CHANGING BIRTH CERTIFICATE / TERMINATION OF PARENTAL RIGHTS / DNA TESTING

http://www.linkedin.com/groupItem?view=&srchtype=discussedNews&gid=3229018&item=117623353&type=member&trk=eml-anet_dig-b_pd-ttl-cn&ut=1kuy7uSMJgYRk1

 

Virginia Attorney Forum

Follow Valerie Foley

Does anyone have any experience in amending birth certificates?
Looking for procedural assistance in amending a birth certificate in case where the individual listed as the father on the BC was later discovered to actually not be the natural father. Can provide more details if needed. Thanks in advance!

2 months ago

6 comments

Follow Ken
Ken Labowitz • Some years ago I was involved in a case in which a correction was made in a birth record. My recollection is that the process was quite simple through the Vital Statistics office, but my case did not involve paternity. My suggestion is to start by calling the Vital Statistics office in Richmond and see if there is a form. I recall being surprised about how routine it was to get a new certificate– apparently it happens surprisingly frequently, such as for adoptions (a new certificate is issued showing the new parents of the adoptee).
2 months ago• Like

Follow Kathleen
Kathleen Havener • I am doing this tomorrow in Ohio. I will report back — this is to have the purported (but not actual) father removed from the child’s birth certificate. Tomorrow’s proceeding is a hearing.
2 months ago• Like

Follow Rhetta
Rhetta Daniel • I did one in the 90’s that was in New York. It can be done, but you have to find out exactly what the jurisdiction requires from the Bureau of Vital Statistics or its equivalent in other states. Then you have to follow the procedures they outline exactly in order to get the birth certificate modified. I had to get a “Certified Order”, not a copy teste, from the appropriate Circuit Court in Virginia for the agency in New York before they would even consider amending the birth certificate. However, other states may have different requirements.
2 months ago• Like

Follow Toni
Toni Brown • In Virginia, you need to petition the juvenile court in the jurisdiction where the child resides and ask for a paternity test. When it comes back that the purported father is not the father, the court will notify Vital Records and the father’s name should be removed from the birth certificate at that point. That’s the method I’m familiar with. There may be a simpler way if all parties agree, but I do believe you have to have a court order.

Hope this is timely enough to be useful.
1 month ago• Like

Follow Valerie
Valerie Foley • Thank you to everyone who commented. The case has become somewhat more difficult since I first posted. Some additional information – the father listed on the birth certificate was deported in March 2011, and the client believes she knows the identity of the real biological father (but he ‘wants nothing to do with the child.’) Client is newly married and wants her husband to adopt the child, and I am trying to figure out the best way to do this given the acknowledged father/purported father issue. Any thoughts would be greatly appreciated.
1 day ago• Like

Follow Toni
Toni Brown • The actual biological father will have to be tested to see if he is in fact the father. A petition should be filed with juvenile court asking for determination of paternity. Once the biological dad is positively identified he then can say whether or not he agrees to terminate his parental rights and allow the mother’s new husband to adopt. If you start the adoption process without this the court is just going to appoint an attorney to represent the “unknown father” and all this will have to be done any way.
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Toni Brown commented in the group on Does anyone have any experience in amending birth certificates?: The actual biological father will have to be tested to see if he is in fact the father. A petition should be filed with juvenile court…
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Valerie Foley commented in the group on Does anyone have any experience in amending birth certificates?: Thank you to everyone who commented. The case has become somewhat more difficult since I first posted. Some additional information – the…
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JURY NULLIFICATION AND MARIJUANA

http://www.readthehook.com/104819/jury-nullification-elephant-room

Jury nullification: The elephant in the room

By Lisa Provence | lisa@readthehook.com

Published online 6:50am Tuesday Jul 24th, 2012

There’s an elephant in every courtroom. Prosecutors and judges won’t show it to jurors, and even Virginia defense lawyers seem forbidden from mentioning this fact: If you think a law is unjust, you can acquit.

It’s called jury nullification, and such Founding Fathers as John Adams and Thomas Jefferson venerated juries as “the last roadblock to tyranny,” according to civil libertarian John Whitehead.

“The Framers of the Constitution were some of the greatest advocates for the power of juries to nullify,” says Whitehead, the founder of the Albemarle-based Rutherford Institute.

Charlottesville citizens got a taste of how the government deals with an unpopular law last week when six potential jurors were dismissed when they said they wouldn’t convict someone of marijuana possession because they thought the law was wrong. And even the judge noted that the last time she had a marijuana case, she couldn’t get enough jurors.

“The jury has a right to judge both the law as well as the fact in controversy,” said John Jay, the first U.S. Supreme Court chief justice. With such a pedigree, why has jury nullification gone underground?

“In large part it’s because it’s no longer taught in schools, and it’s not favorable to prosecutors,” says Kirsten Tynan of the Fully Informed Jury Association, a Montana-based nonprofit dedicated to reminding each American jury that it remains “an independent body that objectively interprets the law and considers the facts.”

