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Permissum meus fides exsisto a Opus Dei

[Downloadable .pdf version for easier reading].

Make no mistake about it, your work
s do matter to your salvation.  Read the ‘red letters’ in your Bible.  The works required of you are neither difficult, nor for public glory, nor for any other purpose than the fulfillment of your Divine Destiny as someone asking for the Eternal Grace of God.  Empty faith alone will not suffice to meet the needs of your purpose in life.  Faith, however, is the only thing that will sanctify your works and Grace alone will suffice to overcome your inadequacies as a flawed human.  The Ultimate Price was paid so that this Grace might be extended to all of us.

Those who teach others to be complacent in the accomplishment of these necessary works, or  requiring others to do the work required of us alone, will not do well in the kingdom of heaven.  I directly challenge any reader of this article – Prove to me otherwise by the Words of Christ Himself.

Many Evangelicals, Mainline Protestants, Catholics and other Christian denominational faiths begin just about any theological debate with a view toward determining whether the opposition truly believes in salvation by grace alone, salvation by works, or some hybrid theory.  As with all theological debates about what it means to be a “Christian,” it seems that we all ought to take a look at the actual Words of Christ as a starting point.  This particular piece focuses on the ‘red letters’ as found in the Book of Matthew.  I cannot help but find that faith alone, without daily living proof of that faith, will not suffice.

I believe this article is timely given the death of the Kansas late-term abortionist, George Tiller.  Many of us pro-lifers, whether we want to admit it or not, felt a refreshing sense of relief that he is no longer able to tear apart babies who would have otherwise survived outside of the womb, but for his act of dismembering them or vacuuming out their brains.  By his own account, he may have taken as may as 60,000 infants’ lives.

Of course, for the Christian, the question becomes, “What if Dr. Tiller gave his life over to Christ in the last 30 seconds of life?”  Moreover, there exists a serious theological question as to whether the murderer of Tiller blasphemed the Holy Spirit by taking the life of Tiller in a church.  If Tiller’s potential plea for last-minute salvation failed, he went straight to Hell.  Even if Tiller’s shooter, Scott Roeder, was a holy person till that moment, if blasphemy unto the Holy Spirit occurred, he’s done as well.  The ‘red letters’ actually don’t leave much room for debate on these points.  Obviously, if one thinks that the Words are just a form of philosophy, good advice, or just simply one view among many, there is no sense in even attempting to understand the clear choices put before us.  The Good News is that we don’t need to personally worry about Tiller’s and Roeder’s issues since we have plenty to do ourselves to act upon our own Faith.

With these points in mind, a step-by-step analysis of Matthew reveals some interesting answers about whether we are required to engage in certain works before we may avoid the fires of Hell.  For me, the question is readily answered by even a cursory review of Jesus’ words.  The Great Story of the Book of St. Matthew is set forth as follows.

First of all, we are told that we cannot live by material means alone.  It is written that we must live by every word that proceeds from the mouth of God. (Matthew 4:4, KJV).  In this same vein, it also naturally follows that we should not participate in the temptation of God with the help of the Enemy (4:7).  These commands are then concluded with the thought that we are to commit ourselves unto God through our service and worship to Him alone. (4:10).  Oddly, the Scripture does not say that we are to make this commitment only by worship or belief alone.  This can only be reasonably construed to mean that my faith is not sufficient for salvation, but that faith with works is.  Our faith, however small, can grow into the greatest of works (even so much as moving a mountain) and we will need the Grace of God to be fully sanctified. (17:20;  19:23-24, 26;  21:21-22).

After Matthew recounts the time Christ spent in the desert with Satan, we are given a not so subtle description of why all of this matter.  It is summed up by saying “Repent: for the kingdom of heaven is at hand. [...] Follow me, and I will make you fishers of men.” (4:17, 19).

Well, what could “follow me” possibly mean?  Using the words literally, as I expect most conservatives would want me to, one can only get the conclusion that “follow me” requires acts coupled with faith.

Moreover, what does it mean to “repent”?  It can only mean that you live life as though you were in acknowledgment of your sins.  We all know that true repentance can only be shown by how we live our lives.  The “why” of how we live our lives is not something we can ever answer sufficiently.  When life is over, we will only find out why we lived our lives the way we did.  As we are later told, there will be plenty of folks knocking on the door, claiming His Name, and the door is simply not going to be answered.

Nevertheless, Matthew leads us to the first big sermon in Chapters 5 through 7.  Interestingly enough, these Chapters are not a big sermon on altar calls and faith standing alone.  They focus almost exclusively on the omissions and commissions to/of acts which lead to our place in Heaven, or, where in disregard of His Word, we end up with weeping, gnashing of teeth, or the fires of Hell.  It is also interesting that these words are being directed at people who obviously came to listen to Jesus, already believed in what he was doing, and he had to have already known that he was going to Calvary.  If he knew that he was going to Calvary to wash the entire slate for anyone who believed in him, he certainly spent a whole lot of arguably unnecessary time talking about what needed to be done by the believers and what they needed to avoid.  If the words were only suggestions, I sincerely doubt that he would have followed up commands or prohibitions with words stating that either Heaven or Hell would follow, not purely by the decision to believe in Him, but by how these things were done.

This said, the followers were told that the “blessed” are those who are poor in spirit, meek, who mourn, who hunger and thirst after righteousness, who are pure in heart, who are merciful, who are peacemakers, who are persecuted for righteousness’ sake, and when one is reviled for His sake. (5:3-11).  The result of which is made very clear.  It is said , “Rejoice, and be exceedingly glad: for great is your reward in heaven [...]” (5:12).  What could this possibly mean?  If I do the things commanded, I will find great reward in Heaven.  Each and every single one of the things mentioned requires that I do something.  There is no way to be any of these things without a work of the conscience, often coupled with an overt act toward another human being.  By way of our contemporary reference point, there are cogent arguments to be made that neither Tiller, nor his killer, demonstrated any of these characteristics as they completed their final works in life.  Whether or not their lives were an Opus Dei is not for us to decide per se.  We can only use their examples as a way to define or redefine our own daily existence.

After giving a description of those who will be blessed and given comfort, Christ goes on to tell the multitudes that they need to be a “light of the world” and that we are to “[l]et your light so shine before men, that they may see your good works. [emphasis added].” (5:16).  Now, obviously, given His prior words, our works cannot be done or committed in such a way that we are prideful, vain, or arrogant.  Our works need to flow forth from a heartfelt desire to allow our lives to become the ultimate act of service unto our Maker and those that he created to live with and amongst us.

Well, maybe you still have John 3:16 in mind (i.e., the penultimate “altar call” verse cited so often by contemporary Christians), and just don’t think that following the commands set forth in Chapter 5 are mandatory for entrance to heaven.  I must ask you then, why does Matthew 5:19 go onto say that the failure to abide in “these” commandments will result in being called “the least in the kingdom of heaven”?  Maybe that’s not enough for you.  It goes on to say, “For I say unto you, That except your righteousness shall exceed the righteousness of the scribes and pharisees, ye shall in no case enter into the kingdom of heaven. [emphasis added]. ” (5:20).  I’m not the brightest guy in the world, but this does certainly seem unequivocal.  Moreover, the “righteousness” being referred to follows directly from the beatitudes given to the crowd as instructions on what it means to follow Him.  Nary a word is said about simply doing an altar-call and being relieved of further duty to actually do works that one is capable of within one’s own calling in life or given environment.

