Saturday, March 15, 2014
The Texas Court of Criminal Appeals this week held that Miller v. Alabama, 132 S. Ct. 2455 (2012), applies retroactively. In Miller, the Supreme Court held mandatory life without the possibility of parole sentences are unconstitutional for offenders that committed their crime while under 18 years of age. The Texas case is Ex Parte Maxwell, No. WR-76,964 (Tex. Crim. App., March 12, 2014).
A jury found Maxwell guilty of capital murder arising out of a 2007 murder/robbery. The State did not seek the death penalty so under Texas law the sentence automatically became life without possibility of parole after the jury returned the guilty verdict. Maxwell was 17 when the crime occurred.
The court decided the case 5-4 and generated short two dissents (see here and here). This Texas case joins the deepening split among the several states and federal circuits regarding Miller's retroactivity. We can expect more appeals courts to weigh in on the question until the Supreme Court ultimately grants cert and resolves the matter once and for all.
Friday, March 14, 2014
In a notable state constitutional law decision, the Florida Supreme Court on certified questions from the 11th Circuit, held that Florida's statutory cap on noneconomic damages in wrongful death cases violates the equal protection clause in the Florida Constitution.
The case is Estate of McCall vs. United States, No. SC11-1148 (Fla., March 13, 2014).
Tuesday, September 10, 2013
According to a February 2012 report by the National Association of State Retirement Administrators (NASRA), “on the average, pension costs for state and municipal governments are just shy of 3% of total spending.”
NASRA’s calculations were based on the most-recent data then available from the U.S. Census Bureau. (Read more)
Reprinted by permission New York Public Personnel Law
Mitchell H. Rubinstein
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.
Tuesday, May 14, 2013
A court in Arizona reportedly held that police could not use release time for union representationalwork. A newspapter article describing this case is available here. The plaintiff's theory appears to be that paying public employees for union business is a gift of public funds.
I do not buy this for a minute and it is just another example of anti-union animus that some people feel. I see this as no different than wages. A union also presents order in the workforce and that provides a benefit to the public. Preventing arbitrary employer action is also in the publics interest as most labor law statutes were enacted to reduce industrial strife. Public policy supports the right to organize and bargain collectively.
Law review commentary on this important topic would be most welcome.
Mitchell H. Rubinstein
Friday, October 26, 2012
In a major family law decision, the Supreme Court of Kentucky yesterday, relying on Troxel v. Granville, 530 U.S. 57 (2000), held that a fit parent is presumed to act in the best interest of the child and that a grandparent seeking child visitation against the parent's wishes must overcome the presumption by clear and convicing evidence that allowing the grandparent visitation is in the child's best interest. Walker v. Blair, No. 2012-SC-000004-DGE (Ky., Oct. 25, 2012).
In this case, paternal grandparent filed for visitation of her grandchild after her son, the grandchild's father, committed suicide under a pre-Troxel state law. Mother opposed the visitation. The Supreme Court held the pre-Troxel grandparent visition statute to be constitutional and interpreted the law to comply with Troxel's requirement that fit parents be presumed to act in the child's best interest. Because the trial and appellate courts in this case placed the parent and grandparent on equal footing and did not give the parent's decision to deny visition the special weight required by Troxel, the Supreme Court reversed and remanded for further proceedings.
See also: Louisville Courier-Journal story here.
Monday, October 8, 2012
Various media reports
Saturday, September 8, 2012
In an important free speech case yesterday, the Arizona Supreme Court held that tattooing is protected free speech under the First Amendment and Arizona's state constitution. The case is Coleman v. City of Mesa, No. CV-11-0351 (September 7, 2012).
Plaintiffs in the case sued the City after being denied a permit to open a tattoo parlor. The city's controlling ordinance effectively bans certain specified uses, including tattoo parlors, unless the city council grants a permit for the use. The Supreme Court, after finding tattooing to be constitutionally protected expression, held the city's permitting scheme vested unbridled discretion in city officials and failed the First Amendment's time, place and manner test. The Court reversed the trial court's dismissal for failure to state a claim and returned the case to that court for further proceedings.
