High court rules against Anna Nicole Smith's estate

High court rules against Anna Nicole Smith's estateBy Bill Mears

The estate of the late actress Anna Nicole Smith has lost a Supreme Court appeal in a longstanding fight to secure a share of her deceased husband's fortune.

The 5-4 ruling Thursday was the latest chapter in a tedious legal soap opera, over the kind of evidence a separate bankruptcy court may hear when deciding various claims and counterclaims. State courts generally hear probate cases, while bankruptcy proceedings are confined to federal courts. The high court's 38-page decision will now likely put an end to this particular legal dispute.

J. Howard Marshall was married to the much younger Smith, who is named in court papers as Vickie Lynn Marshall, for 14 months before he died in 1995. His will left nearly all assets and trust to his son from a previous marriage, E. Pierce Marshall, and Smith received virtually nothing. She later sued, claiming her elderly husband promised to give her more than $300 million.

The separate estate of Smith, who died more than three years ago, has been fighting for years to secure a share of the deceased Texas oilman's fortune.

At issue now in the probate dispute was the kind of evidence a separate bankruptcy court may hear when deciding various claims and counterclaims.

In the court's very narrow ruling on a very complex issue, Chief Justice John Roberts concluded, "The [federal] bankruptcy court below lacked the constitutional authority to enter final judgment on a state law counterclaim that is not resolved in the process of ruling on a creditor's proof of claim."

Translation: Smith's estate lost.

Court records shows she had already received about $7 million in cash and gifts during their brief union.

In 2006, the high court gave Smith a temporary victory when it allowed her to continue the legal fight, after earlier judicial setbacks. Smith's appearance in the Supreme Court during the first oral arguments caused a minor media sensation, with cameras jockeying for position as she entered and left the building.

Despite the colorful details contained in the legal briefs, the issue this time for the Supreme Court remained fairly pedestrian. The justices decided whether Smith's estate received a proper hearing in federal courts, and whether state probate courts should be the proper venue for hearing such cases. The so-called "probate exception" normally keeps federal courts from hearing such disputes, but there is no law mandating the hands-off approach.

The high court tried to sort out what is a "core" -- or essential -- issue in a bankruptcy proceeding. Smith had made several personal-injury allegations against Pierce Marshall -- who died in 2006 -- during the bitter bankruptcy hearings. Smith's estate claims that it was a "core" proceeding the judge should have been allowed to sort out and decide.

Smith, a onetime Playboy and jeans model, reality TV star and diet company spokeswoman, went to both state and federal courts to press her claims.

The Supreme Court did not delve into matters raised in past legal proceedings: whether document tampering happened, whether Smith was kept from her husband's bedside as he was dying, and how the money should be divided.

In dissent, Justice Stephen Breyer said the majority opinion would only create confusion for those filing bankruptcy claims. A total of 1.6 million such claims were filed last year, an ever-increasing trend.

"A constitutionally required game of jurisdictional ping-pong between courts would lead to inefficiency, increased cost, delay, and needless additional suffering among those faced with bankruptcy," he said. He was supported by Justices Ruth Bader Ginsburg, Sonia Sotomayor, and Elena Kagan.

The justices in their second hearing in the case in March did not mention either Smith or Pierce Marshall by name, or comment about the celebrity aspect of the dispute. The questions they posed at oral argument were on mundane issues tied to interpretation of bankruptcy law, a topic only some lawyers and judges would appreciate.

Howard Marshall, a Yale-educated businessman, was 89 in 1994 when he married the then-26-year-old Texan. They had met a few years earlier at a strip club where she worked.

Smith died of a drug overdose in 2007, leaving behind a young daughter from a later relationship. That has created the unusual scenario of executors of competing estates fighting over still-frozen assets.

State and federal courts have disagreed over the years on whether Smith should receive any part of the money. A U.S. bankruptcy judge initially awarded her $474 million, which later was reduced to about $90 million. A federal appeals court has since twice dismissed Smith's case. A state probate court also dismissed her claims, saying Pierce Marshall was the sole heir.

Leading the fight on behalf of Smith is Howard K. Stern, her attorney and onetime boyfriend. Stern was cleared of criminal charges by a judge earlier this year in Los Angeles. He had been accused conspiring to feed Smith's drug addiction and using false names to obtain the drugs. He and two doctors charged as co-conspirators had denied wrongdoing.

