Speaker 1: This is Bloomberg Law with June Brusso from Bloomberg Radio.
Speaker 2: The battle between President Joe Biden and House Speaker Mike
Speaker 2: Johnson over Ukraine aid and immigration policy is coming to
Speaker 2: a head this week as Congress races to avert a
Speaker 2: January twentieth partial lapse in government funding. Leaders of both
Speaker 2: parties announced the contours of a spending plan yesterday, but
Speaker 2: it doesn't include the sixty one billion dollars in aid
Speaker 2: to Ukraine that Biden wants or the stringent border protections
Speaker 2: that conservative Republicans want. Last week, Johnson led a delegation
Speaker 2: of Republican lawmakers to the southern border in Texas.
Speaker 1: Last month alone, we saw the most illegal crossings in
Speaker 1: recorded history.
Speaker 3: It is an unmitigated disaster, a catastrophe.
Speaker 2: White House Press Secretary Kareem Jean Pierre called it a
Speaker 2: political stunt. And this immigration system has been broken for
Speaker 2: days and we need to have a bipartisan agreement to
Speaker 2: move forward on how to deal with the system. During
Speaker 2: me is Leon Fresco, a partner at Holland and Knight
Speaker 2: and the former head of the Office of Immigration Litigation
Speaker 2: at the Department of Justice. How much pressure is there
Speaker 2: on Biden to strike a deal considering the unprecedented number
Speaker 2: of migrants at the southern border last month. Also, a
Speaker 2: CBS News poll published Sunday found that two thirds of
Speaker 2: Americans disapprove of his approach to the US Mexico border.
Speaker 1: I've personally been in touch with some of the people,
Speaker 1: and I'm the staff negotiating this deal, and i can
Speaker 1: tell you that there is a lot of pressure that
Speaker 1: the White House feels under to reach a deal. They
Speaker 1: are actually pretty much trying to circumvent a lot of
Speaker 1: the traditional groups that sort of advocate for more compassionate
Speaker 1: immigration laws and are really trying to come to a
Speaker 1: deal with the Republicans, basically meeting them ninety percent of
Speaker 1: the way to where they want to go to, which
Speaker 1: would mean dramatic reductions in the ability for people to
Speaker 1: ask for asylum through the southern border if they enter
Speaker 1: illegally across the border. Basically under that scenario, they would
Speaker 1: be pushed back into Mexico and making people have to
Speaker 1: go in through the ports of entry instead of having
Speaker 1: to go in between the ports of entries where they
Speaker 1: wouldn't be allowed. They would just be pushed back, and
Speaker 1: the basic leftover issue that hasn't been fully resolved is
Speaker 1: can the president actually bring in people legally using his
Speaker 1: parole power during this time period or would there be
Speaker 1: some time periods if the if the amount of crossings
Speaker 1: was too high, that then that parole period would be limited.
Speaker 1: And I think that's the final issue that they haven't
Speaker 1: come to an agreement on. But there is going to
Speaker 1: be an agreement. That's going to upset. I think both
Speaker 1: sides of the left will be upset because this era
Speaker 1: of being able to sneak across the border and as
Speaker 1: for asylum is going to be over. That's going to
Speaker 1: be eliminated by this compromise even when it gets reached.
Speaker 1: And on the right, they will be upset that there
Speaker 1: will be some authority that the president will still be
Speaker 1: able to keep to let people in if there are
Speaker 1: circumstances that mayrit letting people in. And so you're going
Speaker 1: to see whether you can cobble together enough of a
Speaker 1: centrist coalition to say that there's been a success on
Speaker 1: border policy.
Speaker 2: Has a Biden administration used immigration parole more than other
Speaker 2: administrations and why is that such a sticking point for them?
Speaker 1: Yes, it has. In fact, there's been this thing called
Speaker 1: the ch and V the Cuban Hation Nicaragua and Venezuelan
Speaker 1: parole program where they're letting in thirty thousand people a
Speaker 1: month to just apply using the parole program to be
Speaker 1: able to come legally into the United States. And there's
Speaker 1: also what's called the Uniting for Ukraine program, which was
Speaker 1: a program that allowed Ukrainians to apply to enter the
Speaker 1: United States with paroles. And so the sticking point is
Speaker 1: if that's gone, then for situations like Ukraine or other things,
Speaker 1: if the President limits his authority to be able to
Speaker 1: bring in people those under those paroles, then there will
Speaker 1: be no way to bring people in. But these numbers,
Speaker 1: we're talking about something like five hundred thousand people being
Speaker 1: legally allowed to enter into the United States, in addition
Speaker 1: to the three million or so border crossers that are
Speaker 1: being apprehended on the southern border entering illegally. And so
Speaker 1: that's why the Republicans are saying they're concerned, is because
Speaker 1: they don't like those kind of numbers. And then one
Speaker 1: sort of prudential problem that happens with people who are
Speaker 1: paroled in the United States is great, you're parolled in,
Speaker 1: but then what happens in the year the parole expires,
Speaker 1: and very few people have another status they can switch
Speaker 1: to after this parole, and so that becomes another problem.
