows the requisite malicious itent (which in California can be inferred from evidence of wanton disregard for life).  The annotation shows that many courts have upheld murder convictions for situations at least similar to what has been posited here.


Of course, these scenarios may not play out, or other legal issues will be raised.  Nonetheless, I think it will be a long time before legal commentators on CNN, Fox and TruTV stop talking about Michael Jackson and his legal affairs.




For the Fans of Celebrity Probate Law: Michael Jackson's 2002 Will


I'm somewhat embarassed to jump on the MJ media blitz, but as a librarian I like primary documents:


Last Will of Michael Joseph Jackson

The documents of the Michael Jackson Family Trust referenced in the will are not (yet) public, but the beneficiaries are reported to be Jackson's three children and his mother.

Minnesota Supreme Court Rules for Franken in Disputed Senate Race


In a per curiam decision*, the Minnesota Supreme Court found that Coleman attorneys "did not establish that, by requiring proof that statutory absentee voting standards were satisfied before counting a rejected absentee ballot, the trial court's decision constituted a post-election change in standards that violates substantive due process." Moreover, the Coleman "did not prove that either the trial court or local election officials violated the constitutional guarantee of equal protection."  The court also found that no statutory requirements were violated in the process and that the trial court had not abused its discretion in its exclusion of evidence and its use of election day figures in one precinct in which ballots were later lost.

Thus the court found that "Al Franken received the highest number of votes legally cast and is entitled under Minn. Stat. § 204C.40 (2008) to receive the certificate of election as United States Senator from the State of Minnesota."

Link to decision:  http://www.mncourts.gov/opinions/sc/current/OPA090697-6030.pdf


UPDATE: Coleman has conceded.


*That is an unanimous, unsigned 5-0 opinion.  Of the seven judge panel, two judges had previously recused themeselves.



Souter's Last Day at the Court; Decision in Firefighters Case Expected


Today is the the last day of the 2009-09 Supreme Court term and a decision is expected in the New Haven firefighters case (Ricci v. DeStephano), a case appealed from Judge Sotomayor's Second Circuit and one that may figure in her nomination hearings. (Two other cases are still unresolved).

It is also the last day for Justice David Souter, who is retiring to his quiet home in New Hampshire.  Expect to seea more comprohensive and analyticl surveys of his time on the court in coming months.

SCOTUS Blog <http://www.scotusblog.com/wp/> will be live blogging the session, starting at 10:00 a.m.

Attorney General's Opinion on Constitutionality of Video Lottery Terminals


The opinion of Kentucky Attorney General Jack Conway on whether s. 226 of the Kentucky Constitution prohibits video "slot machines" operated by the Kentucky Lottery Commision was released today.  The opinion (co-signed by my law school classmate Jennifer Black Hans, class of '95) is very well-reasoned and is a text-book perfect model for analyzing both a section of the state constitution (the 1891 section 226) and an amendment to the document (current 226(1) adopted in 1992). 

The opinion concludes that such VLT's are not prohibited by the constitution, a result that is not surprising to anyone who has actually read the text of the prohibition and understands the full sweep of Kentucky history.  The proper context of the prohibition against lotteries is not as a reaction against gambling, but more as a reaction to special privileges.  As such, it should be classed with sections 59 and 60, which ban special and local legislation, because the right to run a lottery was one of the many privileges the pre-1891 legislature doled out to charities and other institutions.  (As a librarian, I'm ashamed to admit that the notoriously corrupt lotteries operated on behalf of libraries probably had a lot to to with the adoption of section 226*).  The delegates to the 1890-91 constitutional convention pointedly refused to bar horse racing (and probably occupied their nights in Frankfort saloons playing cards, perhaps the game of black-jack popularized by Kentucky's favorite son Henry Clay).

A Word version of the opinion (numbered 09-004) can be found on the AG's website; I'm attaching a PDF here.


*See esp., Lotteries and Libraries: A History of the Louisville Free Public Library (1944) for a discussion of the trouble engendered by the 1871 library lottery charter.  Such charters granted broad powers to trustees who often ended up with much of the proceeds.


Coleman v. Franken: Minnesota Supreme Court Video Oral Argument


The oral arguments in the U.S. Senate election dispute between Norm Coleman and Al Franken, justice Alan Page presiding,  is now available on the Minnesota Supreme Court website.

