On Wednesday, we had our first argument before the Missouri Supreme Court in the case Rick Gurley v. Missouri Board of Private Investigator Examiners. The Associated Press has a few details. Of course, it’s hard to explain 130+ pages of briefs in a 500 word article. The full briefs are here. We eagerly await the decision.
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Last week, the Missouri Senate passed the so-called Facebook fix by unanimous vote. This morning, the Missouri House passed the bill by a vote of 139 to 2. I was one of the two. Here’s why: The current law bans Internet communications, including Facebook, between teachers and students. Cole County Circuit Judge Jon Beetem ruled it unconstitutional last month. Everyone agreed the law had to be fixed. The right way to fix it would have been to just repeal the law. Instead, the so-called “fix” mandates that each of Missouri’s 529 different school districts adopt a policy of its own on “the use of electronic media” to “prevent improper communications between staff members and students.” That’s a noble goal. But the devil’s in the details. First, the vast majority most of the behavior this law attempts to stop is ALREADY illegal. Elected officials have a tendency to react to bad things that happen in our society with an urge to just, “do something” to prove to the public that we care about the issue. The simple fact is that we can’t legislate immoral and criminal behavior out of our state by passing law after law to make it illegal. Making it criminal one time is enough. Second, there’s a chance that this “fix” merely trades one unconstitutional state law for hundreds of unconstitutional local school board rules. My concern is for the teachers of this state who, rather than having to fight a single state statute now, may be left to their own devices to take on an unconstitutional rule at the local level. In addition, there’s the very real possibility that the “fix” will result in more litigation against school districts around the state on the same First Amendment issues that caused our state law to be struck as constitutional. Does all this make me a stick in the mud? Probably. But I believe the First Amendment is the most important of all our constitutional rights, and it’s worth being a stick in the mud to defend the First Amendment rights of all Missourians. “Who am I?” is a fundamental question of human existence. Unfortunately, under existing law there are far too Missourians with little to no hope of ever learning the identity of their natural parents to help them answer this basic question. I’m pleased to report that through our work in the General Assembly this year, many Missourians will be able to get answers to that question. The Associated Press reports on a bill sponsored by Sen. John Lamping was Truly Agreed and Finally Passed by the General Assembly and now awaits Gov. Nixon’s signature. I was pleased to carry the bill in House. The bill, which was supported by both the Missouri Catholic Conference and people interested in furthering adoptee rights, would allow adoptees to obtain court order to divulge the names of their natural parents if the natural parents were deceased. It also eliminates the unenforceable requirement that adoptees get legal permission before conducting their own search for their natural parents. As noted by Sen. Lamping in the AP story, the final bill is not as broad as we would have liked. But it’s a great start. I plan on sponsoring further legislation next year to move the issue forward. Paul Clement is a rock-star in the legal world. A former solicitor general whose job it was to defend the United States before the Supreme Court, Clement has been called the LeBron James of big law firm recruiting and mentioned frequently on short-lists of future potential Republican Supreme Court nominees. Unfortunately, Mr. Clement made news today for resigning from his firm over its abandonment of his defense of the federal Defense of Marriage Act. Clement makes a principled stand for the role of lawyers in society. Clement writes: I resign out of the firmly-held belief that a representation should not be abandoned because the client’s legal position is extremely unpopular in certain quarters. Defending unpopular positions is what lawyers do. The adversary system of justice depends on it, especially in cases where the passions run high. Efforts to delegitimize any representation of one side of a legal controversy are a profound threat to the rule of law. Clement is right. Lawyers aren’t always popular. But a free society cannot do without their willingness to defend unpopular positions and unpopular clients. In this case, it’s even worse. We’re not talking about an obscure client with questionable motives or repulsive ideas. In this case, the client is the United States and a duly passed federal law which remains in full force and effect. Regardless of one’s stance on the social benefits of and legality of the Defense of Marriage Act, we should at the very least agree that defending the laws of the United States is a noble calling for which no one should be ashamed. In Missouri domestic cases, the child’s “best interests” are paramount. In determining a child’s “best interests,” Missouri law requires courts to consider the following eight factors outlined in §452.375:
It’s also important to dispel a few falsehoods about custody that we frequently encounter when first meeting new clients. First, it does not matter who files for divorce or, in the case of unmarried parents, custody first. Missouri judges determine custody on the merits of the case, not which party files first. Second, except in extreme examples, Missouri judges typically award joint physical and legal custody with at least custody of every other weekend for the parent who gets less custody. If the other parent threatens that you will never get to see your child….well, that’s just plain untrue. In fact, a parent who would say such a thing to the other parent is probably more likely to be the parent who gets less time with the children. Third, it’s never a good idea to withhold the children from the other parent – except in extreme circumstances. The fourth factor in child custody is which parent is more likely to allow frequent, continuing, and meaningful contact. If you shut off contact with the other parent, then you’ve just given the other parent a point on their behalf. Fourth, Missouri judges do not always place custody with the parent with whom the children wish to live. Further, the younger the child, the less likely a judge will be to consider their wishes. If you are seeking legal representation regarding child custody, give us a call at Barnes & Associates. 573.634.8884. We have the experience and the will to fight on your behalf that you need to ensure you get the best possible custody and child support arrangement. The Washington Post has a good article today on legal analysis at the United States Supreme Court. The Court notes that the outcomes of three recent cases come down to the Court’s interpretation of one confusing word or phrase. In Bruesewitz v. Wyeth, an important products liability case on vaccines, the word is “unavoidable.” In Kasten v. . . . → Read More: At the Supreme Court, Cases Come Down to the Meaning of One Word After a year of complaints and a referendum effort to repeal Jefferson City’s mandatory trash service, opponents have filed a lawsuit asking a court to declare the ordinance unconstitutional under Missouri’s Hancock Amendment. I was curious about the issue, and did a little research on the legal grounds of the lawsuit. Here’s what I’ve learned: The Hancock Amendment The Hancock Amendment prohibits municipalities and other . . . → Read More: Will Mandatory Trash Service in Jeff City Stand Up in Court? We’ve had a few clients ask about recent changes to Missouri’s DWI laws. In short, the state is pushing drunk driving offenders into special DWI courts where, in exchange for agreeing to undergo treatment, they have an opportunity for reduced sentences and early re-instatement of driving privileges. If a defendant refuses to go to DWI court and is either a repeat offender or has blown a BAC of greater than 0.15, they face stiff penalties. Here are the major changes which will effect those accused of driving while intoxicated. The Fourth Amendment protects us from unreasonable searches and seizures. In short, to conduct a search of a suspect, item, or abode, police must either have a warrant or an excuse for not having a warrant. In criminal defense law, the Fourth Amendment is the most important part of our Constitution. Many cases hinge on whether a . . . → Read More: Does GPS Without a Warrant Violate the Fourth Amendment? |
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