Tuesday, January 3, 2017
Sexual Harassment of Men, by Woman is on the rise. The January 3, 2016 Detroit Free Press, outlines some statistics, here. As the article states:
According to the U.S. Equal Employment Opportunity Commission, the percentage of sexual harassment complaints filed by men has more than doubled over the last 25 years, from 8% in 1990 to 17% in 2015. That year, 1,165 men complained about sexual harassment, compared to 5,656 women.
Although the number of men filing claims has leveled off over the past five years, an average of 1,200 men claim sexual harassment every year in American workplaces. Legal experts believe the number could be higher because there's still a stigma attached to men complaining about women's sexual advances.
"People are surprised that men would complain about this, and that could be a mistake," said Ernest Haffner, an EEOC attorney in Washington, D.C., who tracks harassment in the workplace. "Employers should take harassment seriously, regardless of whether it's a man or a woman. They all need to be treated the same."
The law, of course, treats sexual harassment of men the same as for woman. Price Waterhouse v. Hopkins, 490 U.S. 228 (1989); Baskerville v. Culligan Int'l, 50 F. 3d 428 (7th Cir. 1995).
Thursday, August 4, 2016
Sometimes you just cannot make these cases up. After a female massage therapist was fired by the male owner for being "too cute, " she sued for sex discrimination. Justice Sholom Hagler, a New York lower court judge who I have appeared before, dismissed her case and concluded that under NYS and NYC law, a cause of action was not stated because appearance based discrimination is not gender based and the sex discrimination statutes only protect gender based discrimination.
Not so fast. While the Judge did cite to the majority of authority which supports this fine line distinction, there is also some contrary authority which the Judge did not cite. Most importantly, it seems to me that there is a type of reverse Price Waterhouse sexual sterotype argument.
In Price Waterhouse, it was unlawful to not promote a woman to partnership because she did not act like a woman. She was simply too macho. Shouldn't the opposite be true? A woman should not be able to be fired for being too pretty. Seems to me this is classic sex sterotyping. It should be unlawful under Title VII and it certainly should be unlawful under NYC law which is required to be broadly interpreted.
Unfortunately, the Judge did not address this issue and I hope this case is appealed. There have been several law review articles written on this topic and additional scholarly writing would be most welcome.
Note, the court also held that a cause of action for defamation was stated. I am not sure of that holding either, but I have not focused on it.
This case got a lot of press when it came out in May, but I just saw it now. And yes guys, if you do an internet search, you can find a picture of the plaintiff.
Edwards v. Nicolai, NYLJ May 23, 2016, Index No. 160830/2013 (N.Y. Co. 2016).
Wednesday, November 18, 2015
Last week in class we discussed the famous case Peevyhouse v. Garland Coal & Mining Co., 382 P.2d 109 (1962). The case involved a contract wherein the Peevyhouses allowed Garland to strip-mine on their farm property. In lieu of the standard $3,000 up-front payment for surface damages, the Peevyhouses negotiated a clause requiring Garland to perform certain "restorative and remedial work" on the property after completing their mining operations. Garland mined the property and extracted their profits, then breached the restoration provision. The Peevyhouses sued for breach of contract. The evidence at trial apparently provided the cost to perform the work would be $29,000 -- but that the diminution in property value resulting from the breach was only $300. The jury split the difference, sort of, by awarding the Peevyhouses $5,000, an amount the Oklahoma Supreme Court declared to be "more than the total value of the farm even after the remedial work is done."
The Oklahoma Supreme Court modified the judgment for the Peevyhouses, awarding $300 -- the value lost. To say the least, the decision remains a controversial one. In 2008, at PrawfsBlawg, Eric E. Johnson (North Dakota) conducted a survey to name "The Most Screwed Victims in Case-Law History." Willie and Lucille Peevyhouse won that competition in a landslide. Twenty years ago, Judith Maute published a comprehensive article on the case, Peevyhouse v. Garland Coal & Mining Co. Revisited: The Ballad of Willie and Lucille in the Northwestern Univ. Law Review. Maute's article is fascinating for many reasons, not the least of which is the section on the Oklahoma Supreme Court bribery scandal that followed the case. Whether that scandal contributed to the Peevyhouse result remains, it seems, an open question.
