February 01, 2012
"All Right, Nikki..."
The Wisconsin Supreme Court has reversed its Court of Appeals and held that a criminal defendant convicted of battery on a law enforcement officer and disorderly conduct was not entitled to a new trial because she used a peremptory challenge to keep the judge's daughter-in-law off the jury:
We conclude that because the defendant exercised a peremptory strike to remove the circuit court judge's daughter-in-law from the jury, and because the defendant does not claim the jury was unfair or partial, a new trial is not required under the circumstances of the present case. The defendant has not shown that the presence of the challenged juror in the pool of potential jurors affected the defendant's substantial rights. Accordingly, we reverse the decision of the court of appeals ordering a new trial.
The voir dire of the potential juror is recounted in the opinion:
THE COURT: All right. Nikki, you're my daughter-in-law. All right. I've told the attorneys that you and I have had no discussions about the case, correct?
JUROR STENGEL: Correct.
THE COURT: As a matter of fact, I didn't know until last night that you were coming in as a juror in this matter, right?
JUROR STENGEL: Correct.
THE COURT: Very good. You didn't ask and I wouldn't have excused you anyways so. But you're competent, you can be fair and impartial?
JUROR STENGEL: Uh-huh.
THE COURT: The fact that I'm the judge wouldn't affect your ability in this matter at all?
JUROR STENGEL: No.
THE COURT: Listen to all the evidence and decide the case, correct?
JUROR STENGEL: Correct.
THE COURT: And if we see you after the case, you wouldn't be at all hesitant as to how you decide the case, right?
JUROR STENGEL: Correct.
THE COURT: Very good. And I have told the lawyers about this, so they understand that as well.
The case was remanded to explore claims of ineffective assistance of counsel.The defense counsel had not challenged for cause.(Mike Frisch)
January 30, 2012
Weisselberg and Li on the White Collar Defense Bar in BigLaw and How it Has Changed
Charles Weisselberg and Su Li (Cal., Berkeley Law [and its great Center for Study of Law & Society]) have posted to SSRN their study of the transformation of the white collar defense bar. Its title is Big Law's Sixth Amendment: The Rise of Corporate White-Collar Practices in Large U.S. Law Firms and its abtract is:
Over the last three decades, corporate white-collar criminal defense and investigations practices have become established within the nation’s largest law firms. It did not used to be this way. White-collar work was not considered a legal specialty. And, historically, lawyers in the leading civil firms avoided criminal matters. But several developments occurred at once: firms grew dramatically, the norms within the firms changed, and new federal crimes and prosecution policies created enormous business opportunities for the large firms. Using a unique data set, this Article profiles the Big Law partners now in the white-collar practice area, most of whom are male former federal prosecutors. With additional data and a case study, the Article explores the movement of partners from government and from other firms, the profitability of corporate white-collar work, and the prosecution policies that facilitate and are in turn affected by the growth of this lucrative practice within Big Law. These developments have important implications for the prosecution function, the wider criminal defense bar, the law firms, and women in public and private white-collar practices.