Speaker 2: Do you know what they've decided about, things like tightening
Speaker 2: asylum interviews and expanding expedited deportations.
Speaker 1: While I can't say every line of the bill what
Speaker 1: it's going to be, I can generally say that if
Speaker 1: they can reach an agreement that gets distributed to the Senators,
Speaker 1: there will be a recreation of the old Title forty two,
Speaker 1: which basically says that during periods of high migration, the
Speaker 1: United States will be able to shut people out who
Speaker 1: are coming in between the ports of entry, meaning they
Speaker 1: will be able to push people out without doing anything.
Speaker 1: So there will be no excuse to cross the border illegally. Now,
Speaker 1: there will be some exceptions for very urgent humanitarian concerns,
Speaker 1: but that's it. Other than that, there will be no
Speaker 1: asylum process that can be accessed by people crossing the border,
Speaker 1: and that will be triggered by certain thresholds of increased immigration.
Speaker 1: And that's going to be one aspect of it, and
Speaker 1: the second aspect of it will be even if you
Speaker 1: then get this opportunity to be questioned, it'll be at
Speaker 1: a higher level, so it will not be this credible
Speaker 1: fear process, but it will be at the higher level
Speaker 1: of the reasonable fear process, which in reality, what that
Speaker 1: means is it'll go from about an eighty percent success
Speaker 1: rate where you're allowed to stay in the country to
Speaker 1: about a forty to fifty percent success rate, whereby you'll
Speaker 1: be allowed to stay in the country.
Speaker 2: And could any of these changes be implemented under the
Speaker 2: current law.
Speaker 1: No.
Speaker 2: No.
Speaker 1: In fact, Congress would be changing the statutes, which is
Speaker 1: the thing that they haven't been allowed to do in
Speaker 1: the past, meaning there wasn't a congressional coalition that had
Speaker 1: enough votes to change the statute. So the idea is
Speaker 1: they would actually change the statutes, which would be quite
Speaker 1: the interesting development, and some people would actually argue that
Speaker 1: it would actually run us a file of treaties that
Speaker 1: we have written in the past adopting the Refugee Convention.
Speaker 1: But that can be done, meaning if the United States
Speaker 1: government wants to pull out of certain obligations that it's
Speaker 1: made under the Refugee Convention, it can do that by
Speaker 1: passing a statue that does that. But that may be
Speaker 1: what it actually has to end up doing here in
Speaker 1: order to vacate the previous commitments that made under the Refugee.
Speaker 2: Convention and the Mexican president in return for help and
Speaker 2: stopping illegal immigration, he's demanding the US give twenty billion
Speaker 2: to Latin America and Caribbean countries, grant work visas to
Speaker 2: ten million Hispanics who've worked in the US for at
Speaker 2: least ten years, and end sanctions against Venezuela and halt
Speaker 2: the blockade of Cuba. I mean, that's just not going
Speaker 2: to happen.
Speaker 1: Tho. They are unrealistic requests, and in fact, they actually
Speaker 1: cause a problem because they make President Biden look ineffectual.
Speaker 1: When President Trump wanted Mexico to do certain things with
Speaker 1: regard to immigration, he simply said, I'm going to pull
Speaker 1: out a NaSTA and I'm going to tax remittances and
Speaker 1: I'm going to tax cars at thirty percent. And that
Speaker 1: scared over Door enough that he was willing to actually
Speaker 1: move forward and do what Trump wanted. Whereas if he's
Speaker 1: making all of these demands for cooperation with Biden, who
Speaker 1: sort of isn't making these crazy demands back then, it
Speaker 1: sort of leads people to think, well, maybe Trump had
Speaker 1: the right approach here, which was to threaten Mexico. Now,
Speaker 1: I understand President Biden has wanted to be a good
Speaker 1: faith actor here, but if the good faith isn't rewarded,
Speaker 1: then you start to say, well, maybe there's other ways
Speaker 1: we need to deal with Mexico.
Speaker 2: Is the House going to be an impediment to this
Speaker 2: deal getting through?
Speaker 1: This is the issue which is, at the end of
Speaker 1: the day, what is the House going to do? Is
Speaker 1: there going to be a disagreement where President Trump says,
Speaker 1: no matter what deal is reached, that the deal is
Speaker 1: too weak. Does that cause too many House members to
Speaker 1: then defect because President Trump said the House is too weak?