Now, how these acts are carried out by each of us can only depend on where we are in life.  For example, a lawyer may be able to share his/her light in the courthouses.  An invalid may only be able to share his/her light in a convalescent home.  A mother may only be in a position to share her light with her husband and family.  I don’t think that He said that our works must occur in any certain place.  These works just must simply occur with the precedence of a pure, humble and willing heart.  Again, the failure to abide by the commandments to fulfill his Law and Word, results in being called the least in heaven.  The good news, at this early juncture in Matthew, is that one can conceivably still end up in heaven.  However, as will be seen later in the Book, there are several things one can do to make sure that you have no chance at the proverbial entrance ticket.

After given the admonition that the failure to abide in specific commandments will lead us to becoming the least in heaven, Jesus goes on to give some specific instructions about what will actually get us near or into the fires of Hell. (5:22).  The first one of these instructions being that simply calling a brother a fool is good enough to put us “in danger of hell fire.”  This is followed by the command that we not come before God to place our gifts before His altar until and unless we have forgiven others of whatever perceived transgressions they may have committed against us.  To the extent that we are called to lay our entire lives before the altar as a testimony unto Him and our fellow man, it does not seem to matter if we have not forgiven others.  I think it is all too easy to say that one has done an altar-call, placed their lives at the altar, but yet completely forget to forgive others in that process.  All too many of us do the altar-call, but don’t engage in the conscious act/work of forgiveness.

All too many of us forget that forgiveness is an act or work.  Any “act” or “work” by a human requires that we direct our conscious will toward a given outcome and take the steps necessary to fulfill the intended outcome.  If, for example, I want to forgive someone, then I must first will it so and then commit myself to the act of completing the forgiveness by consciously letting go any desire to seek revenge, to carry the baggage of the other’s sin, or to otherwise ‘hold it against the person’ until they have somehow repented in my view.  In fact, if there is any one consistent theme in the New Testament, it is that we are to engage in the work of forgiving others and in the work of accepting His Grace so that our works might be sanctified and our negligent omissions overlooked. (22:37-40).  By the way, it is so often said that “it isn’t easy to forgive.”  Actually, it is supposed to be easier than anything Christ did. (9:3-6).

Along these same lines, with regard to what it means to commit an “act,” Christ further admonishes His listeners to make sure that they not only avoid murder, adultery and other offenses, but that we avoid even the very intentional thoughts of these things.  With respect to those thoughts that occur to us without apparent reason, we are instructed to remove them immediately and take an immediate view toward the end goal.  In fact, we are specifically warned that if we do not commit the act of removing sinful thoughts and doings from our existence, that the whole “body should be cast into hell.” (5:27-32).

As though we didn’t have enough to do after actually listening to His words in Chapter 5: 3-32, Christ goes on to speak about what our words shall be unto others.  We are told that we are to keep our words simple and that we are not to swear by anyone, anything, or even by our own veracity. (5:33-37).

Now as for Tiller’s murderer, Verses 38-44 are particularly compelling.  This is where we are specifically told that the “eye for an eye” system of morality is done.  We are now to “turn the other cheek.”  In fact, we are even told to “love your enemies.”  We are “bless them that curse you.”  We are to “do good to them that hate you.”  We are to “pray for them which despitefully use you, and persecute you.”  (5:39-47).  In fact Verse 46 clearly suggests that there may be no “reward” for the failure to do these things that are commanded.  Where in Verses 38-44 does it say anything to the effect that we are just to have faith and that we not fully commit to doing these things as Christians?  Is prayer something other than an act of faith (i.e., a work)?

Chapter 5 ends by saying, “Be ye therefore perfect, even as your Father which is in heaven is perfect. [emphasis added].” (5:48).  How would one be “perfect” unless one acted in a way which presented itself as a standard by which God will judge whether or not we have achieved what his Son commands?  Obviously, what we do matters just as much as what we claim we believe.  The strength or existence of any belief in Christ can only be ascertained by our conduct since it is the conduct that defines the concept of what it means to have “faith.”  If one is not doing the acts which suggest the existence of actual faith, one cannot claim to have the faith.

Naturally, one would expect that this is all fine and dandy in theory.  However, one is left to wonder about how it is that one is supposed to commit all of these acts unto our Maker, without violating the requirement that we not do them for our own glory, but unto the Glory of our Maker alone. This is answered in Chapter 6.  We are told not to do our alms before Man, we are not to pray openly only for the purpose of being seen by others, we are not to make a big show out of our faith and sacrifices, and we are not to engage in vain repetition of prayers. (6:1-8, 16-17).  None of this suggests that we cannot rejoice with each other in our salvation, our reasons for acting the way we do, or in the consolation that we have a good reason for doing good unto others.  We can be a light unto the world without being blinding to others.

We are commanded, however, to pray in a way in a way that is in acknowledgment of the power of God, which respect His will for all of us (here and in heaven), that we receive the basic provisions of life, that we be forgiven as we forgive others, that we be given the help to avoid the sinful thoughts and actions that come, and that all glory be properly placed with Him and not us.  (6:9-14).  This is immediately followed up with the statement that, “But if ye forgive not men their trespasses, neither will your Father forgive your trespasses.” (6:15).  Again, this sounds very unequivocal to me.  If you don’t do this (i.e., forgive others), you will not be saved of your sins.

It is not enough that you simply have faith that so long as you believe in forgiveness, you will be forgiven.  You must actually do it in order to receive your reward !!!  As we engage in a life of forgiveness and service, we earn our due treasures. (12:35-37).  Our eyes must constantly be focused on this purpose and be focused in such a way as to where others have no doubt as to what we are looking at.  (6:20-23).  Along these same lines, you probably should not spend to much time thinking about what those who are already acting a in a Christian way are doing.  (9:13).  Our Master will see to it that the requisite number of workers are put into the field of life without us doing anything other than what is required of us whilst we act through and by a Christian heart and soul.  (9:37-38).  If you attempt to have an influence on someone through your humble service, or words of preaching, and they want no part of it, don’t worry about it.  (10:5-15).  It is expected that you will be persecuted for doing what is right and you better be prepared to face your prosecutors with a glad and humble heart !!! (10:16-28).

While we are busy doing all of the things required of us, so that we might avoid the fires of hell, we are also commanded not to worry.  (10:25-31).  Well, how am I not going to worry?  Obviously, we must, again, take a conscious direction toward ignoring worry, and act in a way that testifies to our full faith in Him alone.  That is, we must actively pursue the conscious act of  destroying all worry.  This is no easy task.  We must trust that He will take care of all of our needs and that he will pave the way for His glorification and that He will take of evil on His own. (6:24-34; 10:32-33).