January 29, 2012
Gallagher on the IP Bar, its Practices, and the Effect on Real Copyright and Trademark Law
You may not catch it from the title, but William T. Gallagher's (Golden Gate U. Law) new paper posted to SSRN is firmly about the legal profession, the bar, and the practice of IP law. Using an empirical/interviewing methodology, Gallagher explores the construction of copyright/trademark law through day-to-day practice, cease and desist letters, and the stuff that never makes it to courts. A teacher of both Professional Responsibility/lawyer regulation as well as IP law, he has spent years collecting the data for this revealing study. His abstract:
In recent years, as Congress has created new intellectual property (IP) rights and courts have often interpreted those rights broadly, legal scholars have frequently decried the expanded scope of protection afforded IP owners in most substantive areas of IP law. According to this critique, the over-expansion of IP rights throughout the past two decades harms competition, chills free speech, and diminishes the public domain as increasingly broad areas of social life are brought within the scope of strong IP protection. While this over-expansion theory reflects an important — indeed, foundational — policy debate concerning the proper balance between IP owners’ rights and the public’s rights of access to the information, ideas, and expressions that IP protects, it is incomplete precisely because it focuses largely on what Congress or the courts do. In reality, most enforcement of IP rights takes place not in court, but in the everyday practices of IP owners and their lawyers. “Cease and desist” letters, phone calls, and negotiations with alleged infringers constitute the bulk of IP enforcement efforts in trademark and copyright practice. To be sure, these efforts take place in the “shadow” of IP law and are therefore influenced by it. But it is in these everyday practices — and not in trial or appellate courts — that most IP rights are asserted, resisted, and negotiated. Thus, if we want to know whether IP rights are over-enforced or over-extended, we need to know how, why, and to what effect these rights are exercised in daily life. To date, however, IP scholarship has focused virtually no attention on this critical arena of everyday practice. Most IP scholarship is primarily doctrinal, focusing on published appellate cases. Even the growing empirical scholarship on IP focuses largely on published or, at least, filed cases. As in every other area of civil justice, however, most IP disputes do not result in litigation, and most litigation settles well before trial. Certainly, published appellate decisions and even filed cases represent only a small percentage of IP disputes. Thus, in order to more fully understand whether IP rights affect competition, chill free speech, diminish the public domain, or impede creativity, it is necessary to explore how IP claims are made and resolved in private negotiation rather than in litigation, which is the focus of this Article. It presents findings from a qualitative empirical study of the trademark and copyright disputing process outside of court, based on original data derived from semi-structured interviews with experienced IP attorneys who advise clients on how to enforce their rights. This research is one of the first studies to examine how trademark and copyright claims are actually enforced in practice.
January 29, 2012 in Abstracts Highlights - Academic Articles on the Legal Profession, Law & Society | Permalink | Comments (0) | TrackBack
January 26, 2012
Latex Allergy Must Be Accommodated By Preschool
In a 5-2 decision, the Maryland Court of Appeals reversed the Court of Special Appeals and found that a parent who suffered from an allergy to latex was discriminated against by her child's preschool for its failure to accommodate her condition by refusing to use non-latex products in its diaper changing of the child. The school responded by asking her to withdraw the child. The court held that the condition was a handicap that the school had not reasonably accommodated.
The dissent agrees that parenting is a "major life activity" but questions the "reasonable accommodation" analysis of the majority. The dissent also suggests that the court majority has failed to consider the potential broad impact of this decision. (Mike Frisch)
January 19, 2012
Jury Questionnaires In Chandra Levy Murder Trial Must Be Disclosed
In the case involving the murder of Chandra Levy, the District of Columbia Court of Appealls has reversed and remanded a trial court order denying the Washington Post access to completed jury questionnaires.
The Post's request was made after the trial jury had been selected and the trial had begun. The government contended that the request was thus untimely.
On remand, the trial judge must start with a presumption that the completed questionnaires should be completely disclosed. If any answers touch on "deeply personal matters," the judge may provide the jurors with an opportunity to raise concerns in camera. The court may then enter specific individualized findings on the necessity of redaction that a capable of appellate review. (Mike Frisch)
January 04, 2012
It's A Puzzlement
The Maryland Court of Appeals has held that a defendant who qualifies for appointed counsel is entitled to representation at the bail hearing that takes place at an initial appearance. While other related proceedings may go forward, the defendant must be afforded the opportunity to have counsel before the bail is set. The court interpreted the state's Public Defender Act to require the result.
A concurring and dissenting opinion refers to the "otherwise righteous" majority opinion as "turn[ing] a deaf ear to the pleas of the Office of the Public Defender" and invokes Yul Brynner as the Pharoah in the movie The Ten Commandments:
So it is written; So let it be done.
The concurring/dissenting opinion would impose a modest stay to consider the budgetary and logistical issues that will result from the majority's ruling. (Mike Frisch)
December 25, 2011
The Law Of Facebook: The Altar Of Debauchery Or Prevailing Social Norms?