Pierce Marshall's wife, Elaine, is the key party on the other side.

Former Citigroup Vice President Charged With Embezzling $19 Million

Former Citigroup Vice President Charged With Embezzling $19 Million

A former vice president at Citigroup Inc was charged with bank fraud on Monday for allegedly embezzling more than $19 million from the company's accounts.

Gary Foster, 35, was arrested Sunday at John F. Kennedy International Airport on a flight arriving from Bangkok, prosecutors said. He is scheduled to make his initial appearance Monday afternoon in Brooklyn federal court, where he will plead not guilty to the charges, according to his attorney, Isabelle Kirshner.

Between May 2009 and December 2010, Foster allegedly transferred $19.2 million from Citigroup accounts to his own personal bank account at Chase.

Foster put fake contract and deal account numbers in the wire-transfer instructions to make them seem like they were supporting an existing contract, before diverting them to his own accounts, prosecutors alleged.

"The defendant allegedly used his knowledge of bank operations to commit the ultimate inside job," said U.S. Attorney Loretta Lynch.

A representative for Citigroup did not immediately return a request for comment.

JPMorgan To Settle With SEC For $153.6M Over Misleading Investors

JPMorgan To Settle With SEC For $153.6M Over Misleading Investors

WASHINGTON/NEW YORK (Sarah N. Lynch and Jonathan Stempel) - JPMorgan Chase & Co said it agreed to pay $153.6 million to settle U.S. Securities and Exchange Commission charges that it misled investors about a mortgage securities transaction just as the nation's housing market was starting to plummet.

The SEC also filed civil charges against Edward Steffelin, a principal at GSC Capital Corp, accusing him of drafting misleading marketing materials for the transaction that failed to reveal that the Magnetar Capital LLC hedge fund helped choose and bet against the underlying securities.

Tuesday's announcement came less than a year after Goldman Sachs Group Inc agreed to pay $550 million to settle SEC charges that it did not tell investors in the Abacus CDO that hedge fund investor John Paulson helped choose the underlying securities and bet against them.

According to the SEC, JPMorgan in 2007 structured a collateralized debt obligation, Squared CDO 2007-1, mainly with credit default swaps tied to other CDO securities whose value was tied to the nation's housing market.

It said the Squared CDO's marketing materials said the underlying investments were chosen by a GSC affiliate. But in fact, Magnetar played a significant role and would benefit from defaults because of a nearly $600 million short position, it said.

In a conference call, SEC enforcement chief Robert Khuzami said he did not anticipate the agency bringing charges against any JPMorgan executives in connection with the CDO case.

JPMorgan did not admit wrongdoing in agreeing to settle. In a statement, it said it also made payments of about $56 million to investors in a separate CDO, Tahoma I.

Alex Lipman, a lawyer for Steffelin, criticized the SEC's actions involving his client.

"We are baffled by the SEC's decision to proceed against an individual in a contested proceeding on a negligence theory, especially in a case where Mr. Steffelin did not work for the underwriter and had no responsibility for the contents of the offering memorandum," Lipman said in an interview.

Winklevoss v. Facebook lawsuit lurches on

By Julianne Pepitone

Several billion years from now, scientists predict that the universe may end in heat death. That looks like the only thing that will kill off the Winklevoss twins' legal crusade against Facebook.

Cameron and Tyler Winklevoss on Wednesday abandoned their plans to appeal to the Supreme Court for an unwinding of their 2008 settlement with Facebook CEO Mark Zuckerberg.

But the zombie litigation still won't die. On Thursday, the twins filed a motion in a Boston federal court on a separate case alleging that Facebook "intentionally or inadvertently suppressed evidence" -- namely, online instant messages that they say help prove their claims. That case, which started with a copyright infringement complaint, has been pending since 2007.

Neel Chatterjee, counsel for Facebook, said in an e-mail that "these are old and baseless allegations that have been considered and rejected previously by the courts."

The genesis of the dozens of court filings began in 2004, when the Winklevoss twins and a third Harvard classmate, Divya Narendra, filed suit against Facebook and Zuckerberg. The three alleged that Zuckerberg had stolen the idea for Facebook from them -- an idea dramatized last year in the Oscar-nominated movie "The Social Network."

