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The Tennessee Supreme Court has upheld a decision of a Board of Professional Responsibility Hearing Panel denying an attorneys petition seeking relief from costs associated with his disbarment proceedings.

This case stems from a petition of discipline filed against Knoxville attorney Loring Edwin Justice by the Board of Professional Responsibility on September 25, 2013. A hearing panel of the Board determined that Mr. Justice had violated four provisions of the Tennessee Rules of Professional Conduct, and he was sanctioned with twelve additional hours of continuing legal education and a one-year active suspension. The Board and Mr. Justice both appealed to the Sixth Judicial District Chancery Court, which affirmed the hearing panels findings of fact and conclusions of law, but modified the sanction to disbarment. Mr. Justice appealed to the Supreme Court, and it affirmed the Chancery Court. Following the Supreme Courts decision, the Board assessed costs and expenses amounting to $25,403.65 against Mr. Justice under pre-2014 Tennessee Supreme Court Rule 9. These expenses were detailed in an August 22, 2019 invoice.

Mr. Justice filed a petition for relief from costs and objected to certain time entries and expenses, arguing that he should be relieved from all costs because the disciplinary proceedings were unconstitutional, the standard of proof used in the proceedings was preponderance of the evidence rather than clear and convincing evidence, and his Fifth Amendment privilege againstself-incrimination was violated. He also argued that certain time entries were inflated and other expenses were unnecessary. Mr. Justice then filed a written request to depose disciplinary counsel, propound interrogatories, and conduct discovery. The Board filed a response in opposition to Mr. Justices request to conduct discovery and responded to Mr. Justices petition for relief from costs. A Board of Professional Responsibility Hearing Panel held two telephonic hearings and ultimately issued orders denying Mr. Justices request to conduct discovery and his petition for relief from costs and objections to costs assessed, except that the Hearing Panel reduced the attorney time the Board billed for certain activities. Mr. Justice appealed to the Supreme Court.

In a unanimous opinion, the Court affirmed the Hearing Panels decision. The Court held that the Hearing Panel did not abuse its discretion when it denied Mr. Justices discovery request and heard his case on the pleadings and arguments of counsel. The Court further held that, while pre-2014 Rule 9 gives attorneys the opportunity to seek relief from costs assessed for a disciplinary proceeding, it does not provide attorneys with a second chance to relitigate issues decided against them in the underlying disciplinary proceedings. Therefore, the Court concluded that the Hearing Panel did not abuse its discretion when it declined to address Mr. Justices claims that his Fifth Amendment privilege against self-incrimination in the underlying disciplinary case was violated. Finally, the Court held that the Hearing Panels decision to not reduce the Boards assessment of fees and costs and enforce the Boards assessment of costs against Mr. Justice was supported by substantial and material evidence.

To read the Supreme Courts opinion in In re: Loring Edwin Justice, authored by Justice Cornelia A. Clark, go to the opinions section of TNCourts.gov.

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Tennessee Supreme Court Upholds Assessment of Costs Against Disbarred Attorney - Tennessee Administrative Office of the Courts

On August 5, 2021, the U.S. Court of Appeals for the Second Circuit ruled that a French banker may seek dismissal of an indictment without having to physically appear in the United States. The decision limits the application of the fugitive disentitlement doctrine which has long prevented foreign nationals from challenging criminal prosecutions without appearing in the United States to do so.

Muriel Bescond, a former Societe General (SocGen) banker, was charged by the U.S. Attorneys Office for the Eastern District of New York with transmitting false, misleading, and knowingly inaccurate commodities reports, and conspiracy, in violation of the U.S. Commodity Exchange Act (CEA). Prosecutors allege that Ms. Bescond participated in the United States Dollar London Interbank Offered Rate (USD LIBOR) benchmark interest rate calculation process from Paris, which ultimately impacted the pricing of futures contracts traded on the Chicago Mercantile Exchange. Ms. Bescond allegedly instructed SocGens LIBOR setters to prepare false USD LIBOR submissions that were lower than SocGens actual borrowing rates. According to the prosecutors, SocGens false submissions artificially lowered the USD LIBOR fix, affecting financial transactions that referenced USD LIBOR.

