I’ve decided to create an article with some legal terminology in it. The reason I’m doing this is because there are a lot of organizations and individuals that are working with attorneys in an attempt to change the sex offender registration laws. A lot of times there are unique little pieces of information that the attorneys may not know about and if their clients bring the information to them it opens a whole new area for the lawyers to litigate in. This information is not intended to be legal advice, simply information in all cases it is best to work with an attorney.
Vested rights doctrine (stops the legislature from wordsmithing laws after a judgment)
“It is not within the power of a legislature to take away rights which have been once vested by a judgment. Legislation may act on subsequent proceedings, may abate actions pending, but when those actions have passed into judgment the power of the legislature to disturb the rights created thereby ceases. ”McCullough v. Virginia, 172 U.S. 102 (U.S. 1898) “A vested right ensures “certainty and fairness” to the defendant so that he can be confident that a subsequently enacted regulation will not affect him.” (see The Yale Law Journal Volume 96, Number 6, May 1987.
Vested rights doctrine protects a person or group who have won a legal decision from a legislature seeking to overturn the decision. The doctrine has two components.
First, it protects the property right obtained by the victorious party against a taking of that property by the legislature. In this sense the protection is similar to constitutional protection of contractual rights by the Contract Clause .
Second, and equally important, “vested rights” doctrine safeguards separation of powers against overreaching by the legislature. “[C]onsistent with the separation of powers, it protects judicial action from superior legislative review, ‘a regime [that would be] obviously inconsistent with due process of law and subversive of the judicial branch of government.'” Georgia Ass’n of Retarded Citizens v. McDaniel, 855 F.2d 805, 810 (11th Cir. 1988) (quoting Daylo v. Administrator of Veterans’ Affairs, 501 F.2d 811, 816 (D.C. Cir. 1974)).
“Vested rights” doctrine was first announced in McCullough v. Virginia, 172 U.S. 102, 123-24 (1898): “It is not within the power of the legislature to take away rights which have been once vested by judgment. Legislation may act on subsequent proceedings, may abate actions pending, but when those actions have passed into judgment the power of the legislature to disturb the rights created thereby ceases.”
Doctrine of Unconstitution al Conditions Law & Legal Definition
This one is important for people that are still on paper since only the judicial branch can impose punishment that is taking away a constitutionally protected right and the executive branch does not have the authority to take away those rights without a court specifically removing them so the parole board or parole and probation forcing a person to sign away their rights such as use of the Internet in order for them to be on parole or probation is not legal
Doctrine of unconstitutional conditions
Doctrine of unconstitutional conditions is a rule of constitutional law that bars a government from imposing a condition on the grant of a benefit requiring the waiver of a constitutional right. (Such as being forced in to signing parole and probation or treatment provider agreements that were not stipulated by the courts as part of punishment.) The government cannot condition a person’s receipt of a governmental benefit on the waiver of a constitutional ly protected right. It also refers to the rule that government cannot force a defendant to choose between two constitutionally protected rights.
Abuse of Rights Law & Legal Definition
The doctrine of Abuse of Rights, found in various guises in Civil Law jurisdictions, refers to the concept that the malicious or antisocial exercise of otherwise legitimate rights can give rise to civil liability. In general terms, the doctrine of abuse of rights provides that ‘fault’ in the delictual sense. It may be imposed upon a party who has exercised a right in a manner that has caused injury to another. At least one of four conditions is required to invoke the doctrine: (1) the predominant motive for exercising the right is to cause harm; (2) no serious or legitimate motive exists for exercising the right; (3) the exercise of the right is against moral rules, good faith, or elementary fairness; or (4) the right is exercised for a purpose other than that for which it was granted.
nondelegation doctrine (stops one branch of government primarily the legislative branch from allowing other branches of government to make rules. All laws passed must be completely defined by the legislative branch they cannot pass the rulemaking authority on to other branches in the case of the judicial branch and they cannot pass their authority to make rules pertaining to judgments to other branches of government such as parole and probation which is part of the executive branch)
The doctrine of nondelegation describes the theory that one branch of government must not authorize another entity to exercise the power or function which it is constitutional ly authorized to exercise itself. It is explicit or implicit in all written constitutions that impose a strict structural separation of powers. It is usually applied in questions of constitutional ly improper delegations of powers of any of the three branches of government to either of the other, to the administrative state, or to private entities. Although it is usually constitutional for executive officials to delegate executive powers to executive branch subordinates, there can also be improper delegations of powers within an executive branch.
Non delegation doctrine is a principle of administrative law that Congress cannot delegate its legislative powers to agencies. Delegation is permitted only if Congress prescribes clear and adequate standards to guide an executive agency in making the policy. There should be an “intelligible principle” for the agencies to base their regulations on.
U.S. Const. art. I, § 1, vests all legislative powers in the Congress of the United States. The text permits no delegation of those powers, and so when Congress confers decision making authority upon agencies Congress must lay down by legislative act an intelligible principle to which the person or body authorized to act is directed to conform. The degree of agency discretion that is acceptable varies according to the scope of the power congressionall y conferred. [Whitman v. Am. Trucking Ass’Ns, 531 U.S. 457 (U.S. 2001)]
Nondelegation doctrine is also known as delegation doctrine.
Case law nondelegation doctrine
During the 1930s, Congress provided the executive branch with wide powers to combat the Great Depression. The Supreme Court case of Panama Refining v. Ryan, 293 U.S. 388 (1935) involved the National Industrial Recovery Act, which included a provision granting the President the authority to prohibit the interstate shipment of petroleum in excess of certain quotas. In the Panama Refining case, however, the Court struck down the provision on the ground that Congress had set “no criterion to govern the President’s course.”
Other provisions of the National Industrial Recovery Act were also challenged. In Schechter Poultry Corp. v. United States (1935), the Supreme Court considered a provision which permitted the President to approve trade codes, drafted by the businesses themselves, so as to ensure “fair competition.” The Supreme Court found that, since the law sets no explicit guidelines, businesses “may roam at will and the President may approve or disapprove their proposal as he may see fit.” Thus, they struck down the relevant provisions of the Recovery Act.