The Connecticut Supreme Court has affirmed a decision of the Appellate Court finding no reversible error in a probation revocation order.
The defendant/probationer was sentenced to prison on alcohol-related offenses and was subject to a number of probationary conditions after her release.
At issue was the prosecutor's submission of evidence consisting of a series of photographs from her Facebook page. The undated photos appeared to show her partying at, among other places, Yankee Stadium. Some of the photos had the message "this is why I'm hot."
The prosecutor argued at the hearing that the photos evinced a violation:
...in all these pictures is again [the defendant] worshipping at the altar of alcohol and debauchery and lewd behavior. And why is that significant? It's significant because the message didn't get sent, and this individual refused to accept it.
The court describes the defense counsel's reply:
...the alcohol-related behavior evident on the defendant's Facebook profile was reflective of prevailing social norms, and the images were not representative of the way the defendant spent most of her time...
The court noted that the evidence would not satisfy the requirements of admissibility in a criminal trial but met the "minimal indicia of reliability necessary to pass constitutional muster in the context of a probation revocation hearing." (Mike Frisch)
December 22, 2011
No Loss Of Consortium Claim For Domestic Partner
The Connecticut Appellate Court has held that a same sex domestic partner who had not yet entered into a civil union cannot assert a loss of consortium claim:
Even if we were to assume that a complaint that includes such an allegation states
a legally sufficient claim for loss of consortium, the plaintiff did not plead this fact in the third amended complaint. Although the plaintiff pleaded that she was in a stable relationship with Mueller, lived with her for many years, supported her financially and entered into a civil union with her one and one-half years after the tortious conduct had occurred, these allegations, even when construed in the light most favorable to the plaintiff, do not allege that the couple would have formalized their relationship before the defendants’ negligent acts ceased on March 5, 2004. Absent such an allegation, the plaintiff’s claim is functionally equivalent to that presented in Gurliacci.
The Gurliacci decision involved a loss of consortium claim based on an engaged relationship that had not yet resulted in marriage. (Mike Frisch)
December 14, 2011
Beating Is Not An Abortion
The Utah Supreme Court has held that a juvenile who solicited a beating to terminate her pregnancy did not seek an abortion. The term "abortion" is limited to medical procedures.
We conclude that the legislature could not possibly intended for the term abortion to include any series of steps or actions undertaken to kill an unborn child, including the alleged solicited violent beating of a pregnant woman.
The court thus reversed an order of the juvenile court dismissing delinquency charges and remanded for further proceedings.
In a separate opinion, the court reversed the dismissal of attempted murder charges against the adult who administered the beating. (Mike Frisch)
December 13, 2011
Invitation To An Inquest Transcript
In a decision involving the request of the Globe newspapers for a transcript of the inquest into murder charges against Amy Bishop, the Massachusetts Supreme Judicial Court today has held:
Applying our new standard to the inquest report and transcript at issue in this case, the denial of the motion to impound must be vacated because, as to the transcript, the judge failed to recognize the effect of G.L. c. 38, § 10, and, as to the report, the judge rested on the principle in Kennedy that we now replace with the rule that the report becomes a presumptively public document when the transcript becomes a presumptively public document. On remand, the judge will conduct further proceedings in accordance with this opinion, with the proviso that the inquest report and transcript shall continue to be impounded until at least ten calendar days after the issuance of the rescript. After the issuance of the rescript, the defendant, the Commonwealth, the decedent's immediate family, or another interested party shall have ten calendar days to move in the criminal case in the Superior Court to impound the inquest report and transcript for "good cause shown." If no such motion is filed, the report and transcript shall be made available to the public. If such a motion is filed, the report and transcript shall continue to be impounded temporarily until the adjudication of the motion or further order of the judge.