Many courts have interpreted a potential juror’s disagreement with an unpopular law as a threat to justice. That’s what allowed Albemarle Circuit Court Judge Cheryl Higgins to remove six drug law foes from the jury pool during the voir dire process for the two-pot-plant-possession trial of Philip Cobbs on July 18.

“That’s a clear case of stacking the deck for the prosecution,” says Tynan. “That’s not what voir dire is meant to do.”

Tynan asserts the juror interviews are intended to identify relationships that might pose a conflict for a juror, such as the accused being a family member or business partner.

“It’s not to exclude anyone who disagrees with the prosecution,” says Tynan, who notes that the governor of New Hampshire signed a law last month giving New Hampshire defendants something that Virginia defendants can only dream about: the right to tell the jury that they can consider the “application of the law” in addition to the facts of the case.

Tynan’s organization encourages citizens to publicize their hidden right– even if that means handing out leaflets to potential jurors. Such efforts have been fought by officials, as in the case of Julian P. Heicklen. A retired chemistry teacher, Heicklen was arrested and charged with jury-tampering for leafleting outside a Manhattan courthouse. To the delight of nullification fans, that charge was dismissed in April by federal judge Kimba Wood, who noted that illegal tampering would target specific jurors rather than Heicklen’s effort to provide the information to whomever would take it.

Jury nullification has a long, and sometimes proud, history in America, including the last days of the Fugitive Slave Act of 1850, when that federal law deemed slaves property that must be returned to owners. “Northern juries,” says Whitehead, “refused to convict those accused of violating the law by harboring escaped slaves.”

By the end of the 19th century, when juries refused to convict illegally striking workers and unions, the federal government clamped down on nullification, and a split U.S. Supreme Court ruled in 1895 that judges were not required to inform juries of their right to nullify unjust laws, says Whitehead.
In the ensuing decades, such unpopular laws as alcohol bans during the Prohibition era, the draft during the Vietnam War, and what Whitehead calls the “unjust, unconstitutional” War on Drugs have all inspired jury nullification.
More ominously, nullification also has been accused of abetting Jim Crow-era cases in which all-white juries would refuse to convict a white defendant accused of killing or raping an African American. However, jury nullification proponents point out that such injustices stemmed more from a jury’s lack of racial diversity than with laws seen as unjust.
Death penalty cases are a high-profile example in which states such as Virginia and Texas have endorsed the practice of excluding jurors who say they can’t follow the law, notes Hook legal expert David Heilberg.

“How fair is that for the defendant?” asks Heilberg. “I think jury nullification is protected by the Constitution.”

And yet even the Rutherford Institute-affiliated legal team that defended Philip Cobbs in the case of the armed, helicopter-abetted, search-warrantless invasion of his property never told the jury about its right to send a message about potential misuse of drug laws. Lawyer Heilberg explains why.

“Lawyers have given an oath to apply and follow the law,” says Heilberg. “I don’t think it’s proper for a defense attorney to ask a jury to nullify the law.”

Perhaps, Heilberg suggests, the burden lies with citizens who serve on drug or other questionable cases, to think about the government effort pressing such a prosecution and then ask the question: “Is this the best use of your tax dollars?”

BANKRUPTCY FRAUD

http://www.washingtonpost.com/business/economy/shepherd-preyed-on-his-flock/2012/08/02/gJQATGOoRX_story.html

Shepherd preyed on his flock

By Michelle Singletary, Thursday, August 2, 10:52 AM

A Maryland minister who used parishioners to finance his luxury lifestyle was recently sentenced to 27 months in prison and ordered to pay more than $630,000 to four church members who took out loans on behalf of the pastor to purchase cars and a mansion.

Prosecutors said Robert J. Freeman, 56, hid church assets to avoid paying hundreds of thousands of dollars in debts. He pleaded guilty to obstructing bankruptcy court proceedings.

In 2005, Freeman filed for bankruptcy protection claiming he was broke. But it turns out the pastor was hiding the fact that he was living in a $1.75 million, 9,000 square-foot home bought with funds from church members, reported The Washington Post’s Ann E. Marimow and Hamil Harris.

Freeman also failed to disclose that he also had received 11 luxury vehicles worth more than $1 million, also in the names of church members. Freeman served as pastor and leader of Save the Seed Ministry, Inc., Save the Seed International Church, and Seed Faith International Church.

Rod J. Rosenstein, U.S. States Attorney for the District of Maryland, said Freeman “lived a life of fraud and deception, using millions of dollars from church members and fraudulently obtained credit to pay for luxury cars and a mansion while falsely representing in court that he was indigent.”

“The essence of this crime was taking advantage of unwitting people,” District Judge Roger W. Titus said before he sentenced Freeman.

Here’s the Color of Money Question of the Week: What do you think when you hear stories of pastors preying on their parishioners? Send your comments to colorofmoney@washpost.com. Put “Shepherd Preyed On His Flock” in the subject line. Please include your name, city and state.

