Trump’s Lawyers Will Get Away with Facilitating His Anti-Democratic Antics and They Know It

AUSTIN SARAT

Austin Sarat—Associate Provost and Associate Dean of the Faculty and William Nelson Cromwell Professor of Jurisprudence & Political Science at Amherst College—predicts that because the lawyer discipline process is broken, President Trump’s lawyers will get away with facilitating his anti-democratic misconduct. Professor Sarat notes that Lawyers Defending American Democracy (LDAD) released a letter calling on bar authorities to investigate and punish members of Trump’s post-election legal team, but he points out that while LDAD can shame those members, it still lacks the ability itself to discipline or disbar.

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In re T.G.

Court: California Courts of Appeal

Dockets: B303987(Second Appellate District) , B304055(Second Appellate District)

Opinion Date: December 8, 2020

Judge: Dennis M. Perluss

Areas of Law: Family Law, Native American Law

At issue in these two appeals is whether the juvenile court and the Los Angeles County Department of Children and Family Services complied with their duties of inquiry and notice under the Indian Child Welfare Act of 1978 (ICWA) and related California law. The Court of Appeal agreed that the Department failed to adequately investigate mother's claim of Indian ancestry and the juvenile court failed to ensure an appropriate inquiry had been conducted before concluding, if it ever actually did, ICWA did not apply to these proceedings. Therefore, the court disagreed with the holding In re Austin J. (2020) 47 Cal.App.5th 870, 888-889, that amendments enacted by Assembly Bill No. 3176 were intended to limit the Department's robust duty of inquiry. The court conditionally reversed the orders for legal guardianship and remanded the matters to allow the Department and the juvenile court to rectify their errors and to take all other necessary corrective actions.

Barton a/k/a Jorgensen v. Barton

Court: Supreme Court of Mississippi

Citation: 2019-CA-01214-SCT

Opinion Date: December 3, 2020

Judge: Michael K. Randolph

Areas of Law: Family Law

Christine Barton (Jorgensen) appealed a chancery court ruling, arguing it was an abuse of the court's discretion in failing to enter a final domestic-violence protection order and by failing to appoint a guardian ad litem. The pleadings revealed that Jorgensen not only failed to seek an extension of the temporary domestic-abuse protection order previously issued by a justice court judge but she also failed to request a final domestic-violence protection order. By statute, the justice court order expires thirty days after entry, as here, when the party seeking protection and the respondent have minor children in common. The Mississippi Supreme Court concluded there was no abuse of discretion and affirmed.

Petition of New Hampshire Division for Children, Youth and Families

Court: New Hampshire Supreme Court

Docket: 2020-0110

Opinion Date: December 9, 2020

Judge: Gary E. Hicks

Areas of Law: Civil Procedure, Family Law, Government & Administrative Law

The New Hampshire Division for Children, Youth and Families (DCYF) petitioned the New Hampshire Supreme Court for a writ of prohibition to prevent a circuit court from joining DCYF as a party to an ongoing guardianship case and from ordering the agency to provide services for the benefit of private litigants. This petition arose from a guardianship case involving an ongoing dispute between the father of a three-year-old child and the child’s guardians, who were the child’s maternal grandparents. The father alleged the child’s guardians were willfully interfering with his rights to unsupervised parenting time and notice of his child’s medical appointments as established by previous court orders. The circuit court credited the father’s allegations and expressed concern that the case “has not progressed” since the last hearing in September 2018. The trial court was ordered to provide services on a weekly basis to father, and joined DCYF as a party to the case. DCYF contended the circuit court lacked the authority to join the agency to the private case because no statute authorized the circuit court to do so. The Supreme Court agreed and, accordingly, granted DCYF’s petition for a writ of prohibition.

Noble v. Noble

Court: Vermont Supreme Court

Citation: 2020 VT 105

Opinion Date: December 4, 2020

Judge: Beth Robinson

Areas of Law: Family Law

Husband appealed the parties’ final divorce order relating to property division, arguing that the family division erred by: (1) barring him from conducting discovery of a non-party concerning a trust in which wife had an interest; and (2) awarding wife a lump sum as a retroactive temporary spousal award even though wife had neither requested nor been granted temporary spousal maintenance. The Vermont Supreme Court determined: (1) the Wife's interest in the trust was not vested or subject to modification or divestment as long as Wife's father was alive, so Husband was not entitled to discovery relating to the trust; and (2) the lump-sum payment as part of the property division was "well within" the trial court's discretion, and "any error by the court in characterizing the challenged $18,000 lump-sum award as a payment in lieu of a retroactive award of temporary maintenance is harmless." Accordingly, the Court affirmed.