Finally, we address whether, in the future, a petition under G.L. c. 211, § 3, shall continue to be the only means to obtain review of the denial or allowance of a motion to impound an inquest report or transcript, or to vacate or modify an order of impoundment. In civil cases, under Rule 12 of the Uniform Rules on Impoundment Procedure at 905 (LexisNexis 2011-2012), an order impounding or refusing to impound documents filed in court may be appealed to a single justice of the Appeals Court. See Commonwealth v. Silva, 448 Mass. 701, 705 (2007). In criminal cases, we have declared that the "[p]ractice regarding orders of impoundment entered in criminal proceedings should hew as closely as possible to the protocol established by the uniform rules," and require that appellate review of impoundment orders conform to the uniform rules. Id., quoting Republican Co. v. Appeals Court, 442 Mass. 218, 227 n. 14 (2004). We conclude that in the future the practice regarding orders impounding or refusing to impound an inquest report or transcript should also "hew as closely as possible to the protocol established by the uniform rules," and that, as in the uniform rules, such orders may be appealed to a single justice of the Appeals Court.
Bishop is a professor charged in Alabama with the murder of three colleagues. This decision relates to the investigation into the 1986 death of her brother.
The prior Kennedy decision described above related to the inquest into the death of Mary Jo Kopeckne.
The title to this post was inspired by this book. (Mike Frisch)
December 05, 2011
No Liability For Home Plate Collision
The South Carolina Supreme Court has held that a baserunner who collided at home plate with the catcher in a Boy Scout softball game is not liable for damages. Both catcher and baserunner were fathers who participated in the game.
In March 2004, David Cole and his son, David Jr., who was a member of Cub Scout Pack 48, attended a Cub Scout family camping trip. During the course of the trip, Cole and David Jr. participated in a father-son, pick-up softball game. Jeff Wagner and his son were also on the camping trip and were playing on the opposite team from the Coles in the softball game. Although one of the older boys had been playing catcher, Cole took over the position because he was afraid the boy would be hit by a foul ball or by the batter.
Neither of the teams kept score, and during each inning everyone was allowed to bat. Apparently, some of the fathers were playing too aggressively in the minds of some participants and hitting the ball with full swings. One of the Scout leaders, Keith Corley, briefly interrupted the game and asked them to play more safely, fearing that they were putting the scouts in danger.
During Wagner's next turn at bat, he hit a double. Another father came up to bat after him and hit the ball into the outfield, potentially allowing Wagner to score. As Wagner reached home plate, he collided with Cole, who had moved on top of the plate, thereby placing his body directly in the baseline. Wagner was running so fast that he was unable to stop or change directions in time to avoid Cole. Upon impact, Wagner flipped in the air and landed on a bat, breaking a rib. Cole suffered a closed head injury and was rendered semiconscious. He then began bleeding and went into convulsions. Cole had to be airlifted to Palmetto Richland Hospital where he spent two days in the intensive care unit. David Jr. witnessed the entire accident in fear that his father was going to die.
Cole and his wife Karen, personally and as guardian ad litem for David Jr. (collectively, Appellants), brought this action against Wagner, the Boy Scouts of America, Indian Waters Council of the Boy Scouts of America, Pack 48, and Faith Presbyterian Church for personal injury, loss of consortium, and negligent infliction of emotional distress. Wagner moved for summary judgment, contending he owed no duty to Cole because Cole assumed the risks incident to the sport of softball. The circuit court granted Wagner's motion, and this appeal followed.
Even assuming, arguendo, that Wagner's conduct could be characterized as reckless, it was not so reckless as to involve risks outside the scope of softball. The likelihood of someone running too fast to stop or playing more aggressively than anticipated is part of the competitive atmosphere of athletics. Almost all contact sports, especially ones that require protective gear as part of their equipment, involve conduct that a reasonably prudent person would recognize may result in injury. To the extent these risks inhere in the sport involved, we hold some recklessness by coparticipants in a contact sport must be assumed as part of the game. Accordingly, a player assumes the risk of ordinary recklessness committed within the course of the game.