The Arizona Court considered three approaches to the issue: (1) tattooing is purely expressive activity fully protected by the First Amendment; (2) tattooing is non-expressive activity not First Amendment protected; and (3) categorization on a case-by-case basis. Notably, the Court cited a student comment, Ryan J. Walsh, Comment, Painting on a Canvass of Skin: Tattooing and the First Amendment, 78 U. Chi. L. Rev. 1063 (2011), for the third approach.
Friday, August 24, 2012
The common law release rule provides that a plaintiff’s settlement with, and release from liability of, one joint tortfeasor also releases from liability all other joint tortfeasors.
The California Supreme Court repudiated the common law release rule yesterday in Lueng v. Verdugo Hills Hospital, No. S192768 (Cal. August 23, 2012). The unanamous court wrote:
The rationale for the common law release rule was “that there could be only one compensation for a joint wrong and since each joint tortfeasor was responsible for the whole damage, payment by any one of them satisfied plaintiff’s claim against all.” That rationale assumes that the amount paid in settlement to a plaintiff in return for releasing one joint tortfeasor from liability always provides full compensation for all of the plaintiff’s injuries, and that therefore anything recovered by the plaintiff beyond that amount necessarily constitutes a double or excess recovery. The assumption, however, is unjustified. For a variety of reasons — such as the settling defendant’s limited resources or relatively minor role in causing the plaintiff’s injury — a plaintiff may be willing to release one tortfeasor for an amount far less than the total necessary to fully compensate the plaintiff for all injuries incurred. As Dean Prosser observed in his criticism of the common law release rule: “There is a genuine distinction between a satisfaction and a release.”
Monday, August 20, 2012
Last Thursday, the California Supreme Court unanimously overturned a 110-year to life sentence against a juvenile offender on Eighth Amendment grounds. Citing Graham v. Florida, 130 S.Ct. 2011 (2010) (holding the Eighth Amendment prohibits states from sentencing a juvenile convicted of nonhomicide offenses to life imprisonment without the possibility of parole), the court held that such a sentence against a juvenile for a nonhomicide offense violates the juvenile's right against cruel and unusual punishment.
The case is People v. Caballero, No. S190647 (Cal. Aug. 16, 2012), and may be found here.
Hat tip: Sentencing Law and Policy
Monday, July 2, 2012
Today, the New Mexico Supreme Court released a unanimous family law decision of first impression, holding that the New Mexico Emancipation of Minors Act ("Emancipation Act") authorizes a district court to emanicpate a minor for some, but not all of the enumerated purposes in the act. Applied to this particular case, the decision reversed the Court of Appeals and affirmed a district court's order emancipating the minor plaintiff while also awarding the minor monthly child support payments from her mother. Diamond v. Diamond, No, 32,695 (N.M. July 2, 2012).
Here, Jhette Diamond ("Daughter") filed for and won emancipation from her Mother at age 16 with the court reserving Daughter's right to collect child support (Daughter is now in her early 20's). Mother did not participate in the hearing, but later filed a motion to set aside the judgment. The trial court conducted a hearing on the motion and denied the Mother's relief, as well as Mother's objection to her duty to support the now emancipated Daughter (Mother conceived Daughter by artificial insemination, Id., fn 1, at 4). The New Mexico Court of Appeals reversed.
The Emancipation Act describes nine puposes for which a minor may be emancipated by a court, and further provides that a court may emancipate a minor "for one or more" of those purposes. One such purpose is the minor's "right to support by his parents." The Supreme Court applied rules of statutory construction to concludes the Emancipation Act authorized a court to emanicpate a minor "for a single enumerated purpose, for all nine enumerated purposes, or for any intermediate number of enumerated purposes." Id, at 6.
The Supreme Court also rejected Mother's argument that Daughter could not prove she was "managing her own financial affairs" (a requirement for emancipation under the Emancipation Act) if she required or needed financial assistance from her. The Supreme Court observed that the Emanicpation Act contemplated that the emancipated minor may require public assistance and expressly provides a minor may not be denied such benefits to which she may be entitled because of emancipation. In rejecting Mother's argument, the Court pointed out further that the trial court did not emancipate Daughter from her support right.