Facebook promptly countersued the trio and their own social networking site, ConnectU, alleging that they had hacked into Facebook to steal data and spam users. The legal volley of claims and counterclaims went back and forth until 2008, when the Winklevosses and Narendra signed a settlement valued at $65 million, part in cash and part in Facebook stock.

But the trio later tried to pull out of the deal, alleging that Facebook had misrepresented the value of its stock. A judge ruled against them and forced the settlement to go through, but the Winklevosses and Narendra took the case to an appeals court.

In April, Judge Alex Kozinski, chief judge of the U.S. Court of Appeals for the Ninth Circuit in San Francisco, attempted to put the kibosh on the case. "At some point, litigation must come to an end," Kozinski wrote in his decision. "That point has now been reached." (Click here to read Kozinski's ruling.)

That was the ruling the Winklevosses were considering appealing to the Supreme Court, but they filed a motion dropping that plan on Wednesday.

The Winklevosses' attorney, Tyler Meade, declined to comment on the Thursday about the latest filing in Boston.

High Court sides with generic drug makers in narrow ruling

High Court sides with generic drug makers in narrow ruling
By Bill Mears

Two women who say they suffered severe medical complications from a generic drug lost their Supreme Court appeal Thursday, essentially ending their separate lawsuits against pharmaceutical manufacturers.

The justices in a 5-4 ruling said generic drug companies do not share the same level of responsibility as makers of brand-name equivalents, to update their warning labels when significant new risks emerge.

The financial and safety implications from the court's ruling, could prove enormous. Generic drugs currently account for more than 70% of prescriptions filled in the United States. That number is expected to rise in the coming years, with patent protection due to expire on several popular and lucrative consumer drugs, including Lipitor and Viagra. The blockbuster health care reform bill championed by President Barack Obama would also encourage greater use of generics. About a third of generic drugs have no brand name competitors.

The court split along conservative-liberal lines. "It is beyond dispute that the federal statutes and regulations that apply to brand-name drug manufacturers are meaningfully different than those that apply to generic drug manufacturers," said Justice Clarence Thomas. "Indeed it is the special, and different, regulation of generic drugs that allowed the generic drug market to expand, bringing drugs more quickly and cheaply to the public."

In dissent, Justice Sonia Sotomayor countered, "These divergent liability rules threaten to reduce consumer demand for generics... Nothing in the court's opinion convinces me that, in enacting the requirement that generic labels match their corresponding brand-name labels, Congress intended these results." Justices Ruth Bader Ginsburg, Stephen Breyer, and Elena Kagan supported Sotomayor.

Gladys Mensing of Minnesota and Julie Demahy of Louisiana both were prescribed metoclopramide -- marketed as Reglan by Wyeth Pharmaceuticals -- to treat their heartburn and acid reflux. Their pharmacists separately filled the prescription with a generic equivalent made by PLIVA, Inc. and Actavis, Inc.

After four years of taking the drugs, the women each developed tardive dyskinesia, a severe longterm neurological disorder that causes involuntary muscle movements.

They sued the generic manufacturers of the metoclopramide, claiming that inadequate warnings were provided about the long-term risks of taking the medicine. It was also alleged there was growing evidence of the dangers posed by the drug, but that the companies took no steps to change the warning labels.

In 2009, the FDA acted on its own and issued an order to the makers of both brand-name and generic versions of metoclopramide to add a specific warning about the increased risks of developing tardive dyskinesia.

The generic drug makers are trying to dismiss the lawsuits. They cite a 1984 congressional law pre-empting state "failure-to-warn" claims.

Drug companies have long asserted various doctrines of pre-emption, saying they are protected from most product-liability claims if they have met federal safety approval standards. They argue that federal regulatory judgments trump state consumer safety laws, which are often tougher than Washington's standards.

But the high court had given a big victory to patients and consumer rights groups in 2009 when it ruled in favor of plaintiff Diana Winn Levine, when she sued Wyeth -- now owned by Pfizer -- after losing an arm to gangrene from a common, brand-name anti-nausea prescription medication. She had won a $7 million judgment from a Vermont jury for her claims.