The Supreme Court invalidated laws as violations of the nondelegation doctrine. Exemplifying the Court’s legal reasoning on this matter, it ruled in the 1998 case Clinton v. City of New York that the Line Item Veto Act of 1996, which authorized the President to selectively void portions of appropriation bills, was a violation of the Presentment Clause, which sets forth the formalities governing the passage of legislation. Although the Court noted that the attorneys prosecuting the case had extensively discussed the nondelegation doctrine, the Court declined to consider that question. However, Justice Kennedy, in a concurring opinion, wrote that he would have found the statute to violate the exclusive responsibility for laws to be made by Congress.
The next year, in Carter v. Carter Coal Co., the Supreme Court found numerous failings in another piece of New Deal legislation, the Bituminous Coal Conservation Act. Among the shortcomings, the Court said, was the ability of some coal companies to set standards for wages and hours for the entire industry. This, the Court ruled, was a delegation of legislative authority to private industry. “This is legislative delegation in its most obnoxious form,” Justice George Sutherland wrote for the Court’s majority, “for it is not even delegation to an official or an official body . . . but to private persons . . . .”
Nondelegation doctrine the courts
Just exactly what are conditions that can be placed on a person on PNP? Well first of all those conditions have to be related to the crime that has put the person under the control of the judicial system. Recognize that it is not PNP that has the authority to put those restrictions on a person, because PNP is a member of the executive branch. Only the judicial branch has the authority to place restrictions on a person for a criminal activity. Those restrictions have to #1 relate directly to the crime and #2 aide in a person’s reintegration into society. Even the courts have to follow these guidelines.
The trial court is given wide discretion in establishing conditions of probation, and the order of the district judge providing for probation will be overturned only if it is abuse of discretion. ( United States v. Kahl, 583 F2d 1351 (CA5 Tex 1978). ) While the court can adopt terms and conditions of probation recommended to it by an administrative agency of government, The court cannot delegate it’s power to fix terms and conditions of probation. ( Whitehead v. United States, 155 F2d 460 (CA6 Tenn 1946). ) or to determine the parties aggrieved, the amounts to be paid, and the time and manner of payment. United States v. Mancuso, 444 F2d 691 (CA5 La 1971). ) ( United States v. Shelby, 573 F2d 971 (CA7 Wis 1978). ) The court must orally give the conditions of probation, ( Buhler v. Pescor, 63 F Supp 632 (DC Mo 1945). ) and when there is a discrepancy between conditions given orally and conditions given in writing, the oral statements control. (NOTE: what this means is that PNP cannot add to or change the requirements that were given by the judge at the time of sentencing.) ( United States v. Mesfin Haile Tulloch, 380 F3d 8 (CA1 Mass 2004). ) If one condition of probation is void, it does not invalidate the sentence. (Watkins v. Merry, 106 F2d 360 (CA10 Okla 1939).) it should be noted that the court cannot lay blanket conditions that are recommended by the executive branch without first looking at the need for each of those conditions and spelling them out explicitly so that both the defendant and PNP know exactly the conditions of parole or probation.
Conditions: The 2nd Circuit, in U.S. v. Myers, ruled that if the liberty interest at stake in a decision involving a condition of release is fundamental, a deprivation of that liberty is “reasonably necessary” only if the deprivation is narrowly tailored to serve a compelling government interest. Courts of appeals have consistently required district courts to set forth factual findings to justify special probation conditions.Uni ted States v. Warren, 186 F3d 358 (CA3 NJ 1999). It is not enough that the required findings are implicit in the record. The District Court is required to give reasons on the record for imposition of special conditions of supervised release.U.S. v. Hahn, 551 F3d 977 (10th Cir. 2008). A district court’s failure to state its reasons for conditioning supervised release results at a minimum in a remand. U.S. v. Kravchuk, 335 F3d 1147 (10th Cir. 2003). it should be noted here that most courts and for that matter, defense attorneys are not doing their job. They are simply taking the suggestions for blanket requirements from PNP and this needs to stop.
As is noted in this article ( http://online.wsj.com/article/AP24d843af7f4146a78a475212daeb0d1d.html ) the penalties have to relate to the underlying crime not to prior criminal actions and if those penalties/regulations are unrelated to the crime then they are illegally imposed, rather it comes from the court or from PNP.
It must also be pointed out that Probation or supervised release is considered custody for purposes of federal habeas corpus law, and therefore can be challenged under 28 U.S.C. § 2255. Probation officers are entitled to qualified immunity from probationers’ due process claims because probationers cannot claim a property interest in the statutory procedural protections. It also should be noted that, should a judge or PNP step outside their legal boundaries that like all public officials, they can be sued under a 42 U.S.C. §1983 civil rights action. For damages including pain and suffering. Remember the recent Supreme Court decision http://jurist.org/paperchase/2013/03/supreme-court-rules-for-pro-se-prisoner-in-sovereign-immunity-case.php That basically said that any official of the government, who steps outside his legal boundaries, can bring about a suit against the organization that he represents. In other words, if the parole officer steps outside his boundaries in ordering something that is unrelated to the crime then not only he can be sued but all the organizations that he represents, all the way up through the state or federal government.
Ban on special legislation
A legislative act can violate this provision as special legislation (1) by creating a totally arbitrary and unreasonable method of classification or (2) by creating a permanently closed class. MAPCO Ammonia Pipeline v. State Bd. of Equal., 238 Neb. 565, 471 N.W.2d 734 (1991). A legislative act can violate this provision as special legislation in one of two ways: (1) by creating a totally arbitrary and unreasonable method of classification, or (2) by creating a permanently closed class. Haman v. Marsh, 237 Neb. 699, 467 N.W.2d 836 (1991).
The term “class legislation” is a characterization of legislation in contravention of this provision. It is that which makes improper discrimination by conferring privileges on a class arbitrarily selected from a large number of persons standing in the same relation to the privileges, without reasonable distinction or substantial difference. Haman v. Marsh, 237 Neb. 699, 467 N.W.2d 836 (1991). Section 60-1701 contains classification s and exceptions which are unreasonable, arbitrary, and unrelated to the public interest,
and is therefore unconstitutional and void in violation of this section. State v. Edmunds, 211 Neb. 380, 318 N.W.2d 859 (1982). Arbitrary classification may result in special legislation. United Community Services v. Omaha Nat. Bank, 162 Neb. 786, 77 N.W.2d 576 (1956).