Peevyhouse exemplifies the "economic waste doctrine" -- a contract law doctrine memorialized in the Restatement. The doctrine finds its origins in Jacob & Youngs, Inc. v. Kent, 129 N.E. 889 (9121). There, a homeowner sued the home builder for using Cohoes plumbing pipe when the contract required Reading brand pipe. Reversing the trial court's decision to exclude diminution of value evidence, the Court held that cost to complete is the proper damages measure unless, "the cost of completion is grossly and unfairly out of proportion to the good to be attained.” The defendant in Jacobs & Young appear to have the better of the argument -- in Peevyhouse, not so much (hence perhaps the result in Johnson's poll, above). Scholars have written to distinguish the two cases and better define the economic waste doctrine's contours. A good starting point is Carol Chomksy, "Of Spoil Pits and Swimming Pools: Reconsidering the Measure of Damages for Construction Contracts," 75 Minn. L. Rev. 1445 (1991) (download link).
More recently, the Oregon Supreme Court discussed its economic waste doctrine at some length in Montara Owners Assoc. v. La Noue Development, Inc., 353 P.3d 563 (Or. 2015) in a case ultimately decided on harmless error grounds. For its own part, the Oklahoma Supreme Court affirmed the Peevyhouse holding on certified question in Schneberger v. Apache Corp., 890 P.2d 847 (1994).
 Restatement (Second) Contracts, sec. 348, cmt. c (1981).
Thursday, October 29, 2015
A Tennessee court granted Mother and Father's divorce in 2000. Because Mother's was found to have a drug problem and was not visiting or contacting the children, the court denied Mother access to the children until she successfully demonstrated she was drug-free.
Nine months later, Father filed a petition to terminate Mother's parental rights. Father listed in that petition the formal marital home as Mother's address even though Father knew the court had divested Mother of any right or interest in the house in the divorce judgment and Father, who resided in the home, knew Mother did not. Unable (predictably) to accomplish personal service, Father served Mother by publication, however, Father did not follow Tennessee's statutory requirements for such service. Mother did not answer or appear and the trial court granted Father's motion for default judgment terminating Mother's parental rights.
In 2010, almost nine years later, Mother filed a motion to set aside the default judgment. She asked the court to find the default judgment void for lack of personal jurisdiction. The trial court determined that Father knew Mother did not reside at the marital residence when summons issued and made no attempt to locate Mother before resorting to service by publication. The trial court set aside the default judgment and the intermediate appellate court affirmed the judgment. The Supreme Court of Tennessee granted Father's permission to appeal.
Wednesday, October 21, 2015
The general rule in American jurisdictions does not permit a victorious party to recover attorney's fees or litigation costs from the losing party. There are exceptions to this rule -- courts typically enforce fee-shifting provision in contract and most if not all states have statutes that allow prevailing parties to recover fees in some situations. Some such statues provide for "one-way" fee shifting whereby only a prevailing claimant may recover fees. Others are "two-way" fee shifting statutes allowing either plaintiff or defendant to recover.
Courts have created rules on fee-shifting deisgned to achieve fairness and fidelity to the American rule, however, these rules can and have led to "a second major litigation," or to "years of protracted appellate review." Perdue v. Kenny A., 559 U.S. 542, 572 (2010) (Breyer, J., dissenting). One such rule requires attorneys to segregate attorney's fees and expenses between recoverable and unrecoverable claims. For example, if a party sues in contract and tort in a jurisdiction that enforces a fee-shifting provision in the contract but does not provide for fee-shifting in tort, a prevailing plaintiff must segregate the nonrecoverable attorney's fees incurred solely to prosecute the tort claim from the recoverable fees incurred for the contract claim and fees incurred as to both claims. See e.g., Tony Gullo Motors, Inc. v. Garcia, 212 S.W.3d 299 (Tex. 2006). Likewise, when the prevailing party wins only in part, the party must segregate fees between the successful and unsuccessful claims to the extent fee-shifting applies as to the successful claims. See Fox v. Vice, 563 U.S. 826 (2011).
What happens when each side in a lawsuit prevails in part with each party prevailing on a claim entitling it to attorney's fees pursuant to a fee-shifting provision? A California court answered this question in Sharif v. Mehusa, Inc., No. B255578, 2015 W.L. 5969679 (October 14, 2015, Cal. Ct. App.). In this case, the plaintiff prevailed on her state Equal Pay Act claim and the defendant prevailed on its plaintiff's overtime and wage claim. Each party filed a motion for attorney's fees under the applicable statute. The trial court awarded both sides its attorney's fees as to the claim upon which each prevailed, with the plaintiff obtaining a small fees award after offset.