Ms. Bescond who lives in Paris and was in France at all times during the alleged criminal activity asked, through her U.S. counsel, to dismiss the indictment. Ms. Bescond argued that the indictment violated her Fifth Amendment right to due process because it failed to allege a sufficient nexus with the United States, and that the statute of limitations had run. Ms. Bescond further argued that the government was selectively prosecuting women participants in the alleged scheme, while declining to prosecute men who were similarly situated.

The United States District Court for the Eastern District of New York held that Ms. Bescond was a fugitive. Accordingly, the District Court exercised discretion to apply the fugitive disentitlement doctrine, declining to decide the merits of the motion to dismiss the indictment. This meant that Ms. Bescond could not seek dismissal of the indictment unless she appeared in the United States in person, where she would likely have been detained pending trial or, at the least, subject to stringent bail conditions.

Ms. Bescond appealed the District Courts order, and the U.S. Court of Appeals for the Second Circuit determined to exercise jurisdiction over the District Courts disentitlement ruling under the collateral order doctrine. U.S. v. Bescond, __F.4th __, 2021 WL 3412115 at *8 (2d Cir. 2021). The Second Circuit found that Ms. Bescond was not a fugitive, and that, even if she were, the District Court abused its discretion in concluding that disentitlement was justified. Id. The Second Circuit considered that (i) Ms. Bescond did not flee the United States to conceal herself, (ii) she was not in the United States while allegedly committing the charged conduct, and (iii) she was not avoiding prosecution. Id. Because she was simply remaining home as her home country permits her to do, the Second Circuit did not find her to qualify as a fugitive. Id. The Court went on to hold that if the fugitive disentitlement doctrine were to reach someone such as Ms. Bescond, who stays at home abroad, without concealment or evasion, Congress, not the courts, should weigh the competing issues and values and determine whether such an expansion [of the fugitive disentitlement doctrine] is warranted. Id. at *10.

But even if Ms. Bescond qualified as a fugitive, the Second Circuit found that disentitlement was too blunt an instrument for a foreign defendant in Ms. Besconds circumstances since there was no finding that Ms. Bescond was exhibiting disrespect for U.S. law. Id. at *10. Given Besconds innocent residence as a foreign citizen abroad, given the nature of the charged offense and her remoteness from the alleged harm that it caused, given her line of work, and given her nonfrivolous challenge to the extraterritoriality of the criminal statute, the exercise of discretion to disentitle her was an abuse. Id. at *11. The Second Circuit sent the case back to the District Court with instructions to rule on the merits of Ms. Besconds motion to dismiss.

Chief Judge Debra Livingston of the Second Circuit dissented, arguing that the Second Circuit lacked appellate jurisdiction to consider fugitive disentitlement orders because the District Courts order did not constitute a final order. The dissent agreed with the Sixth and Eleventh Circuit Court of Appeals decisions, which held that the Court of Appeals lacked jurisdiction to hear interlocutory appeals from rulings that disentitled fugitives. See U.S. v. Shalhoub, 855 F.3d 1255 (11th Cir. 2017); see also U.S. v. Martirossian, 917 F.3d 883 (6th Cir. 2019). By providing a new exception to the final judgment rule for fugitive disentitlement orders, the dissent argued that the majoritys holding will cause significant delays in criminal cases involving foreign-based defendants, which was precisely the consequence Congress sought to avert with the final judgment rule.

The Second Circuits decision certainly will be welcomed by foreign nationals facing criminal charges in the United States in white collar criminal cases, since it permits them, under certain circumstances, to challenge an indictment without having to appear in the United States where they often face lengthy, pre-trial detention.

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The Second Circuit Court of Appeals Finds That French Banker Need Not Travel to the United States to Seek Dismissal of Her Indictment - JD Supra

Thomas L. Knapp| Palm Beach Post

As the U.S. Centers for Disease Control and Prevention moves to extend a federal eviction moratorium that (including its original CARES Act version) has now been in place for most of 18 months and that President Joe Biden himself concedes is "not likely to pass constitutional muster," most of the public rhetoric and advocacy boils down to "what about the tenants?"

That's understandable. Nobody -- at least nobody who's ever faced the prospect of homelessness and has any heart at all -- wants to see tenants kicked to the curb with nowhere to go, especially tenants who, through no fault of their own, have been pushed into a financial corner by nearly a year-and-a-half of lockdowns, business closures, and other fallout from the COVID-19 pandemic.