Thomas acknowledged that from the plaintiffs' perspective in the latest cases, "finding pre-emption here but not in Wyeth makes little sense." But he added, "because pharmacists, acting in full accord with state law, substituted generic metoclopramide instead, federal law pre-empts these lawsuits. We acknowledge the unfortunate hand that federal drug regulation has dealt Mensing, Demahy and others similarly situated." The majority noted Congress and the FDA, not the courts, can now change the law if they want.

Sotomayor, expressing her frustration, said, "As a result of today's decision, whether a consumer harmed by inadequate warnings can obtain relief turns solely on the happenstance of whether her pharmacist filled her prescription with a brand-name or generic drug. The court gets one thing right: This outcome makes little sense."

The American Association of Justice -- representing trial attorneys -- said the ruling was "disastrous" for consumers.

"Patients will now be taking generic drugs at their own risk," said the group's president Gibson Vance. "It is absurd that doctors and patients will have to make medical decisions knowing that only brand-name drug manufacturers -- not generics -- can be held accountable for their drugs' dangerous side-effects."

But one of the generic drug makers sued applauded the high court's decision. "This ruling furthers meaningful consumer protection while also safeguarding against lawsuits that threaten the availability of safe and affordable pharmaceutical products by misconstruing the labeling responsibilities of generic manufacturers," said Activis CEO Doug Boothe.

The Obama administration was backing the plaintiffs, concerned that if state lawsuits are pre-empted by federal law, that will reduce the incentive for generic drug makers to provide the most current safety information to the FDA.

Former Homicide Prosecutor Hit By Florida Bar

Ana Gardiner Case: Former Homicide Prosecutor Hit By Florida Bar

By Bob Norman

The Florida Bar has found probable cause against Howard Scheinberg, former Broward homicide prosecutor and Scott Rothstein partner who became (extremely) close with former Circuit Judge Ana Gardiner while trying a gruesome murder case in her courtroom.

Don't have time to expound -- and there's really not much to expound upon at this point -- but the Bar has found that Scheinberg engaged in "conduct in connection with the practice of the law that is prejudicial to the administration of justice."

Now we can't be sure what that means but it likely has something to do with the hundreds of texts and phone calls between Scheinberg and Gardiner, some of them while the Omar Loureiro death penalty trial was still active. Gardiner, who was chief criminal judge at the time, resigned her position on the bench when the Judicial Qualificiations Committee found that she had been untruthful about the nature of her relationship with Scheinberg. She is now in private practice.

More coming on this one -- and for more read JAABlog.

Court blocks suit against Wal-Mart

Supreme Court rules for Wal-Mart in massive job discrimination lawsuit
By Bill Mears

Washington (CNN) -- The Supreme Court put the brakes on a massive job discrimination lawsuit against mega-retailer Wal-Mart Stores Inc., saying the plaintiffs had not shown justification for sweeping class-action status that could have potentially involved hundreds of thousands of current and former female workers.

The 5-4 ruling Monday -- which addressed the claims in the lawsuit only in terms of whether they supported such a huge class action -- was a big victory for the nation's largest private employer, and the business community at large.

The high-profile case -- perhaps the most closely watched of the high court's term -- is among the most important dealing with corporate vs. worker rights that the justices have ever heard, and could eventually affect nearly every private employer, large and small.

"On the facts of the case," wrote Justice Antonin Scalia for the majority, the plaintiffs had to show "significant proof that Wal-Mart operated under a general policy of discrimination. That is entirely absent here."

He added, "In a company of Wal-Mart's size and geographical scope, it is quite unbelievable that all managers would exercise their discretion in a common way without some common direction."

While this particular class action has effectively ended, the individual plaintiffs could band together and file a series of smaller lawsuits aimed at individual stores or supervisors.

Plaintiff Betty Dukes told CNN affiliate KRON she was disappointed, but not altogether discouraged by the ruling and urged other working women not to give up hope.

"The Supreme Court has definitely muddied the waters for civil rights class-action lawsuits," she said. "We will proceed forward and we will continue to believe that this case has some merits to be judged upon."

Four more liberal justices agreed this particular class should not proceed to trial, but criticized the majority for not allowing the female workers to move ahead with their claims under a different legal approach.

"The court, however, disqualifies the class from the starting gate," wrote Justice Ruth Bader Ginsburg.