The New Mexico court closed by examining a minor's right to support from her parents under common law and the laws of other states. The several states offer mixed results often turning on statutory language, from all-or-nothing emancipation (California, Vermont), to all-or-partial emancipation (Montana, Nevada) to emanicpation that mandates continued parental support (Michigan). The court found that courts created common law emancipation to protect a child's labor from the parents' creditors, and provided for partial emancipation where appropriate. Of particular note was P. J. Hunycutt & Co. v. Thompson, 74 S.E.628 (N.C. 1912), where the court held that where the father "ran off" the son, the son's later emancipation would not halt the father's support obligations. Diamond, at 13-15.
Thursday, June 28, 2012
In what on writer called a "stinging rebuke to industry and [the challenging] states," a three-judge DC Circuit court panel Tuesday upheld the Environmental Protection Agency's ("EPA's") greenhouse gas regulations.
The case, Coalition for Responsible Reg v. EPA, No. 09-1322 (D.C. Cir. June 26, 2012), following the United States Supreme Court's 5-4 decision in Massachusetts v. EPA, 549 U.S. 497 (2007) which compelled the EPA to regulate air pollutants under the Clean Air Act's ("CAA's") authority. The EPA in turn issued an Endangerment Finding, determining that greenhouse gases may "reasonably be anticipated to endanger public health or welfare" (citing the CAA) and the Tailpipe Rule, setting emission standards for cars and some trucks. The EPA also ordered certain stationary greenhouse gas producers to obtain construction and operating permits. Finally, the EPA issued a Timing and Tailoring Rule providing that only the largest stationary producers would be initially subject to the permit requirements.
The Petitioners which included some states and industry groups challenged the rules on ground that the EPA had improperly interpreted the CAA. Yesterday, the appeals court panel consisting of Judges Sentelle (Reagan appointment), Rogers (Bush II) and Tatel (Clinton), rejected those challenges, allowing the EPA rules to stand.
The next meaningful step for the challengers in this case is the United States Supreme Court, as en banc review of this unanimous decision seems very unlikely. The Massachusetts case was decided five-to-four, and four justices are required to grant certiorari. Inasmuch as the court's composition has changed with two justices from the Massachusetts majority (Stevens, the opinion's author, and Souter) having left the court, I would say there is some chance the Massachusetts dissenters will vote to grant certiorari in the case.
Friday, July 22, 2011
Remember Gov. Walker and Wisconsin. Whatever your views on the so called "Budget Repair Bill," you must admit that this guy is radical. He now wants to use prison labor to replace union labor with prison labor. The Cap Times reports:
Gov. Scott Walker ran for election on a promise to create 250,000 jobs during his first term in office. Now it seems some of that job growth has found its way to at least one county jail in Wisconsin.
Racine County Executive Jim Ladwig told several media outlets earlier this week he plans to add shoveling, landscaping and painting to the to-do lists of county inmates. Until recently, inmates were only allowed to cut the grass along highways.
That changed Wednesday when the state's controversial collective bargaining law took effect.
Mitchell H. Rubinstein
Monday, December 6, 2010
Superior reporting employee's misconduct had either absolute immunity or qualified immunity from liability
Taylor v Brentwood UFSD, CA2, 143 F.3d 679
A Brentwood school principal, Anne Rooney, alleged that district teacher, Charles B. Taylor, used corporal punishment in violation of district policy. After investigating the allegation, the district filed disciplinary charges against Taylor. The disciplinary panel found him guilty of the charges and he was suspended without pay for one year.
Taylor then filed a Section 1983 [Civil Rights] claim, naming Rooney and other district officials as defendants. He contended that his one-year suspension from teaching constituted race discrimination in violation of the Fourteenth Amendment (equal protection). A federal district court jury agreed with Taylor’s arguments and said that Rooney was liable for over $185,000 in damages. Rooney appealed and the Second Circuit Court of Appeals in New York reversed the lower court’s decision.
The court cited with approval Rooney’s arguments that:
1. Her action [reporting the alleged use of corporal punishment] was not the proximate cause of any injury sustained by Taylor;
2. She had either absolute immunity or qualified immunity from liability because she acted pursuant to her official duty to report complaints regarding the use of corporal punishment by teachers to her superiors; and
3. Taylor, having been found guilty by the disciplinary panel, could not relitigate the issue of whether he was treated differently from similarly situated Caucasian teachers in his Section 1983 action.
