Judge Must Follow the Law Despite His Personal Beliefs

GeorgiaLeeLang100Under international media scrutiny and political pressure Utah judge Scott Johansen reversed his recent decision to remove a 9-month old foster child from the home of  April Hoagland and Beckie Peirce, a married lesbian couple in Price, Utah.

Ms. Hoagland and Ms. Pierce had fostered the baby for three months and expected to adopt the child. They had the approval and consent of the child’s mother and the local department of child welfare. During the initial hearing when Judge Johansen ordered the child welfare authorities to remove the child within seven days, he  remarked that he had read literature stating that children were better off being raised in a home with a mother and a father.

But the intervention of Utah’s Republican Governor Gary Herbert and the media maelstrom, including tweets from Hilary Clinton and a variety of anti-discrimination organizations led to a follow-up ruling from Judge Johansen who amended his original order and scheduled a hearing on December 4, 2015 to determine the best interests of the infant.

Judge Johansen is no stranger to controversy. In 1995 while interviewing a 16-year old young offender in his chambers, he slapped the youth after he tired of the boy’s belligerent insults. More recently, in 2012 a female child appeared in juvenile court for cutting the hair of a 3-year old child. Her punishment included cutting off the juvenile’s own pony tail, a sanction that led to the filing of a complaint by the juvenile offender’s mother.

While judges have significant discretion, where a legislature passes laws legalizing same-sex marriage and same-sex adoption, it is not open to a judge to inject his personal views into the decision. Only the Supreme Court of Canada and the Supreme Court of the United States can do that, although if asked, I suspect they would vigorously deny it.

Lawdiva aka Georgialee Lang

Gay Couple Need Adoption Annulled In Order to Marry

In the not-so-distant past it was not unusual to hear about gay couples who arranged for one to adopt the other to gain rights of inheritance and other family benefits. I recall a case I handled 20 years ago where a wealthy, elderly gentleman adopted his younger partner, much to the distress of the adopting partner’s other biological children.

A gay couple in Pennsylvania did the same thing, convinced that during their lifetime the law would never recognize or legalize their relationship. But to their delight the United States Supreme Court did, a happy event that was marred by the realization that as father and son they faced a hurdle to become lawfully wedded spouses.

Nick Esposito, age 78, adopted his partner, Drew Bosee, age 68, in 2012, two years before same-sex marriage was legalized in the United States. The couple had been together for over 40 years. They determined that they would not allow the adoption to stop them from their goal of marriage and filed a Petition in Allegheny County seeking to annul the adoption. They learned that judges in other states had granted such orders in situations like theirs.

But Allegheny County Judge Lawrence O’Toole ruled that state law barred him from doing the same. He ruled that while same-sex partners could marry, parents could not marry their children. Of course, that makes sense, except that Mr. Esposito and Mr. Bosee were never really parent and child; the adoption was intended to ensure that upon death family benefits would be available to them. Judge O’Toole suggested that it would take a higher court to rule on the issue and provide guidance to lower courts.

The couple have appealed and are also finding political support from Pennsylvania’s Democratic Senator Bob Casey who has written to United States Attorney General Loretta Lynch asking her to intervene in the case.

I expect that along with an inevitable surge in same-sex divorce, attorneys will be kept busy obtaining orders for the annulment of same-sex adoptions.

Lawdiva aka Georgialee Lang

Bill Cosby’s Friends Jump the Sinking Ship

_DSC4179 - Version 2Hollywood’s silence over the Bill Cosby rape allegations is hypocrisy at its finest. The celebrity personalities who are usually the first to voice their condemnation, whether asked or not, are either eerily quiet or entirely dismissive of the charges of over thirty mature women. It is scandalous to hear Hollywood feminists like Whoopi Goldberg and Phylicia Rashad suggest that Cosby’s victims are conspiring to destroy his legacy. It is classic victim-blaming. But worst of all, where is Oprah Winfrey, the queen of scandal?

But the tide is slowly turning against Bill Cosby as his supporters and defenders, silent and otherwise, are jumping ship, including Whoopi Goldberg who just this week resiled from her audacious support of Cosby, under pressure from her employer, the ABC Television network.

John and Jane Doe Public are also taking steps to take Cosby down a notch or two from the revered position he has held for decades.

The non-profit organization “Promoting Awareness Victim Empowerment”, a support group for sexual assault victims, has launched a campaign to revoke Bill Cosby’s Presidential Medal of Freedom, with an online petition on the White House’s “We the People” page. If they obtain 100,000 signatures by August 7, 2015 the White House is obliged to review and respond to the petition.