In American constitutional law, a statute is void for vagueness and unenforceable if it is too vague for the average citizen to understand. There are several reasons a statute may be considered vague; in general, a statute might be called void for vagueness reasons when an average citizen cannot generally determine what persons are regulated, what conduct is prohibited, or what punishment may be imposed. Criminal laws which do not state explicitly and definitely what conduct is punishable for example are void for vagueness. A statute is also void for vagueness if a legislature’s delegation of authority to judges and/or administrators is so extensive that it would lead to arbitrary prosecutions. Related to the “void for vagueness” concept is the “unconstitutional vagueness” concept .
To summarize the contents of the doctrine, it establishes specific criteria all laws, or any legislation must meet, to qualify as constitutional. Such criteria includes the following:
- Law must state explicitly what it mandates, and what is enforceable.
- Definitions of potentially vague terms are to be provided.
In the case of vagueness, a statute might be considered void on constitutional grounds. Specifically, roots of the vagueness doctrine extend into the two due process clauses, in the Fifth and Fourteenth Amendments to the United States Constitution. The courts have generally determined that vague laws deprive citizens of their rights without fair process, thus violating due process.
[T]he terms of a penal statute […] must be sufficiently explicit to inform those who are subject to it what conduct on their part will render them liable to its penalties… and a statute which either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application violates the first essential of due process of law.
The void for vagueness doctrine is a constitutional rule. This rule requires that criminal laws are so written that they explicitly and definitely state what conduct is punishable. The void for vagueness doctrine thus serves two purposes. First: All persons receive a fair notice of what is punishable and what is not. Second: The vagueness doctrine helps prevent arbitrary enforcement of the laws and arbitrary prosecutions. There is however no limit to the conduct that can be criminalized, when the legislature does not set minimum guidelines to govern law enforcement.
Fruit of the Poisonous tree Doctrine
The “fruit of the poisonous tree” doctrine is an offspring of the Exclusionary Rule. The exclusionary rule mandates that evidence obtained from an illegal arrest, unreasonable search, or coercive interrogation must be excluded from trial.
Fruit of the poisonous tree is a legal metaphor in the United States used to describe evidence that is obtained illegally. The logic of the terminology is that if the source (the “tree”) of the evidence or evidence itself is tainted, then anything gained (the “fruit”) from it is tainted as well. The fruit of the poisonous tree doctrine was first described in Silverthorne Lumber Co. v. United States, 251 U.S. 385 (1920). The term’s first use was by Justice Felix Frankfurter in Nardone v. United States (1939).
Such evidence is not generally admissible in court. For example, if a police officer conducted an unconstitutional (Fourth Amendment) search of a home and obtained a key to a train station locker, and evidence of a crime came from the locker, that evidence would most likely be excluded under the fruit of the poisonous tree legal doctrine. The testimony of a witness who is discovered through illegal means would not necessarily be excluded, however, due to the “attenuation doctrine”, which allows certain evidence or testimony to be admitted in court if the link between the illegal police conduct and the resulting evidence or testimony is sufficiently attenuated. It is believed that a witness who freely and voluntarily testifies is enough of an independent intervening factor to sufficiently “attenuate” the connection between the government’s illegal discovery of the witness and the witness’s voluntary testimony itself. (United States v. Ceccolini, 435 U.S. 268 (1978))
The “fruit of the poisonous tree” doctrine is an extension of the exclusionary rule, which, subject to some exceptions, prevents evidence obtained in violation of the Fourth Amendment from being admitted in a criminal trial. Like the exclusionary rule, the fruit of the poisonous tree doctrine is intended to deter police from using illegal means to obtain evidence.
The doctrine is subject to four main exceptions. The tainted evidence is admissible if:
- it was discovered in part as a result of an independent, untainted source; or
- it would inevitably have been discovered despite the tainted source; or
- the chain of causation between the illegal action and the tainted evidence is too attenuated; or
- the search warrant was not found to be valid based on probable cause, but was executed by government agents in good faith (called the good-faith exception).
This doctrine was also used by the European Court of Human Rights in Gäfgen v. Germany. In certain cases continental European countries have similar laws (e.g. in cases of torture), while the doctrine itself is generally not known. Illegally obtained evidence is used by the courts to ensure that the judgment is factually correct, however the person obtaining the illegal evidence typically faces independent consequences.
Shaming as a form of punishment as defined by the Court cases of People v. Meyer People v. Lowe, 606 N.E.2d. People v. Molz, 113 N.E.2d, People v. Johnson 528 N.E.2d, State v. Burdin 924 S.W.2d ,People v. Letterlough 655 N.E.2d, Lindsay v. State 606 So. 2D.
Part of the Eighth amendment prohibition on cruel and unusual punishments says that prisoners in the custody of the state who are being punished have a right to be safe from other inmates and receive care including medical care at the cost to the state. Because they are in the custody of the state and cannot do it themselves it is the job of the state to make sure that these people stay safe and cared for [while in the custody of the state]. Since the legislature has chosen to notify the communities and the result is that the Registants are shamed within the community does that not mean that there is an obligation by the state? Because of the result of their legislations the state has a obligation to see that no physical or emotional harm comes to the Registrants or their families that they live with from the actions of other community members.
It would seem that the only way to do this would be a place a police officer or Sheriff with each and every Registrant and their family members as a bodyguard to make sure that they are not harassed, threatened, or attacked by members of the community that they live in because of the result of the legislation, and to provide food, shelter and medical care for the Registrant and their family members where the community notification has restricted offenders from being able to find gainful employment and appropriate living conditions.
