LTTE: Violence Against Women Act steps on due process

By Express-Times Letters to the Editor
on March 07, 2013 at 12:50 AM

The problem is not that the Violence Against Women Act discriminates against men by not “protecting” alleged victims who are men. It’s that it purports to be protecting “victims” against so-called “abusers” without allowing the due process of law to determine exactly who is a victim and who is an abuser.

Since complaints of this nature are now heard in family court instead of criminal court, the “beyond a reasonable doubt” standard is replaced by the much less stringent “preponderance of evidence.” Restraining orders and protection-from-abuse orders can be granted without the accused even knowing about the complaint, much less able to defend against it

And what a scandal if anyone objects! After all, if you’re against VAWA, your political opponents can say you are for violence against women!

This is not a free country.

ERIK B. ANDERSON
Independence Township

Source

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Know Your Rights

A cease and desist (also called C & D) is an order or request to halt an activity (cease) and not to take it up again later (desist); or else face legal action. The recipient of the cease-and-desist may be an individual or an organization. A cease-and-desist is rarely used as such outside U.S.^{[citation needed]}

In the U.S. the term is used in two different contexts. A cease-and-desist order can be issued by a judge or government authority, and has a well-defined legal meaning. In contrast, a cease-and-desist letter can be sent by anyone, although typically they are drafted by a lawyer.

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NEW JERSEY STATE CONSTITUTION 1947 (UPDATED THROUGH AMENDMENTS ADOPTED  IN NOVEMBER, 2008)

A Constitution agreed upon by the delegates of the people of New Jersey, in Convention, begun at Rutgers University, the State University of New Jersey, in New Brunswick, on the twelfth day of June, and continued to the tenth day of September, in the year of our Lord one thousand nine hundred and forty-seven.

We, the people of the State of New Jersey, grateful to Almighty God for the civil and religious liberty which He hath so long permitted us to enjoy, and looking to Him for a blessing upon our endeavors to secure and transmit the same unimpaired to succeeding generations, do ordain and establish this Constitution.

ARTICLE I


RIGHTS AND PRIVILEGES

1. All persons are by nature free and independent, and have certain natural and unalienable rights, among which are those of enjoying and defending life and liberty, of acquiring, possessing, and protecting property, and of pursuing and obtaining safety and happiness.

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While it is impossible to list all of the acts or omissions which may constitute unethical conduct, here are a few examples of prohibited conduct which, if proven, may be cause for discipline.
● A lawyer cannot or will not give you money that he or she is holding on your behalf and to which you are entitled, or will not provide you a complete written accounting for that money.
● A lawyer continually fails to respond at all to inquiries about your case, to tell you about court dates, or to appear in court. Where the problem is simply a lack of communication, first try your best to resolve the problem yourself.
● A lawyer advises you or anyone else to lie, or lies himself or herself in the course of a case. Lawyers pride themselves on their honesty. The profession does not need those who feel they must resort to deception to conduct their practice.
● A lawyer represents one party to a transaction while also the attorney for the other side. This is a conflict of interest and is generally prohibited unless both parties are fully aware of the situation and consent to it.
If you believe that your lawyer has engaged in unethical conduct, you should call the toll free hotline number [1-800-406-8594]. If you enter the five-digit zip code of the attorney's office, you will be connected to the district ethics secretary to request an Attorney Grievance Form.


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ADA (Americans with Disabilities Act) Title II Technical Assistance Manual

II-2.2000 Physical or mental impairments. The first category of persons covered by the definition of an individual with a disability is restricted to those with "physical or mental impairments." Physical impairments include --


1) Physiological disorders or conditions;

2) Cosmetic disfigurement; or

3) Anatomical loss


affecting one or more of the following body systems: neurological; musculoskeletal; special sense organs (which would include speech organs that are not respiratory such as vocal cords, soft palate, tongue, etc.); respiratory, including speech organs; cardiovascular; reproductive; digestive; genitourinary; hemic and lymphatic; skin; and endocrine.


Specific examples of physical impairments include orthopedic, visual, speech, and hearing impairments, cerebral palsy, epilepsy, muscular dystrophy, multiple sclerosis, cancer, heart disease, diabetes, HIV disease (symptomatic or asymptomatic), tuberculosis, drug addiction, and alcoholism.

Mental impairments include mental or psychological disorders, such as mental retardation, organic brain syndrome, emotional or mental illness, and specific learning disabilities.


Simple physical characteristics such as the color of one's eyes, hair, or skin; baldness; left-handedness; or age do not constitute physical impairments. Similarly, disadvantages attributable to environmental, cultural, or economic factors are not the type of impairments covered by title II. Moreover, the definition does not include common personality traits such as poor judgment or a quick temper, where these are not symptoms of a mental or psychological disorder.


Does title II prohibit discrimination against individuals based on their sexual orientation? No. The phrase "physical or mental impairment" does not include homosexuality or bisexuality.

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Harassment¹


  As defined in federal statute providing for a civil action to restrain harassment of a victim or witness, is "a course of conduct directed at a specific person that causes substantial emotional distress in such person and serves no legitimate purpose." 18 U.S.C.A. § 1514(c)(1). Term is used in a variety of legal contexts to describe words, gestures and actions which tend to annoy, alarm and abuse (verbally) another person; e.g. the use of "obscene or profance language or language the natural consequence of which is to abuse the hearer or reader" is unlawful harassment under the Federal Fair Debt Practices Act. 15 U.S.C.A. § 1992(d)(2)....
  A person commits a petty misdemeanor if, with purpose to harass another, he: (1) makes a telephone call without purpose of legitimate communication; or (2) insults, taunts or challenges another in a manner likely to provoke violent or disorderly response; or (3) makes repeated communications anonymously or at extremely inconvenient hours, or in offensively coarse language; or (4) subjects another to an offensive touching; or (5) engages in any other course of alarming conduct serving no legitimate purpose of the actor. Model Penal Code § 250.4

¹Black, Henry Campbell, M.A. Black's Law Dictionary Sixth Edition. St. Paul Minn.: West Publishing Co., 1990.