"Wal-Mart's delegation of discretion over pay and promotions is a policy uniform throughout all stores," said Ginsburg, arguing the plaintiffs' claims had some validity. Establishing that delegation of discretion "would be the first step in the usual order of proof for plaintiffs seeking individual remedies for companywide discrimination." She was supported by Justices Stephen Breyer, Sonia Sotomayor and Elena Kagan.

The company said it was pleased with the court's decision.

"As the majority made clear, the plaintiffs' claims were worlds away from showing a companywide discriminatory pay and promotion policy," said Gisel Ruiz, a company executive vice president. "Wal-Mart has a long history of providing advancement opportunities for our female associates and will continue its efforts to build a robust pipeline of future female leaders."

At issue was whether as many as 1.6 million current and former female Wal-Mart employees could make a unified claim of systemic discrimination, which they say has occurred over the past decade, at least. The plaintiffs alleged women were paid less than, and were given fewer opportunities for promotion than, their male counterparts. They sought back pay and punitive damages against the world's largest retailer.

A divided 6-5 ruling by the San Francisco-based 9th U.S. Circuit Court of Appeals last year had allowed the combined, multiparty litigation to move ahead to one trial, where a verdict against the company could result in tens of billions of dollars in damages.

The Supreme Court ruled only on whether the original lawsuit should be handled as a class action, instead of lower courts potentially being flooded with thousands of individual discrimination claims against the company. If the justices had ruled against Wal-Mart, permitting class-action status, it could have put severe pressure on the company to settle the claims out of court.

The lawsuit alleged the company's "strong, centralized structure fosters or facilitates gender stereotyping and discrimination." The workers who brought the suit also said women make up more than 70% of Wal-Mart's hourly workforce but in the past decade made up less than one-third of its store management.

The litigation was filed in 2001 by Dukes, a store greeter in Pittsburg, California, along with five of her co-workers from different facilities. She and another of the original six plaintiffs attended the oral arguments in Washington in March.

"I brought this case because I believe that there was a pattern of discrimination at Wal-Mart, not just in my store, but I believe that it is across the country," she told CNN at the court. "Since we have filed our lawsuit in 2001 I have heard from numerous women telling me basically the same story as mine of disparate treatment in lack of promotion as well as in lack of pay."

The company protested the size of the class action, which it called "historic" in scope, saying it would be too onerous to litigate. The company has more than 4,300 U.S. facilities in 41 regions.

Most workplace discrimination lawsuits fail to reach a court for resolution, according to data compiled by the federal Equal Employment Opportunity Commission.

In 2003, when the Wal-Mart litigation was in its preliminary court stages, about 27,000 sex discrimination claims nationwide were resolved administratively by the Equal Employment Opportunity Commission, little changed from the prior decade. More than 57% -- some 15,000 claims -- were ruled administratively to have "no reasonable cause," and those usually were dismissed.

Just over 10% were judged to have merit, resulting in a total of $94.2 million in settlements, or $34,200 on average per case, according to the data, which include all such claims, not just those involving Wal-Mart.

The case was also a clash of dueling cultures -- some have dubbed it the Battle of Bentonville vs. Berkeley, for the corporate headquarters and the home to the liberal legal team outside San Francisco where the lawsuits first percolated.

While the high court split on whether there was a common policy of discrimination at Wal-Mart, all nine justices agreed on the key questions of damages: The class-action claim lacked merit, said the court, because the plaintiffs sought individual awards of back pay for the women. Such "monetary relief" claims could not be made under the current class-action certification rules, the ruling said.

"Class counsel has planned for various outcomes before the Supreme Court -- including this one -- and have put in place plans to assist as many women Wal-Mart class members as possible with their claims," said a joint statement issued by a group representing the plaintiffs. "The fight for justice will continue."

Declaring class-action status for the lawsuit would have raised the financial and judicial stakes considerably, since more individual plaintiffs could have joined, creating greater potential liability for the company. In federal courts, such certification must generally follow well-established principles to ensure a lawsuit does not become so large as to be impracticable, and does allow the parties to fairly represent the common interests of the larger class of plaintiffs.

Wal-Mart also has been accused in separate lawsuits of discrimination against African-American truck drivers and workers with disabilities. In 2001 the company settled 13 lawsuits by paying out $6 million. It employs 1.4 million people in the U.S. alone.

The case is Wal-Mart Stores Inc. v. Dukes (10-277).