Bill of Attainder
Article 1, Section 9, Clause 3, of the U. S. Constitution guarantees that “no Bill of Attainder or ex post facto Law shall be passed.”Similarly, Article l, Section 10, provides that “[n]o state * * * shall pass any Bill of Attainder, ex post facto law, or law impairing the obligations of contracts * * *.” A bill of attainder is a type of class legislation that imposes punitive burdens on a particular, legislatively determined group, without the benefit of a judicial proceeding. Here, persons previously convicted of a crime, who have already been punished for their convictions, are further punished by legislative fiat by being deprived of the reputation and liberty. The prohibition against Bills of Attainder is offended by this statutory scheme.
In England, the bill of attainder was a legislative act that would simply declare a person or group of persons guilty of a particular crime, usually treason, and sentence the person or group to death and forfeiture of estate. United States v. Brown, 381 US 437, 441, 85 SCt 1707, 14 LEd2d 484 (1965).
Bills of attainder and pains and penalties were commonly used during and after the Revolution to deprive Tories of their rights and property, or to banish them from the state altogether. Brown, 381 US, at 442.While variable in form, they tended to have three common characteristics:
- Convictions and sentences were pronounced by the Legislative Branch of the government, instead of the judicial;
- The sentence pronounced and the punishment inflicted were determined by no previous law or fixed rule;
- The investigation into the guilt of the accused, if any such were made, was not necessarily or generally conducted in his presence, or that of his counsel, and no recognized rule of evidence governed the inquiry.
writ of mandatums
Mandamus (“We command”) is a judicial remedy in the form of an order from a superior court, to any government subordinate court, corporation, or public authority—to do (or forbear from doing) some specific act which that body is obliged under law to do (or refrain from doing)—and which is in the nature of public duty, and in certain cases one of a statutory duty. It cannot be issued to compel an authority to do something against statutory provision. For example, it cannot be used to force a lower court to reject or authorize applications that have been made, but if the court refuses to rule one way or the other then a mandamus can be used to order the court to rule on the applications.
Mandamus may be a command to do an administrative action or not to take a particular action, and it is supplemented by legal rights. In the American legal system it must be a judicially enforceable and legally protected right before one suffering a grievance can ask for a mandamus. A person can be said to be aggrieved only when he is denied a legal right by someone who has a legal duty to do something and abstains from doing it.
Interesting information from the court’s
US V. JONES. 908 F2d 365 (8th Cir. 1990) Wm US V. McNEESE. 901 F2d 585 (7th Cir. 1990)
Under BIFULCO rule of lenity, criminal penalties must be narrowly construed; any ambiguity in criminal statute, including sentencing, must be resolved in favor of lenity.
US V. SALES. 725 F2d 458 (8th Cir. 1984)
BORDENXTRCHER V. HAYES. 434 US 357, 54 LEd2d 604, 98 SCt 663 (1978)
A trial court may not use the sentencing process to punish a defendant, notwithstanding his guilt, for exercising his right to receive a full and fair trial.
PAUL V. US. 734 F2d 1064 (5th Cir. 1984)
Convicted defendant has right to be present at his sentencing, and such right extends to resentencing as well. Rule 35 related.
ROMANO V. BLACK. 735 F2d 319 (8th Cir. 1984)
Sentencing judge denied petitioner due process in failing to consider alternatives to incarceration before revoking petitioners probation.
US V. NAAS. 755 F2d 1133 (5th Cir. 1985)
US V. WINGENDER. 711 F2d 869 (9th Cir. 1983)
Presumption that sentences are to run concurrently places burden squarely on prosecutor and judge to affirmatively suggest and impose longer consecutive sentence, and thus resolves any ambiguity in favor of defendant.
US V. KHOURY. 901 F2d 975 (11th Cir. 1990)
US V. BLACKNER. 901 F2d 853 (10th Cir. 1990)
Where there is discrepancy between orally imposed sentence and written order of judgment and committal, oral sentence controls.
US V. WILLARD. 909 F2d 780 (4th Cir. 1990)
Defendant cannot be incarcerated for longer period of time simply because sentencing judge is hesitant to resolve factual disputes.
ALEXANDER V. PERRTLL. 916 F2d 1392 (9th Cir. 1990)
Prison officials who are under duty to investigate claims of computational errors in calculation of prison sentences may be liable for failure to do so when reasonable request is made.
US V. WILLIAMS. 917 F2d 112 (3rd Cir. 1990)
Relevant guidelines are those in effect at time of sentencing, not at time crime was committed.
US V. CTTRRAN. 925 F2d 59 (1st Cir. 1991)
US V. PELLERITO. 918 F2d 999 (1st Cir. 1990)
US V. MUELLER. 902 F2d 336 (5th Cir. 1990)
Defendants, including those who plead guilty, have a due process right to be sentenced upon information which is not false or materially incorrect.
CONLOGUE V. SHINBAUM. 949 F2d 378 (11th Cir. 1991)
LOUIS V. VUITTON S.A. V. SPENCER HANDBAGS CORP.. 765 F2d 966 (2nd Cir. 1985)
WEAVER V. GRAHAM. 450 US 24, 67 LEd2d 17, 101 SCt 960 (1981)
The EX POST FACTO clause prohibits the enactment of laws that either impose punishments for acts not punishable at the time they were committed or increase punishment over that previously prescribed.
Criminal Law KEY 996(1.2) n resentencing, court can impose no greater sentence than it did initially State v, Haydon 832 P2d 457 J.S. v. Thompson 979 F2d 743 State v. Turner 429 P2d 565 ‘Gerke v. Burton Ent.inc. 826 P2d 115 ‘’U.S. v Long 823 F2d 1209 or on retrial
US v Hernadez 975 f2d 706 (1992)
Aaiuan v. Helgeinoe 437 F Supp 269 right to visitation with family members and the requirments for DOC employs (Psychological testing) 42 USCA § 1996 civil rights for institutionalized persons title 42 USCA § 1985 conspiracy to interfere with civil rights •/State v. Johansen 125 Or App 365 commitemnt procedures due prosses People v. Feagkey 535 P2d 373 Good Case for mental ill sex offender and level of proof required to prove guilt of DSO
MUHAMMAD v. Pitcher 35 F3d 1081 Inmate mail
Huffman v. fiola KEY Civil Rights 234 Pro se Papers must be liberally construed especially where civil rights claims are invalved
42 USCA 1983 State v. Woolridge 790 p2d 1192 /2/3/ Conclusions Based on Conjecture as to whether person pose danger to others are insufficient to justify involantary confinement. Issue of dangereness must be determined at time of hearing.
