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Federal Judge Says It Seems Bogus To Him

2/20/2008 5:55 PM PST BY TMZ STAFF

A Federal judge in the Britney conservatorship case has issued a tentative ruling that the move to make a federal case out of it is ridiculous.
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Judge Philip Gutierrez set a deadline of February 29 for Britney's so-called lawyer, Jon Eardley, to explain why on Earth the federal court has any business getting involved in Britney's mental affairs.

The court said it sure seems the Feds have no jurisdiction to interfere, and unless Eardley can convince the judge to the contrary, the case will go back to State court on Feb 29.

Stay tuned ...

146 COMMENTS

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136.

candy    

To one of the lawyers out there, please answer this question for me:

The way I understand it: the Fed filing states that Britney's rights have been violated. The conservator's won't allow her to contact friends, use the phone, etc. basic rights in the US. But if she doesn't have those rights, how did she contact this lawyer? How did she call him and hire him to represent her? If they won't allow her to use the phone, let alone find the phone number for a lawyer in New York? Don't the filing and the statement from this NY lawyer contradict each other?

2415 days ago
137.

Stop Blaming the Paps For Everything Brit Does    

137. .... The way I understand it: the Fed filing states that Britney's rights have been violated. The conservator's won't allow her to contact friends, use the phone, etc. basic rights in the US. But if she doesn't have those rights, how did she contact this lawyer? How did she call him and hire him to represent her? If they won't allow her to use the phone, let alone find the phone number for a lawyer in New York? Don't the filing and the statement from this NY lawyer contradict each other?

Posted at 1:32PM on Feb 21st 2008 by candy

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candy, that's the $64,000 question. Note that the attorneys for the co-conservators raised this inconsistency in what Eardley is contending ("Brit is being denied the right to use a phone, yet she called me and asked me to represent her") in footnote 5 on page 10. It's clear that Brit didn't seek out Eardley -- someone else did (and we can pretty guess who that was!). That's why the co-conservators have asked the court to require Eardley to identify the person(s) he is communicating with. Given that Eardley has been sanctioned before for filing a removal notice when he did not actually represent the party he purportedly filed for, it is probable that the court will grant the co-conservators' request and order Eardley to spill the beans. There is no attorney-client privilege between Eardley and those third parties, so he can be made to disclose what they told him.

2415 days ago
138.

jackie    

candy, that's the $64,000 question. Note that the attorneys for the co-conservators raised this inconsistency in what Eardley is contending ("Brit is being denied the right to use a phone, yet she called me and asked me to represent her") in footnote 5 on page 10. It's clear that Brit didn't seek out Eardley -- someone else did (and we can pretty guess who that was!). That's why the co-conservators have asked the court to require Eardley to identify the person(s) he is communicating with. Given that Eardley has been sanctioned before for filing a removal notice when he did not actually represent the party he purportedly filed for, it is probable that the court will grant the co-conservators' request and order Eardley to spill the beans. There is no attorney-client privilege between Eardley and those third parties, so he can be made to disclose what they told him.


Posted at 1:56PM on Feb 21st 2008 by lawdawg

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I agree that most likely she didn't seek Eardley out. I would like to add that she does have cellphone use though and they possibly spoke as a formality at some point. Of course it isn't legal for him to represent her. lawdawg, are you Neil?

2414 days ago
139.

candy    

xxxxxxxxxxx
I agree that most likely she didn't seek Eardley out. I would like to add that she does have cellphone use though and they possibly spoke as a formality at some point. Of course it isn't legal for him to represent her. lawdawg, are you Neil?


Posted at 2:40PM on Feb 21st 2008 by LOCK SAM UP


So now you say she has cellphone use? Doesn't that mean she is free to contact anyone and, at least, that civil right has not be violated? This lawyer claim is so bogus. If he did actually talk to her then she must be free to contact people. So his claims are false. I am beginning to wonder if she actually did talk with him or if it was someone else pretending to be her. Or this guy is looking for his 15 minutes and made the whole thing up. I hope he gets hit with paying the lawyer fees and any other costs that this fraudulent filing has caused.

2414 days ago
140.

DBK    

Okay, in the interest of clearing up some of the confusion on this site, I'd like to address some of the legal issues & errors. (1)
A lot of people have talked about Britney's "constitutional rights." First, the only rights that have been implicated are her due process rights under the 14th amendment, which applies exclusively to the states (in addition to any rights Britney may have under state law, which is not at issue in the removal petiton anyways). The entire point of a conservatorship is to limit some of an individual's due process rights--e.g., the power to make medical decisions for one's self or enter into contracts. However, the infringment on civil liberties her are relatively minor--they do not go to the heart of the 14th amendment. The probate court determined that some minor limitation of Britney's powers were necessary when balanced against the harm she posed to herself and others. Thus, there was NO violation of Britney's due process rights. A limitation of due process rights is very different from a violation, and no remedy lies where there is no violation. Second, legal questions involving due process limitations or violations do not generally invoke federal question jurisdiction. The probate court is perfectly capable of handling these issues.