Speaker 1: And then does that make Speaker Johnson have to make
Speaker 1: a decision between maintaining his speakership and funding the government.
Speaker 1: Because the problem is if the Senate actually reaches a
Speaker 1: deal and passes a deal to fund the government, which
Speaker 1: includes a border deal, which is essentially free money for
Speaker 1: the Republicans, from the standpoint that it will probably do
Speaker 1: very little to make Democrats happy. And if Republicans still
Speaker 1: reject that quote unquote free money on the border because
Speaker 1: they say it's not enough, then they're going to look bad.
Speaker 1: And that will put Speaker Johnson in a terrible position
Speaker 1: where either he will be blamed for shutting down the
Speaker 1: government or he'll lose his speakership for putting it up
Speaker 1: for what's called the vote on suspension, where Democrats would
Speaker 1: do most of the heavy lifting along with let's say
Speaker 1: fifty to sixty Republicans in order to pass the budget.
Speaker 1: But then that would lead the majority of his conference
Speaker 1: to be very upseted in and vote him out of the.
Speaker 2: Speakers coming up next for going to leave Congress and
Speaker 2: turn to the courts. New York has filed a suit
Speaker 2: against the bus companies bringing migrants to the city, and
Speaker 2: the Biden administration has filed a suit against Texas. I'm
Speaker 2: June Gross when you're listening to Bloomberg. New York City
Speaker 2: and Mayor Eric Adams announced a lawsuit against bust and
Speaker 2: transportation companies that helped transport asylum seekers from Texas to
Speaker 2: New York City, calling their actions bad faith conduct.
Speaker 3: Our administration filed a lawsuit against seventeen companies that have
Speaker 3: taken part in Texas Governor Greg Abbott's scheme to transport
Speaker 3: tens of thousands of migrants to New York City. In
Speaker 3: an attempt to overwhelm our social services system.
Speaker 2: The lawsuit seeked seven hundred and eight million dollars to
Speaker 2: cover the costs of caring for the migrants sent to
Speaker 2: the city. In the past two years, I've been talking
Speaker 2: to immigration law expert ly On Fresco, a partner at
Speaker 2: Holland and Knight. So this is based on a law
Speaker 2: news New York that penalizes people who quote bring a
Speaker 2: needy person from out of the state into this state
Speaker 2: for the purpose of making him a public charge. I mean,
Speaker 2: has there been another lawsuit like this before?
Speaker 1: Have there been other lawsuits that have tried to enforce
Speaker 1: provisions like this in other states and they've been ruled
Speaker 1: to be unconstitutional because they violate the Privileges and Immunities
Speaker 1: clause of the Constitution, whereby, you know, if you're in
Speaker 1: one state, you're allowed to go from one state to
Speaker 1: another state, and states can't ban you from being transported
Speaker 1: from one state to the other. There's interstate commerce issues also,
Speaker 1: and so from that standpoint, it makes it very difficult
Speaker 1: for the State of New York to make a claim
Speaker 1: like this, most likely that will be viewed as unconstitutional.
Speaker 1: They didn't even make the claim in federal court. They
Speaker 1: made the claim in the New York state court system,
Speaker 1: and I think the reason they did that is because
Speaker 1: they know that it's very little likelihood of success in
Speaker 1: this litigation. But they're just trying to make a point,
Speaker 1: especially since they're suing these bus companies. The bus companies
Speaker 1: probably don't want to spend a lot of money defending
Speaker 1: a lawsuit that they can at least try to get
Speaker 1: the bus companies to stop doing this and that will
Speaker 1: at least solve some of the problems. Whereas if they
Speaker 1: assume the state of Texas, that would have been a
Speaker 1: whole other thing, where Texas would have had just as
Speaker 1: many resources as New York to litigate this, and probably
Speaker 1: New York would have realized this was not a high
Speaker 1: likelihood of success. The issue is here, this may not
Speaker 1: be designed so much for success, but rather to put
Speaker 1: the bus companies usually don't have a lot of capital
Speaker 1: to a decision of whether they want to spend thousands
Speaker 1: and thousands of dollars litigating a lawsuit or would they
Speaker 1: rather just settle out by not bringing people into New York.
Speaker 1: And I think that was the calculation here.
Speaker 2: Let's go to the Biden administration last week suing the
Speaker 2: state of Texas over that new law that empowers the
Speaker 2: state to arrest people suspected of entering the country illegally.
Speaker 2: Is the Biden administration's lawsuit any different from the lawsuit
Speaker 2: that was filed by the County of El Paso.