State v. Nance 735 P2d 1271 Conclusions based on conjecture about dangereness are insufficient.
Mater of Lucas 571 P2d 571 Determinatoin whether a person is dangerous beyond a reasoable doubt must focas on his or her condition aj. time of the. . . hearing State v. Daulton 566 P2d 555 State v. Alexander 554 P2d 524 State v. G 552 P2d5 7 4
KNECHT V. GILLMAN 488 F2d 1136 any “” aversive stimali“ constitutes cruel and unisial punishment unless written consent has been obtained from inmate specifing nature of theatneint purpose risk and effects and advising inmate of his right to terminate consent” “Behavior modification by aversive stimali is “highly questionable technique” and that only a 20%to 50% success is claimed That its use is really punishment worse than a controlled beatings.
GREEN V. BARON 662 F Supp 1378 When a mental patient is intentionally subjected to harsh coneitions in order to deter him from maintaining a course of conduct the fact that it is done in the name of Psychiatric treatment dose not keep it from being intentional punishment. (Threats, harassment and forced use of adverse to stimuli such as ammonium nitrate by treatment providers fall into this category.)
CAMERON V. TOMES 783 F Supp 1511 /3/4 / 6/19 / 23/24 / Patients right to be grandfather… prohibiting him from visiting with his grandchildren was a clear restriction of his liberty,
CANTERINO V. WILSON 546 F Supp 174 Person conicted of crimes deserve to be punished but this dose not give the state license to make prisoners objects of unguided behavior control experiments
first AMEND .RIGHTS
Elton v. Tucker 81 SCt247 /4/5/8/9/ associational ties impairs freedom if forced to disclose first and 14th amend
Smith v. Organ 97 SCt 2094 @ 2109 family /marriage Parient/child /Poe v. Gerstein 517 F2d 787 2/5/Privacy of the family @794
Newborn v. Morrison 440 F 6»pp 623 /5/6/9/family association
Duchesns v. Sugarinan 566 F2d 817 /24/5/6/7/Right of the family to stay together
Staney v. Geogia 394 U.S. 557 (1969) /3/4/5/6/7/8/9/10/11/12/ State does not have the right to control moral content of a person’s thoughts State may not prohibit mere possession of obscene matter on the grounds that it may lead to antisocial conduct. Stanley v. Georgia, 394 U.S. 557 (1969), was a United States Supreme Court decision that helped to establish an implied “right to privacy” in U.S. law, in the form of mere possession of obscene materials.
Flanagan v. State 846 P2d 1053 @1056 freedom of thought
Mich. vBabin 799 F Supp 695 @ 716 #43 Freedom of thought
Healy v. james 92 SCt 2338 @ 2349 freedom of speech and thought
Hodgson v. Minn. 100 SCt 2926 @ 2942/43parent/child ✓Moore v. Cleveland 97 SCt 1932 @ 1935 Family rights
GRISWOLD V. CONNECTICUT 85 SCt 1678 4/7/8/9/Freedom of thought/speech and association
14th AMENDMENT DUE PRECESS AND EQUAL PROTECTION
OHLINGER v. WATSON 652 F2d 775 HOT CASE Involuntary confinement for “status” of having a mental or physical illness or disorder constitutes a violation of cruel and unusual punishment … unless it is accompanied by adequate treatment. APPELLANTS HAVE A CONSTITUTIONAL RIGHT TO SUCH INDIVIDUAL TREATMENT AS WILL GIVE EACH OF THEM A REALISTISTIC OPPORTUNITY TO BE CURED OR TO IMPROVE HIS MENTAL CONDITION.lack of funds, staff or facilities cannot justify the states failure to provide appellants with that treatment necessary for rehabilitation. A recicivism rate of approximately 15 per cent at institutions providing what he considered adequate treatment progains. OTHER GOOD STUFF HERE
CAMERON V. TOMES 783 FSupp 1511 Under the 8th and 14th Amendments, state may not show “deliberate indifference” to inmates mental health needs. State’s decisions about treatment of committed patient cannot be constitutionally sufficent if in making them state has shown deliberate indifference to patient’s mental health needs. It was not appropriate for court to determine what treatment …. patient should receive at treatment center…
STATE V. WAITES 71 Or app 366 The Court must have clear and convincing evidence to find that a person is mental ill or that they are danger to them self or others and not even the court can presume to make a judgement without that
WYATT BY AND THROUGH RAWLINS V. KING 773 F Supp 1508 (1991) Mental ill patients … committed to state institutions had constitutionally protected liberty interest in their release when their condition no longer satisfied requirements for initial …commitment, full standards and procedures for civil commitment. ( Note: this case could be used against treatment providers who insist on keeping people in treatment for a long periods of time simply because they’re still on parole or probation.)
State v. Christofferson 47 0rAp l087 conclusions regarding … dangerousness to others are based on conjecture situations in which violent behavior by appellant… “could””possibly” occur. Such evidence does not support an involuntary civil commitment.
