Adjunct Law Prof Blog

Editor: Mitchell H. Rubinstein
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Wednesday, November 12, 2014

Indiana Supreme Court Upholds Right To Work Law

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

November 12, 2014 in Interesting Cases, Labor Law | Permalink | Comments (0)

Friday, June 27, 2014

No Limits on Soda Size in NYC

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.

Craig Estlinbaum

June 27, 2014 in Administrative Law, Food and Drink, Interesting Cases, New York Law | Permalink | Comments (0)

Wednesday, June 25, 2014

MO: Injury By Flying Hot Dog Is Not An "Inherent Risk" Of Watching A Baseball Game

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).

Craig Estlinbaum

June 25, 2014 in Games, Interesting Cases, Sports, State Law | Permalink | Comments (0)

Friday, March 21, 2014

Illinois Declares Eavesdropping Law Unconstitutional

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.

Craig Estlinbaum

March 21, 2014 in Constitutional Law, First Amendment, Interesting Cases | Permalink | Comments (0)

Thursday, March 13, 2014

Judicial Campaigns, Facebook and the Appearance of Impropriety

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.

See Also:

Craig Estlinbaum

March 13, 2014 in Ethics, Interesting Cases, Judges | Permalink | Comments (0)

Monday, February 24, 2014

Robert Johnson's Son Wins Rights to Photographs

From The Guardian:

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. 

Craig Estlinbaum

February 24, 2014 in Interesting Cases, Music, State Law | Permalink | Comments (0)

Tuesday, February 4, 2014

Judge Is Disqualified After Sending Litigant a Facebook Friend Request

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.

Craig Estlinbaum

February 4, 2014 in Ethics, Interesting Cases, Judges | Permalink | Comments (0)

Thursday, October 17, 2013

Alabama: No Duty to Pay Child's Post-Minority Education Expenses

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).

Craig Estlinbaum

October 17, 2013 in Family Law, Interesting Cases, State Law | Permalink | Comments (0)

Tuesday, July 9, 2013

New Jersey Supreme Court and Just Compensation

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.

Craig Estlinbaum

July 9, 2013 in Constitutional Law, Faculty in the News, Interesting Cases, State Law | Permalink | Comments (0)

Tuesday, June 4, 2013

Fifth Circuit: Expressing Mom Protected from Sex Discrimination

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.

Craig Estlinbaum

June 4, 2013 in Discrimination Law, Employment Discrimination, Federal Law, Interesting Cases | Permalink | Comments (0)

Wednesday, May 29, 2013

North Dakota: Settlor's Mistake of Law Requires Trust Reformation

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."

Craig Estlinbaum

May 29, 2013 in Interesting Cases, State Law | Permalink | Comments (0)

Thursday, May 23, 2013

Texas: Facebook "Friendship" Alone Does Not Require Recusal

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.

Craig Estlinbaum

May 23, 2013 in Ethics, Interesting Cases, Judges, Recent Developments, Texas Law, Web/Tech | Permalink | Comments (0)

Tuesday, May 21, 2013

Supreme Court Takes Government Prayer Case

Thirty years ago in Marsh v. Chambers, 463 U.S. 783 (1983), the Supreme Court held in a divided opinion that opening legislative sessions with prayer did not violate the Establishment Clause.  But can the government open such legislative sessions with prayers exclusively with one faith?  The Supreme Court will decide this question next term in Town of Greece v. Galloway.  Last May, the Second Circuit held in the case that the town's practice to begin council sessions with prayer exclusively of the Christian faith violated the Establishment Clause.  Lyle Denniston at SCOTUSblog described the key holding in the circuit court's decision to be:

The Circuit Court stressed that it was not ruling that a local government could never open its meetings with prayers or a religious invocation, nor was it adopting a specific test that would allow prayer in theory but make it impossible in reality.

What it did rule, the Circuit Court said, was that “a legislative prayer practice that, however well-intentioned, conveys to a reasonable objective observer under the totality of the circumstances an official affiliation with a particular religion, violates the clear command of the [First Amendment's] Establishment Clause.”