Much less often asked, though, is the question "what about the landlords?" When that question does come up (and it's coming up in the courts again as the National Apartment Association and other landlord groups sue for compensation pursuant to the Fifth Amendment's "takings" clause) one can almost literally hear the world's smallest violin tuning up in the background.

I'm aware of, and reasonably well versed in, the centuries-long arguments over the ethics of rent and of property in land. I don't aim to settle those arguments here.

Given the long history of land ownership and home/apartment rental in the United States, though, it seems to me that the plaintiffs have a good case, and that the American "landlord class" deserves a far more sympathetic ear than it's had lately.

I've been a renter for most of my adult life, including times when I could have swung a down payment and qualified for a mortgage to own instead of rent. Renting made more sense for various reasons, including my somewhat itinerant lifestyle -- following jobs, following love, etc.

Most of my landlords haven't been giant corporations with deep pockets. They've been regular people who worked hard, put their money into real estate down payments, and tried to keep that real estate occupied by paying tenants until the property was paid off and might perhaps turn a profit or be sold. And even the giant corporations with deep pockets are providing a service to willing customers. They're not charities and shouldn't be expected to act like charities.

During the eviction moratoria, landlords haven't shed themselves of responsibility for keeping the water running, keeping the heat and air conditioning in working order, and making mortgage payments. They're still paying, or trying to pay, those costs. But they're not getting the rent that tenants freely agreed to pay before moving in.

Knapp is director and senior news analyst at the William Lloyd Garrison Center for Libertarian Advocacy Journalism.

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Point of View: In defense of landlords, evictions shouldn't all fall on their shoulders - Palm Beach Post

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The Constitution. Heres what happened. The Fifth Amendment says that the government cannot make you admit to things you do not want to admit. The Right to Remain Silent. Its the right to refrain from self-incrimination. The government cannot make you say things that implicate you in crimes.

Thats great, but problems came up in civil lawsuits where one citizen is suing another citizen and then asks the Court (the government) to make people answer questions about the lawsuit. People would get sued for money in civil lawsuits and the person being sued was alleged to have done things that might be crimes. The person being sued would plead the fifth and refuse to answer questions about their actions, which would prevent the other side from proving their case. Example: I run a red light and hit your car. You sue me. Your lawyer asks me about the wreck in court, and I plead the fifth because running a red light is technically a crime, and I do not have to answer questions in court that might implicate me in criminal activity. Your lawyer would ask the Judge to make me answer questions, but the Judge could not force me to answer the questions because the government cannot make me incriminate myself in a crime. The Fifth Amendment was being used in situations where the government was not interested in charging people with crimes.

To remedy this situation, our law created requirement to be able to plead the fifth when you are being sued for money in a civil lawsuit. In order to remain silent, there must be a reasonable chance that the police are going to charge you with a crime if you admit to criminal activity. If the government says that they have no interest in charging you with a crime and nothing you say is going to get you in any trouble, or if the time limit to charge you with any crime has passed, then you cannot hide behind the fifth amendment when you are being sued by someone for your actions.

Bill Cosby was being sued by a woman he abused. Her lawyer wanted to ask him about the abuse, under oath in a recorded meeting called a deposition. Cosby was pleading the fifth and refusing to answer. The womans lawyer went to the local District Attorney (the lawyer that decides who to bring to court on criminal charges) and asked him if he ever intended to charge Cosby with rape and, if not, tell Cosby that so that Cosby will not be able to plead the fifth and avoid answering questions. The womans lawyer asked the District Attorney to remove the possibility of criminal charges so Cosby would not be able to hide behind the fifth amendment in the lawsuit. The District Attorney agreed, partially because the case was so old and the time limit had expired. He promised Cosby that the government would never prosecute him for this rape. Then Cosby answered the questions and testified about the rape under oath.Years pass and a new District Attorney was elected. That District Attorney promised to prosecute Cosby if he was elected. Also, the law changed and extended the time period to charge people with rape. Once the new DA was elected, he brought charges against Cosby and the testimony Cosby gave in that deposition was used in the prosecution. Cosby was convicted. Cosby appealed the conviction (trying to get it undone) arguing that the State went back on its deal. The recent decision that let Cosby out of jail was about this deal. The Court agreed that Cosbys constitutional right to remain silent was violated. He was promised no prosecution. He relied on that promise. Then he was convicted with statements he would not have made but for that promise.