Speaker 1: It's the identical claims. And there's actually president for this,
Speaker 1: which was in twenty twelve when Arizona tried to have
Speaker 1: similar laws that they enacted to try to take in
Speaker 1: immigration enforcement and make it a state issue. There was
Speaker 1: two lawsuits. There was one done by the ACLU and
Speaker 1: other private entities that sued the State of Arizona, and
Speaker 1: then there was a separate lawsuit that was done by
Speaker 1: the United States government that sued the State of Arizona.
Speaker 1: Here we have the same concept. We have one lawsuit
Speaker 1: which is the cities and private entities and others who
Speaker 1: are challenging the Texas law. And we also have again
Speaker 1: the same thing where the United States government in its
Speaker 1: own lawsuit challenges the Texas laws. And the theories in
Speaker 1: both cases are the same, which is that these efforts
Speaker 1: to inform the immigration law, even if they could be
Speaker 1: considered in harmony with the immigration code should still be
Speaker 1: viewed as preempted, because when states start to speak with
Speaker 1: different minds as to how the immigration law is to
Speaker 1: be enforced, then the federal government ceases to be able
Speaker 1: to do many important things in a unanimous way, meaning
Speaker 1: they don't the way they would deal with foreign nationals,
Speaker 1: the way they would deal with foreign governments, the way
Speaker 1: they would deal with various transportation issues. All of that
Speaker 1: becomes limited, and so all of that, hence should be
Speaker 1: preempted from being able to be taken into the hands
Speaker 1: of the states as opposed to having the federal government
Speaker 1: run a uniform immigration system. And so that's the theory
Speaker 1: of this. Lasses there's also theory that it violates both
Speaker 1: the interstate and the foreign commerce clauses, and those matter
Speaker 1: as well. From the standpoint again, like we've talked about
Speaker 1: the relationships you have with regard to other countries, and
Speaker 1: you're shutting down certain things with regard to immigration, do
Speaker 1: you unwittingly shut down legal areas of commerce as well?
Speaker 1: And from that standpoint, at least viz Are the President
Speaker 1: said in Arizona versus the United States, it's going to
Speaker 1: be very likely that there will be an injunction somewhere
Speaker 1: along the line, whether it's by the District Court or
Speaker 1: the Fifth Circus. But the question is does the Supreme
Speaker 1: Court end up overturning the Arizona law. And we have
Speaker 1: three justices. We have Justice Cony Barrt, we have Justice Cavanaugh,
Speaker 1: we have Justice Corsage that have never said anything about
Speaker 1: the Arizona case, and so will be interesting to see
Speaker 1: if those three will join Justice Alito and Justice Thomas
Speaker 1: who ruled in favor of Arizona during the time of
Speaker 1: the Arizona litigation, in order to create a five four
Speaker 1: majority for overturning the Arizona case and actually allowing Texas
Speaker 1: to enforce this law.
Speaker 2: The Fifth Circuit, if it's following the Supreme Court precedent,
Speaker 2: will rule against Texas here. However, the Fifth Circuit we've
Speaker 2: seen before not follow.
Speaker 1: Precedent correct It's possible the Fifth Circuit could say this
Speaker 1: is different than Arizona because at the end of the day,
Speaker 1: Texas isn't actually going to deport anybody. It's just going
Speaker 1: to put them right at the edge of the border
Speaker 1: and punish someone who that doesn't leave. But those distinctions
Speaker 1: are really dancing on the nail head of a pin
Speaker 1: And I don't think those distinctions, if one was analyzing
Speaker 1: this in good faith, make it any different than Arizona.
Speaker 1: And so really it will just become maybe whether the
Speaker 1: Fifth Circuit wants to have some language in there that
Speaker 1: is dicta saying, although we're bound by Arizona, we think
Speaker 1: this is a wrong opinion, and we hope that the
Speaker 1: Supreme Court takes it up and reverses it. I could
Speaker 1: see that easily happening, but we'll have to see how
Speaker 1: disciplined and how faithful the Fifth Circuit wants to be
Speaker 1: to the language of the Arizona Supreme Court decisions.
Speaker 2: And in yet another case involving Texas immigration and the
Speaker 2: Biden administration, the administration is asking the Supreme Court to
Speaker 2: step in and allow it to remove parts of the
Speaker 2: twenty mile fence along the southern border.
Speaker 1: So Texas has built fencing of razor wire fencing along
Speaker 1: its border, and it's about twenty nine miles of fencing
Speaker 1: along the southern borders, razor wire fencing along the Rio Grande.