It emphasized that, in the situation in Greece, New York, the overall impression of the practice was that it was dominated by Christian clergy and specific expressions of Christian beliefs, and that the town officials took no steps to try to dispel that impression.

Since the Court announced the decision to grant certiorari earlier today, the case has generated substantial buzz in the press, print and online, and promises to a significant and closely watched decision in the October 2013 term.

Craig Estlinbaum

May 21, 2013 in Constitutional Law, First Amendment, Interesting Cases, Religion, Supreme Court | Permalink | Comments (0)

Sunday, May 19, 2013

Files on Conflicts of Interest

Tyler, Texas attorney and State Bar of Texas President Buck Files has written an informative essay on conflicts of interest which appears in the April 2013 Voice for the Defense (page 15).  The essay uses the federal case U.S. v. Lopesierra-Gutierrez, No. 07-3137 (D.C. Cir. March 1, 2013) as a starting point to highlight how important it is to be mindful of conflicts when representing defendants in criminal cases - and by extension, any client in any case.  Some conflicts are waivable and some are not and knowing the difference between the to might save the practicing attorney a trip before a grievance committee a time or two.

Craig Estlinbaum

May 19, 2013 in Articles, Criminal Law, Ethics, Interesting Cases | Permalink | Comments (1)

Saturday, May 18, 2013

No Race To the Courthouse in Utah Adoptions

In many situations, the first to file a lawsuit in a controversy obtains procedural and sometimes substantive advantages over later filers.  The Utah Supreme Court held last week, however, that winning the race to the courthouse carries no special advantage in adoption cases.  The case is S.C. vs. Utah, No. 20120016 (Utah May 7, 2013).

In this child protection case, following termination, the foster parents filed first for adoption of the five-year old child at issue and later, a grandmother filed for adoption.  The trial court consolidated the cases then announced that the grandmother's petition would be considered only if the court denied the foster parents' petition.  The trial court then considered and granted the foster parents' petition and dismissed the grandmother's petition.  Grandmother appealed.

The Utah Supreme Court reversed the trial court, holding that the best interest of the child remained the paramount issue when competing adoption petitions were filed.  Considering the petitions in the order of filing, the Court held, created the potential for decision on grounds unrelated to the best interests.  The Court instructed that a trial court considering competing adoption petitions must hear evidence and consider each petition on the merits without giving priority to the first to file.  The best interest of the child therefore, and not filing priority, controls the final determination following the Court's unanimous decision.

In this case, the court resolved a split on the subject in Utah's intermediate courts.  One more note of interest - this case was certified under Utah law for direct appeal to the Utah Supreme Court, so there was no intermediate court opinion.

Craig Estlinbaum

May 18, 2013 in Interesting Cases, Procedure, State Law | Permalink | Comments (0)

Wednesday, May 8, 2013

Fifth Circuit: Pharmacy Purchase Logs are Nontestimonial Business Records

In a divided opinion, the Fifth Circuit Court of Appeals held in United States v. Townes, No. 11-50948 (5th Cir. April 30, 2013), that a pharmacy's pseudoephedrine purchase logs were nontestimonial business records that could be admitted in a criminal prosecution without a live witness.  Pseudoephedrine is a nasal and sinus decongestant drug often sold behind the counter that, in addition to its lawful uses, can also be used to manufacture meth.

The government charged the defendant in the case with conspiracy to manufacture methamphetamine and conspiracy to possess and distribute pseudoephedrine.  The trial court admitted the pseudoephedrine purchase logs from the various pharmacies where the defendant purchased the drugs as business records under Rule 803(6).  The prosecution offered the records through the investiging law enforcement agent via certifying affidavits.