Central State University, a black college in Wilberforce, Ohio have covered up Cosby’s name on the university building named for him and his wife Camille, the Camille O. and William H. Cosby Mass Communications Centre. College officials have said they will decide whether to rename the building in the next few months.

In Orlando, Florida Walt Disney World has removed a statue of Bill Cosby that was erected at Disney’s Academy of Television Arts and Sciences Hall of Fame Plaza.

In Cosby’s hometown of Philadelphia a public mural, painted in 2008 celebrating Father’s Day, with Bill Cosby between South African leader Nelson Mandela and Archbishop Desmond Tutu, is now scheduled for removal.

Back in Hollywood, black civil rights leaders have asked the Hollywood Chamber of Commerce to remove Cosby’s star from their Walk of Fame, while industry insiders recognized his tarnished reputation months ago and cancelled a proposed new sitcom on NBC. Network TV Land removed their reruns of the 1980s-era “The Cosby Show” and Netflix cancelled a scheduled comedy special. Several other smaller networks, with an African-American focus, have also jumped ship.

Perhaps the biggest blow to Bill Cosby’s deny-deny strategy was the release this week of a videotape from a court proceeding in 2005 where Cosby drugged and allegedly sexually assaulted a female victim who sued him in civil court. In the video Cosby admits, under oath, that he plied his victim with quaaludes hoping for a sexual encounter.

Mr. Cosby settled the 2005 case for an unknown sum of money, which is the only way he can be punished for his criminal behaviour, since the United States has archaic limitation laws which provide that after a certain period of time an offender cannot be charged with a criminal offence. Canada does not have those restrictive laws.

For example, in Nevada, the locale of several of the current assault allegations, unless a victim files a written report within four years no criminal charges can be brought.

While reformers have lobbied for years to change the limitation laws, California celebrity lawyer Gloria Allred says that legislatures are very reluctant to do so and face powerful interest groups that lobby against it, including shockingly, Catholic clergy organizations.

While civil lawsuits can also face problems related to delay, my wish is that Bill Cosby face the music in civil court as soon as possible so that his victims can be compensated and exonerated where they have been called liars.

Lawdiva aka Georgialee Lang

Fashion Stylists Say Female Lawyers Lack Pizazz

DSC00507 (2)It was a beautiful day in Vancouver, hot and sunny, and with a little time to spare that day I decided to attend the swearing in ceremony of a newly appointed Court of Appeal judge, taking place at the Courthouse across the street from my office.

As I approached the courtroom I observed a sea of black-suited lawyers and slipped into one of the last remaining seats. As we waited for the proceedings to commence I noticed how many women lawyers were in attendance, more than usual, since the new judge was a well-respected female lower court judge.

Looking around I suddenly felt so out of place. I was wearing a mauve leather swing skirt, a very feminine pink and mauve blouse, and mauve three inch stiletto heels, in stark contrast to my female colleagues who were outfitted in boring black suits, mostly made of polyester, and sensible shoes that resembled oxfords.

After the ceremony an invitation was extended to join the Chief Justice for refreshments. Normally I wouldn’t hesitate to join the fun, but that day I declined, not wanting to “stand out” in the crowd. (That statement may be hard to believe, but true!)

That brings me to a controversial article in a California legal newsletter, The Marin Lawyer, written by fashion stylists Jill Sperber, also a lawyer, and Susan Pereczek, directed at lawyers in Marin County, an affluent area north of San Francisco that boasts the fifth highest income per capita in the United States at over $90,000 per annum.

In their article titled “Beyond Black: Revising the Lawyer Dress Code for Women” the stylists opine that “female lawyers in Marin are not winning their cases in the Style Department”, a statement that has elicited critical cries of blatant sexism.

As part of their investigation Ms. Sperber and Ms. Pereczek spent two mornings at the Marin County Courthouse where in their roles as “fashion police” they saw:

“mostly non-descript black pants (we counted a few skirts) with button downs or blouses in white or muted tones. Some didn’t bother with jackets. Few wore accessories.”

On the list of fashion faux pas they identified a lawyer wearing a burgundy velvet blazer on a spring day, and another in a tight knit striped miniskirt with a mismatched stripe blazer over a neon blouse, and teetering mules. It’s not a pretty picture!

Among their fashion “dos and don’ts” they suggest is a move away from black suits to a more colourful palette. They also urge female lawyers to use accessories to brighten up and polish their professional look.

A light-hearted article with good advice…what’s wrong with that?

Lawdiva aka Georgialee Lang

Is US Court’s Gay Marriage Ruling a Threat to Democracy?