The California appellate court affirmed. The court held that "when there are two fee shifting statutes in separate causes of action, there can be a prevailing party for one cause of action and a different prevailing party for the other cause of action." Ms. Sharif argued that because she prevailed on the Equal Pay Act claim and received a money judgment on that claim, she was the "prevailing party," and was subject only to reduction in the fee claim for the unsuccessful overtime and wage claim. The court agreed Sharif was a prevailing party in part, but added that Mehusa, Inc. was a prevailing party also as to a claim including a two-way fee shifting provision. The court stated it made no sense for the defendant to be able to recover on the overtime and wage claim if the two claims here were brought in separate actions but not if the two claims were consolidated into one action.
We cover attorney fees recovery in our Damages class. It is important for new attorneys to develop good habits about tracking time in cases, even when representation is for a flat or contingent fee. I cannot imagine anything more mind-numbing (or more filled with ethical risks) than having to recreate an attorney's fees statement on short notice at a lengthy and complicated case's end. Here is a recent essay with useful tips about substantiating attorney's fees in litigation.
Tuesday, October 13, 2015
This past April, I reported on this blog that a Texas district judge had been publicly admonished by the State Commission on Judicial Conduct for posting on her Facebook page information about a case she was trying. The district judge appealed that reprimand and on September 30, a three-judge Special Court of Appeals found that the Commission, "failed to meet its burden of proving the [Judge] violated the Canons of Judicial Conduct or Article V, Section 1-a(6)(A) of the Texas Constitution." The Special Court dismissed the Commission's public admonition and found the Judge not guilty of all charges.
- Judge Admonished for Facebook Post
- Judge's Comments Raise Ethics Questions
- Tennessee: Judge's Facebook Use Does Not Lead To Recusal
- Facebook Friendship Leads to Disqualification
- Judge is Disqualified After Sending Litigant a Facebook Friend Request
- Texas: Facebook "Friendship" Alone Does Not Require Recusal
- Extraneous Remarks Leads to Remand for Re-Sentencing
- Estlinbaum, Social Networking and Judicial Ethics
- Florida: Facebook Friendship Leads to Judicial Disqualification
- Social Networking Judges and Attorneys
- Judges and Facebook
Tuesday, September 8, 2015
California Law Review and the American Constitution Society is hosting a panel discussion, "What to Make of Obergefell?: A Moderated Discussion with Professor Melissa Murray" this week. The panel discussion will be September 10 at the Boalt Hall campus and will address the Supreme Court's decision in Obergefell v. Hodges. Participants include Elizabeth Gill, ACLU of Northern California; Alexandra Robert Gordon, California Deputy Attorney General; and Maxwell Pritt, Boies, Schiller & Flexner, L.L.P.
Monday, March 9, 2015
Department of Transportation v. Association of American Railroads, No. 13-1080 (March 9, 2015) is one of those administration law cases that to the casual observer at first glance looks complicated, technical and, to be honest, boring. The case exists because in 2008, Congress granted Amtrak and the Federal Railroad Administration joint authority to issue "metrics and standards" relating to Amtrak's scheduling and performance. The Association ("AAR") challenged this authority in this case because the metrics and standards imposed adversely affects their members' freight business interests. Normally, this is the type case I would not even read. I'm sure glad I did.
The AAR argued Congress violated separation of powers rules by delegated this rule-making authority to Amtrak -- a private entity. The Court of Appeals held for AAR on both issues -- that Amtrak was a private entity and that the Congress's delegation of authority violated separation of powers. The Supreme Court reversed that first finding today and held unanimously that for separation of powers purposes, Amtrak is a government entity. The Court remanded the case to the Court of Appeals for further consideration in light of this holding.
Justice Kennedy wrote the opinion joined by seven other Justices, including Justice Alito, who concurred. Justice Kennedy acknowledges that further litigation will determine whether Amtrak's role in setting rail regulations passes constitutional muster. Justice Thomas concurred in the judgment only. Justices Alito wrote about the implications for the Amtrak legislative and regulatory scheme now that Amtrak is held to be a governmental entity for these purposes. These issues include the oath or affirmation requirement in Art. IV, cl. 3; the commission requirement in Art. II, Sec. 3, cl. 6; the scope of the relatively obscure non-delegation doctrine and whether Amtrak's legislative and regulatory scheme violates separation of powers.
Justice Thomas goes further -- his concurring opinion is a lengthy and powerful commentary on the separation of powers doctrine's history and purpose. He concludes his opinion this way:
In this case, Congress has permitted a corporation subject only to limited control by the President to create legally binding rules. These rules give content to private railroads’ statutory duty to share their private infrastructure with Amtrak. This arrangement raises serious constitutional questions to which the majority’s holding that Amtrak is a governmental entity is all but a non sequitur. These concerns merit close consideration by the courts below and by this Court if the case reaches us again. We have too long abrogated our duty to enforce the separation of powers required by our Constitution. We have overseen and sanctioned the growth of an administrative system that concentrates the power to make laws and the power to enforce them in the hands of a vast and unaccountable administrative apparatus that finds no comfortable home in our constitutional structure. The end result may be trains that run on time (although I doubt it), but the cost is to our Constitution and the individual liberty it protects.