The applicable state law requires pharmacies to maintain records related to pseudoephedrine purchases for law enforcement purposes.  Defendant argued that for this reason, the records were not business records - records kept for a business purpose.  The majority rejected the argument, observing that the business record hearsay exception requires the records be kept in the ordinary course of business.  The majority added, "It is not uncommon for a business to perform certain tasks that it would not otherwise undertake in order to fulfill governmental regulations. This does not mean those records are not kept in the ordinary course of business."  Slip Op. at 5.

Defendant also argued that admitting the logs via business record affidavit violated his Confrontation Clause rights.  The majority rejected this argument also.  Citing Melendez-Diaz v. Massachusetts, 557 U.S. 305, (2009), the Court determined that the pharmacy logs were not prepared specifically to prove a material fact at trial, but for legitimate business record-keeping purposes.

The dissenting judge would hold the pharmacy logs were not business records because the records were kept solely for law enforcement purposes and for no other legitimate business reason.  The dissent would further hold for this reason that admission by business record affidavit violated the defendant's Confrontation Clause rights.

This is an important opinion and one worth reading to study the lines separating business records, which do not raise Confrontation Clause concerns, from testimonial records, such as drug lab reports, which are testimonial for Sixth Amendment purposes.

Craig Estlinbaum

May 8, 2013 in Constitutional Law, Criminal Law, Interesting Cases | Permalink | Comments (0)

Saturday, April 27, 2013

Extraneous Facebook Remarks Leads To Remand For Re-Sentencing

Debra Cassens Weiss at ABA Journal has this report about a strange federal child pornography case in Connecticut where the appeals court has remanded the case back to the trial court for re-sentencing.  From the story:

...[U.S. District Judge] Eginton justified his decision to impose the longer sentence by referencing “Facebook, and things like it, and society has changed.” He speculated that the proliferation of Facebook would spur an increase in child pornography, and said he hoped Facebook founder Mark Zuckerberg was “enjoying all his money because … he’s going to hurt a lot of people,” the appeals panel said.

The appellate court remanded for a new sentencing hearing, stating, "“It is plain error for a district court to rely upon its own unsupported theory of deterrence at sentencing, especially where, as here, that theory has little application to the actual facts of the case itself."

Craig Estlinbaum

April 27, 2013 in Articles, Criminal Law, Interesting Cases | Permalink | Comments (0)

Thursday, April 25, 2013

Superman Copyright Litigation Comes to Close, Maybe

Jan Wolfe, The AmLaw Litigation Daily, reports that U.S. District Judge Otis Wright II, issued a summary judgment order last week bringing to a close litigation initiated a decade ago by the heirs to Superman's co-creator, Jerry Siegel, to reclaim copyright to the iconic (and lucrative) character.

Apprarently, in 1938, Seigel and his co-creator, Joe Schuster, sold the Superman character to Detective Comics for $130.  Over the years, the buyer's successors have paid pension and compensation under different agreements, however, in this particular litigation, Siegel's heirs sought to reclaim the copyright under the so-called "termination rights" provision of the Copyright Act.  Judge Wright's order brings this effort to a close it appears.

The case is Laura Seigel Larson v. Warner Bros. Entertainment, Inc., Case No. 2:04-cv-08776-ODW(RZx), in the United States District Court for the Central District of California.

Craig Estlinbaum

April 25, 2013 in Civil Law, Contract Issues, Interesting Cases | Permalink | Comments (0)

Saturday, April 20, 2013

Third Circuit Reverses Contempt Conviction Against Trial Judge

An interesting Third Circuit case from earlier this month raises the question whether a lower court judge can be held in contempt for openly criticizing a higher court for reversing him in a pending case.  The case is In re: Kendall, No. 11-4471 (3d Cir. April 3, 2013). 

The contempt holding arises from proceedings in a murder prosecution.  The case's procedural history is long, convoluted and filled with hints and allegations suggesting misrepresentations and misconduct far and wide.  Of particular relevance, after some back and forth in plea negotiations between the prosecutor and the defense, the trial judge ordered the prosecutor, against the prosecutor's wishes, to follow through on an oral plea offer allowing the defendants to plead guilty to involuntary manslaughter, a lesser charge to murder. 