We emphasize that this holding is limited to recklessness committed within the scope of the game and does not include intentional conduct by a coparticipant of a sport, or conduct so reckless as to be outside the scope of the game. Even within the context of a contact sport, players owe reciprocal duties to not intentionally injure each other. Cole does not allege that Wagner's conduct was intentional nor does he allege such recklessness as would fall outside the scope of the game of softball. Thus, Wagner's conduct fell within the duty of care he owed to Cole as a coparticipant in the game.
November 22, 2011
The CSI Effect
The Maryland Court of Appeals has reversed a conviction for sexual assault and assault because the court gave a so-called "anti-CSI effect" jury instruction.
The court was unpersuaded that the TV show has created a phenonenon that permits the use of such an instruction absent some need to cure "pre-existing overreaching by the defense...." The instruction "is fraught with potential for reversible error" and may diminish the requirement of proof beyond a reasonable doubt.
The instruction advises a jury that "there is no legal requirement that the State utilize any specific investigative technique or scientific test to prove its case."
The court may revisit the issue if scholarly research establishes that there is a CSI effect. (Mike Frisch)
November 16, 2011
I Could Write A Book
The Indiana Court of Appeals has reversed a murder conviction and ordered the appointment of a special prosecutor where the prosecutor had entered into a (now cancelled) literary contract for a book about the case. The contract "created an irreversible, actual conflict of interest with [the prosecutor's] duty to the people of Indiana...the trial court erred when it denied [the defendant's] petition."
The defendant was facing a third trial and second retrial on charges that he had murdered his wife and two children. The first conviction was reversed due to prejudicial evidence concerning the defendant's extramarital affairs. After the second conviction, he filed an interlocutory appeal seeking a special prosecutor in light of the book deal.
The Floyd County Prosecutor prosecuted the defendant in the second trial. He was contacted by a literary agency "hours before the jury reached a verdict..." He inked the deal before sentencing. The defendant got life without parole.
The book deal progressed under the working title, "Sacred Trust: Deadly Betrayal." The prosecutor received an advance payment of $1,700. After the conviction was reversed by the Indiana Supreme Court, Penguin (the publisher) decided to delay any decision about moving forward with the book. Eventually, the deal fell through. The prosecutor returned the advance to Penguin.
The prosecutor refiled the murder charges. The defendant sought to remove him and have a special prosecutor appointed because of the book deal. At a hearing on the motion, Dean Emeritus Norman Lefstein at Indiana University School of Law testified that there was a conflict of interest. The trial court nonetheless denied the motion in light of the cancellation of the contract.
The court here found that the book deal was "a bell that cannot be unrung" that "permanently compromised [the prosecutor's] ability to advocate on behalf of the people of the state of Indiana in this trial."
Thanks to my favorite Hoosier attorney - Don Lundberg - for sending me the case.
Inspiration for the title to the post: Frank Sinatra. (Mike Frisch)
October 31, 2011
Honking Horn As Protected Speech
The Washington State Supreme Court sustained a constitutional challenge to a county noise ordinance that prohibited honking for any reason other than public safety. A defendant was convicted for honking a car horn at 6 am in front of a neighbor's house.
The court majority:
A moment's reflection brings to mind numerous occasions in which a person honking a vehicle horn will be engaging in speech intended to communicate a message that will be understood in context. Examples might include: a driver of a carpool vehicle who toots a horn to let a coworker know it is time to go, a driver who enthusiastically responds to a sign that says "honk if you support our troops,"wedding guests who celebrate nuptials by sounding their horns, and a motorist who honks a horn in support of an individual picketing on a street corner. Thus, we reject the Court of Appeals' conclusion that horn honking is a type of conduct that does not involve speech. Immelt, 150 Wn. App. at 687. Horn honking does constitute protected speech in many instances, regardless of whether it would constitute protected speech in Immelt's particular case...