This case is going back to the Court of Appeals and may be satisfactorily resolved there or below, but the Court's decision and opinions today set the stage for a possible major showdown on separation of powers and the Court's non-delegation doctrine.
- Eric Jaffe, "The five key moments from Amtrak's Supreme Court hearing," The Atlantic CityLab (Dec. 12, 2014).
- Greg Stohr, "Supreme Court questions law that helped Amtrak run on time," BloombergPolitics (Dec. 8, 2014).
- Patti Goldman, "Supreme Court case concerning Amtrak contains hidden twist," EarthJustice Blog (Dec. 8, 2014)
- Stephen Wermiel, "SCOTUS for law students: Non-delegation doctrine returns after long hiatus," SCOTUSblog (Dec. 4, 2014).
Edit to add:
- Lyle Denniston, "Opinion analysis: Deciding — without deciding finally," SCOTUSblog (Mar. 9, 2015).
 The Court previously held Amtrak to be a "Government actor" for First Amendment purposes in Lebron v. National R. R. Passenger Corp., 513 U.S. 374 (1995).
Wednesday, November 12, 2014
The Indiana Supreme Court upheld the law’s constitutionality in a 5-0 decision in Zoeller, et al. v. Sweeney, et al., (Nov. 6, 2014). The decision reverses a lower court decision that previously declared the law unconstitutional.
Indiana’s Right to Work law prohibits employers from requiring union membership or the payment of dues as a term or condition of employment. A knowing or intentional violation of the law subjects the violator to a Class A misdemeanor.
Mitchell H. Rubinstein
Friday, June 27, 2014
New York's highest state court, the Court of Appeals, rejected the city's ban on sodas larger than 16 ounces yesterday. The case, New York Statewide Coalition of Hispanic Chambers of Commerce v. New York City Department of Health and Mental Hygiene, No. 134 (N.Y., June 26, 2014) begins:
We hold that the New York City Board of Health, in adopting the "Sugary Drinks Portion Cap Rule", exceeded the scope of its regulatory authority.
The New York Times' Michael M. Grynbaum has a story here.
Wednesday, June 25, 2014
Courts have regularly held that flying or tossed baseballs and broken bats entering the spectator area during competition are an inherent risk of the sport. Where spectators have been injured by such objects during competition, courts in subsequent litigation usually employ a limited duty rule applied to the ballpark operator. E.g., Edward C. v. City of Albuquerque, 241 P.3d 1086 (N.M. 2010) (deciding that "a spectator must exercise ordinary care to protect himself or herself from the inherent risk of being hit by a projectile that leaves the field of play and the owner/occupant must exercise ordinary care not to increase that inherent risk").
But what about flying hot dogs? A spectator at a Kansas City Royals baseball game alleged he sustained injuries to his eye when he was struck by a flying hot dog tossed by the Royals' mascot during a promotion. The jury found for the Royals, but yesterday, the Missouri Supreme Court reversed citing jury instruction error and remanded the case for a new trial. That court held:
In the past, this Court has held that spectators cannot sue a baseball team for injuries caused when a ball or bat enters the stands. Such risks are an unavoidable – even desirable – part of the joy that comes with being close enough to the Great American Pastime to smell the new-mown grass, to hear the crack of 42 inches of solid ash meeting a 95-mph fastball, or to watch a diving third baseman turn a heart-rending triple into a soul-soaring double-play. The risk of being injured by Sluggerrr’s hotdog toss, on the other hand, is not an unavoidable part of watching the Royals play baseball. That risk is no more inherent in watching a game of baseball than it is inherent in watching a rock concert, a monster truck rally, or any other assemblage where free food or T-shirts are tossed into the crowd to increase excitement and boost attendance.
Accordingly, Coomer’s claim is not foreclosed by the assumption of the risk doctrine.
The case is Coomer v. Kansas City Royals Baseball Corp., No. SC-93214 (Mo., June 24, 2014).
Friday, March 21, 2014
Yesterday, a unanimous Supreme Court of Illinois declared the state's eavesdropping law to be unconstitutional. The case is Illinois v. Melongo, No. 114852 (Ill., March 20, 2014).