Speaker 1: And what the Fifth Circuit did is they sighted with Texas,
Speaker 1: saying that Texas could sue and say that the federal
Speaker 1: government was committing toward the law violation by cutting down
Speaker 1: this wiring unless there was a humanitarian emergency or serious
Speaker 1: risk to human life. And what the federal government is
Speaker 1: saying is that's not how it works. There's a supremacy
Speaker 1: clause issue here, and the federal government gets to absolutely,
Speaker 1: under federal statute be able to decide what are the
Speaker 1: barriers that are actually placed between the United States and
Speaker 1: any foreignancy or anything on any border, and that that
Speaker 1: is the full authority of the Department of Homeland Security
Speaker 1: to do that. And so thus the State of Texas
Speaker 1: should be enjoined from doing this under the all ritzacs.
Speaker 1: And the point is they're saying that under the statutes
Speaker 1: eight USC. Thirteen fifty seven that they have the ability
Speaker 1: to access this land within twenty five miles of the
Speaker 1: border and be able to do anything they want to
Speaker 1: do within that land to protect the border. And if
Speaker 1: they feel in their judgment that this razor wire is
Speaker 1: harming their ability to do that, then they're permitted under
Speaker 1: the supremacy claus to cut down that wire. And so
Speaker 1: that's the question at the end of the day, is
Speaker 1: who's right. The State of Texas has the ability to
Speaker 1: sue the government for taking down its property under the
Speaker 1: Federal Court Plains Act. Or does the United States or
Speaker 1: the Supremacy Clause have the ability to say, no, you
Speaker 1: can't put up this razor wire fence.
Speaker 2: It sounds like an important question. Do you think the
Speaker 2: court will take it take the case?
Speaker 1: I think the Court will end up taking it. The
Speaker 1: federal government when they ask for a Supreme Court review
Speaker 1: on an issue, they usually get it. And because the
Speaker 1: state of affairs at the moment is that Texas has
Speaker 1: defeated the United States government on an issue that the
Speaker 1: United States government says is inverted visa visa supremacy clause,
Speaker 1: the Supreme Court usually does get involved there to decide
Speaker 1: who's right about that.
Speaker 2: So there may be a few immigration cases the Supreme
Speaker 2: Court steps into. Thanks so much, Leon, that's Leon Fresco
Speaker 2: of Holland and Knight coming up next. Share wants a
Speaker 2: conservatorship over her son Elijah Blues money. I'm June Gross
Speaker 2: when you're listening to Bloomberg. Scherf has filed a petition
Speaker 2: for control of the finances of her son, Elijah Blue Allmen,
Speaker 2: saying his struggles with addiction and mental health have left
Speaker 2: him unable to manage his money. The forty seven year
Speaker 2: old Almon receives money from a trust left by his
Speaker 2: late father, musician Greg Alman, but an LA judge refused
Speaker 2: to immediately put Almond into the conservatorship that sha is seeking,
Speaker 2: and he is opposing. The court will take up the
Speaker 2: issue again at another hearing on January twenty ninth. Joining
Speaker 2: me is Chris Melcher, a partner at Wallser Melcher and Yoda.
Speaker 2: So is Shaer asking for a conservatorship over his finances
Speaker 2: or over his person.
Speaker 4: Petition for a conservatorship over the estate, which would give
Speaker 4: her control over his financial affairs. She did not check
Speaker 4: the box for a conservatorship over the person, which is
Speaker 4: the most restrictive type of conservatorship that would have given
Speaker 4: her control over essentially his body. You know, where he
Speaker 4: goes and who he sees, where he lives, medical decisions,
Speaker 4: those type of things were not requested. It was a
Speaker 4: over financial affairs only.
Speaker 2: So this is different from let's say the Britney Spears conservatorship.
Speaker 4: That's right, Brittany found herself under the most restrictive type
Speaker 4: of conservatorship possible, where all of her liberties were essentially
Speaker 4: stripped from her and granted to her father because that
Speaker 4: was a conservatorship of the person and also of the estate.
Speaker 2: We'll explain why she's asking for this conservatorship.
Speaker 4: Sure, so, a conservatorship over the estate, meaning financial affairs,
Speaker 4: can be imposed for an adult when that person is
Speaker 4: unable to resist fraud or undue influence, usually because of
Speaker 4: some kind of health condition. So Share is claiming that
Speaker 4: Elijah Blue, you know, has a history of substance abuse
Speaker 4: problems that have been severe. I think Elijah Blue acknowledges
Speaker 4: that he's, you know, had these problems. I mean, how
Speaker 4: could he not. He's been in and out of rehab.
Speaker 4: So Share is under the belief that if Elijah Blue
Speaker 4: had access to all of his money and apparently there
Speaker 4: was going to be some other big distributions I think
Speaker 4: coming up, that he would waste all the money on
Speaker 4: drugs or you know, be taken advantage of, and that
Speaker 4: this was such a severe problem that he has that
Speaker 4: it could kill him. That that it's not just that
Speaker 4: his money would be gone, but that he would take
Speaker 4: so many drugs that he would die from. It is
Speaker 4: the you know, the peril or risk that Share was
Speaker 4: alleging to grant her financial control over his.