Retirement Reservations

Two recent surveys and an opinion piece in the New York Times might have you wondering if individual investors truly have a fair chance of saving enough for their retirement.

Rich Smith of The Motley Fool wrote about a recent survey of financial services professionals that found that 39 percent of financial industry insiders “reported that their competitors are likely to have engaged in illegal or unethical activity in order to be successful.”

Smith said the survey also found that nearly one in four “believed that financial services professionals may need to engage in unethical or illegal conduct in order to be successful.” Nearly one in three said they felt “pressured by bonus or compensation plans to violate the law or engage in unethical conduct.”

“Needless to say, these numbers are a bit discouraging,” Smith wrote. “After all, these are the people to whom we entrust our money, our nest eggs, our life savings.”

In another study, also reported by Motley Fool, researchers at the business schools for Emory and Duke Universities found that “in any given period, about 20 percent of firms manage earnings to misrepresent their economic performance.”

The research team surveyed 169 chief financial officers and a great majority of them said that the reason to manage earnings was to “influence stock price.”

DEFAMATION SUIT VS CRIME TIMES

http://www.readthehook.com/104973/picture-man-sues-crime-times-over-mugshot-mistake

The Hook – Charlottesville’s weekly newspaper, news magazine

Picture this: Man sues ‘Crime Times’ over mugshot mistake

By Courteney Stuart | stuart@readthehook.com

Published online 5:12pm Thursday Jul 26th, 2012

Four months after Crime Times erroneously labeled him a felon who’d been charged with gun offenses, J.T. Suddarth has sued the mugshot mag’s owners.

There’s little doubt that Crime Times has embarrassed plenty of people, but one man whose image appeared in the pages of the mugshot magazine after a misdemeanor arrest says the publication did more than humiliate him. In a lawsuit filed in Albemarle County Circuit Court against the Crime Times owners, James T. Suddarth claims his reputation was damaged when, in the March 20 edition, he was erroneously labeled a felon who’d been arrested on multiple gun charges.

The suit describes the published misinformation as “character assassination” and accuses father-and-son owners, Wade and Brad McMurray, of defamation for claiming in print that Suddarth, a 46-year-old used car salesperson who says he’d never been arrested prior to the misdemeanor, a DUI, was a convicted felon who’d rung up a trio of charges for, among other things, firing a gun into a building.

While the paper ran a retraction in the following week’s edition, Suddarth contended that it didn’t go far enough. Suddarth’s attorney, Dustin Rosser, says his client deserves compensation.

“We’re talking about damage to his reputation. What’s that worth?” asks Rosser, noting that while many lawsuits ask for millions, Suddarth’s demand for $100,000 is reasonable.

Related content
Mugshot drag: Crime Times error raises ire

Smile: Mugshot mag flying off shelves

More mugshots: Can Gotcha! survive with Crime Times?

“He’s not looking to ruin anyone or shut down the thing,” says Rosser, “but he does think they should pay a price.”

Hook legal analyst David Heilberg says defamation cases can be difficult to win, but he sees wisdom in setting the demand at six figures.

“If you sue for an unrealistic amount, that does seem like you care more about the money than about stopping the behavior,” notes Heilberg, adding that defamation cases are, generally speaking, more about principles than money.

Just filing the suit presented some challenges, Rosser says, noting that the first complaint, filed May 22, named Crime Times LLC as a defendant when, in fact, that mugshot magazine company, which is based in the southwest Virginia town of Hiltons, is a different entity.

“We had a hard time tracking them down,” says Rosser of the McMurrays, noting that there is neither an address nor a phone number published in the local Crime Times, which doesn’t appear to be incorporated. In late April, McMurray told a reporter that he doesn’t publish a phone number to eliminate allegedly frequent middle-of-the-night complaints.

Attempting to get a comment for this story, a reporter emailed and called the cellphone number that Brad McMurray provided for interviews for previous articles, but the messages went unreturned. In a pre-suit interview, he indicated that the misinformation about Suddarth, who ended up getting convicted of misdemeanor DUI, was not particularly troubling.

“Of the thousands of people that have been in the paper, I think getting one drunk-driving used car salesman upset isn’t bad,” McMurray wrote in an email. “If Mr. Suddarth doesn’t care about endangering people’s lives by driving drunk, I don’t care that his family is upset and wants to direct their anger anywhere but where it belongs.”

After this story was posted, Wade McMurray responded by email to what he described as his son’s “rash remark.”

“Just like Mr. Suddarth I have sold cars, new and used, to support my family. This profession is just as dignified and necessary as any other and I am sure Mr. Suddarth is a fine salesman,” he wrote, offering an apology to “Mr. Suddarth and anyone else that might have taken offense.”

Attorney Rosser says he tracked the McMurrays to a Tennessee address and recently spoke with Wade McMurray to alert him to the suit, which will likely be served on the McMurrays in the next week. Because Crime Times is not incorporated, Rosser says, the publication itself has been dropped as a defendant, although its owners remain.