The statute reads:
(a) A person commits eavesdropping when he:
(1) Knowingly and intentionally uses an eavesdropping device for the purpose of hearing or recording all or any part of any conversation or intercepts, retains, or transcribes electronic communication unless he does so (A) with the consent of all of the parties to such conversation or electronic communication or (B) in accordance with Article 108A or Article 108B of the "Code of Criminal Procedure of 1963", approved August 14, 1963, as amended; or
(3) Uses or divulges, except as authorized by this Article or by Article 108A or 108B of the "Code of Criminal Procedure of 1963", approved August 14, 1963, as amended, any information which he knows or reasonably should know was obtained through the use of an eavesdropping device.
The defendant argued that the statute violated the first amendment both as to the recording provision in (1) and the publishing provision in (3), both facially and as applied. The court observed that the law's stated purpose was to protect conversational privacy. The law, however, "deems all conversations to be private and, thus, not subject to recording absent consent, even if the participants have no expectation of privacy." The court held that the statute, "burdens substantially more speech than is necessary to serve a legitimate state interest in protecting conversational privacy." Therefore, the recording provision violates the first amendment on its face. The court reached the same conclusion regarding 14-2(a)(1) in a different case presenting different facts the same day in Illinois v. Clark, No. 115766 (Ill. Mar. 20, 2014).
The State conceded that if the recording provision fails first amendment muster, the publishing provision must too fail, due to a U. S. Supreme Court decision on point. Bartnicki v. Vopper, 532 U.S. 514 (2001). In that case, "[t]he Court held that under the first amendment, the state may not bar the disclosure of information regarding a matter of public importance when the information was illegally intercepted by another party who provided it to the disclosing party. The Illinois court determined that because Melongo was in the innocent party's position due to 14-2(a)(1) being declared unconstitutional, a bar against publishing the recording subjected her to a, "naked prohibition against disclosure."
In a Chicago Tribune report on the case, Steve Schmadeke notes (link added):
The decision comes two years after a federal appeals court in Chicago found unconstitutional the law's ban on recording police officers in public. The 7th Circuit Court of Appeals ruling prohibited enforcement of that part of the law shortly before Chicago hosted the NATO summit in May 2012.
Thursday, March 13, 2014
A committee supporting a trial judge's re-election creates a Facebook page supporting the campaign. That page allows the judge's supporters and others in the community to post comments on the page, including comments on pending cases. Attorneys in one such case move to disqualify or recuse that judge because comments posted on the campaign's page by others -- not the judge and not the parties or their attorneys -- about the pending case "gives the appearance of impropriety and a lack of impartiality." What is the result?
Earlier this month, a three-justice panel from the New Mexico Supreme Court denied a motion to disqualify a judge under such circumstances in a civil case. A New Mexico company, Valley Meat Co., filed the motion to disqualify after the judge granted the Attorney General's application for temporary restraining order preventing Valley Meat from opening a horse slaughterhouse facility near Roswell. According to the reports, the Attorney General sought to block the slaughterhouse from opening because of "food and water safety concerns and unfair business practices." Valley Meat sought to disqualify the judge because of comments posted by horse slaughter opponents on a the judge's election campaign Facebook page.
Writing about the case in February, Scott Sandlin of the Albuquerque Journal News examined some implications associated with increased social media use by judges and also provided greated back story to this case and Valley Meat's motion to disqualify. The panel's order itself does not appear to be available online at this time.
Several states and the American Bar Association have pubished opinions relating to social networking by judges. Little attention has been paid in these opinions to when, if at all, judicial campaign activity intersects with judical ethics restrictions on social media use. As judicial elections utilize social media in greater numbers, expect to see more cases like this New Mexico case arise.
- Facebook Friendship Leads to Disqualification
- Judge is Disqualified After Sending Litigant a Facebook Friend Request
- Texas: Facebook "Friendship" Alone Does Not Require Recusal
- Extraneous Remarks Leads to Remand for Re-Sentencing
- Estlinbaum, Social Networking and Judicial Ethics
- Florida: Facebook Friendship Leads to Judicial Disqualification
- Social Networking Judges and Attorneys
- Judges and Facebook
Monday, February 24, 2014
The son of legendary Delta bluesman Robert Johnson can keep profits from the only two known photographs of his father, the Mississippi supreme court ruled Thursday.
Robert Johnson died at the age of 27 in depression-era Mississippi having lived his brief adult life as an itinerant Delta bluesman. In his life he only recorded 29 songs, and there are only two known photographs of him in existance. He died before he turned 30 and the exact location of his grave is unknown (though there are three markers for him -- one in Morgan City MS, one in Quito MS, and one north of Greenwood MS). After his death, Johnson became one of the most influential guitarists in music history --- in 2003, Rolling Stone magazine ranked Johnson 5th among the 100 Greatest Guitarists of All Time.