Our ultimate trust in Him is, and must be, founded upon our spiritual and mental acts of conscience, purpose, and servitude.  How easily we forget that we have control over our attitudes, philosophies, theology, and mindset.  Freewill is not a matter of controlling external circumstances, which we cannot.  Freewill is premised only in the notion that we can only change our attitude toward our circumstances, and, generally speaking, our circumstances will naturally change as our spiritual attitude does.  (6:33-34).

Well, now the difficult part comes.  Chapter 7 speaks to us on the topics of judgment of others, judgment of ourselves, hypocrisy, evilness, false prophecy, corruption, and the intent of our works. (7:1-23).  In no way is it suggested that our works alone will save us.  (7:16-23).  Our works must be, as stated before, with a view toward glorification unto our Maker.  They must be committed with a view toward spiritual, mental, and physical servitude unto something higher than ourselves. The works we commit may be good unto themselves and, in fact, may be very pleasing or admirable to others.  However, this is completely irrelevant to the Christian.  The Christian can have but one purpose in fulfilling his or her Divine Destiny.  We must know why we do what we do before it can be given any credit worthy of Him. (7:22-23).  Commit yourself to the act of building your house on a rock !!! (7:24-27).

It should also be noted that so many of us think in linear terms.  We often think that our purpose is to serve God, family, friends, and business (in respective order).  This is simply not true.  You cannot put your family before your faith.  That’s a serious work. (10:37).

We’ve got a lot of hard, but gladful, work before us. (10:34-42).  “Come unto me all ye that labor and are heavy laden, and I will give you rest.  Take my yoke upon you, and learn of me; for I am meek and lowly in heart: and ye shall find rest unto your souls.  For my yoke is easy, and my burden is light.”  Where is the “rest” coming from then?  It comes from the peace of acting through and in him.  Nowhere is it suggested that our works don’t matter or aren’t necessary.  They will be made easy by our faith in Him, through Him and with Him.  What makes life burdensome is when we falsely define what work is required and how it ought to be performed.  It really isn’t that hard to feed the poor, to be merciful, to forgive, to make peace, or to preach the truth, when all is done from a humble heart directed at a Divine Purpose. Our purpose ought to emanate a natural and warm light unto the world.  Our lives cannot be defined by our material possessions, even if we worked hard to get them. (19:29).

So aside from acting or failing to act, what can get us in real spiritual trouble?  The answers are given in a fairly straightforward manner.  Even a “believer” can get himself or herself to Hell.  Remember, even Satan believes in the power of God – that’s why he fears God so much.  It is said, “Wherefore I say unto you, All manner of sin and blasphemy shall be forgiven unto men: but the blasphemy against the Holy Ghost shall not be forgiven unto men.  And, whosoever speaketh a word against the Son of man, it shall be forgiven him: but whosoever speaketh against the Holy Ghost, it shall not be forgiven him, neither in this world, neither in the world to come. [bold emphasis added].” (12:25-37).  This is, again, an unequivocal statement that there are acts of speech which will be completely unforgiven, regardless of Calvary nor the reasons for Calvary.  Not only do your physical acts need to be conducted in conformity with your faith, your speech must also be as well.  These are matters of works/acts, and not simply matters of perceived “faith.”  (12:35-37).

At this point, it is also probably worth noting that the common denominator amongst all of the parables in Matthew is that they all involve forms of hard work (i.e., building, sowing seeds, buying and selling, toiling in a field, repayment of debts, working the vineyard, preparing for a wedding, grinding at the mill, serving the man of the house, spending our money/goods wisely).  Moreover, the parables seem to end with the result that someone is rewarded for doing the right thing, or, in the alternative, ends up burning, weeping, gnashing their teeth, and/or being cast out into the darkness. (13:3-9, 18-23, 25-43, 44-50;  18:23-35; 20:1-16; 21:27-40; 22:2-14; 24:40-41; 24:43-51; 25:1-30).

In Matthew 15 we are again reminded that it is our words that can defile us.  (15:8-11, 18-20).  The problem with words is that they are most often outright intentional or certainly a byproduct of the will of the heart.  When we engage in unholy speech-acts, we defile ourselves, regardless of whatever we may somehow believe.  It is not the beliefs that we hold which most see or hear, it is the words and actions that accompany our day-to-day interactions with others.  Our words are works of faith.

Following the above sayings, instructions, and admonitions, Jesus then, after being asked, “Who is the greatest in the kingdom of heaven?”, responds with a rather lengthy discourse in Chapter 18 on what it means to be a believer. (18:1-2).  The analysis is deep and again speaks to the conduct which will separate the sheep from the goats. (18:3-35).  Indeed, we are reminded that our faith should be as that of a child – innocent, pure, and unaffected.  Again, we are also given a dire description of what happens to those who mislead his “little ones.”

In fact, misleading a child results in the notion that one would be better off being drowned in the sea than to have interfered with the faith of a child.  (18:3-7).  Well, how does one mislead a child?  Obviously, one can only mislead another through setting a bad example through conduct or speech or by directly doing wrong unto the “little one” (i.e., through our works).  It is even stated that his “little ones” have direct representatives before the “face of my Father.” (18:10).  For me, anyway, there is plenty to think about with respect to our contemporary culture of consistently misleading children by direct interference with their innocence and pure faith.  Indeed, many an organization is fully dedicated to destroying the faith of children and supplanting it with secular values or no values at all.

With respect to disputes between Christians, Matthew 18:15-17 gives us a form of conduct by which they are to be resolved.  We are to work it out amongst ourselves.  If that does not work, then we are to work it out as a private situation within the Church.  In the event this does not work, we are simply to separate ourselves from the problem.  Each one of these steps takes work and has very little to do with inactive faith.  In fact, with respect to forgiveness, we are immediately told that our forgiveness must not be once, or seven times, but seventy times seven. (18:21-23).  That’s some serious work for anyone.

As to the conduct of our sexual lives, the call to certain conduct continues again in Matthew 19, where we are reminded that man and woman are made for each other and it was so from the beginning.  We are reminded that we have the responsibility to cleave to our wives and to become one with them.  The Scripture, in this area, is very clear and unequivocal.  A direct command not to interfere with the relationship is also made and divorce is viewed as a form of direct judgment.  Remarrying is adultery, save the cause of fornication by the wife.  The new husband of the cheater is, by his conduct, deemed an adulterer as well in this instance.  How does he become an adulterer, you ask?  By his works.  (19:4-9).

Interestingly, it is accepted by Jesus that not all will marry and, since being in the womb, were not meant to be married. (19:12).  To some extent, Christ was aware of the arguments that might be made against those who don’t marry (i.e., accusations, gossip, questions as to their sexuality).  He did not condemn these people, but reminded us of the purpose given to them by Him and not us. (Id.).

Next, comes the Greatest Commandments, which are:

 “Thou shalt love the Lord thy God with all thy heart, and with all thy soul, and with all thy mind.  This is the first and greatest commandment.  And the second is like unto it, Thou shalt love thy neighbor as thyself.  On these two commandments hang all the law and the prophets. [emphasis added].”  (22:37-40).

This is the summa theologica.  Who amongst us thinks that love is simply a matter of faith?  I don’t know about any of you, but I know that love requires hard work, intentional and humble sacrifice of self, and an undying need to acknowledge that we cannot control the object of our love nor the source of the Greatest Love.  While my faith has helped me love when I thought I had none left, I have always had to meet God halfway with my private dedication, servitude, and willingness to will my mind, soul and body to do the right things to strengthen my love of others and even of self.