Speaker 2: Life, and so what factors does a judge way in
Speaker 2: determining this.
Speaker 4: So the first question is in this type of situation
Speaker 4: is I mean, ultimately, can Elijah Blue resist fraud and
Speaker 4: undue influence? So what physical or psychological problem does Elijah
Speaker 4: Blue have that would prohibit him or keep him from
Speaker 4: resisting efforts to defraud him or efforts to take advantage
Speaker 4: of him. That's the standard under the California Probate Code.
Speaker 4: The Probate Code in this particular situation doesn't say anything
Speaker 4: about drug or alcohol view substance abuse problems. It's talking
Speaker 4: about the inability of an adult to resist fraud or
Speaker 4: undo influence, such that we need to take away that
Speaker 4: adults ability to manage their own financial affairs and place
Speaker 4: them into the hands of another. So again that she's
Speaker 4: a little bit off base in terms of the you know,
Speaker 4: the box that she needs to fit into for conservatorship
Speaker 4: over the estate, because the California Probate Code doesn't say
Speaker 4: that someone who might waste their money on drugs or
Speaker 4: alcohol needs to have the right to manage that money
Speaker 4: taken away that that's not the test. So here she's
Speaker 4: would need to establish that this substance abuse problem that
Speaker 4: he has rises to such an extreme level that if
Speaker 4: he had management over his bank account, for example, that
Speaker 4: someone would somehow convince him to give them all of
Speaker 4: that money. You know, that basically be fraud him or
Speaker 4: pressure him to spend money on things that a normal
Speaker 4: you know, adult would not do, you know, taking advantage
Speaker 4: of some position or trust and confidence, these type of things.
Speaker 4: And she just has not been able to develop that
Speaker 4: evidence because you know, I don't think she has this
Speaker 4: day to day relatelationship with him to know even who
Speaker 4: these folks are other than the wife that at the
Speaker 4: time was filing for divorce that she alleged that certainly
Speaker 4: would not be an appropriate person to manage his affairs
Speaker 4: because they were going through a divorce at that time.
Speaker 4: Sharedas doesn't have access to the information to know, like,
Speaker 4: who are these people who are going to take advantage
Speaker 4: of him? Have people in the past taken advantage of him?
Speaker 4: Why can't Elijah Blue resist efforts to defraud or exert
Speaker 4: undue influence over him compared to any other adult? And
Speaker 4: I would just note that there are plenty of high functioning,
Speaker 4: sophisticated adults who are defrauded. What happens in fraud cases
Speaker 4: is that there's con men or confidence men that are
Speaker 4: experts at obtaining trust and confidence in others for purposes
Speaker 4: of defrauding them. And it's humiliating and horrible. But you know,
Speaker 4: look at the Mateoff's you know scam. I mean, there
Speaker 4: was very sophisticated investors who were defrauded, I made off
Speaker 4: who don't need to be under a conservatorship. So this
Speaker 4: level of inability to resist fraud and undue influence has
Speaker 4: to be so severe that there are no less restrictive
Speaker 4: means available other than removing Elijah Blue's ability to manage
Speaker 4: his own finances and place them and share his hands.
Speaker 2: He also said that he's been sober for more than
Speaker 2: three months, is atchanting alcoholics anonymous meetings, and is willing
Speaker 2: to submit to drug tests.
Speaker 4: Yeah, that was an unusual request in a conservatorship case
Speaker 4: that you know, initial stages like we have right now.
Speaker 4: The question is whether he even needs one or not.