The case is Aynne Anderson v. Stephen C. Lavere, No. 2012-CA-00601-SCT (Miss., February 20, 2012). Mississippi courts had previously declared Robert Johnson's son, Claud Johnson, to be his sole heir in 1998. This case turns on the relevant federal and state statute of limitations' application to the facts. The case is interesting not only for its historical significance to music fans, but also as illustrating how testimony in once case case turn fatal in a subsequent claim.
According to the case, Plaintiffs Anderson, et al., initially believed they were the heirs to the Robert Johnson Estate -- Johnson died intestate in 1938 and left no estate of value, or so anyone then thought. Plaintiffs opened Johnson's estate in 1989 believing themselves to be the bluesman's only heirs. During the proceedings, they testified under oath that the recordings and two photographs were the Johnson Estate's property. However, Mississippi courts ultimately found Claud Johnson to be Robert Johnson's only heir.
In this subsequent litigation over rights to the two photographs, Plaintiffs' asserted the those same photographs belonged to them personally. The court wrote:
Also, we note that during the [prior] heirship proceedings, Anderson and Harris did not claim the photographs belonged to Thompson. Rather, they claimed the photographs were assets of the Johnson estate. They assert that they did not bring a separate action because they thought they were the only heirs to the Johnson estate, and thus they were entitled to the photographs as Johnson’s heirs. So, only after losing the estate case did Anderson and Harris bring a separate action claiming that Thompson – and not the estate – owned the photographs. This strategy cannot serve to toll the statute of limitations.
A collection of Robert Johnson's recordings, "The Complete Recordings" won a Grammy Award in 1990 for Best Historical Album.
Tuesday, February 4, 2014
A Florida appellate court recently held that a motion to disqualify a judge should be granted where the judge in a divorce proceeding, sent a Facebook friend request to a litigant in the proceeding and the litigant refused the request. The case is Chace v. Loisel, No. 5D13-4449 (Fla. Dist. Ct. App., January 24, 2013).
In this case, the judge, during the divorce proceeding, "reached out" to the party by making a Facebook friend request. The party declined the request. That party later claimed the judge retaliated against her by awarding her most of the marital debt. The party filed a motion to disqualify which the trial court denied.
The appellate court wrote:
It seems clear that a judge’s ex parte communication with a party presents a legally sufficient claim for disqualification, particularly in the case where the party’s failure to respond to a Facebook “friend” request creates a reasonable fear of offending the solicitor. The “friend” request placed the litigant between the proverbial rock and a hard place: either engage in improper ex parte communications with the judge presiding over the case or risk offending the judge by not accepting the “friend” request.
Florida Judicial Ethics Advisory Committee Opinion 2009-20 provides that by designating an attorney as a Facebook friend, a judge, "reasonably conveys to others the impression that these lawyer 'friends' are in a special position to influence the judge." Florida takes a restrictive approach to judicial use of social media so the outcome in this case is not surprising.
Thursday, October 17, 2013
Reversing 24-year old precedent, the Alabama Supreme Court held earlier this month that Alabama law does not authorize courts to order parents to pay postminority educational expenses. The case is Ex Parte Christopher, No. 1120386 (Ala. October 4, 2013).
In Ex Parte Bayliss, 550 So.2d 986 (Ala. 1989), the court interpreted an Alabama statute to allow a divorce court to order a noncustodial parent to pay a child's college expenses. The statute reads:
Upon granting a divorce, the court may give the custody and education of the children of the marriage to either father or mother, as may seem right and proper...
Christopher turned on the meaning of "children of the marriage" and the court's obligation to follow stare decisis. The court looked to the common law and dictionary definitions of "children," which is not a defined term in the statute, to conclude the phrase refers to minors. The court noted that interpreting the term "children" to include adults would lead to the "absurd and unjust" result of court "assign[ing] custody of the adult children of a marriage to one of the divorcing parties."
Regarding stare decisis, the court wrote:
By departing from settled precedent on the meaing of the term "children" in [the statute] and expressly overturing eight cases that conformed to that precedent, the Bayliss court indeed "unsettled" the law. The question arises whether we are bound by the principle of stare decisis to follow Bayliss, even though that opinion itself repudiated that principle. We are not so constrained.
The majority determined that the court erred in Bayliss and the court had an obligation to correct the error.
Two justices dissented in separate opinions in a lengthy decision including six opinions and 74 pages. One dissenting justice, citing the acquiescence principle, observed that in the 24 subsequent years, the Alabama legislature had not statitutorily overturned Bayliss. The justice finds this fact to be an instructive interpretive benchmark.