Barefoot Bandit case heads to Island County court

Barefoot Bandit case heads to Island County court
When Colton Harris-Moore last appeared in Island County Superior Court he was a regionally known nuisance.
By JACKSON HOLTZ

When Colton Harris-Moore last appeared in Island County Superior Court he was a regionally known nuisance.

He'll return to Coupeville as the "Barefoot Bandit," an American outlaw who is a folk hero to some and internationally known for stealing planes and running shoeless from some of his crimes.

Since leaving here for a juvenile prison in 2007, he's accused of committing nearly 100 crimes in several states, Canada and the Bahamas.

On Friday he pleaded guilty in federal court and took responsibility for many of the charges but he must return to Coupeville to answer to state allegations.

The Camano Island man, 20, also is expected to plead guilty to more than 30 felonies in Snohomish, Skagit, San Juan and Island counties.

"In principal, we think we're pretty close," Island County Prosecuting Attorney Greg Banks said.

State officials agreed to consolidate state charges into one case heard in Island County.

Prosecutors have been negotiating with Harris-Moore's defense attorneys while Island County officials make arrangements for the high-profile case.

The case has been assigned to Superior Court Judge Vickie I. Churchill. Her courtroom holds 90 people and officials plan to offer a live video feed of the proceedings, Banks said.

The video feed is expected to be broadcast across Center Street in the Island County commissioner's hearing room.

Harris-Moore hasn't appeared in state court to be arraigned on the dozens of burglary and theft charges he faces.

He was arrested in July 2010 in the Bahamas and held in federal detention since being extradited to the United States.

He still needs to enter a plea and face state sentencing. Banks said officials are trying to avoid multiple hearings.

"There's no reason we couldn't handle (the arraignment and sentencing) in a single hearing," Banks said.

First, state officials need to apply for a writ to allow Harris-Moore to be transferred from federal detention to the Island County Jail.

Then, schedules need to be aligned among victims, prosecutors, defense attorneys, courtrooms and Island County officials.

The hearing is expected to take place in late July or early August, Banks said.

Harris-Moore's mother, Pam Kohler, said she plans to attend the Island County hearing. She has not attended any of the federal hearings in Seattle.

Harris-Moore faces up to 10 years behind bars for the state charges.

Middle School Survey Sparks Outrage

Middle School Surveys 7th Graders on Oral Sex

A middle school in Massachusetts is under fire for requiring children to complete a graphic sex survey -- without parental knowledge or consent -- that included questions about sexual partners and oral sex.

The Rutherford Institute, a civil liberties organization, filed a complaint with the U.S. Dept. of Education against the Fitchburg School Committee. They are representing the two middle school-aged daughters of Arlene Tessitore.

Tessitore said her daughters, both students at Memorial Middle School, were told they had to complete a Youth Risk Behavior Study.

“Kids were actually told to sit down and take them,” said John Whitehead, president of The Rutherford Institute. “The parents here are very upset.”

Whitehead said the girls were deeply disturbed by the subject matter of the study – including questions about suicide, drug use and sexual behavior.

“One of the questions is, ‘have you ever had oral sex,’” Whitehead said. “You’re talking about kids who probably don’t even know what oral sex is.”

He said the survey also delved into even more graphic language.

“It’s adult material,” he told Fox News Radio, noting that one question asked students what method they used to prevent pregnancy during their last sexual encounter.

“It goes down a whole list, including birth control pills, condoms and one of the answers is ‘withdraw,’” Whitehead said. “Adults know what this is, but kids have to imagine or go online to find out what it means.”

Principal Fran Thomas told Fox News Radio that students were indeed given the survey – and admits it was graphic. But Thomas said the school has nothing to do with the content and they were required to administer the survey to fulfill a grant requirement.

“I can take no responsibility for what’s on that survey,” Thomas said. “It’s not generated by the school system.”

Thomas said the survey was funded by a federal grant and administered by LUK Inc., a local social services agency -- in coordination with the Centers for Disease Control.

The organization’s leader did not return numerous calls for comment. But according to its website, LUK, Inc.’s mission is to “challenge and support youth & families to recognize and fulfill their unique and productive potential through community-based prevention, intervention and education services.”

A spokesperson for the CDC denied any involvement in the Fitchburg sex survey. The CDC said only seven states and six urban districts include sexual identity questions on their YRBS surveys – and the questions are optional.