After setting forth the Great Commandments, Christ then goes on to point out that we should not merely expect others to do the works required of us.  Rather, we must do honor to the value of works of servitude by serving others ourselves. Moreover, we are again our works cannot be for show or for the purpose of building more impressive churches.  (23:2-39).  As though one could be surprised, we again find a very negative result for those who do not pay heed to these admonishments. Indeed, should we abide in our institutionalized and personal religious hypocrisy, our house shall be left unto us “desolate.”  (23:38).

Even in the face of persecution, deliverance of our bodies for earthly punishment, hatred, deception, and iniquity, we “shall endure unto the end.” (24:4-13).  Well, what does “endure” mean?  It can only mean that, along with faith, we do what is required to get to the end of what life means for us in even a hostile culture.  We are to act toward the end of being a faithful “servant.” (24:43-51).

After reminding us of the end game, the pragmatic lessons of Matthew essentially wraps up with the following summation:

 And before him shall be gathered all nations: and he shall separate them one from another, as a shepherd divideth his sheep from the goats:
 
 And he shall set the sheep on his right hand, but the goats on the left.
 
 Then shall the King say unto them on his right hand, Come, ye blessed of my Father, inherit the kingdom prepared for you from the foundation of the world:
 
 For I was an hungred, and ye gave me meat: I was thirsty, and ye gave me drink: I was a stranger, and ye took me in:
 
 Naked, and ye clothed me: I was sick, and ye visited me: I was in prison, and ye came unto me.
 
 Then shall the righteous answer him, saying, Lord, when saw we thee an hungred, and fed thee? or thirsty, and gave thee drink?
 
 When saw we thee a stranger, and took thee in? or naked, and clothed thee?
 
 Or when saw we thee sick, or in prison, and came unto thee?
 
 And the King shall answer and say unto them, Verily I say unto you, Inasmuch as ye have done it unto one of the least of these my brethren, ye have done it unto me.

 Then shall he say also unto them on the left hand, Depart from me, ye cursed, into everlasting fire, prepared for the devil and his angels:
 
 For I was an hungred, and ye gave me no meat: I was thirsty, and ye gave me no drink:
 
 I was a stranger, and ye took me not in: naked, and ye clothed me not: sick, and in prison, and ye visited me not.
 
 Then shall they also answer him, saying, Lord, when saw we thee an hungred, or athirst, or a stranger, or naked, or sick, or in prison, and did not minister unto thee?
 
 Then shall he answer them, saying, Verily I say unto you, Inasmuch as ye did it not to one of the least of these, ye did it not to me.
 
 And these shall go away into everlasting punishment: but the righteous into life eternal.
(25:31-46).

And so it is that the Great Story told in Matthew ends with a clear how-to guide as to what acts will show our faith and those omissions which place ourselves in jeopardy of eternal damnation.  Where in this final admonition does it say that our mere faith, our mere knocking on the door, our mere religious affiliation, or our mere belief in God, gets us into Heaven?  It simply doesn’t.  What we are left with is a clear command that we must do certain things and the failure to do them will result in something eternally bad.

Unless someone is going to claim that these Words cannot be taken at face value, they are unequivocal.  Our works matter and they are essential to the goal of reaching the end as a good and faithful servant.  Do not be so blind as to lead another to complacency by asking them to buy off on the idea of ‘salvation by faith alone’ with nary a living proof that the faith has a foundation in daily life.  To do so would be to mislead one of His “little ones.”

For those of us who already know these truths, we are further instructed to teach all others to likewise abide, by our conduct, in observing His commandments. (28:20).  As for me and my house, permissum meus fides exsisto a Opus Dei.  That is, may my faith be an acceptable work of God unto Him.

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Protection Needed for Innocent Investors before Litigation Deluge

United States Supreme Court Asked to Preempt State Laws To Protect Interstate Securities Investors

On Monday, the United States Supreme Court was asked to grant review of a case seeking to create uniform standards for the enforcement of securities laws from state to state. The petition for review follows a published decision by the Ninth Circuit which allows court-appointed receivers to chase down innocent investors who may have made gains on securities later shown to be tainted with fraud. There is a lack of uniformity in the way investors are treated from one state to another, which can result in unfair prosecution simply based on which state an investor resides. The decision below is published as Donell v. Kowell (9th Cir.2008) 533 F.3d 762.


On Monday, the United States Supreme Court was asked to grant review of a case seeking to create uniform standards for the enforcement of securities laws from state to state. The petition for certiorari, filed by Robert Kowell, follows a published decision by the Ninth Circuit which allows court-appointed receivers to chase down innocent investors who may have made gains on securities later shown to be tainted with fraud. It is contended that there is a lack of uniformity in the way securities investors are treated from one state to another, which can result in unfair prosecution simply based on which state an investor resides. The decision below is published as Donell v. Kowell (9th Cir.2008) 533 F.3d 762.

The case arises out of an securities investment offering, known as the J.T. Wallenbrock & Associates program, which lured in approximately 6000 investors from 1997 through early 2002.

In the end, the securities turned out to be part of a Ponzi scheme and it was discovered that several hundred investors made gains initially. Those who made gains years before, even if "innocent," were sued for alleged fraudulent transfers.

As a result of a 2002 Securities & Exchange Commission action brought against the operators of investment program, the United States District Court appointed a receiver, one James Donell. The receiver was given the authority to "disgorge" any gains made by investors during the years Wallenbrock was in operation.

In late 2004, Donell begain pursuing dozens of investors who, he claimed, made gains from their investment in the Wallenbrock securities in the late 90s and beyond. In seeking recovery, Donell sought to assess damages for any and all gains made, regardless of whether the investor had incurred administrative expenses, holding costs, or acquisition costs for any securities.

By the time Donell began pursuing innocent investors in 2004, many had already spent the money made on gains as part of their retirement budgeting, for home improvements, or on paying bills to creditors. Moreover, no consideration was given to the fact that admittedly "innocent" investors were being accused of a form of fraud and that a U.S. District Court judgment finding "fraud" could be entered against them. Such findings become a matter of public record and can affect credit scores, reputation, and security clearances for innocent investors or corporate employees holding securities issued by an employer.

The petition claims that enforcement of securities laws can vary from state to state as receivers can simply "borrow" prosecutorial laws depending on which state a particular investor might reside. For example, the statute of limitations for recovery on certain fraud theories might be four or six years in California, but only one or two in another state or in a federal forum. The investor is left with no idea as to which theories might apply to them once a receiver chooses to come after them for any past gains. Moreover, the Ninth Circuit held that the innocent investor is not to be given any offsets for acquisition, administrative, or holding costs on the investment.

In an effort to stabilize liability exposure for innocent investors, management personnel and significant stakeholders, the petition seeks to have the Supreme Court adopt a unform limitations period for all "securities" coming under the authority of the Securities & Exchange Commission.