“We’re confident that a jury in Albemarle County will be sympathetic to what Crime Times put Mr. Suddarth through,” says Rosser.

–Story updated Friday, July 27 at 12:20pm with response from Wade McMurray.

5

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Smile! Mugshot mag flying off shelves (14)
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11 comments
George Jefferson July 26th, 2012 | 5:53pm
That paper is worse than the Cville.

I Love C-Ville July 26th, 2012 | 6:58pm
absolute gossip rag…who buys that garbage? You could be totally innocent and be pictured in it.

Slav July 26th, 2012 | 6:59pm
You can ask for whatever you want but likely they won’t be able to prove damages. In addition, crime times files a retraction quickly just as other publications do. The issue here isn’t if a mistake was made or not, mistakes happen. The real issue here is if it was intentional and did Crime Times single him out. Evidence clearly shows the opposite. If I was on that jury that would be case dismissed.

local 42 July 26th, 2012 | 7:26pm
trash geared for trash, that is what this ridiculous waste of paper truly is and it saddens me that people around hear will buy this junk.

backwoodssouthernlawyer July 27th, 2012 | 7:32am
On the other hand, it is a great way to keep up with your friends from high school.

leddedup July 27th, 2012 | 9:00am
I heard Suddarth has a page on the local tea party website and that he shot up a movie theater. Oh wait, wrong Suddarth? The Crime Times sincerely apologizes for the mistaken report.

This was a classic line though:
“Of the thousands of people that have been in the paper, I think getting one drunk-driving used car salesman upset isn’t bad,” McMurray wrote in an email. “If Mr. Suddarth doesn’t care about endangering people’s lives by driving drunk, I don’t care that his family is upset and wants to direct their anger anywhere but where it belongs.”

Fierce!

VA Gal July 27th, 2012 | 1:24pm
I’m not ashamed to admit, I buy one every week. I want to see who has been arrested.

I Am The Walrus July 28th, 2012 | 6:28am
I wonder how much this legal defense is going to cost, and it will be really interesting to see how they plan to win this considering, the defendant did not lose his job, so where is any financial loss. Probably didn’t exactly have a shining reputation to “ruin” begin with, and how does he plan to prove it was allegedly “ruined”. Crime Times, I am pretty sure did not single out this guy for any reason, and it was a mistake, and not done with “malice”, a retraction was printed the very next issue,,.that said, I really don’t see much of a law suit here. Furthermore, the comments made by Mr McMurray about the whole “used car salesman” bit, states it was sent in and email, most likely correspondence between himself and the reporter, and was never intended to be part of the “story” or “interview” but it got published anyway,,not putting himself in the best of light,,so should he be suing the hook? And, IF Mr S were to win in court and claim the funds they are suing for, this sure makes getting a DUI worthwhile for him eh??
Mistakes HAPPEN. I am sure Mr Suddarth wants to be forgiven for his “mistake” of boozing it up and driving, so why should Crime Times have to pay for a typo,,,yes, a pretty embarrassing one, but a mistake none the less and especially 100k,,seriously??. This whole thing is nothing more than a convenient reason to try for financial gain over something that should have just been forgotten about.
Personally, with all the publicity from the Hook, I think he (Suddarth) has done nothing more than make SURE EVERYONE knows now that he drinks in excess and drives…Shining reputation. Tisk tisk,,

Max Frisson July 29th, 2012 | 8:21pm
It wasn’t the DUI but the irresponsible inaccuracy of false charges they reported that will end up costing the publishers.

That something like CrimeTimes exists is perfectly good reason to sue. Many cities 5 times the size of C’ville don’t have as many magazines and newspapers as there are around Albermarle County. But it’s still mostly small town gossip.

red nuckleberry July 30th, 2012 | 7:29pm
@ I Am The Walrus:
A “typo” has more meaning and repercussion in a “paper” that shows our neighbors faces with crimes attached. perhaps the paper should be held to a high standard because defamation through carelessness is easy to imagine.

Liberalace August 1st, 2012 | 10:36am
Only a used car salesman (oops, and a politician) would have the audacity (not of “hope”) to parade his face around to the press after pleading guilty to DUI. He actually shames the shamed with his campaign. Frankly, I find DUIs more pernicious that firing a gun in an occupied building; the latter happens routinely in these here parts.