Second, there is no merit to the claim that "U.S. court system strongly favors the mother in child disputes." Historically, the courts favored the fathers because they were the breadwinners and thus could support the children. For a brief period of time, some jurisdictions followed the "tender years" doctrine, which provided that when children were under a certain age (generally, when a child is nursing, learning to walk, etc.), they should live with the mother. The tender years doctrine has been abandoned in the majority of jurisdictions. Currently, the courts favor joint legal and physical custody, except where it interferes with the child's best interests. However, where sole or primary custody to one parent is requested or contested, the court gives consideration to whether a parent, mother or father, acted as the primary caregiver.
Additionally, the court rarely orders that a parent be prohibted from visitation rights with the child.

2414 days ago
141.

Stop Blaming the Paps For Everything Brit Does    

Posted at 2:40PM on Feb 21st 2008 by LOCK SAM UP: lawdawg, are you Neil?

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Heavens, no!!!!! What makes you even suggest such a thing? Ugh!!!!!

I merely pointed out that procedurally this will never be given a hearing in the US District Court because the "federal question" is such a specious claim. The Points & Authorities filed by Jamie Spears' counsel is an excellent analysis of what the law holds. I read the Graves & Sons opinion that Eardley cites, and it does not stand for the proposition that an itsy bitsy teenie weenie suggestion of federal law gives removal jurisdiction. In fact, Graves stands for just the opposite. There, a quiet title action was removed to the federal court because title turned on only one issue: whether the IRS had properly followed its own regulation in giving notice of its intent to foreclose on a tax lien. The whole case rode on the answer to that, and it was strictly a federal question. In Britney's case, the validity of a conservatorship depends only upon whether all standards and procedures were met to under California law.

2414 days ago
142.

DBK    

(continuing from the last post) - A parent's rights to visitation with her child is protected by the due process clause of the fourteenth amendment, which protects a parent's right to the care and custody of her children. Probate courts will interfere with this right unless it is in the best interests of the child to have contact with the parent limited. In this case, Britney has repeatedly demonstrated that she poses a danger to the children's physical and psychological welfare--driving them without proper child seats, dropping them on their heads, engaging in a sexually promiscuous lifestyle, engaging with dangerous or shady persons. Based on Britney's conduct, the probate judge could sever her parental rights permanently.

Third, some have raised the issue of John Eardley's representation. It is irrelevant whether Britney spoke to Eardley at all. By order of the probate court, Britney did not have the power to enter into contracts. Thus, any agreement between her and Eardley was voidable. Eardley knew this because he contested that very order. Without an attorney-client relationship, Eardley had no business filing anything in any court on behalf of Britney.

Any other legal questions--I'm here all day, and prefer surfing gossip blogs to doing actual legal work.

2414 days ago
143.

DBK    

lawdog, I agree wholeheartedly. A lot of posts seem to think that Britney has a "constitutional right" to have her case heard in federal court. Oy! Federal courts have limited jurisdiction, federal question in particular is narrowly defined and, indeed, disfavored. Even if there was a federal question here (which there is not), it would be completely dominated by state law issues, and remanded to state court on that basis alone. Taking away federal jurisdiction doesn't take away Britney's abiltity to be heard--it just changes where her rights can be heard.

I don't understand the whole removal thing, anyway. If this Eardley fellow was worried about Britney's rights and all this hooplah surrounding the conservatorship, other legal options spring to mind first: motions to transfer to a different district (a sure failure, though more in line with what he was seeking to accomplish) or replace members of the conservatorhsip (e,g., for breach of fiduciary duties). Although, given that he didn't have a client here, his only real legal option was to stay out.

2414 days ago
144.

Stop Blaming the Paps For Everything Brit Does    

DBK: Your posts are dead-on analyses. BTW, about your observation on breach of fiduciary duty, have you noticed how many bloggers are suggesting that Britney should sue her father for seeking the conservatorship? They don't seem to realize that, absent malfeasance on his part, there is no cause of action to pursue and, moreover, that the co-conservators enjoy limited judicial immunity. Britney surely is not happy about it, but it doesn't give rise to a legal cause.

2414 days ago
145.

LH    

This is what I stated would happen. California courts are already immeasurably clogged without every mentally challenged individual asserting that their civil rights are violated. Back in the days when TB was rampant -- imagine what would have happened if those victims protested being sent to the sanitorium?

Just let Jaime Spears and attorney Wallet make the decisions for Britney's well-being. She needs to go into a private institution to heal. I believe that she will heal. I believe that later this year, she will finally be ready to reunite with her children.

Don't let us down, Britney!

2414 days ago
146.

DBK    

Thanks, lawdawg. Ditto. I assume he gets some quasi-immunity because he is acting under the court's power/supervision? I'm not that familiar with conservatorships, but they seem pretty similar to an administer/trix of an estate or trustee of a trust. Courts are pretty loathe to replace such appointees in those situations, and often require more than ordinary negligence before they do so.

2414 days ago
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