To this the prosecutor objected by filing an application for writ of mandamus to the Virgin Islands Supreme Court.  The high court granted granted that application on grounds that the government generally may unilaterally withdraw a plea offer, as the prosecutor had done in this case, and that any exception to that general rule did not apply.

The writ of mandamus, however, turned out not to be the end to the matter.  Upon return to the trial court, the prosecution and defense made a plea agreement for the defendants to plead guilty to voluntary manslaughter, still a lesser charge, but a more serious one than involuntary manslaughter.  The trial judge, after receiving the prosecutor's proffer supporting the plea, rejected that plea bargain and memorialized that rejection in a 31-page opinion that, among other things, characterized the Supreme Court's reasoning in issuing the mandamus as "erroneous, 'improper,' having 'no rational basis,' lacking 'merit,' and 'making no sense."  The judge went on to add the opinion was 'contrary to law and all notions of justice."  The judge then recused himself for a number of reasons.  Ultimately, one co-defendant died before trial; the other was acquitted by a jury.

Back to the story - the Virgin Island Supreme Court, after getting wind of the 31-page opinion, charged Judge Kendall with crimnial contempt, three counts.  The counts were:

  1. Obstructing the administration of justice by issuing the 31-page opinion critical of the Justices' writ of mandamus;
  2. Failing to comply with the writ of mandamus by refusing to schedule the case for trial, refusing to consider a change of venue or continuance to minimize pretrial publicity, and recusing himself to avoid complying with the writ of mandamus, and
  3. Misbehaving in his official transactions as an officer of the court by issuing the 31-page opinion and disobeying the writ of mandamus.

The Virgin Islands Supreme Court appointed a Special Master to preside at Judge Kendall's trial.  The Special Master recommended Judge Kendall be acquitted on all counts.  The Virgin Islands Supreme Court, however, rejected those recommendations and found Judge Kendall guilty on all counts.

Judge Kendall's appeal to the Third Circuit followed.

The Third Circuit agreed that Judge Kendall's comments in the 31-page opinion were speech protected by the First Amendment.  In fact, the Court held that because Judge Kendall's comments were "pure speech on public issues," the opinion held, "'the highest rung of the hierarchy of First Amendment values," and is thus 'entitled to special protection.'"  Such speech, the Court held, is entitled to protection from criminal punishment unless the speech, "poses a clear and present danger to the administration of justice."

Whether it is good practice for a lower court judge to be openly and caustically critical of a higher court remains an open question, perhaps, but the Third Circuit here resolves that such speech, was lacking decorum, remains First Amendment protected, except in likely rare cases where the speech "poses a clear and present danger to the administration of justice."  Kendall certainly is an interesting case and a recommended read.

Craig Estlinbaum

April 20, 2013 in Criminal Law, First Amendment, Interesting Cases, Judges | Permalink | Comments (0)

Wednesday, January 16, 2013

Tort Law: Pets and Sentimental Value

The Supreme Court of Texas heard oral arguments on January 10 to answer whether or not a pet owner can recover for the sentimental value of a dog lost due to another's negligence. 

The case is Carla Strickland v. Kathryn and Jeremy Medlen (Case No. 12-0047).  The case came to the Texas high court following an intermediate appeallate court's opinion reversing a trial court's order dismissing the claim against Strickland with prejudice.  According to a David Yates report in the Southeast Texas Record, the allegations in the case are that an animal shelter took possession of the Medlen's dog after it escaped the Medlen's yard.  Jeremy Medlen went to pick up the animal, but did not have enough money to cover the fees.  Medlen alleges he was told he could come back with the money and a "hold for owner" tag would be put on the dog.  Strickland, it is alleged, neglegently put the dog on the list of animals to be euthanized, and it was, and when Medlen returned for the dog, he learned what had happened.

More after the jump:

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January 16, 2013 in Interesting Cases, Remedies, State Law, Texas Law | Permalink | Comments (0)