Richard D. Ackerman, lead counsel for the petitioner, says that, "Creating uniform and predictable standards for enforcement of securities laws will prove to be a very important process. Many innocent investors will likely become part of the fallout from the catastrophic failure of our financial systems. One can be assured that litigation-minded vultures will be on the hunt for the remains of those who might have innocently made money before the crisis happened. Given the likely desperation that many will feel, co-investors may start looking at each other to cover their losses. If some kind of consistency is not realized, one might find themselves liable for losses simply because one lives in the wrong state. A fundamental sense of fairness and respect for market stability requires more than this."

The Supreme Court will likely take several months to decide on whether review should be granted in the case.
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Lenders Allegedly Caught Up in Securities Scam

Nationstar Mortgage LLC and Centex Home Equity Sued for Truth In Lending Violations and Participation in Unregistered Securities Scam

Nationstar Mortgage, LLC, and Centex HomeEquity Company, LLC, have been sued for conduct related to an investment scam involving hundreds of Southern California home buyers. It is alleged that Nationstar's San Diego branch manager was an insider of a fraudulent investment firm known as Stonewood Consulting in Riverside County, California. Losses are alleged to be in the millions. The Securities Exchange Commission is pursuing Stonewood and related defendants in United States District Court Case No. CV 08-01323 CAS (CTx) (C.D. Cal.).

San Diego, CA September 28, 2008

Nearly two dozen home loan borrowers filed a multi-million dollar unfair business practices and negligence case against Nationstar Mortgage, LLC, and Centex Home Equity, LLC.    The lawsuit was filed on behalf of themselves and others similarly situated. The San Diego Superior Court case was filed as Case No. 37-2008-00092170-CU-BT-CTL on September 22, 2008. Nationstar Mortgage, LLC, is a Texas-based company which took over Centex Home Equity and maintained past mortgage loan operations in Southern California. The case is captioned Mark Richter, et al., v. Nationstar Mortgage, LLC, et al..

The complaint alleges that Centex Home Equity was not properly licensed to offer mortgages in the State of California and that it was selling securities without a license before being taken over by Nationstar. The plaintiff group contends that Centex Home Equity and Nationstar caused them to enter into bad loans which have now resulted in destroyed credit histories, foreclosures, and other damages.

The filing also cites numerous alleged violations of the federal Truth In Lending Act and California's Unfair Business Practices Act taking place over several years. The key allegations revolve around the contention that one Cindy Kelly, a branch manager for Nationstar's San Diego office in 2006, was fraudulently selling unregistered securities, foreign currency, and commodities during the lending process. It is alleged that misleading securities transactions were done with the constructive knowledge of Nationstar. It is further alleged that upper management failed to adequately supervise Ms. Kelly and that the company encouraged her to complete loan applications containing false and incomplete information. It is contended that profits were prioritized over good lending practices and avoidance of illegality.

The home loans were allegedly arranged through Nationstar and it is alleged that Kelly promised the borrowers that excess proceeds from loans would be used for high-yield investments with one Stonewood Consulting, Inc., a company now the subject of a Securities Exchange Commission proceeding in federal court in United States District Court (C.D.Cal.) Case No. CV 08-01323. One of the defendants in that action, who is alleged to have closely worked with Nationstar employees, has already agreed to a cease and desist order with respect to the sales of unregistered securities and has promised to provide restitution to the victims of the alleged fraud. Judgment was entered against one Maurice McLeod within the last 30 days. McLeod is alleged to have been a loan interviewer with regard to certain Nationstar-related loans.

Richard D. Ackerman, lead counsel for the plaintiffs, says, "This is just another step necessary to holding greedy lenders accountable for the crisis which has infected Wall Street. Had better supervision and control been maintained over lending practices, our nation would not be facing the horrific disaster which has destroyed our economy. The conduct of Nationstar employees is emblematic of the shameful conduct which has destroyed the lives of so many middle class Americans."

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Innocent Investors on the Run: Preventing Plaintiff Abuses After the Wall Street Fallout

DRAFT OF U.S. SUPREME COURT PETITION TO BE FILED -- INPUT WOULD BE HELPFUL:
 
QUESTIONS PRESENTED FOR REVIEW

1. Does Due Process require a uniform claim limitations period with respect to any actions by a United States District Court receiver to disgorge gains/profits made on interstate securities by an innocent investor?

2. Should varying state laws concerning fraudulent transfers be preempted by federal securities laws in order to provide for a predictable and uniform limitations period which treats innocent investors and creditors equally for purposes of recovery? Otherwise stated, should this Court’s reasoning in Lampf, Pleva, Lipkind, Prupis, & Petigrow v. Gilbertson, 501 U.S. 350 (1991) be extended to cover all interstate securities transactions, including Ponzi schemes, covered by Rule 10(b) of the Securities Exchange Act of 1934?

3. In calculating disgorgement of ‘profits’/damages in a Ponzi scheme, is an innocent investor entitled to offsets for any acquisition or holding costs associated with the securities (i.e., taxes paid on ‘profits,’ legal fees, interest on capitalization loans)?

CITATION TO OPINIONS AND ORDERS

ENTERED IN THE CASE

The published Opinion of the United States Court of Appeals for the Ninth Circuit appears in Appendix A to this Petition. The order, findings of fact, judgment and other related orders of the District Court granting Respondent’s motion for summary judgment appear in Appendix B to this Petition.

While not attached as an appendix to the instant petition, the decision in SEC v. J.T. Wallenbrock & Assoc., 313 F.3d 532, 540 (9th.Cir.2002) and SEC v. J.T. Wallenbrock & Assoc., 440 F.3d 1109 (9th.Cir.2006) may be relevant to an analysis of this petition.

STATEMENT OF JURISDICTIONAL BASIS

Title 28, U.S.C. § 1254, provides in part:

"Cases in the court of appeals may be reviewed by the Supreme Court by the following methods: (1) By writ of certiorari granted upon petition of any party to any civil or criminal case, before or after rendition of judgment or decree [. . .]"

CONSTITUTIONAL OR OTHER PROVISIONS

INVOLVED IN CASE

United States Constitution, Amendment Fourteen, Section 1, in relevant part, states:

"All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws."

With regard to jurisdiction over claims relating to securities law claims, 15 U.S.C. § 78aa states:

"The district courts of the United States and the United States courts of any Territory or other place subject to the jurisdiction of the United States shall have exclusive jurisdiction of violations of this chapter or the rules and regulations thereunder, and of all suits in equity and actions at law brought to enforce any liability or duty created by this chapter or the rules and regulations thereunder. Any criminal proceeding may be brought in the district wherein any act or transaction constituting the violation occurred. Any suit or action to enforce any liability or duty created by this chapter or rules and regulations thereunder, or to enjoin any violation of such chapter or rules and regulations, may be brought in any such district or in the district wherein the defendant is found or is an inhabitant or transacts business, and process in such cases may be served in any other district of which the defendant is an inhabitant or wherever the defendant may be found. Judgments and decrees so rendered shall be subject to review as provided in sections 1254, 1291, 1292, and 1294 of title 28. No costs shall be assessed for or against the Commission in any proceeding under this chapter brought by or against it in the Supreme Court or such other courts."