State v. Conrad 34 Or App ll9 i’Cochenour v. PSRB 47 Or App 1097 conclusions must be based upon reasonable medical probability ..not a mere possibility
1973 Rebilatution Act 29 USCA § 794 nondiscrimination under federal grants and programs can not disiscriminat against mental ill persons
18 USCA § 424 how a person is found to be mental ill and the need for a hearing
‘‘Planned parenthood v. Casey 112 SCt. 2791 “barring certain government actions regardless of the fairness of the procedures used to implement them” the courts job is to define the liberty of all, not to mandate our own moral code
Roberts v. U.S. Jaycees 104 SCt 3244 ” government actions that may unconstitutionally infringe upon this freedom can take a number of forms. Among other things, government may seek to impose penalties or withhold benefits from individuals because of their membership in a disfavored group., Healy v. james 92 SCt 338,2345-2347 it may attempt to require disclosure of the fact of membership in a group seeking anonymity
103 SCt. 416 –‘DIXON V. JACOBS 427 F2d 589 Presence of abnormal mental condition and extent to which it impairs mental or emotional processes and controls, are questions of fact; how substantial such an impairment must be considered a mental illness is matter of law. KEY MENTAL HEALTH #13,60 Likelihood of future misconduct of mental patient who seeks release from confinement, type of misconduct to be expected and its probable frequency are questions of fact; whether the expected harm and its apparent likelihood, are sufficiently great to warrant coercive intervention are questions of law. ALSO /5/6/7/18/21/
EQUALITY FOUNDATION OF GREATER CINCINNATI v. CITY OF CINCINNATI 860 F Sup 417 THIS IS A GOOD CASE FOR EQUAL PROTECTION Gays lesbians and biesexuals meet criteria for quasi-suspect status; they suffered history of invidious incrimination based on sexual orientation and bears no relationship to the persons ability to contribute to society sexual orientation is characteristic beyond control of the individual (note change Gays to sex offenders) this is a good case for referance ( 1994)
STEPNIEWSKl V. GAGNON The void-for-vagueness doctrine requires that a penal statute define the criminal offense with sufficient definiteness that ordinary people can understand what conduct is prohibited and in a manner that does not encourage arbitrary and discriminatory enforcement Although clear and precise laws may nonetheless be overbroad if they prohibit constitutionally protected conduct
732 F2d 567 HUNTER V. OREGON 761 P2d 502 Privilege created by statute must be available to all on same treins .The statute could be applied in an impermissibly discriminatory fashion… the dinction was based upon impermissible factors such as race or personal animosity could violate Article I § 20 42 USCA 9501Bill of rights for mentalhealth patiients and restatement of said Bill in 42 USCA 10841
Langley v. Coughlin 888 F2d 252 When incarceration deprives person of reasonably necessary medical care, including psychiatric or mental heaith care which would be available to him or her if not incarcerated, prison authorities most provide such surrogate care.
Below is some information from another source.
I’ve written and rewritten this thing four times in order to try to make sure the data is both accurate and concise. I’ve been away for some time, working and studying. I found that my understanding of many things was insufficient, and the historic background thereof was also insufficient. Much of this has been remedied. Unfortunately there’s a great deal of bias within the court, specifically on the issue of congress and the powers of the state.
Those in the United states in general are citizens of the United States. This citizenship gives specific privileges and immunities, under article 4 of the constitution, as well as rights under the 14th amendment to that document.
Not many in the last few centuries have paid much attention to that article 4 prohibition against the privileges and immunities clause of the Constitution, and in fact, the supreme court has avoided the issue like the plague.
The Prudence Crandall case discused it, as did Dred Scott. The very wording of the title 18, section 242, as well as title 42, section 1983, and the 14th amendment itself under which those laws were reestablished comes from Dred Scott v. Sandford.
For if they were so received, and entitled to the privileges and immunities of citizens, it would exempt them from the operation of the special laws and from the police [p417] regulations which they considered to be necessary for their own safety. It would give to persons of the negro race, who were recognised as citizens in any one State of the Union, the right to enter every other State whenever they pleased, singly or in companies, without pass or passport, and without obstruction, to sojourn there as long as they pleased, to go where they pleased at every hour of the day or night without molestation, unless they committed some violation of law for which a white man would be punished; and it would give them the full liberty of speech in public and in private upon all subjects upon which its own citizens might speak; to hold public meetings upon political affairs, and to keep and carry arms wherever they went. And all of this would be done in the face of the subject race of the same color, both free and slaves, and inevitably producing discontent and insubordination among them, and endangering the peace and safety of the State.
Exemption from special and targeted laws… freedom to travel. Freedom to choose your labor, choose your work, choose your trade, to make any business whatsoever, so long as you committed no crime while doing so. Freedom to speak, freedom to associate, freedom to hold meetings, and to keep and bear arms wherever one went.
Between the Prudence Crandall case and the Dred Scott case, these privileges and immunites were recognized by the states. It was not until Cruikshanks that they changed, and the tortured claim was made that those privileges and immunities, having preexisted the constitution, were not protected by it.
Among these current privileges and immunities of citizen are the right to not have bills of attainder, or bills of pains and penalties enacted upon them. This is a primary issue of the republican form of government, a restriction on the intermingling of powers between departments of government, and bearing only one exception, the attaint for treason in the case of the Congress, and then subject only to the levying of forces for the purpose of war, or giving aid and comfort to the enemies of the United States.
Bills of attainder are best illustrated in the discussion of Cummings, but there is far more jurisprudence than just Cummings involved. The discussions range from Cummings to land cases in Georgia to the very essence of citizenship itself.
Loss of citizenship, for instance within the Trop v. Dulles case, was judged to be a cruel and unusual punishment, pursuant to the 8th amendment, for losing the ‘right to have rights’. It was yet another attainder case, though couched in different words. Congress, in all of the powers it possesses, does not have the authority to divest citizenship, nor does it have the authority to divest the rights involved in citizenship, the privileges or immunities attached to that citizenship, nor divest the individual of his political existence.
The rights of citizenship are the essence thereof; without those rights, there is not any value to citizenship. Congress, in its act of 1866, pursuant to the 13th amendment, passed that which became, after the passage of the 14th Amendment, title 18, section 242, and passed civil liability statutes that dissolved state immunity for the same acts and allowed the officers of the state to be sued in their individual capacity for acts engaged outside of that law.
It is not sufficient to imply, either, that the due process for the individual is ended once trial is over. Subsequent developments, affecting their rights, due to the past act, are punishments for that act. (Ex Parte garland).
New laws, only affecting the individual or class, in states outside of the jurisdiction of the original act are of like character. The state cannot establish jurisdiction by demanding an individual do a thing, else be subject to criminal punishment.
The criminal failure to register is an act predicated entirely upon that prior act, and as such, constitutes a continued punishment for that act, for it is by that act that the determination of those upon whom the law will act is defined. This is a forbidden power of congress.