R.I.P.: Buddy Ebsen

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FACEBOOK LITIGATION

David A. Szwak:

‎”These actions share factual allegations that Facebook improperly tracked users’ internet activity after users had logged out of their Facebook accounts. Plaintiffs in all actions bring claims under the federal Wiretap Act, 18 U.S.C. §2511. Additional claims include violation of the Stored Electronic Communications Act, 18 U.S.C. §2701, the Computer Fraud and Abuse Act, 18 U.S.C. §1030, as well as common law claims for intrusion upon seclusion/invasion of privacy, unjust enrichment, and trespass to chattels.” In re: £Facebook Internet Tracking Litigation, — F.Supp.2d —-, 2012 WL 432607, U.S.Jud.Pan.Mult.Lit.,2012

SANCTIONS IN CASE INVOLVING FACEBOOK

http://www.linkedin.com/groupItem?view=&srchtype=discussedNews&gid=3229018&item=81435238&type=member&trk=eml-anet_dig-b_pd-ttl-cn&ut=1kukMUQqGBkR01

Client & Counsel Sanctioned for Spoliation where Plaintiff was Instructed to “Clean Up” His Facebook Page

Posted on November 18, 2011 by K&L Gates

 

Lester v. Allied Concrete Co., Nos. CL.08-150, CL09-223 (Va. Cir. Ct. Sept. 1, 2011); Lester v. Allied Concrete Co., Nos. CL08-150, CL09-223 (Va. Cir. Ct. Oct. 21, 2011)

In this case, significant monetary sanctions were ordered against the plaintiff and his counsel for egregious discovery violations, including intentional deletion of pictures on Plaintiff’s Facebook page per the instructions of Counsel and subsequent efforts to cover those instructions up, among

others.

In this wrongful death case, Defendants sought production related to the contents of Plaintiff’s Facebook page, which were presumably relevant to the question of damages suffered by Plaintiff as the result of the tragic death of his wife.  Attached to the request was a picture of the plaintiff “clutching a beer can, wearing a T-shirt emblazoned with ‘I ♥ hot moms’ and in the company of other young adults.”  Plaintiff’s counsel (with the assistance of his paralegal) determined that the photo likely came from Facebook.  Accordingly, Counsel accessed Plaintiff’s Facebook account and thereafter directed his paralegal to instruct Plaintiff to “clean it up” because “we don’t want blowups of this stuff at trial.”

Because the request for production specifically asked for the contents of Plaintiff’s account “on the day this request is signed,” Counsel also instructed Plaintiff to deactivate his account.  Plaintiff’s response to the request for production, therefore, was that he had no Facebook account on the day the request was signed.  The response was also signed by Counsel.  Thereafter, upon being advised that he was obligated to produce the Facebook materials, Counsel instructed his client (through his paralegal) to reactivate the account.  Plaintiff complied, and following the prior instruction to “clean up” his account, deleted 16 photos before the contents were printed for production by the paralegal (who claimed not to know of the deletions, as did Counsel).

Later, testifying under oath, Plaintiff stated that he had never deactivated his account.

For reasons unknown, Plaintiff’s counsel later forwarded to the defense Plaintiff’s Facebook IP logs which he had acquired directly from Facebook.  Upon examination of the logs, experts for both sides agreed that 16 photos had been deleted.  Accordingly, the court ordered that an adverse inference instruction be given to the jury at trial.

Before trial, Defendants served the above mentioned paralegal with a subpoena duces tecumcommanding production of all emails between herself and the plaintiff during the timeframe of the spoliation.  The attendant privilege log and in camera production to the court omitted mention of the email in which the paralegal first instructed Plaintiff to delete photos from his account.  The email was not disclosed until after trial, with the explanation that the omission was the fault of a different paralegal no longer with Counsel’s firm “when, in fact, [Counsel] knew his own misconduct caused the omission.”

At trial, Plaintiff was awarded a significant sum.  Thereafter, Defendants filed several post-trial motions, including a Motion for Sanctions against Plaintiff and Counsel for the above-detailed behavior (among other reasons).

The court concluded that the actions of Counsel and the plaintiff warranted sanctions.  Specifically, Counsel was ordered to pay monetary sanctions equal to the “reasonable expenses, including a reasonable attorneys fee, incurred by Defendants because of [Counsel’s] violation” of court rules by signing the dishonest discovery response.  For Counsel’s omission of the incriminating email from his spoliation privilege log and in cameraproduction and for Counsel’s dishonesty regarding the cause of the omission, the court ordered him to pay monetary sanctions equal to the “reasonable expenses, including a reasonable attorneys fee” incurred by the defendants as the result of his misconduct.  Defendants’ Motion for Sanctions as to Plaintiff was also granted with the amount of the sanction to be determined.

Later, upon submission of Defendants’ Memoranda of Costs and Fees, the court issued a final order containing the specific amounts to be paid: Counsel was ordered to pay $542,000 and Plaintiff was ordered to pay $180,000.  The court also indicated its intent to refer Counsel’s violations of the Code of Professional Responsibilty to the Virginia State Bar and to refer “matters relating to allegations of perjury on the party of [Plaintiff] to the Commonwealth’s Attorney for the City ofCharlotte.”

Copies of the court’s relevant orders are available here and here.