BarristerToday’s gay marriage decision from the United States Supreme Court has the potential to create an even greater divide between America’s already polarized electorate.

In a 5/4 decision, the Court invented a new civil right under the banner of equal protection and due process of the law pursuant to the Fourteenth Amendment, by ruling that individual States cannot ban same-sex marriage.

The decision is neither unexpected nor surprising, however the chasm between the slim majority and the minority opinions is startling.

Mr. Justice Scalia characterizes the decision as a threat to American democracy and decries a system of government that makes the people subordinate to a committee of nine unelected patrician lawyers, who are strikingly unrepresentative of the people they serve. He notes the Court’s judges all have law degrees from Yale or Harvard, four of the nine are from New York, eight grew up in either east or west coast states, with only one judge from the large expanse between the two coasts, and not a single south-westerner.

He continues his provocative opinion by musing that the majority’s discovery of a new fundamental right in the Fourteenth Amendment has curiously been overlooked by some of the brightest legal minds in America, referring to Oliver Wendell Holmes, Learned Hand, Louis Brandeis, Benjamin Cardozo, and other brilliant jurists of the past.

Chief Justice John Roberts, in a separate dissent, writes that the majority has not just ignored America’s entire history and traditions but actively repudiates it. He laments that the Court’s imposition of its “reasoned judgment”, devoid of legal principles, or as Justice Scalia observes “lacking even a thin veneer of law”, is actually a lost opportunity for the gay and lesbian community who can no longer obtain true acceptance from their neighbours, “just when the winds of change were freshening at their backs”. Here the Chief Justice is acknowledging that only thirteen states now ban same-sex marriage.

Chief Justice Roberts rejects the majority’s view that Americans who did nothing more than uphold their understanding of marriage as between a man and a woman should be criticized for their alleged disparagement and disrespect of gays and lesbians. He describes the Court’s denouncement of citizens who uphold a Biblical view of marriage as a gratuitous assault on their character:

“It is one thing for the majority to conclude that the Constitution protects a right to same-sex marriage; it is something else to portray everyone who does not share the majority’s “better informed understanding” as bigoted.”

Mr. Justice Alito pursues a similar theme writing that the new law will be used to vilify those unwilling to assent to the new orthodoxy, noting that the majority compares traditional marriage laws to laws that denied equal treatment to African-Americans and women, an analogy that he fears will be exploited by those who wish to stamp out any vestige of dissent.

Justice Alito predicts the majority’s imposition of its views on America facilitates the marginalization of traditional Americans who may fall victim to the harsh treatment once afforded gays and lesbians. He says:

“…some may think that turn-about is fair play. But if that sentiment prevails, the Nation will experience bitter and lasting wounds.”

Mr. Justice Clarence Thomas sees the majority decision as a threat to religious liberty, as does the Chief Justice who remarks that the “good and decent people who oppose same-sex marriage as a tenet of faith and their freedom to exercise religion is, unlike the right imagined by the majority, actually spelled out in the Constitution.”

Justice Clarence states that the decision on same-sex marriage should have been left to the political process, as the Constitution requires, and had that happened the religious implications would have been considered. He identifies the potential of a ruinous assault on religious freedom.

The chasm between members of the Court is no more apparent than in Justice Scalia’s mockery of the majority’s finding that the marriage bond creates “other freedoms, such as expression, intimacy, and spirituality”, to which he replies “Really? Whoever thought that intimacy and spirituality (whatever that means) were freedoms?…The stuff contained in today’s opinion has to diminish this Court’s reputation for clear thinking and sober analysis.”

While there is much to celebrate in the gay and lesbian community, there is a silent majority who are disappointed, even angry, that their rights under the democratic process have been trampled by five elite lawyers.

Lawdiva aka Georgialee Lang

No Gender Bias in Family Courts Says Irish Academic

GEO CASUALA key finding in a new report on gender bias in family courts declares there is no indication of gender bias in contested cases about where a child should live.

The May 2015 report authored by Dr Maebh Harding, from the University of Warwick and
Dr Annika Newnham of the University of Reading is based on a document analysis of a retrospective of 197 case files from five county courts in England and Wales over a six month period in 2011. Of the 197 cases, 23 were custody disputes between a parent and another relative, usually a grandparent.

In the “two parent cases”, fathers initiated 70% of the applications, whereas only 30% of the cases started with an application by a mother.

The most common type of court application was for an order to allow contact or access, making up 41% of their sample. Fathers brought 96% of all access applications. The majority of these applications were made in order to initiate or restart contact.