The theory upon which our political institutions rest is, that all men have certain inalienable rights; that among these are life, liberty, and the pursuit of happiness; and that, in the pursuit of happiness, all avocations, all honors, all positions are alike open to everyone, and that in the protection (Page 71 U. S. 322) of these rights all are equal before the law. Any deprivation or suspension of any of these rights for past conduct is punishment, and can be in no other wise defined.
“Whatever respect might have been felt for the State sovereignties, it is not to be disguised that the framers of the Constitution viewed with some apprehension the violent acts which might grow out of the feelings of the moment, and that the people of the United States, in adopting that instrument, have manifested a determination to shield themselves and their property from the effects of those sudden and strong passions to which men are exposed. The restrictions on the legislative power of the States are obviously founded in this sentiment, and the Constitution of the United States contains what may be deemed a bill of rights for the people of each State. “
“A British act of Parliament,” to cite the language of the Supreme Court of Kentucky, “might declare, that if certain individuals, or a class of individuals, failed to do a given act by a named day, they should be deemed to be, and treated as convicted felons or traitors. Such an act comes precisely within the definition of a bill of attainder, and the English courts would enforce it without indictment or trial by jury.
Cummings v. Missouri.
It does not save the legislative enactment from infirmity, however, when the trial is merely upon the fact that the forbidden, or mandated act occurred or did not occur. The infirmity is the mode of the identification, the naming of the group upon whom the law is to act. It was a guarantee of general law long since abandoned by the states, and federal government.
Merely because, however, the right has lain fallow for over a century does not change the infirmity, or the power of the clause.
“What the state may not do directly it may not do indirectly. If it cannot punish the servant as a criminal for the mere failure or refusal to serve without paying his debt, it is not permitted to accomplish the same result by creating a statutory presumption which, upon proof of no other fact, exposes him to conviction and punishment.
Bailey v. Alabama 219 U.S. 219 (1911)
Both are forms of bills of pains and penalties, forbidden by that attainder clause. Everything within the Constitutional bill of rights, in order to deprive it from a class, would constitute a bill of attainder. The right to travel between states, and to have the jurisdiction of crimes remain within the original state, is a similar right. It cannot be relieved by claiming through interstate compact that they may do the things collectively that they are forbidden individually. It is a fundamental infirmity which may not be relieved by legislation nor by regulation… one of the original privileges and immunities to which the state is forbidden to act.
Congress, upon passage of that 1866 and 1871 civil rights acts, established a vesting of that right upon all persons within the states, territories, districts and possessions of this nation. It was an absolute vesting, and a statement that the deprivation of those rights constituted a deprivation of vested property, and a criminal trespass against the individual.
Cruikshanks went around this by warping not only the intent of the law but by distorting it so severely it took over a century to return it near its original mandate under McDonald v. Chicago, 2010, but even there it is incomplete as to the stated intent of those who wrote that fundamental law.
The Court upheld the intepretation of the original law in Screws v. Classic, and again in Monroe v. Pape, but apparently chose not to approach the initial definitions of privileges and immunities in those cases.
“The model for it will be found in the second section of the act of April 9, 1866, known as the ‘civil rights act.’ . . . This section of this bill, on the same state of facts, not only provides a civil remedy for persons whose former condition may have been that of slaves, but also to all people where, under color of State law, they or any of them may be deprived of rights. . . . [Footnote 32]”
Thus, it is beyond doubt that this phrase should be accorded the same construction in both statutes — in § 1979 and in 18 U.S.C. § 242. Monroe v. Pape.
Among those rights constitutionally protected:
“Our cases have firmly established that the right of interstate travel is constitutional ly protected, does not necessarily rest on the Fourteenth Amendment, and is assertable against private as well as governmental interference. Shapiro v. Thompson, 394 U.S. 618, 629 -631; id., at 642-644 (concurring opinion); United States [403 U.S. 88, 106] v. Guest, 383 U.S. 745, 757 -760 and n. 17; Twining v. New Jersey, 211 U.S. 78, 97 ; Slaughter-House Cases, 16 Wall. 36, 79-80; Crandall v. Nevada, 6 Wall. 35, 44, 48-49; Passenger Cases, 7 How. 283, 492 (Taney, C.J., dissenting). The ‘right to pass freely from State to State’ has been explicitly recognized as ‘among the rights and privileges of National citizenship.’ Twining v. New Jersey, supra, at 97. That right, like other rights of national citizenship, is within the power of Congress to protect by appropriate legislation.” (105-6)
Griffin v. Breckenridge 403 U.S. 88 (1971)
“Property does not have rights. People have rights. The right to enjoy property without unlawful deprivation, no less than the right to speak or the right to travel, is in truth a “personal” right, whether the “property” in question be a welfare check, a home, or a savings account. In fact, a fundamental interdependenc e exists between the personal right to liberty and the personal right in property. Neither could have meaning without the other. That rights in property are basic civil rights has long been recognized. J. Locke, Of Civil Government 82-85 (1924); J. Adams, A Defence of the Constitutions of Government of the United States of America, in F. Coker, Democracy, Liberty, and Property 121-132 (1942); 1 W. Blackstone, Commentaries *138-140. Congress recognized these rights in 1871 when it enacted the predecessor of 1983 and 1343 (3). We do no more than reaffirm the judgment of Congress today.” (552)
Lynch v. Household Finance Corp. 405 U.S. 538 (1972)
What congress did in that 1866 act, and reiterated in the 1871 act, was a vesting of those individual rights in all persons in every state, territory, district, or possession, and established means of vindicating those rights without regard to any law, statute, ordinance, regulation, or custom to the contrary. They are personal property rights, and enforceable both under the criminal law, as well as the civil law pursuant to title 42, section 1983. No state office can offer immunity to the criminal law issue.
“We do not perceive how holding an office under a State, and claiming to act for the State, can relieve the holder from obligation to obey the Constitution of the United States, or take away the power of Congress to punish his disobedience.. .It was insisted during the argument on behalf of the petitioner that Congress cannot punish a State judge for his official acts; and it was assumed that Judge Cole, in selecting the jury as he did, was performing a judicial act. This assumption cannot be admitted. Whether the act done by him was judicial or not is to be determined by its character, and not by the character of the agent.”