With respect to ancillary jurisdiction over state claims, 28 U.S.C. § 1367 states:

(a) Except as provided in subsections (b) and ( c ) or as expressly provided otherwise by Federal statute, in any civil action of which the district courts have original jurisdiction, the district courts shall have supplemental jurisdiction over all other claims that are so related to claims in the action within such original jurisdiction that they form part of the same case or controversy under Article III of the United States Constitution. Such supplemental jurisdiction shall include claims that involve the joinder or intervention of additional parties.

(b) In any civil action of which the district courts have original jurisdiction founded solely on section 1332 of this title, the district courts shall not have supplemental jurisdiction under subsection (a) over claims by plaintiffs against persons made parties under Rule 14, 19, 20, or 24 of the Federal Rules of Civil Procedure, or over claims by persons proposed to be joined as plaintiffs under Rule 19 of such rules, or seeking to intervene as plaintiffs under Rule 24 of such rules, when exercising supplemental jurisdiction over such claims would be inconsistent with the jurisdictional requirements of section 1332.

( c ) The district courts may decline to exercise supplemental jurisdiction over a claim under subsection (a) if—

(1) the claim raises a novel or complex issue of State law,

(2) the claim substantially predominates over the claim or claims over which the district court has original jurisdiction,

(3) the district court has dismissed all claims over which it has original jurisdiction, or

(4) in exceptional circumstances, there are other compelling reasons for declining jurisdiction.

(d) The period of limitations for any claim asserted under subsection (a), and for any other claim in the same action that is voluntarily dismissed at the same time as or after the dismissal of the claim under subsection (a), shall be tolled while the claim is pending and for a period of 30 days after it is dismissed unless State law provides for a longer tolling period.

(e) As used in this section, the term "State" includes the District of Columbia, the Commonwealth of Puerto Rico, and any territory or possession of the United States.

STATEMENT OF THE CASE

Fairness and a need for investment markets stability demand that any U.S. investor ought to be able to know what uniform statutes of limitation apply to any case that they might bring against an issuer of securities for fraud or other misfeasance. Conversely, innocent or "good faith" investors also ought to know whether or not they may be held liable for any alleged wrongdoing of the issuer and what limitations period might apply should a receiver be appointed after the issuer is found to have committed fraud.

However, the Ninth Circuit has left innocent investors with uncertainty as to which state laws might be used against them should a disgorgement claim be made with respect to previously held securities. Knowing what one might be held liable for is a fundamental component of Due Process.

This Court’s determination of the issues presented in this case will have long lasting effects on whether, and to what extent, innocent investors might be held liable to other investors through a receiver’s disgorgement claims. Given current market conditions, the floodgates of litigation will be likely opened with respect to the recent bail-outs of Lehman Brothers, AIG, and other large companies where management personnel and good faith investors may have received profits from the transfer of shares prior to the recent Wall Street disaster.

The current state of the law in the Ninth Circuit and other circuits is that investors have to guess at which limitations period or federal common law may apply to them should a receiver decide to pursue fraudulent transfer theories of recovery against them in an effort to make whole any investors who may have lost money. Indeed, the Court of Appeals noted that aspects of the process may be unfair, but proceeded to allow unmitigated damages/disgorgement against Petitioner anyway. Donell v. Kowell, 533 F.3d 762, 779 (9th.Cir.2008).

Moreover, the Ninth Circuit apparently does not believe that this Court’s decision in Lampf, Pleva, Lipkind, Prupis & Petigrow v. Gilbertson, 501 U.S. 350 (1991), was intended to provide the type of uniformity which ensures equal and predictable treatment of all securities investors. Donell at 775, fn. 6. Judicial economy as to the foreseeable flood of future investment claims is also a compelling reason to review the decision below.

This Court’s decision in Lampf was intended to move market participants toward a uniformity of law that would avoid inconsistent applications of limitations periods. With respect to the situation faced by Petitioner and thousands of other investors, there is a need for conflict of law preemption in order to maintain market stability and a sense of uniformity of law for both investors and investment firms.

Moreover, lack of inconsistency creates Erie Doctrine and other legal problems of a constitutional dimension. Guahar Naheem, The Application of Federal Common Law to Overcome Conflicting State Laws in the Supplemental Disgorgement Proceedings of an SEC Appointed Receiver, Seton Hall Circuit Review, Vol. 3, No. 1, pp. 32-70 (2006). Anthony Michael Sabino, A Statutory Beacon or a Relighted Lampf? The Constitutional Crisis of the New Limitary Period for Federal Securities Law Actions, 28 TULSA L.J. (1992). Without guidance from this Court, investors face the risk that they may be sued under varying state limitations periods and have to guess at when and whether they will be liable for an investment firm’s past fraud.

Lastly, the lower court opinion creates a quagmire of concern with respect to the measurement of restitution or disgorgement of past investment gains. Specifically, an innocent investor’s past taxes for capital gains may not be refundable, interest may have been paid on monies borrowed to make an investment, and/or legal fees or costs may be incurred in defending against the receiver. Under the Ninth Circuit’s reasoning, none of these facts matter even if the investor is left upside down on his/her "gains." Kowell, 533 F.3d 762, at 776, 778-799.

At a minimum, Due Process and fairness suggest that no receiver ought to be able to recover more than any good faith investor’s actual or true net "profits" from unknowing participation in investments later shown to be tainted with fraud. There is no known decision, other than the Ninth Circuit’s opinion herein, addressing this issue with respect to disgorgement action. This Court’s review is justified because the Ninth Circuit’s novel and unfair decision affects tens of thousands of investors.

ARGUMENT FOR REVIEW

I. Due Process Requires Uniformity of Law with Respect to Interstate Securities Transactions Where Recovery is Sought Against Innocent Investors Who May Have Made Previous Profits on the Affected Securities

Generally speaking, due Process fundamentally requires that all persons be on notice of the laws and consequences of any proposed action before they may be held to account civilly or otherwise. West Covina v. Perkins, 525 U.S. 234 (1999); United States Constitution, amends. V and XIV. If the Ninth Circuit’s decision is left standing, investors are left to wonder which state laws may be used against them to disgorge perceived gains made on tainted securities.

For example, this case involves a securities investor and his elderly mother who became part of what was known as the "Wallenbrock scheme," which took in many innocent investors from a number of states across the nation. The fact that Petitioner was "innocent" is not disputed by any party nor the Court of Appeals. Donell, 533 F.3d 762, at 766, 771 fn.3.

The basic facts concerning the Wallenbrock scheme were discussed in SEC v. J.T. Wallenbrock, 313 F.3d 532, 540 (9th.Cir.2002). Important to the instant analysis is the fact that the Ninth Circuit ruled that "securities" were indeed involved in the scheme and subject to the applicability of Rule 10(b) of the Securities Exchange Act of 1934. Id. at 537.

After the investment was discovered to be fraudulent, the court-appointed receiver sued or threatened to sue any investor perceived to have made any gains on his/her original investment (whether the profit was real or not). Id. at 769. In order to effectuate a recovery against anyone who made money, the District Court’s receiver had unbridled discretion to borrow limitations periods from California through ancillary jurisdiction. Id.