While it makes any reasonable person sick that Cosby got out of prison when he admitted to the acts, it should also make reasonable people sick that the government broke its promise and violated the constitution in the process.

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Tags: bill cosby, local lawyer, the fifth amendment

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The Local Lawyer: Why on Earth Did They Let Bill Cosby Out of Prison - The Local Voice

James W. Pfister| The Daily Telegram

The Fifth Amendment to the Constitution protects private property through due process and compensation: a person will not be …deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation. State government is likewise limited by the 14th Amendment, textually for due process and by incorporation of the Fifth Amendment for taking, and by their own constitutions.

This taking is straight-forward when the government physically takes property for, say, a road. Butwhat if it physically takes property in other ways or substantially regulates it affecting its use and value?

In Penn Central Transportation v. New York City (1978), the citys historic preservation law designated the Grand Central Terminal to be a landmark. The owner wanted to build an office tower on the top of this historic structure. The city permit was denied since the project (in its view) would impair the aesthetic quality of the building. The Supreme Court held, 6-3, that the citys regulation did not constitute a taking. Liberal Justice William Brennan Jr., writing for the majority, listed factors to consider in a balancing process, …in balancing public gain against private harm. (Feldman and Sullivan, Constitutional Law, 2019). Brennan wrote: The restrictions imposed are substantially related to the promotion of the general welfare and not only permit reasonable beneficial use of the landmark site but afford opportunities further to enhance not only the Terminal site proper but also other properties.

The conservative Justice William Rehnquist dissented: as opposed to normal zoning, (here)…a multimillion dollar loss has been imposed. (The city has)imposed a substantial cost on less than one-tenth of one percent of the buildings in New York for the general benefit of all its people. It is exactly this imposition of general costs on a few individuals at which the taking protection is directed.

A recent Supreme Court decision, Cedar Point Nursery v. Victoria Hassid, June 23, 2021, took up this important debate in Penn Central between liberals and conservatives. The majority opinion by Chief Justice John Roberts took the Rehnquist approach; Justice Stephen Breyer dissented, taking the Brennan approach, in a 6 (Roberts, Clarence Thomas, Samuel Alito, Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett) to 3 (Breyer, Sonia Sotomayor, and Elena Kagan) decision the conservatives versus the liberals.

A California regulation had allowed a labor organization to take access to an agricultural employers property for up to four 30-day periods in one calendar year. They could enter one hour before work, one hour during the lunch break, and one hour after work, being free to meet and talk with employees for union organization. Notice would be given.

The employers here filed suit arguing, …an unconstitutional per se physical taking under the Fifth and Fourteenth Amendments by appropriating without compensation an easement for union organizers to enter their property. (Roberts, page 3). Roberts stressed one of the major rights of a property owner is to exclude others from property. (Roberts, pages 7, 13). Also, this constituted a physical taking, not a use restriction. (Roberts, page 12). Roberts held: …the access regulation here gives rise to a per se physical taking. (Roberts, page 20). It…grants labor organizers a right to invade the growers property. (Ibid.).

Breyer, in dissent, would have found no taking. He wrote: It is a regulation that falls within the scope of Penn Central. (Breyer, pages 16-17). He said it was a regulation of the power to exclude. (Breyer, page 5).

Our liberty and freedom are based in large part on our right to own private property, or real estate. It is our most important right, I believe. Since it is so important, government has an interest in regulating it, even physically taking it. James Madison wrote in 1792: That alone is a just government which impartially secures to every man, whatever is his own. (Cited by Justice Sandra Day OConnor in her dissent in Kelo v. New London, 2005). The question of when government regulation goes far enough to become a taking will be debated by conservatives and liberals as long as we shall have a constitutional democracy. As for Justice Breyer, hang in there until at least 2025!

JamesW.Pfister, J.D. University of Toledo, Ph.D. University of Michigan (political science), retired after 46 years in the Political Science Department at Eastern Michigan University. He lives at Devils Lake and can be reached at jpfister@emich.edu.

The rest is here:
Private property rights and governmental 'taking' - Monroe Evening News