Ex Parte State of Va. 100 U.S. 339 (1879)
What has effectively been done is a dissolution of one of the highest powers of state sovereignty, the inability of other states to punish for crimes committed outside of their jurisdiction. The initial crime was in the initial state, and there jurisdiction rests. The receiving state has no authority to create legislation, due to the fact of a prior crime, in order to deprive the individual of fundamental rights.
Nor do they possess the power to compel an individual who is not on probation or parole, on threat of punishment, to divulge information or facts regarding their current whereabouts in order to make it public information, particularly under the threat of criminal punishment or deprivation of property.
Again, it is the mode of the determination that is infirm… the state has no power, even by the amendment of its own constitution, to accomplish this goal.
The determination on the fact of the prior criminal act makes the punitive selection obvious, that congress has designated a class as a danger to society, and established deprivations upon that class, and must compel that class by threat of criminal punishment to do those things which are detrimental to both their fundamental rights, and their privileges and immunities as citizens and inhabitants of these United States.
That these particular individual acts may be proven by public record makes the situation untenable. Under the Federal Rules of Evidence, acts of public record stand as valid evidence. That a criminal act exists is undeniable pursuant to title 18, section 242. That we have a right to the enforcement of that statute is also undeniable, as we are persons within that jurisdiction. Pursuant to title 18, section 4 of that Code, individuals aware of a criminal act cognizable by the federal government must make that act known to individuals in civil or military authority. Should the perpetrator of such an act not be pursued, it must be elevated, and the individual failing to bring the act, may be tried under title 18, sections 3 and 4, as well as the title 18, section 242 directly. If they order that the law be not enforced, it is a title 18, section 2 evidence of being a principle to the act.
The courts cannot have jurisdiction where there is none, and jurisdiction is abandoned where criminal acts upon part of the court, or officers of the court, are raised. Municipalities themselves are not immune to the act, being creatures of the state.
Moreover, the congressional debates surrounding the passage of § 1 of the Civil Rights Act of 1871, 17 Stat. 13 — the forerunner of § 1983 — confirm the expansive sweep of the statutory
Page 445 U. S. 636
language. Representative Shellabarger, the author and manager of the bill in the House, explained in his introductory remarks the breadth of construction that the Act was to receive:
“I have a single remark to make in regard to the rule of interpretation of those provisions of the Constitution under which all the sections of the bill are framed. This act is remedial, and in aid of the preservation of human liberty and human rights. All statutes and constitutional provision authorizing such statutes are liberally and beneficently construed. It would be most strange and, in civilized law, monstrous, were this not the rule of interpretation . As has been again and again decided by your own Supreme Court of the United States, and everywhere else where there is wise judicial interpretation, the largest latitude consistent with the words employed is uniformly given in construing such statutes and constitutional provisions as are meant to protect and defend and give remedies for their wrongs to all the people.”
Is legislative intent to pass an unconstitutional law important.
The Court’s logic is as follows: Congress may enact an unconstitutional law, so long as Congress did not mean to do so. This argument and the analysis therewith are immaterial to evaluate whether an Act is an unconstitutional and the Court knows it. Since the 1920s courts have held that mere intention, even when overtly unconstitutional, has no bearing on the constitutionality of legislative acts. Hence legislative intent is irrelevant when Congress adopts a law that: (1) violates a constitutional prohibition; or (2) falls outside the constitutional authority granted to Congress.
A few recent examples show the principles applied by the Supreme Court when judging the rightness of statutes and the question of legislative intent to comport with the Constitution. The bottom line is that mere intent to comply with the Constitution will not save an otherwise unconstitutional law. Take for instance laws that imposed poll taxes, banned abortion or compelled sheriffs to conduct criminal background checks on would-be gun purchasers. In each instance, State legislators or the U.S. Congress, collectively, passed laws that presumably a sufficient number of members believed were in accord with the Constitution. Nevertheless in these instances, the U.S. Supreme Court found that these laws violated the U.S. Constitution. And in each instance the Court did not inquire about the motives of lawmakers – it was not relevant.
 See United States v. Doremus, 249 US 86 (1919).
 Harper v. Virginia State Board of Elections, 383 US 663 (1966).
 Roe v. Wade, 410 US 113 (1973).
 Printz v. United States, 521 US 898 (1997).
False light laws are “intended primarily to protect the plaintiff’s mental or emotional well-being.” If a publication of information is false, then a tort of defamation might have occurred. If that communication is not technically false but is still misleading, then a tort of false light might have occurred
In the Ohio appellate case, Derrick King filed a lawsuit against the owners of Busted magazine for false light, defamation and intentional infliction of emotional distress after the publication printed a picture of King under the heading of “Local Registered Sexual Offenders.”
The heart of King’s lawsuit focuses on the magazine’s use of “Registered” to describe King, as his lawsuit says he was no longer required to register as a sex offender when the magazine was published in June 2010.
After being convicted of gross sexual imposition in 1991, King was required to register as a sex offender until 2007, according to the ruling. But state lawmakers later sought to extend the registration requirement to 2012.
When the extension was signed into law, King filed a lawsuit challenging its constitutional ity. As a result of the suit, the website for the local sheriff’s department sex offender registry included an entry under King’s listing that said his registration had been stayed by a court.
In June 2010, the Ohio Supreme Court struck down the extension, meaning that King no longer had a duty to register as a sex offender, according to his lawsuit.
In reinstating King’s false light claim, the appellate court ruled that King had sufficiently alleged that the publication naming him as a registered sex offender ignored the stay listed on the official registry or the state Supreme Court decision overturning the registration extension.
Because of the harm caused by linking King to the registration requirement, it’s possible that “a reasonable jury could find that Mr. King’s profile in Busted magazine would be highly objectionable to a reasonable man in Mr. King’s position,” the court said.
However, the court affirmed the lower court’s dismissal of King’s defamation claim against the magazine, saying that “being publicly identified as a sex offender, regardless of registration status, is likely to cause a person to be subject to ridicule, hatred and contempt.”
Falsely identifying King as a registered sex offender would not “cause Mr. King to be subjected to ridicule, hatred, or contempt, or injure him in his trade or profession beyond what he would be subjected to simply by being identified as a sex offender.”