This borrowing of a state statute and its claims limitation period are consistent with finding a remedy where federal law is otherwise silent. American Pipe & Construction Co. v. Utah, 414 U.S. 538, 556 n. 27 (1974); Auto Workers v. Hoosier Cardinal Corp., 383 U.S. 696, 703-705 (1966); Holmberg v. Armbrecht, 327 U.S. 392, 395 (1946).

In fact, this Court has addressed the issue of limitations periods and their applicability to securities-related claims on several occasions. Lampf, supra; Ernst & Ernst v. Hochfelder, 425 U.S. 185, 210-211 fn.29 (1976); Herman & MacLean v. Huddleston, 459 U.S. 375, 384 & fn. 18 (1983). However, Petitioner is unaware of any Supreme Court case directly addressing the lack of uniformity as to fraudulent transfers recovery from state to state with respect to securities. The Courts of Appeal have addressed whether fraudulent transfers theories might be applied to securities violations, but they have not addressed inconsistencies in state limitations periods or statutory language differences among the different states. Donell at 533 F.3d 762, at 767.

Lampf was a start to creating uniformity in securities-related litigation standards. However, while the essential reasoning of the case remains applicable to the present case, Lampf has essentially been abrogated by Congress. Teumer v. General Motors Corp., 34 F.3d 542, hn. 4 (7th Cir.1994).

While this case does not present with a straight 10b-5 claim by a private litigant against an investment company, the pragmatic issues are similar with respect to recovery by or against a class of innocent persons/shareholders through a receiver or private litigation.

In the present case, California’s Uniform Fraudulent Transfers Act (UFTA) was the specific vehicle used to pursue Petitioner through the United States District Court. It could have just as easily been any other fraudulent transfers statute had Petitioner lived in a different state or territory. Also, had there been a bankruptcy trustee involved, then a different statute may have applied with differing limitations periods for any disgorgement claim brought against an innocent investor pursuant to 15 U.S.C. §§ 544, 548.

The uncertainty created by the possibility of changing state laws and conflicts with existing federal standards is not in the interest of maintaining a stable marketplace for investors, especially those who may already be leery of investing because of bad decisions made by major institutional investment companies. See generally, Norris v. Wirtz, 818 F.2d 1329, 1332 (7th.Cir.), cert. denied, 484 U.S. 943 (1987) [discussion of the difficulty in evaluating differing state laws and describing inconsistency of state laws as a "tottering parapet of a ramshackle edifice"].

It is also noteworthy that Congress noted the difficulty in creating unresolved contingent liability claims with respect to securities. More specifically, it was recognized that creating such liabilities may deter persons from seeking to serve on a corporation’s board of directors. 78 Cong.Rec. 8200 (1934)(remarks of Senator Byrnes). Common sense further dictates that the existence of unknown potential liability for any investor, simply because they happen to invest in what appears to be a legitimate offering, will have a chilling effect on the markets as a whole.

The fact that the potential liability and length of exposure to liability could vary from state to state makes the decision to invest in initial public offerings or private offerings all the more difficult. Moreover, having a judgment against one for any variant of fraud, including a fraudulent transfer, is not good for innocent investors. Indeed, Petitioner herein had to be concerned about his high security clearance with the defense industry because of the actions against him by the court appointed receiver.

This Court has pointed out that, where operation of state limitations periods would frustrate the purposes of federal law, the United States will look to its own laws for a more suitable and fair limitations period. Lampf, Pleva, Lipkind, Prupis & Petigrow v. Gilbertson, et al, 501 U.S. 350, 355-356 (1991).

II. In Order to Preserve Judicial Economy and Predictability, State Fraudulent Transfers Laws Should be Preempted by a Uniform Period of Limitations for Recovery Claims by a Receiver

Petitioner claims that state law action ought to be preempted or otherwise prohibited by federal statutory and common law governing acts relating to "securities transactions." See generally, Livid Holdings Ltd., v. Salomon Smith Barney, Inc., 416 F.3d 940, 946 (9th.Cir.2005) [holding that federal law applies to 10-b5 violations and a one-year statute of limitations applies]; Harrison v. Dean Witter Reynolds 79 F.3d 609 (7th.Cir.1996) [1-3 year statute of limitations].

"Federal preemption may be implied through "conflict preemption," when a state law actually conflicts with, or poses an obstacle to the accomplishment of the purposes of, a federal law, or "field preemption," when a federal law so thoroughly occupies a legislative field that there is no room for state action in that area" Donell, 533 F.3d 762, at 775, citing Montalvo v. Spirit Airlines, 508 F.3d 464, 470 (9th.Cir.2007).

While Respondent strenuously claims that they may simply "borrow" state statutes to impose liability on investors, Petitioner contends that uniformity of law makes fundamental sense since investments securities are particularly attractive as a part of a retirement plan, regular investment plan, and the need for long-term stability is particularly important. Given that securities are covered by the Securities Exchange of Act of 1934 and have been determined by this Court and others to be subject to federal regulation, a uniform set of laws governing investment relations ought to be established. Indeed, uniformity of law is consistent with accomplishing the recognized purposes of weeding out fraud and protecting innocent investors. See generally, Bateman Eichler, Hill Richards, Inc. v. Berner, 472 U.S. 299, 310 (1985)[discussing private actions as a way to enforce the purposes of securities regulations].

In light of the common sense aspects of investing, it follows that having a uniform and shorter limitations period is consistent with good public policy. That is, investors should not left to be wondering for four or more years about their potential liability after a bad investment (even if the good faith investor made money).

III. The Measure of Disgorgement/Restitution Ought to Be Uniform Against Interstate Securities Investors

The Ninth Circuit provides no authority or guidance in concluding that absolutely no offsets for costs of acquiring or holding investments ought to be allowed in assessing disgorgement amounts. Moreover, the Court also indicated that neither side could provide any existing common law guidance on this important issue. Donell, 533 U.S. 762, at 778-779.

In California, the entire purpose of the Uniform Fraudulent Transfers Act is to prevent debtors from placing their property beyond the reach of their creditors. Specifically, it is further intended to prevent the transfer of valuable assets of the debtor without an exchange of fair value. Borgfeldt v. Curry 25 Cal.App. 624, 144 P. 976 (1914); Chichester v. Mason, 43 Cal.App.2d 577, 111 P.2d 362 (1941).

It is critical to note that how one goes about assessing reasonable value is dependent on how liability operates under the UFTA. Specifically, liability under the UFTA presupposes a creditor, debtor/transferor, and transferee to work properly and within its intended meaning. Donell at 533 F.3d 762, 774-775.

In such cases, the receiver is legally indistinguishable from the debtor (as receiver stepping in as a successor operator of the debtor business), and the investor transferee is also a creditor of the alleged debtor. UFTA, on its very face, does not cover this situation. Donell, 533 F.3d 762, at 774-775 [acknowledging that all investors affected by fraud are coexisting tort-creditors]. Again, imposing liability under such conditions also creates unpredictability for investors and co-creditors who are involved in securities investments.

Failing to offset any taxes paid, other actual consideration given, and interest paid by an investor is inequitable.