Speaker 4: And Elijah Blue is saying, no, I don't, and that
Speaker 4: although you know, he appreciates the sentiment by his mother
Speaker 4: that this is unwelcome, you know, meddling, and that she
Speaker 4: should kind of mind her own business essentially, is what
Speaker 4: his response was. He also said that while he he
Speaker 4: has had severe problems with drug and alcohol abuse in
Speaker 4: the past, that he's been sober, he's going to AA
Speaker 4: and then he volunteered to you know, submit to some testing. Now,
Speaker 4: the way that I read that response is not to
Speaker 4: submit to court orders or you know, compliance, but it
Speaker 4: was just a showing that he recognizes that he has
Speaker 4: a problem and that he is managing at as best
Speaker 4: as he can, and he doesn't need to have his
Speaker 4: rights taken away from him. You know, there there are
Speaker 4: other devices, you know, legally available to someone who is
Speaker 4: unable to care for themselves as a result of some
Speaker 4: severe drug and alcohol problems, and that would hopefully start
Speaker 4: with somebody voluntarily checking themselves into a rehab program, which
Speaker 4: he has done previously. And the benefit of that is
Speaker 4: is that if he's doing so voluntarily, there's probably a
Speaker 4: better chance of him succeeding because this is his own
Speaker 4: desire to get help, rather than being forced upon him,
Speaker 4: or that he's going through the motions of a rehab
Speaker 4: because of some court case that he wants to get
Speaker 4: out of, and that's not as probably effective if someone
Speaker 4: is unable to do that and has such a serious
Speaker 4: problem that they're unable to care for themselves or that
Speaker 4: they're a danger to others, then the state of California
Speaker 4: has the authority to protect him from himself or others
Speaker 4: by imposing a you know, fifty one to fifty psychiatric
Speaker 4: hold on him. And again that that's a very severe situation,
Speaker 4: not not just for drug abuse. It would have to
Speaker 4: be to the level where he's unable to care for
Speaker 4: himself or that he's you know, such that he's a
Speaker 4: danger to himself for others. So that is a state
Speaker 4: imposed mechanism that takes away temporarily his rights for his
Speaker 4: own protection. That is not a mother would do for
Speaker 4: a son. So again, that protection already exists, you know,
Speaker 4: for a limited period that the state could do. The
Speaker 4: state hasn't done that, and so that would indicate that
Speaker 4: his problems may not be as severe as Share claims,
Speaker 4: because why hasn't the state, you know, put a fifty
Speaker 4: one to fifty hold on him. So I think when
Speaker 4: Elijah Blue came to court in person, he showed up
Speaker 4: from the photographs of him walking out, he looked healthy.
Speaker 4: He was certainly not missing as Schaer had insinuated that
Speaker 4: he had gone missing. He was there in person. I
Speaker 4: note that Share did not show up in person. So
Speaker 4: I think the chances of Share getting this conservatorship are
Speaker 4: very low, especially the way that she handled some of
Speaker 4: the things procedurally. It was not a good look for
Speaker 4: her in court.
Speaker 2: Yeah, there was this strange thing. The judge said that
Speaker 2: SHARE's attorneys were unwilling to share material with Allman's attorneys,
Speaker 2: and that Sharre's lawyers said they had confidentiality concern and
Speaker 2: shared the documents instead with Allman's court appointed lawyer. So
Speaker 2: he has a court appointed lawyer and his own lawyer.
Speaker 4: Well he did. These conservatorships are you know, a deprivation
Speaker 4: of liberty. This is the court taking away somebody's liberty interests,
Speaker 4: in this particular case, a request to take away the
Speaker 4: ability to manage, you know, an adult's financial affairs and
Speaker 4: placing him in the hands of another adult. So for
Speaker 4: this to be imposed, there's a couple of things that
Speaker 4: need to happen. One is notice has to be given.
Speaker 4: It has to be I think it's fifteen days of
Speaker 4: notice to the proposed conservative Elijah Blue that he has
Speaker 4: to be brought to court in person, you know, unless
Speaker 4: he's truly missing, he has to be brought to court
Speaker 4: in person so that the court can make its own assessment.
Speaker 4: The court will also have a social worker do an assessment.
Speaker 4: And then he has a right to counsel and so
Speaker 4: the court will appoint that council for him. He also
Speaker 4: has a right to hire his own own attorney, and
Speaker 4: so when the court made its initial orders, it appointed
Speaker 4: council for him. And again this is really without any
Speaker 4: opportunity for him to, you know, say anything. And then
Speaker 4: once he found out about it, he hired his own
Speaker 4: attorney and that attorney contacted Shares attorney and said, look,
Speaker 4: we need all the court papers that you filed, and
Speaker 4: they said no, you know.
Speaker 2: That is no, you can't have the court papers.
Speaker 4: It is it is horrific violation of his rights. And
Speaker 4: this is what happened to Britney Spears. It was even worse.
Speaker 4: The court there at the Los Angeles Superior Court violated
Speaker 4: her rights under the Probate Code by imposing a conservatorship
Speaker 4: over her without notice while she was under a fifty
Speaker 4: one to fifty hold and appointed a council for her.
Speaker 4: And when she hired her own attorney at Shepherd Mullen.