But Principal Thomas disputed that notion.

“It was not optional,” he said. “It’s part of a grant that they applied for and the district said you have to administer this survey.”

According to Whitehead, parents were sent a “passive consent” opt-out form. However, Tessitore said she never received the form and never gave permission for her daughters to take part in the survey.

“It was a case of the school telling parents what they were going to do,” he said. “If parents want their kids to answer these kinds of questions as federal law requires, they should give written consent. But if they don’t give consent, I don’t think public officials should be asking children such questions.”

Thomas said he understands the concerns expressed by the parents. But should the middle school be asking children questions about oral sex?

“That’s not a question I’d be asking,” Thomas said. “That’s not information that needs to be gathered in an indiscriminate manner – asking every single student these sorts of questions.”

Thomas said it wasn’t appropriate. “I think there are many things that schools are called upon to do because they think they’ve got a captive audience,” he noted.

Whitehead wants the Department of Education to step in and demand that the Fitchburg school follow the law when it comes to parental consent.

“Parents send their children to public schools to receive an education; not to become subjects of governmental data mining,” Whitehead said.

'Trigger Law' Would Allow Parents To Fire Teachers, Principals

Parent 'Trigger Law' In New York Would Allow Parents To Fire Teachers, Principals

A proposed state law would give New York parents significantly more power over their children's schools.

The so called "trigger law" would allow parents who gather a majority at any persistently failing school to either fire 50 percent of the teachers, fire the principal, close the school or turn it into a charter school.

From TIME:

When people first hear about the radical-sounding law, they are almost always taken aback. But what they might not know is that failing schools can already be shut down by school districts under the No Child Left Behind law. The parent trigger simply takes the option provided to the school board and hands the power to the parents

Carl Korn, a spokesman for New York State United Teachers, said parents should be involved in education decisions, but their participation should come before the school is failing.

"We think the time to involve parents is before a school is identified [as persistently lowest-achieving]. Allowing a petition by parents would ignore the research, the other stakeholders, and leave the decision open to politics. Would we have an election-style campaign where we have advertising and mailings and money being spent on both sides, lobbying parents?"

The legislative effort in New York is similar to one waged in California last year. Parents used the state's recently passed trigger law to try to force McKinley Elementary, a failing Compton school, to become a charter school.

McKinley Elementary ranks in the bottom 10 percent of California's elementary schools.

Secrets Of Woman With 5 Dead Husbands Die With Her

Secrets Of Woman With 5 Dead Husbands Die With Her

Husbands' Families Wanted Answers

CHARLOTTE, N.C. -- To the outside world, Betty Neumar was a diminutive Georgia grandmother with a shock of white hair who operated beauty shops, attended church and raised money for charity. No one asked questions when her last husband died.

It wasn't until North Carolina investigators in 2008 reopened a 25-year-old murder case that the dark secrets of her past began to unravel. Police discovered that Neumar had left behind a decades-long trail of five dead husbands in five states.

Any hope of answering lingering questions of her husbands' deaths -- or the missing pieces of her life -- faded Monday upon word that the 79-year-old died of an illness in a Louisiana hospital.

"She took all those secrets to the grave," said Al Gentry, who spent 25 years pressing North Carolina authorities in vain to re-examine the death of his brother, Harold Gentry, Neumar's fourth husband.

Neumar died late Sunday or early Monday, her son-in-law Terry Sanders told The Associated Press.

"She was a tough country girl and fought through a lot of pain," said Sanders, who has been married 38 years to Neumar's daughter, Peggy.

North Carolina authorities said they planned to look into her death. She was free on $300,000 bond on three counts of solicitation to commit first-degree murder in the 1986 death of Harold Gentry. Her trial was postponed numerous times since her arrest in 2008.

"We're going to make sure we examine the death certificate," said Sheriff Rick Burris of Stanly County, N.C.

While investigating Gentry's death, authorities discovered Neumar had been married five times since the 1950s and each union ended in her husband's death. Investigators in three states reopened several of the cases but have since closed them.

For Al Gentry, Neumar's death is bittersweet. He spent a good part of his adult life pushing law enforcement authorities to solve the case -- and he says he knows who was responsible: Neumar. The case was finally reopened in January 2008 after he asked Burris, then the newly elected sheriff, to look into it.