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JUSTICE ROBERTS LOVES OBAMACARE

http://www.stltoday.com/news/opinion/columns/charles-krauthammer/charles-krauthammer-why-roberts-ruled-as-he-did/article_1821c5b1-3266-5be0-86a3-d224ea9a20ed.html

Charles Krauthammer • letters@charleskrauthammer.com | Posted: Sunday, July 1, 2012 12:00 am | (Loading…) comments.

It’s the judiciary’s Nixon-to-China: Chief Justice John Roberts joins the liberal wing of the Supreme Court and upholds the constitutionality of Obamacare. How? By pulling off one of the great constitutional finesses of all time. He managed to uphold the central conservative argument against Obamacare, while at the same time finding a narrow definitional dodge to uphold the law — and thus prevented the court from being seen as having overturned, presumably on political grounds, the signature legislation of this administration.

Why did he do it? Because he carries two identities. Jurisprudentially, he is a constitutional conservative. Institutionally, he is chief justice and sees himself as uniquely entrusted with the custodianship of the court’s legitimacy, reputation and stature.
As a conservative, he is as appalled as his conservative colleagues by the administration’s central argument that Obamacare’s individual mandate is a proper exercise of its authority to regulate commerce.
That makes congressional power effectively unlimited. Mr. Jones is not a purchaser of health insurance. Mr. Jones has therefore manifestly not entered into any commerce. Yet Congress tells him he must buy health insurance — on the grounds that it is regulating commerce. If government can do that under the Commerce Clause, what can it not do?
“The Framers … gave Congress the power to regulate commerce, not to compel it,” writes Roberts. Otherwise you “undermine the principle that the Federal Government is a government of limited and enumerated powers.”
That’s Roberts, philosophical conservative. But he lives in uneasy coexistence with Roberts, custodian of the court, acutely aware that the judiciary’s arrogation of power has eroded the esteem in which it was once held. Most of this arrogation occurred under the liberal Warren and Burger courts, most egregiously with Roe v. Wade, which willfully struck down the duly passed abortion laws of 46 states. The result has been four decades of popular protest and resistance to an act of judicial arrogance that, as Justice Ruth Bader Ginsburg once said, “deferred stable settlement of the issue” by the normal electoral/legislative process.
More recently, however, few decisions have occasioned more bitterness and rancor than Bush v. Gore, a 5-4 decision split along ideological lines. It was seen by many (principally, of course, on the left) as a political act disguised as jurisprudence and designed to alter the course of the single most consequential political act of a democracy — the election of a president.
Whatever one thinks of the substance of Bush v. Gore, it did affect the reputation of the court. Roberts seems determined that there be no recurrence with Obamacare. Hence his straining in his Obamacare ruling to avoid a similar result — a 5-4 decision split along ideological lines that might be perceived as partisan and political.
National health care has been a liberal dream for a hundred years. It is clearly the most significant piece of social legislation in decades. Roberts’ concern was that the court do everything it could to avoid being seen, rightly or wrongly, as high-handedly overturning sweeping legislation passed by both houses of Congress and signed by the president.
How to reconcile the two imperatives — one philosophical and the other institutional? Assign yourself the task of writing the majority opinion. Find the ultimate finesse that manages to uphold the law, but only on the most narrow of grounds — interpreting the individual mandate as merely a tax, something generally within the power of Congress.
Result? The law stands, thus obviating any charge that a partisan court overturned duly passed legislation. And yet at the same time the Commerce Clause is reined in. By denying that it could justify the imposition of an individual mandate, Roberts draws the line against the inexorable decades-old expansion of congressional power under the Commerce Clause fig leaf.
Law upheld, Supreme Court’s reputation for neutrality maintained. Commerce Clause contained, constitutional principle of enumerated powers reaffirmed.
That’s not how I would have ruled. I think the “mandate is merely a tax” argument is a dodge, and a flimsy one at that. (The “tax” is obviously punitive, regulatory and intended to compel.) Perhaps that’s not how Roberts would have ruled had he been just an associate justice, and not the chief. But that’s how he did rule.
Obamacare is now essentially upheld. There’s only one way it can be overturned. The same way it was passed — elect a new president and a new Congress. That’s undoubtedly what Roberts is saying: Your job, not mine. I won’t make it easy for you.
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Posted in Charles-krauthammer on Sunday, July 1, 2012 12:00 am Updated: 6:10 pm. | Tags:

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Read more: http://www.stltoday.com/news/opinion/columns/charles-krauthammer/charles-krauthammer-why-roberts-ruled-as-he-did/article_1821c5b1-3266-5be0-86a3-d224ea9a20ed.html#ixzz1zUNlp3X5

COUNTING ON AN INHERITANCE?

June 11, 2012

Counting on an Inheritance? Count Again.

The bad news: Many baby boomers are likely to get less money from Mom and Dad than they thought. The worse news: They may have to help their parents financially instead.

MORE IN RETIREMENT PLANNING »

By ANNE TERGESEN

Counting on an inheritance? Count again. Baby boomers may not only be getting less money than they thought, they also may have to help out their parents financially, as Anne Tergesen explains on Lunch Break. Photo: Getty Images.