The states are divided on this issue with some providing no discretion for courts to order parents to support or educate nonminority children, e.g., Curtis v. Kline, 666 A.2d 265 (Pa. 1995) (no duty to support postminority children), others providing for the duty to pay educational expenses to age 21, e.g., Utah Code Ann. sec. 15-2-1, and still others giving courts authority to do so without regard to age, e.g., Donarski v. Donarski, 581 N.W.2d 130 (N.D. 1998) (postminority support is limited and based upon case circumstances).
Tuesday, July 9, 2013
The New Jersey Supreme Court issued an important just compensation decision yesterday in Borough of Harvey Cedars v. Karan, No. 070512 (N.J., July 8, 2013).
In this case, the borough condemned part of the Karan's beachfront residential property to construct 22-foot high dunes to serve as a barrier against storm tides. All parties agreed that the Karans' were entitled to just compensation - the case turned on what evidence should be admitted in determining that just compensation.
At trial, the court allowed the Karans' evidence relating to lost value due to the dunes obstructing their "oceanfront vista." The trial court denied, however, the borough's evidence relating to the enhanced value for the Karans' property attributed to the added storm protection afforded by the dunes. In the trial court's view, the storm protection constituted a general benefit. The issue before the court was whether or not the cost incurred by the Karans, the part taken plus damages to the remainder, should be offset to the benefit the Karans might receive from dune project.
The Supreme Court reversed the trial court. The court rejected the 19th century general benefits/special benefits dichotomy to hold that "just compensation should be based on non-conjectural and quantifiable benefits, benefits that are capable of reasonable calculation at the time of the taking." The trial court erred, according to the opinion, but allowing the jury to hear evidence relating to the lost value due to the dunes, but not evidence relating to increased storm protection that would potentially enhance value.
This opinion, issued unanimously, is a lengthy and detailed one and includes some history about just compensation law and the general damages/special damages rule. We cover this issue in my Damages course so I will be incorpating either this case or the concepts this fall semester.
Tuesday, June 4, 2013
In a published opinion, the a Fifth Circuit Court of Appeals panel last week, in a sex discrimination lawsuit brought by the EEOC, reversed summary judgment for an employer that allegedly discharged an employee for expressing milk while at work. The lower court earlier found, as a matter of law, that discharging a lactating female employee for expressing milk does not constitute sex discrimination. The Fifth Circuit held that discriminating against a woman who is lactating or expressing breast milk violates federal sex discrimination laws.
The opinion is EEOC v. Houston Funding II., Ltd., No. 12-20220 (5th Cir., May 30, 2013). The opinion, by Judge Grady Jolly, was unanamous, with Judge Edith Jones concurring. The Houston Chronicle's story on the case adds this interesting tid-bit.
"You would think there would be reported case law on this," said Jim Sacher, regional attorney for the Equal Employment Opportunity Commission in Houston, which is handling the case and its appeal on behalf of Venters.
But this is the first definitive decision in the country that firing someone because of lactation is an example of sex discrimination, Sacher said.
Wednesday, May 29, 2013
The North Dakota Supreme Court yesterday issued a decision applying mistake of law doctrine to reform a trust. The case is In Re: Matthew Larson Trust Agreement, 2013 WL 2302304, No. 20120319 (N.D., May 28, 2013).
The case centers around trusts created by Matthew Larson's maternal grandparents, the Clairmonts. After the trusts were created, Matthew's parents divorced and his father remarried. That marraige produced other children who became Matthew's half-siblings.
Matthew died intestate, without spouse or descendants, in 2011. At issue in the case is the provision for distribution of the trust in the even of Matthew Larson's death. The provision in the first trust read (with emphasis added):
If the Beneficiary shall die before receiving complete distribution of the trust, the Trustee shall distribute the balance of the trust as the Beneficiary designates under his or her Last Will and Testament or under any other instrument exercising this general power of appointment. In the event that the Beneficiary does not exercise this general power of appointment, the Trustee shall distribute the balance of the trust to the Beneficiary's surviving issue by right of representation . . . and if Beneficiary leaves no surviving issue, then equally to Beneficiary's brothers and sisters and the issue of a deceased brother or sister by right of representation.
The distribution terms in the second trust includes similar conditional language, providing for possible distribution to Matthew's "brothers and sisters of Matthew then living." Because Matthew died with no will and no spouse, without issue and without otherwise appointing surviving beneficiaries, the provision in the trusts distributing trust corpus to his "brothers and sisters" became operative.