The intent behind the Fraudulent Transfers Act, or other enforcement mechanisms, is simply not fulfilled by requiring the investor to pay back more money than he/she actually netted. Compare California Civil Code §§ 3439.04(a), 3439.04(b) to Wallenbrock, supra at 313 F.3d 536 [defining investor as someone having a secured interest for which money was paid - including those who invested in Wallenbrock]. Moreover, conceptual problems presented by federal common law and state statutory law underscores the fact that, for purposes of conflict or field preemption, California law has not supplemented nor clearly defined itself in light of existing federal securities laws. Montalvo, supra at 508 F.3d 470-471.

As such, the Ninth Circuit opinion leaves the investment community to wonder about what they might be held liable for in the event that investments go bad. This is an issue that affects Due Process just as much as the needs for a predictable limitations period and consistent enforcement mechanisms. Review is necessary to provide the constitutional solace to which all investors are entitled.

CONCLUSION

It is respectfully requested that the Court grant the instant petition.

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Same Sex Marriage: The Hi-Jacking of a Sinking Ship?

Earlier this year, the California Supreme Court held in In re Marriage Cases that same-sex marriage must be allowed in this state as a matter of Equal Protection principle. In response, California pro-family advocates have placed Proposition 8 on the upcoming ballot for consideration. Proposition 8 will constitutionally ban same-sex marriage in the State of California and will make it much more difficult for California’s activist Court to undo the will of the people as had been previously expressed by passage of Proposition 22 some years ago.

The In re Marriage Cases Court soundly rejected any notion that marriage between a man and a woman is a sacred tradition or an historical institution worth protecting. The shocking decision was rendered regardless of the fact that most men and women coming together, for a lifetime commitment called "marriage," will have children and form the basic family unit. Indeed, the nuclear family unit remains the basic building block of all human society, and "marriage" between a man and a woman is an institution which has existed for thousands of years. The institution spreads across all social, historical, cultural and economic divides. For same-sex advocates, it seems readily presupposed that the generations who came before us were simply ignorant of "equality" in developing the institution of marriage. One might view such thinking as a rather vain presupposition.

In any event, the In re Marriage Cases holdings resulted in an opening of the proverbial floodgates, and the news media has been actively covering the vast number of ‘gay marriages’ taking place ever since. While all of this might be a theoretical win for same-sex marriage advocates, it is the position of this writer that any celebrations may be premature, there is a lack of practical insight as to what "marriage" really means in the United States, and same-sex marriage advocates may have found themselves in the awkward position of hijacking a sinking ship. These are only passive observations on the issues, and it is readily admitted that equal protection theory has its place in the overall analysis in terms of dealing with the legal issues that have been raised in related litigation. As a general matter, unjustified discrimination is always suspect and deserving of careful criticism by the courts. However, protecting the natural order of human relations is justification for preserving traditional marriage and the natural consequences of the same.

With the prospect of Proposition 8 passing in November, any denunciation or celebration of the Court’s ruling may be short lived. Past history indicates that California is close to evenly divided on the issue of same-sex marriage. In fact, Proposition 22 was passed in 2000 by a significant margin (61%). There does not seem to be any systematic proof that cultural mores have changed since then. Large voting blocs, such as moderates, Catholics, Evangelicals, Hispanics and African-Americans, seemingly continue to maintain traditional views on marriage. Ironically, a huge California turnout for Barak Obama could result in a sweeping victory for those who support the institution of marriage. Moreover, homosexuality remains taboo in many demographic groups. While same-sex marriage advocates might want to claim that this is a matter of systemic cultural ignorance, they ought to realize that there is great political risk in forcing any group into accepting gay marriage by judicial fiat.

Along these same lines, there seems to be a cogent argument that proponents of same-sex marriage should have introduced their own ballot initiative to legalize same-sex marriage. This would have avoided the public controversy associated with having the judiciary decide issues of general morality, the creation of rights not explicitly defined in the California Constitution, and/or matters which have already been decided by the People through Proposition 22. Judicial fiat over history, tradition, and established law is a bad approach to social engineering. If same-sex marriage proponents are confident that the general public supports the proponents’ views, then one would think that a ballot initiative would easily qualify and be enacted by the vote of the People.

Secondly, should we really be redefining marriage at a time where approximately two-thirds of "traditional marriages" are resulting in divorce in California? Should California be redefining "marriage" when 42-45% of African-American women will never be married, but still be left with the charge of raising a family? See, Kinnon, J.B., The Shocking State of Black Marriage: Experts Say Many Will Never Get Married (Johnson Publishing, 2003); U.S. Dept. of Health & Human Services, Births, Marriages, Divorces, and Deaths: Provisional Data for 2005 (Centers for Disease Control, 2006), Vol. 54, No. 20. Also see, www.divorcerate.org.

Instead of redefining "marriage," perhaps society ought to be focused on relieving the existing congestion in our family and child dependency courts. There are root problems that are not being dealt with. It is certainly no secret that child support enforcement in many communities is an ongoing issue, the high divorce rate for all socio-economic classes is destroying the spirits of affected children, and our judicial resources are stretched to an unimaginable limit. It does not seem that same-sex marriage advocates really gave much thought to the idea that they would be redefining a word that may have already, and quite sadly, lost most of its meaning and practical application.

Indeed, statistical data suggests that the push for same-sex marriage was selfish. If being "married" is an unrealized status for single mothers or minorities, for whatever reasons, then any push for "equality" should arguably focus on these preexisting groups rather than pushing for marriage within a limited segment of the populace who otherwise already had the ability to participate in a domestic partnership. Why wouldn’t one try to make successful domestic partnerships the new gold standard for what constitutes commitment?

Finally, one is left to wonder why it is that anyone would want to hijack a sinking ship called "marriage." While California has been told much about "marriage equality" in the battle leading up to the Court’s ruling, little has been said about the fact that the only thing that may be sought is an "equal" opportunity at a statistically certain failure. With all of the political ads and rhetoric that California is bombarded with this election cycle, little is being said about what will be done to decrease the divorce rate among heterosexual couples once the dust settles.

Perhaps a focus on redefining "long term commitment," through a proven success rate with domestic partnerships, would have been the better political move. It certainly would have proved to be a better moral high ground for same-sex advocates. Instead, California has been given a radical redefinition of "marriage" which ignores basic human biology and a cross-cultural history of the institution of marriage. No explanation is given for the desire to take over the empty hull of this sinking ship called "marriage." One might surmise that the traditionalists would say that gay marriage advocates are just simply trying to destroy what is left of marriage. Such efforts are senseless and leave unresolved the problems that are resulting in a massive failures of the super majority of California marriages.

In sum, the basic human problems that cause divorce remain unresolved and same-sex advocates had better carefully consider whether anything is gained by hijacking a sinking ship. For those of us who are already on the sinking ship, we need to start baling out the water and patching the holes. Our families and future generations deserve no less.

[Exclusive Rights of www.WND.com reserved].
* Rich Ackerman serves as the president of the Pro-Family Law Center, litigated a portion of the Campaign for California Families v. Newsom case, and has provided insight on constitutional issues to hundreds of media sources over the years.  More information can be found at www.profamilylawcenter.com.
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