Baby boomers: Get ready for a double whammy.

For years now, there’s been a lot of talk about boomers getting tremendous windfalls as their parents pass on. Many boomers, in fact, have been lagging behind in their savings, betting on—hoping for—big bequests, especially since many of them suffered big losses in 2008.

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But for a growing number of boomers, things aren’t going according to plan. The postwar generation is living longer—and many are spending their savings along the way. And, of course, many of them also took a hit in 2008.

The result is that, as a group, boomers likely won’t be getting as much of an inheritance as they hoped. Even worse, far from receiving a bequest, a growing number are tapping some of their own savings to help their cash-strapped parents make ends meet.

For families, the result is often a lot of scrambling, dashed dreams, and conflict and angst as parents and children try to come to grips with the lean new reality—and divide up a smaller pie.

Stephen Webster
“There are way too many adult children I see who are looking at Mom and Dad’s estate as their ticket to a secure retirement,” says M. Holly Isdale, an estate planner in Bryn Mawr, Pa. “But with people living longer, much of the money is likely to be spent.”

How much longer? Thanks to medical gains, a 65-year-old man has a 60% chance of living to age 80 and a 40% chance of reaching 85. For women, the odds are 71% and 53%, respectively. All of this has made the 85-and-over age bracket the fastest-growing segment of the population. In an era of low interest rates, volatile financial markets, and rising costs for health and long-term care, finding money to cover those years isn’t always easy.

Consider the case of Nancy Becker, the co-owner of a small business in Waterbury, Conn. Her parents, Morris and Dorothy Stein, were diligent savers. “But they didn’t imagine living well into their 90s,” says Ms. Becker, whose father died in 2006 at 92 and whose mother died in 2011 at 97.

Ms. Becker and her two brothers inherited a house in Vermont from their father. But they spent about $180,000 of their own money—an amount that exceeds the value of the Vermont property—to cover living expenses for their mother in the final three years of her long life.

Ms. Becker, now 63, says she certainly doesn’t begrudge her parents for outliving their savings. The Steins built a thriving plumbing and heating business that now employs Ms. Becker and her husband, among other family members. Still, as Ms. Becker’s in-laws enter their 90s, she worries that “their money is running out, too.”

Financial losses can also put a dent in the older generation’s reserves. Donald Hoeller, 86, of Glendale, Wis., says he and his wife, Bernadette, 85, had hoped to bequeath “several hundred thousand dollars” to each of their six children. But an office complex in which the couple invested 60% of their retirement savings recently landed in foreclosure and litigation.

So, Mr. Hoeller says, “I don’t know if they will get anything.”

His daughter, Mary Hoeller, 58, says that while she never counted on an inheritance, “times are tough”—and she now has the added worry that her parents may run out of money. A divorcee who is paying college-tuition bills for the youngest of her three children and wants to help another child with medical-school tuition, Ms. Hoeller says her income has declined substantially since 2008.

“I am very frugal,” says Ms, Hoeller, a mediator in Indianapolis. But “who wouldn’t want an inheritance from their parents? It would be a good thing.”

Scaling Back Bequests
Many parents, of course, won’t exhaust their savings. The Center on Wealth and Philanthropy at Boston College estimates that baby boomers and their offspring could inherit as much as $27 trillion over the next four decades, with the progeny of the wealthiest pocketing much of the windfall.

But there are signs that expected bequests are under pressure. According to Boston College’s Center for Retirement Research, from June 2006 to June 2010, falling asset values reduced projected inheritances for baby boomers an estimated 13%. Stock prices have since recovered, although house prices in most markets have not.

Even the affluent are pulling back. Among those with $250,000 or more in investible assets, only 41% said preserving inheritances was a top concern, down from 54% in 2009, according to a Merrill Lynch survey released earlier this year. Due in large part to a 22% decline in projected future bequests of $500,000 or more, the amount individuals expect to transfer fell by 19% from 2008 to 2009, according to Michael Hurd, director of the Center for the Study of Aging at Rand Corp., a nonprofit research organization.

Just as telling is a recent study from Northwestern Mutual Life Insurance Co. in Milwaukee. When asked how prepared they feel to live to various ages, one in three surveyed adults age 60-plus said they didn’t feel prepared financially to live to age 85; almost one in two said the same with regard to age 95.

Suffering in Silence
Not surprisingly, many families are loath to discuss these issues.

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In addition to serving as a reminder of the older generation’s mortality, a conversation about inheritance or Mom and Dad running out of money can provoke anxiety in parents. Many are uncomfortable disclosing the details of their finances in the first place, even more so when they’re worried about disappointing their children.

Adult children, in turn, aren’t eager to ask their parents about money for fear of coming across as greedy. Some feel guilty for thinking about their own financial needs at a time when parents could be facing steep medical or long-term-care expenses.