"I'm numb," said Gentry, 65, of Rockwell, N.C. "I wanted justice and we're not going to get it."

He said there were too many delays: the first was in the initial police investigation in 1986 and later with prosecutors. Her trial was supposed to have started this February, but was postponed to give a newly elected prosecutor more time to prepare.

"We still haven't answered the question: Who actually killed my brother?" he said.

The mysteries in Neumar's past may never be solved.

From the beginning, law enforcement authorities told The Associated Press they had struggled to piece together details of Neumar's life because her story kept changing. But interviews, documents and court records provided an outline of her history in North Carolina, Ohio, Florida and Georgia, the states where she was married.

She was born Betty Johnson in 1931 in Ironton, a hardscrabble southeastern Ohio town along the West Virginia border. Her father was a coal miner. She graduated from high school in 1949 and married Clarence Malone in November 1950. She told her friends she wanted to leave her hometown for a better life. It's unclear when their marriage broke up. Their son, Gary, was born March 13, 1952.

Malone remarried twice. He was shot once in the back of the head outside his auto shop in a small town southwest of Cleveland in November 1970. His death was ruled a homicide, although police said there were no signs of robbery.

Gary was eventually adopted by Neumar's second husband, James A. Flynn, although it's unclear when she met or married him. She told investigators that he "died on a pier" somewhere in New York in the mid-1950s. She and Flynn had a daughter, Peggy.

In the mid-1960s, Neumar, who was a beautician in Jacksonville, Fla., married husband No. 3: Richard Sills, who was in the Navy. For the last two years, Sills' son, Michael, has been urging police to reinvestigate his father's death, which was ruled a suicide.

On April 18, 1967, police found his body in the bedroom of the couple's mobile home in Big Coppitt Key, Fla. Neumar told police they were alone and arguing, when he pulled out a gun and shot himself.

Sills said he knew nothing about how his father died until he was contacted in 2009 by The Associated Press about Neumar's past. Since then, he has been drilling into the records.

After Neumar was charged in North Carolina, the Monroe County Sheriff's Department in Floridatook another look at the death .

They uncovered Navy medical examiner documents revealing Richard Sills may have been shot twice -- not once, as Neumar told police. One bullet from the .22-caliber pistol pierced his heart, while a second may have sliced his liver.

The Navy medical examiner at the time said that without an autopsy, he would be unable to determine if Richard Sills was shot once or twice. No autopsy was performed when he died. And without knowing the number of gunshot wounds, there's no way to know if his death was a suicide or homicide.

County investigators planned in 2009 to exhume Richard Sills' body from an Ocala, Fla., cemetery for an autopsy, but then determined a statute of limitations applied to the case. Investigators have said Florida law sets a time limit on prosecution of some categories of homicide, including involuntary manslaughter, but not on premeditated -- or first-degree -- murder.

Michael Sills then turned to the Naval Criminal Investigative Service cold case squad. The unit is studying the evidence and could decide to investigate. But that could end with Neumar's death.

After Richard Sills' death, she met Harold Gentry, who was in the Army, and they married on Jan. 19, 1968. The couple moved to Norwood, N.C., about an hour east of Charlotte, in the late 1970s after he retired from the Army after 21 years of service.

Over the years, Al Gentry recalls, she told the family she had been a nurse and that her first husband died of cancer. Her stories always changed. At first pleasant, she grew to become "cold" to his brother and family, Al Gentry said. Other family members also said she could be verbally abusive -- her mood changing quickly -- especially after she had a few drinks.

In November, 1985, her son, Gary, was found shot to death in his Ohio apartment. Police ruled his death a suicide. But Neumar was the beneficiary on her son's life insurance policy -- even though he was married with children. She also collected about $20,000 in insurance money when Harold Gentry was killed.

She also had a life insurance policy on husband No. 5, John Neumar, who died in October, 2007. She met him when she moved to Augusta, Ga., after Harold Gentry's death. There, she opened a beauty shop and did charity work. People in the community called her Bea and knew nothing about her past.

Georgia authorities two years ago closed their re-examination of the death of John Neumar, saying they had no evidence she was involved. His family has criticized the conclusion.

At the time, John Neumar's family said she isolated him from the rest of the family, and didn't know he had died until reading his obituary in the local newspaper. When they visited the funeral home, they discovered he had been cremated.