Speaker 4: That attorney came into court to advocate on her behalf
Speaker 4: and was thrown out out of court and said we
Speaker 4: won't recognize you. So here, you know, this had the
Speaker 4: kind of similar bad vibes about it, where Elijah Blue,
Speaker 4: who obviously has sufficient capacity to hire a lawyer, hires
Speaker 4: a lawyer and Shares attorneys won't give him the information
Speaker 4: that he needs to respond to a request to take
Speaker 4: away his rights citing his own his own privacy. I mean,
Speaker 4: how could Elijah blues privacy rights being violated by providing
Speaker 4: information to Elijah Blue. It's absolutely ludicrous. And so this
Speaker 4: is an overreaching by Sharer's attorney, and the court was
Speaker 4: very critical of Share for doing that because you know, again,
Speaker 4: the whole concept here is that we have one adult
Speaker 4: who is in such despair that they are unable to
Speaker 4: properly you know, care for themselves and can't resist fraud
Speaker 4: or undo influence such that mom needs to come in
Speaker 4: there and take care of him. But then Mom isn't
Speaker 4: respecting his rights, isn't respecting the right that Elijah Blue
Speaker 4: has to at least see the court papers. You know,
Speaker 4: he saw some of them but not all of them
Speaker 4: at least see all of the court papers that she
Speaker 4: had filed. That again calls in to question her motivations.
Speaker 4: Why is she doing this? Why is she acting so
Speaker 4: quickly to take away his financial rights when I think
Speaker 4: there is maybe some distributions coming in there so she
Speaker 4: could get control over them without giving him a fair
Speaker 4: chance to even see all the court papers that she's
Speaker 4: filing against them, or communicate with his own chosen attorney.
Speaker 4: And then I would also note that if his problems
Speaker 4: are so severe, why didn't she check the box for
Speaker 4: conservatorship over the person? Because if he's such a danger
Speaker 4: that he's going to go and take drugs and kill himself, well,
Speaker 4: then why wouldn't she force him in the rehab because
Speaker 4: that would be the only true way of protecting him.
Speaker 4: I mean, he doesn't need a lot of money to
Speaker 4: get access to dangerous drugs and kill himself. But she's
Speaker 4: only sought the control over his finances, but she did
Speaker 4: not seek the ability to force him into a rehab,
Speaker 4: which is the help that he would truly need if
Speaker 4: she were correct. So this is again a complete misfire
Speaker 4: by her, and I don't know what her true motivations are,
Speaker 4: but it raises the hypothesis or theory that she is
Speaker 4: more interested in obtaining control over his finances than truly
Speaker 4: protecting him.
Speaker 2: The judge obviously denied the conservatorship at this point and
Speaker 2: scheduled another hearing for January twenty ninth. Our judge is
Speaker 2: much more reluctant to impose any kind of conservatorship in
Speaker 2: the light of the Britney Spear conservatorship.
Speaker 4: You know, one of the benefits that came out of
Speaker 4: Britney Spear's abuse of conservatorship was there is more attention
Speaker 4: being paid on these, at least the celebrity conservatorship cases.
Speaker 4: And you know, unfortunately for the non celebrities, you know,
Speaker 4: who is really watching those cases. It's really up to
Speaker 4: the court, the court appointed attorney and the social workers
Speaker 4: who are doing the investigations that are expected to protect
Speaker 4: these folks who allegedly need protection so that they're not
Speaker 4: taking advantage of by the conservators who are placed in
Speaker 4: control of their lives. So certainly, after Brittany, and I
Speaker 4: think we are seeing a Brittany effect here in the
Speaker 4: sharecase that the judges is acting appropriately and stepping up
Speaker 4: quickly and criticizing Share for not having, you know, observed
Speaker 4: the rights of her son to have counsel of his
Speaker 4: own choosing, and for that council to at least see
Speaker 4: all the court papers that were filed, and they're taking
Speaker 4: a much more appropriate look at it, because, again, as
Speaker 4: we've been discussing here, there are some logical problems with
Speaker 4: what Share is asking for it. I can't imagine what
Speaker 4: it must be like for a parent to have a
Speaker 4: child who has long term substance abuse problems, and I'm
Speaker 4: sure that's very scary for her, and she feels helpless
Speaker 4: and she wants to act and do all this, and
Speaker 4: it's I'm sure horrible what she's going through and trying
Speaker 4: to protect her son. But the way she's going about
Speaker 4: it is not legally correct and is probably not likely
Speaker 4: to succeed. And fortunately we have a judge here on
Speaker 4: the case that is protecting his rights.
Speaker 2: We'll see what happens at the next hearing. Thanks so much, Chris.
Speaker 2: That's Chris Melcher, a partner. Walls are Melcher and Yoda,
Speaker 2: And that's it for this edition of the Bloomberg Law Podcast.
Speaker 2: Remember you can always get the latest legal news by
Speaker 2: subscribing and listening to the show on Apple Podcasts, Spotify
Speaker 2: and at bloomberg dot com, slash podcast, slash Law. I'm
Speaker 2: June Grosso and this is Bloomberg