The Circuit Court commented that “Taylor had a history of physical confrontations with students ...” occurring throughout the administrations of three different principals. It also took notice of the District’s “Corporal Punishment Policy” and evidence showing that Taylor had been “repeatedly reminded” of the policy over a fifteen-year period and had received several reprimands regarding the manner in which he disciplined students.
The Circuit Court ruled that Rooney could not be held liable because she was not proximately cause Taylor’s suspension. That, said the Court, action resulted following an investigation and a due process hearing in which Taylor was found guilty. It said that its decision in Jefferies v Harleston, 52 F3d 9, controlled the outcome of this case.
In Jefferies, the Circuit Court ruled that “although the actions of certain defendants were unconstitutional, liability under Section 1983 did not attach because such actions could not be considered the cause of any injury sustained by the plaintiff.”
The Court said that it believed that the independent investigations of the incidents by school officials, together with the school board’s filing charges culminating in the decision of the disciplinary hearing panel to suspend Taylor, constituted a superseding cause of Taylor’s injury, breaking the causal link between any racial animus Rooney may have had and Taylor’s suspension.
Concluding that no reasonable jury could find Rooney’s actions to be the cause of Taylor’s injury, the Court said that no new trial was necessary. Accordingly, all that was needed was for the Circuit Court to remand the case to the district court with instructions to enter judgment for Rooney.
Reprinted with permission New York Public Personnel Law
Mitchell H. Rubinstein
Thursday, January 29, 2009
Big Brothers/Big Sisters of America cannot be held liable for the actions of a volunteer mentor, but there local affiliate can be
We have discussed the difficulty in determining who is and who is not an employee many times on this blog, and in particular with respect to whether volunteers can be treated as employees. Now comes another twist, can companies be liable in tort for the actions of volunteers. A recent New York lower court decision held that that parent companies could not. Lamarche v. Big Brothers/Big Sisters of America, ___Misc. 3d___(Richmond Co. Jan. 23, 2009). The reasoning was one of duty. The court held that a parent organization had no duty to a member of the public serviced by its NYC affiliate.
However, that NYC affiliate could be responsible for the actions of one of its volunteers. The court essentially applied a negligent hiring type of analysis and concluded that summary judgment to the defendant was inappropriate because of the volunteer's alcoholism and emotional past.
A New York Law Journal article about this case is available here (registration required).
Mitchell H. Rubinstein
Tuesday, November 20, 2007
The Supreme Court report contained in the November 2007 ABA Journal (copy not available on line) contains an article about the increasing use of amicus briefs in the Supreme Court by major law firms. This is due in part, says the article, because the Court is agreeing to hear less cases. Quoting Professor Kathleen Sullivan, the article states "with the shrinking docket, there are too may Supreme Court lawyers chasing too few cases on the merit."
Something to think about.
Mitchell H. Rubinstein
Friday, August 3, 2007
On August 2, 2007, the 5th Circuit decided In re: Katrina Canal Breaches Consolidated Litigation, No 07-30119, ___F. 3d ___(5th Cir. 2007) which is a 52 page slip opinion holding that policyholders in Louisiana are not entitled to insurance coverage under homeowners, renters or commercial property policies for flood damages caused by breaches in New Orleans’ levees during Hurricane Katrina.
The panel reasoned that even if the policyholders could prove that the levees were negligently designed, constructed or maintained, the flood exclusions in the policies clearly preclude coverage regardless of what caused the flooding. Most insurance policies exclude coverage for floods
“Regardless of what caused the failure of the flood-control structures that were put in place to prevent such a catastrophe, their failure resulted in a widespread flood that damaged the plaintiffs’ property. This event was excluded from coverage under the plaintiffs’ insurance policies, and under Louisiana law, we are bound to enforce the unambiguous terms of their insurance contracts as written,” the panel said.
Mitchell H. Rubinstein
Tuesday, July 31, 2007
Breaking News! House Passes Ledbetter Amendment to Title VII, the ADA, ADEA and the Rehabiliation Act of 1973
On July 30, 2007, the House approved H. R. 2831 by a vote of 215-187 which amends Title VII of the Civil Rights Act of 1964, the Age Discrimination in Employment Act of 1967, the Americans With Disabilities Act of 1990, and the Rehabilitation Act of 1973 to clarify that a discriminatory compensation decision or other practice that is unlawful under such Acts occurs each time compensation is paid pursuant to the discriminatory compensation decision or other practice, and for other purposes.