Applications which sought a sole residence order made up 43% of the sample. Similar numbers of applications for sole residence were made by fathers (32) and mothers (30) but their reasons for going to court differed.

Joint custody and joint residence applications amounted to only 7%.

Notably, in 2011 there was no presumption in the British law that the involvement of a non-resident parent would further a child’s welfare. In 2014 this presumption was added to the governing statute, the Children Act 1989.

In my view, the analysis of the data in the report suffers from the absence of real-life experience in the family law trenches. Let me give you some examples:

1. The authors discovered that in 51% of cases the father had been cut off from contact with the child and that in almost half of the parent cases (86 out of 174) mothers had made allegations of domestic violence against fathers. However, in only 45 of the 86 cases was their sufficient evidence of family violence.

The report reads “Court investigations into the truth of domestic violence allegations were rare and took place in only 21 of the 86 cases in which allegations of domestic violence were made.

Where fact-findings were held, few ended in a clear determination on the alleged facts. Instead, the question of domestic violence tended to be reconceptualised as being primarily about reducing the risk to the child and facilitating as much contact as was possible in the circumstances.”

In other words, even unproven domestic violence was used to minimize a father’s role in parenting.


2. The authors found that many of the cases took two years to resolve but expressed little concern about the delay saying:

“Time taken in the court process should not always be viewed as unnecessary delay. Cases need time to build trust between the parties and reach a workable child-centred conclusion ensuring contact was safe.”


3. The authors opine that going to court did not amplify or entrench the conflict between the parties finding that the vast majority of cases were resolved by consent orders. Only 25 of the 174 parent cases ended in a contested final hearing.


Perhaps if academics conferred with family law lawyers when analyzing court data they would gain insight into the dynamics between feuding parents; understand the nuances and strategies employed by parents who seek to discount or eliminate the other parent; understand that children need both parents in their lives; and resist the attraction of the “primary parent” philosophy that is no longer relevant in today’s world.

The report is titled “HOW DO COUNTY COURTS SHARE THE CARE OF CHILDREN BETWEEN PARENTS?” and can be found at http://www.nuffieldfoundation.org.

Lawdiva aka Georgialee Lang

Not Male or Female, But Bi-Gender

DSC00275_1As medical experts dig deeper into the world of sexual orientation and gender identity, their research expands this field of knowledge in ways that are nothing less than bizarre. Case in point is the work of Dr. Vilayanur Ramachandran, Director of the Centre for Brain and Cognition at the University of California, San Diego, who claims to have discovered a new gender which is neither male nor female, but bi-gender.

The condition identified by Dr. Ramachandran, called “alternating gender incongruity” or AGI, occurs when people involuntarily switch between male and female. Individuals with AGI experience phantom breasts or genitalia of the opposite sex, according to the highly respected neuroscientist.

His study considered 32 people who registered on an online bi-gender forum, 11 women and 21 men. One-third of the group said their gender switching was predictable; a majority switched weekly while 14 others said they switched once or more daily.

Dr. Ramachandran said that his findings to date indicate that between the extremes of male and female is a “spectrum of a poorly understood and poorly studied group of ambiguously defined sexual identities that are very much part of the human condition.”

He did, however, caution that his results are suggestive, but not conclusive of his theory, and that he still needs to rule out multiple personality disorder or role-playing by his research subjects and ascertain whether there are biological indicators present, such as fluctuating hormone levels.

His research also revealed that those with AGI had a tendency to ambidexterity and bipolar disorder. Nonetheless, while admitting that more work is required, scientists are pushing for a new category of transgender or neuropsychiatric condition.

Ryan Wigley, age 22, also known as Ria Wigley, describes to The Mirror, a British publication, what it feels like to be bi-gender:

”It hit me that I was two genders, it’s so confusing…

“I have to guess which I’ll be the next morning to plan my day. I try to work out how I feel the night before.

“If I feel more feminine I’ll have a shower and set my alarm earlier so I have time to get ready.

“If I feel like a girl several days in a row, the upkeep is hard. I need to shave my face, chest and legs every day, wash my hair and keep my make-up in place.

“I feel like I prefer to be female but I’m much more relaxed in what I look like when I feel like a man.”

Ryan/Ria has an understanding girlfriend who accommodates his dual gender identity. Speaking of confusion, I can only imagine how baffled his acquaintances, friends and workmate are!

The medical exploration of strange phenomenon is nothing new for Dr. Ramachandran who earlier investigated “synaesthesia”, a condition affecting millions, where one’s senses are intermingled; people can taste words, hear colours and feel sounds.

Lawdiva aka Georgialee Lang