The question before the court is whether or not the phrase "Beneficiary's brothers and sisters" includes Greg Larson's children by the second marraige - Matthew's half-siblings. The Clairmonts argued the trusts should be interpreted to include only Matthew Larson's brothers and sisters who are lineal descendants of the Clairmonts and not the children of Greg Larson by a marraige to someone other than their daughter. The Clairmonts lost their claim for reformation at trial.
The North Dakota Supreme Court reversed. The Court first noted that North Dakota law allows trusts to be reformed to conform to the settlor's intentions, "if it is proved by clear and convincing evidence that both the settlor's intent and the terms of the trust were affected by a mistake of fact or law, whether in expression or inducement." North Dakota adopted this statute from section 415 of the Uniform Trust Code, which itself mirrors Restatement (Third) of Prop.: Donative Transfers § 12.1 (Tentative Draft No. 1, 1995). Trust law authorizes reformation in part to prevent unjust enrichment to unintended beneficiaries.
The Court further observed that mistake of law supporting trust reformation differs from mistake of law supporting contract reformation. The court noted that, "[r]eformation of a contract generally requires a mutual mistake between the parties.' Contract reformation normally requires mutuality to prevent courts from imposing a reformed contract upon the non-mistaken party that the non-mistaken party did not bargin for. On the other hand, the courts require no such mutuality to reform a trust because the settlor typically does not receive consideration in exchange for creating the trust. Only the settlor's intent is involved in creating the trust. The Court's comments on the mutuality requirement in the two contexts is particularly instructive.
The Clairmonts testified they were mistakened as to the meaning of "brothers and sisters" and believed the terms meant full-blooded siblings. Both Clairmonts and the attorney that drafted the second trust testified they believed the term "brothers and sisters" meant siblings that were lineal descendants of the Clairmonts. They also testified that the Clairmonts did not intend to benefit Greg Larson's children by his second wife in establishing the trust. The Court determined no evidence existed to dispute this testimony. The Court concluded that applying the trial court's conclusions correctly to the law requires reformation providing, "that only Matthew Larson's brothers and sisters who are descendants of the Clairmonts may benefit from the trusts."
Thursday, May 23, 2013
The Fifth Circuit Court of Appeals of Texas, located in Dallas, held last week that a trial judge's undisclosed Facebook "friendship" with the victim's father in a criminal prosecution alone does not establish grounds for recusal or disqualification. Youkers v. State of Texas, No. 05-11-01407-CR (Tex. App. -- Dallas, May 15, 2013).
Defendant in the case pled guilty to assault of his pregnant girlfriend and received a 10-year sentence suspended for 5-years plus a $500 fine. Three months, later, the State filed a motion to revoke. Defendant entered an open plea of true to the motion's allegations at the revocation hearing. The trial judge sentenced Defendant to eight-years in the state penitentary and later denied the motion for new trial. The Defedant argued on appeal that he was entitled to the new hearing because the judge and the victim's father were undisclosed Facebook "friends" and that the judge had received an improper ex parte message (one favorable to the Defendant) via Facebook from the victim's father prior to sentencing.
The court analyzed the case facts, applicable canons, and further applied the recent ABA Standing Comm. on Ethics & Prof. Responsibity, Formal Op. 462 (February 21, 2013) (authorizing judges to participate in social networking providing such participation complies with relevant ethics rules). The appellate court also examined other Texas cases involving cases where judges presided in cases where the judge had a seemingly close, public relationship with a party. For example, in Lueg v. Lueg, 976 S.W.2d 308, 311 (Tex. App--Corpus Christi 1998, pet denied), cited by the Dallas court, another intermediate appellate court held that the mere fact that a party was a former campaign manager for the judge alone was insufficient to require the judge's recusal. The court rejected Defendant's claim of actual and apparent impartiality on the record and affirmed that ground.
Not all states agree with the approach taken by the ABA (and this Texas court) on judges using social media. Last September, for example, the Florida appeals court held that a judge's Facebook friendship alone presents grounds for disqualification. Domville v. State of Florida, 103 So.3d 184 (Fla.Cir. Ct. 2012) (covered by this blog here). Florida's state judicial ethics commission had previously rendered an opinion applying a restrictive approach to social media use for judges - a different approach than the one adopted by the ABA.
The permissive approach to judicial social media use adopted by the ABA and this Texas Court requires fact-intensive analysis into the relationship between the judge and the social media friend in recusal and disqualification issues. For this reason this issue now of first impression is one likely to be revisited frequently in states applying the ABA's permissive guidelines as more judges enter the social networking world.