This Bill is intended to legislatively over-rule the Supreme Court's decision in Ledbetter v. Goodyear, 550 U.S. __(2007) which I previously discussed here. In Ledbetter, the Supreme Court issued a 5-4 decision holding that the 180/300 day time period to file a charge of discrimination with the EEOC runs from the date the discriminatory decision was initially made as opposed to when the employee actually received her paycheck.
Before this Bill was passed, President Bush indicated that he will veto this legislation. The President's statement is available here. The President strongly oppposes this legislation, reasoning in part:
Meaningful statutes of limitations in these sorts of fact-intensive cases are crucial to the fair administration of justice. The prompt assertion of employment discrimination permits employers to defend against – and allows employees to prove – claims that arise from employment decisions instead of having to litigate claims that are long past. In such cases, evidence often will have been lost, memories will have faded, and witnesses will have moved on.
Moreover, effective statutes of limitations benefit employees by encouraging the prompt discovery, assertion, and resolution of employment discrimination claims so that workplace discrimination can be remedied without delay.
Mitchell H. Rubinstein
Monday, July 30, 2007
In many states convicted felons loose their right to vote-at least for a certain period of time. A July 26, 2007 Associated Press article which was picked up by Find Law entitled "WA Court: Felons Must Pay Fines to Vote" describes a Washington state Supreme Court case which held that felons who serve their full prison sentence must pay all of their court imposed fines before their right to vote will be restored.
This seems like a common sense ruling and it I find it surprising that this issue actually divided the court (6-3). Unfortunately, I do not believe that most convicted felons care much about their right to vote so I do not seem much practical utility with this court decision.
Mitchell H. Rubinstein
Sunday, July 29, 2007
The July 29, 2007, New York Times Magazine published an interesting article by Eyal Press entitled "Family-Leave Values" which is well worth reading. In this lengthly and comprehensive article, the author details real life employment problems that many parents have experienced because of their family responsibilities. As the article states:
Until recently, lawsuits claiming workplace discrimination because of family care-giving obligations were rare — in part because, however harsh it may seem to lose your job under circumstances like Deonarain’s, employers could often get away with it. The 1993 Family and Medical Leave Act guarantees workers some unpaid time off in the event of a serious health problem, after the birth of a child or to care for a sick family member, but the law’s scope is limited. (It doesn’t cover companies with fewer than 50 employees, for example. Computer Literacy World had just under 50 at the time.) And no federal antidiscrimination statute exists that explicitly protects family caregivers in the workplace.
But what constitutes discrimination in the eyes of the law is changing. And one reason it’s changing is that the ranks of people like Karen Deonarain have grown. Since the mid-1990s, the number of workers who have sued their employers for supposed mistreatment on account of family responsibilities — becoming pregnant, needing to care for a sick child or relative — has increased by more than 300 percent. More than 1,150 such lawsuits have been filed in federal and state courts, a trend that has not gone unnoticed in the business world, not only because companies are well aware of the negative publicity lawsuits can generate but also because numerous plaintiffs have walked away with hefty damage awards. In one case, a jury granted $11.65 million to a hospital maintenance worker who was penalized for having to care for his elderly parents. In Ohio recently, a jury awarded $2.1 million to an assistant store manager who was demoted because she has several kids.
The workers pressing such claims have invoked a dizzying array of laws to prove they were mistreated. Some have relied on Title VII of the 1964 Civil Rights Act, which a number of courts have ruled prohibits not only overt sex discrimination but also seemingly neutral policies that have a disparate impact on women. Others have invoked the 1990 Americans With Disabilities Act, which covers both individuals with disabilities and, to a lesser extent, the people who care for them. Others still have drawn on the many state and local laws passed in recent years to safeguard the rights of employees with families.
This article highlights the limits of the FMLA and the ADA and perhaps might lead some states to enact additional pro-family legislation. It is surely needed.
In May 2007, the EEOC issued enforcement guidelines Enforcement Guidance on Unlawful Disparate Treatment of Workers with Caregiving Responsibilities which researchers may also want to consult.
Hat Tip: Workplace Prof Blog where Professor Jeff Hirsch offers some additional insights about this important subject.
Mitchell H. Rubinstein