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Preponderance of the evidence, also known as balance of probabilities is the standard required in most civil cases. The standard is met if the proposition is more likely to be true than not true. Effectively, the standard is satisfied if there is greater than 50 percent chance that the proposition is true. Lord Denning, in Miller v. Minister of Pensions,[3] described it simply as "more probable than not." Until 1970, this was also the standard used in juvenile court in the United States.

http://en.wikipedia.org/wiki/Legal_burden_of_proof#Preponderance_of_the_evidence

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The importance of the role of counsel in alerting the court to the possibility of a defendant's incompetence has long 315*315 been recognized. State v. Lambert, 275 N.J. Super. 125, 129, 645 A.2d 1189 (App.Div. 1994) (citing Drope v. Missouri, 420 U.S. 162, 177 n. 13, 95 S.Ct. 896, 906 n. 13, 43 L.Ed.2d 103, 116 n. 13 (1975)). In fact, defense counsel is ordinarily "in far better position than the trial judge to assay the salient facts concerning the defendant's ability to stand trial and assist in his own defense." State v. Lucas, 30 N.J. 37, 74, 152 A.2d 50 (1959). Likewise, defense counsel is in a better position to alert the court when a mentally ill defendant is competent to stand trial, yet not competent to proceed pro se. When a bona fide doubt is raised as to the competence of a mentally ill defendant to proceed pro se, counsel should be appointed to aid in the competency determination, as well as to assist the defendant in trying the case.

Where a defendant demonstrates a history of psychiatric problems and a current thought disorder, creating a reasonable basis to question his or her competency to stand trial or to raise a defense centering on mental condition, the court is obligated to conduct a further inquiry either by appointing counsel or directing that a psychiatric examination be conducted. Under such circumstances, it is irrelevant that a defendant is not facing a "consequence of magnitude" and is therefore ordinarily not entitled to appointment of counsel. A municipal court should not permit a clearly mentally ill defendant charged with a disorderly persons offense to proceed pro se, even absent the possibility of imposing "consequences of magnitude." Such a defendant should be assigned an attorney, even if by providing counsel he or she is given greater protection than that afforded to a defendant without a psychiatric disability.

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RULE 4:19. PHYSICAL AND MENTAL EXAMINATION OF PERSONS

In an action in which a claim is asserted by a party for personal injuries or in which the mental or physical condition of a party is in controversy, the adverse party may require the party whose physical or mental condition is in controversy to submit to a physical or mental examination by a medical or other expert by serving upon that party a notice stating with specificity when, where, and by whom the examination will be conducted and advising, to the extent practicable, as to the nature of the examination and any proposed tests. The time for the examination stated in the notice shall not be scheduled to take place prior to 45 days following the service of the notice, and a party who receives such notice and who seeks a protective order shall file a motion therefor, returnable within said 45-day period. The court may, on motion pursuant to R. 4:23-5, either compel the discovery or dismiss the pleading of a party who fails to submit to the examination, to timely move for a protective order, or to reschedule the date of and submit to the examination within a reasonable time following the originally scheduled date. A court order shall, however, be required for a reexamination by the adverse party's expert if the examined party does not consent thereto. This rule shall be applicable to all actions, whenever commenced, in which a physical or mental examination has not yet been conducted.

Note: Source-R.R. 4:25-1; amended July 13, 1994 to be effective September 1, 1994; amended July 5, 2000 to be effective September 5, 2000; amended July 12, 2002 to be effective September 3, 2002.

Rule 4:52

What a bullshit rule!

4:52-1. Temporary Restraint and Interlocutory Injunction-Application on Filing of Complaint

(a) Order to Show Cause With Temporary Restraints. On the filing of a complaint seeking injunctive relief, the plaintiff may apply for an order requiring the defendant to show cause why an interlocutory injunction should not be granted pending the disposition of the action.

So much for innocent until proven guilty.

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Retaliation


All of the laws we enforce make it illegal to fire, demote, harass, or otherwise “retaliate” against people (applicants or employees) because they filed a charge of discrimination, because they complained to their employer or other covered entity about discrimination on the job, or because they participated in an employment discrimination proceeding (such as an investigation or lawsuit).

For example, it is illegal for an employer to refuse to promote an employee because she filed a charge of discrimination with the EEOC, even if EEOC later determined no discrimination occurred.

Retaliation & Work Situations

The law forbids retaliation when it comes to any aspect of employment, including hiring, firing, pay, job assignments, promotions, layoff, training, fringe benefits, and any other term or condition of employment.

http://www.eeoc.gov/laws/types/retaliation.cfm

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It is settled that, if evidence available to a trial judge raises a bona fide doubt regarding a defendant's ability to understand and participate in the proceedings against him, the judge has an obligation to order an examination to assess his competency, even if the defendant does not request such an exam. Drope v. Missouri, [466 U.S. 984 , 986] 420 U.S. 162 (1975); Pate v. Robinson, 383 U.S. 375 (1966).

PORTER v. MCKASKLE , 466 U.S. 984 (1984)