If you like election law, they are fascinating:

Minnesota Supreme Court Video Oral Argument

BTW, this month's Minnesota Lawyer has an excellent article on the legal issues involved in the case.

The Minneapolis Star-Tribune has blanket coverage of both the case and the politics, starting here.

UPDATE 6/15:  There is a good interview by Minnesota Public Radio with ex-Minn. Supreme Court Justice Jim Gilbert on the timing of a decision in the Franken-Coleman on MPR's website.  Based on normal practice, Justice Gilbert says the decision would likely take over two months, but he thinks that because of the importance of the case, it will be closer to 30 days (usually a very fast turnaround)--likely before the 4th of July. No taxation with half-representation!

Justice on the Campaign Trail


News coverage would suggest that the nomination of U.S. Federal Appeals Court Judge Sonia Sotomayor has unleashed a fire storm of criticism and led to active campaigning for and against her confirmation to the Supreme Court.  However, except for the efforts of radio host Rush Limbaughand the new-book hawking Newt Gingrich, the campaign against the nomination has been fairly lukewarm.  There is nothing to compete with the activity around the nominations of John Roberts and Samuel Alito. Sure the professional legal interest groups like the Judicial Confirmation Network and the Third Branch Conference are mounting some sort of campaign, but they practically admit that that they are merely exercising their arms for a more important fight in the future (e.g. if and when Justice Kennedy's seat is vacated).  To a political memorablia collector, the key indicator is whether or not there is gear for sale actively supporting a campaign--buttons, bumper stickers, maybe T-shirts.  I've been monitoring ebay since the announcement and have seen precious little to indicate a serias anti-Sotomayor campaign.  From day one, a number of ready to make commemmorative items (buttons, trivets, decorated plates) appeared touting the judge, all using her official copyright-free photo.  Button makers & printable decals are cheap and this is typical of any name in the news and does not indicate any real-world pro- or anti- campaigns, only entreprenuers trying to cash in on the news. The only item with a partisan stance is a "Confirm Sonia Sotomayor" T-shirt that appeared for sale .  I've also checked the few "rejection" sites, including JCN's aboutsoniasotomayor.com and found nothing that fellow travelers can buy to show their views (even though they ARE taking donations).

I'll keep looking, but I've seen nothing with the passion of the following item from 2000:













For more detailed versions of the items shown, see my Repository of American Legal Ephemera on Flickr.

The Paper Trail of Judge Wood


Still in the midst of its review of Judge Sotomayor, SCOTUSBlog is now beginning a review of U.S. Seventh Circuit Judge Diane P. Wood, the other main candidate for Justice Souter's seat who has a significant record of published opinions.  Judge Wood was in DC recently and it has been reported that she met with President Obama.  (I would note a similiar serendipitus meeting with the president was allegedly arranged with Gov. Jennifer Granholm during her visit to the press conference announcing an agreement on new CAFE standards).


Image: Wikipedia article on Diane P. Wood

Bring Me the Opinions of Sonia Sotomayor


While the press and many blogs have engaged in widespread speculation (see below) about who President Obama may pick for the Supreme Court, SCOTUSBlog has been methodically analyzing the opinions of the leading candidate, Sonia Sotomayor.  The (now) four-part series suggests that she is no radical, and would likely rule in a manner not unlike the person she is replacing, David Souter.


Direct links to the series:

SCOTUSBlog has also promised an anaylsis of criminal law cases.

The range of candidates whose names have been raised, touted, floated, etc. makes it useful to bookmark Wikipedia's "Barack Obama Supreme Court candidates," which lists all rumored candidates and has links to citations to the particular news story where their names have been floated, and, when possible, links a wikipedia article about the candidate.  My own pet theory* is that Gov. Jennifer Granholm will be picked. A fellow Harvard law alum and a top confident of the president, she has been intially rumored for many cabinet positions but somehow is not in the mix at the end.  This leads me to think that Obama has some other idea for Granholm. 

I agree that Sotomayor's selection is the conventional wisdom.  However, I think a dark horse is California Supreme Court Justice Carlos R. Moreno, whose maleness has led to him being discounted--at least this time--because of the entirely correct view that the 1-8 gender ratio of the court needs to be balanced.  However, if Granholm gets this pick, Moreno--a Mexican-American who has served on both state and federal courts--would be a very appealling choice for Obama's second Supreme Court selection.


*Essentially groundless, little more reasoned than my Belmont pick (Mind That Bird)...