“Due to the new realities of longevity, adult children—who have rightfully assumed they would inherit something substantial from their parents and have lived their lives accordingly—can no longer count on that,” says Lillian Rubin, a sociologist, psychologist and author. Adult children, she adds, “often feel guilty for even thinking about” inheritance.

Nonetheless, financial advisers say, it is important for families to talk—if only to establish realistic expectations.

Peter Bell, 59, says he and his parents “have always been very open about talking about finances.” That frankness has helped them through some tough choices in the past few years.

Mr. Bell, the president of the National Reverse Mortgage Lenders Association in Washington, D.C., “always assumed” his father, Jerry, 87, and mother, Florence, 88, would leave a substantial inheritance.

After his parents lent his brother money several years ago, Mr. Bell says, they “decided I would get the house and everything else would be split.”

But when the elder Bells decided almost two years ago to move into a continuing-care retirement community, it became apparent they would need the proceeds from the sale of their home to finance the community’s $425,000 entry fee. Worse, because the depressed Florida real-estate market hindered their efforts to sell their home in Delray Beach, the couple had to borrow the $425,000 entry fee from their son.

“We have always considered our money as family money,” says Jerry Bell, who anticipates repaying 85% of the loan from the proceeds of the home’s recent sale. “When the kids needed help, we were there for them. And when we needed help, they were there for us.”

Measures to Take
If parents anticipate running short of money—and if they and adult children are able to start a dialogue—there are several steps families should consider, financial planners say. Among them: Have parents recalibrate their budgets, downsize to a smaller residence, buy an annuity or longevity insurance to lock in a lifelong income, or take out a reverse mortgage.

In situations where children have adequate financial resources, some advisers recommend the children pay a parent’s health-insurance premiums, purchase a long-term-care insurance policy for him or her, give a set amount of money each month or purchase the parent’s home to generate cash for living expenses. (Before implementing a strategy, talk with your financial and tax advisers.)

The process can lead to conflict, although the tension typically remains beneath the surface, says Claudia Fine, an executive vice president at SeniorBridge, a New York-based company that provides care-management services.

Very often, she adds, she sees conflict arise over expenditures on caregiving. “Because feelings about inheritance are not expressed, families have a hard time sorting out their differences.”

Siblings Sort It Out
Linda Fodrini-Johnson, 67, suspects inheritance calculations play a role in differences she and her three brothers have over managing the finances of their mother, Bernice Bidwell, 90.

Ms. Fodrini-Johnson says she and one brother, 60-year-old Craig Bidwell, “don’t need to inherit” from their mother, who recently had a stroke and suffers from congestive heart failure. But disabilities have prevented the other brothers from working in recent years.

“There is tension,” says Ms. Fodrini-Johnson, who lives in Walnut Creek, Calif., and runs a company that provides care-management services. “You hear it and feel it, but nobody articulates it because it would be disrespectful to Mom.”

She points to a recent disagreement over her mother’s hair. She wanted to take her mother to a hairdresser instead of using the one at her mother’s assisted-living facility. But other siblings resisted.

No one came out and said it was about the cost, Ms. Fodrini-Johnson says, but that seemed to her to be the motivation. The siblings also debated whether to remodel and rent their mother’s San Francisco home—so it could bring in some money—or allow a grandchild to serve as temporary caretaker of the place.

To avoid conflict, Ms. Fodrini-Johnson says, she solicits her brothers’ opinions and explains the reasons for her decisions as well as the details of her mother’s finances. But as her mother’s power of attorney, she has the final say.

Her three brothers declined to comment on the hairstylist incident, or said they didn’t know about it. Two brothers, Craig and 63-year-old Gary Bidwell of San Francisco, say they discussed renting their mother’s house to bring in extra income to offset her expenses.

No Expectations
When it comes to the idea of an inheritance, the three brothers are of similar minds.

Robin Bidwell, a 59-year-old in Colfax, Calif., says he sustained an injury at age 48 that has prevented him from working. While he receives a pension and Social Security, “I wasn’t able to put money away. I don’t live the life I want to live, but I don’t look to my mother’s inheritance to be on top of things,” he says. “I believe my mother’s care is first and foremost. That, to me, is more important than anything.”

“An inheritance would help, but I am not looking forward to it,” says his brother Gary, a 63-year-old who retired on a disability pension in 1998. “I don’t want an inheritance if I have to lose someone I love.”

Like many adult children, the third brother, Craig, says he hopes to receive an inheritance—in his case to help pay for a new home he and his wife plan to build. However, the retiree says he is grateful that his mother is able to afford the high-quality care she receives.

“Whatever my mother has is hers,” he says. “It’s not my inheritance. I didn’t work for it. My brothers didn’t work for it. My parents worked for it.”

Ms. Tergesen is a staff reporter in The Wall Street Journal’s New York bureau. She can be reached at next@wsj.com.

A version of this article appeared June 11, 2012, on page R1 in the U.S. edition of The Wall Street Journal, with the headline: Counting on an Inheritance? Count Again..

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