The horn ordinance here does not survive scrutiny. It is substantially overbroad, "not only in an absolute sense, but also relative to the statute's plainly legitimate sweep." Williams, 553 U.S. at 292. It prohibits a wide swath of expressive conduct in order to protect against a narrow category of public disturbances.
In its examples, the court fails to note the expressive value of honking at someone who cuts you off in traffic. (Mike Frisch)
Supporting Our Troops
The Oklahoma Supreme Court has entered an order providing that Bar Association members serving on active duty in the military in a combat zone may request waiver of annual bar dues:
Active OBA Members who are in an active duty and deployed status serving outside of the United States or one of its territories with the Armed Forces of the United States in a combat zone or receiving "Imminent Danger Pay" (Combat Pay) or "hardship duty pay" in any given year may request that dues be waived for that year. A request for a waiver of dues, along with sufficient supporting documentation of service, shall be submitted to the Executive Director of the Oklahoma Bar Association as soon as reasonably practical. Members requesting such dues waiver shall have the right to appeal any administrative decisions made by the Executive Director to the Board of Governors of the Oklahoma Bar Association and ultimately to the Oklahoma Supreme Court. In the event the member is not able to submit the request personally, such request can be made by a family member, law partner or other such person having authority to act on behalf of the member.
The yearly dues are $275.00 (Mike Frisch)
October 19, 2011
Medicaid Planning And Unauthorized Practice
From the web page of the Ohio Supreme Court:
An advisory opinion recently issued by the Board on the Unauthorized Practice of Law of the Supreme Court of Ohio outlines the activities non-attorneys can and cannot engage in concerning Medicaid benefits.
According to Opinion UPL 11-01, non-attorneys may review documents, prepare and file Medicaid applications and attend state hearings on behalf of an individual “to the extent that those activities are authorized by federal law.”
The opinion draws the line for non-attorneys at performing “Medicaid planning” for current and prospective nursing-home patients and/or their families regarding qualification for Medicaid benefits “if it requires specialized legal training, skill, and experience.”
The opinion clarifies this point further.
“Medicaid planning, which consists of arranging assets and income to meet Medicaid eligibility requirements, is outside the scope of the non-attorney assistance permitted by federal law. State regulation of Medicaid planning is therefore not preempted by federal law. In many cases, Medicaid planning involves estate work and legal expertise. Accordingly, the board further concludes that the establishment of a Medicaid planning strategy for another by a non-attorney constitutes the unauthorized practice of law.”
A copy of the opinion is available at: http://www.supremecourt.ohio.gov/Boards/UPL/advisory_opinions/UPLAdvOp_11_01.pdf.
October 13, 2011
"A Fun, Safe Environment..."
The New York Appellate Division for the First Judicial Department declined to dismiss a lawsuit involving horrific injuries sustained by a bar patron. The defendant who had sought the dismissal was Bacardi.
The court found that the allegations sufficiently pled a viable claim for actual and punitive damages:
Plaintiff patron alleges that she was injured when, while at the bar at defendants-respondents' restaurant, the bartender, in a pyrotechnic display, poured Bacardi's high-alcohol content rum onto the surface of the bar and ignited it. At that point, the flame ignited into the bottle and the flaming contents shot out of the mouth of the bottle. As a result, plaintiff sustained severe burns.
The motion court properly concluded that under the circumstances plaintiff has viable claims for both negligence and strict liability based on defective design. Bacardi has submitted no evidence substantively contradicting the facts set forth in the complaint or in the affidavits of plaintiff's experts...Although Bacardi included warning labels on the bottle of Bacardi 151 and installed a removable flame arrester, it did so while actively promoting the very pyrotechnic uses that caused plaintiff's injuries.
The New York Daily News had this coverage of the filing of the suit:
A Manhattan woman who went up in flames to "Great Balls of Fire" when a bartender lit a match to 151-proof booze is firing back in court.
Lauren Sclafani is suing the owners of the Brother Jimmy's chain of barbecue restaurants after she suffered second- and third-degree burns in March in a fiery stunt gone bad.
"I was just about to leave when they decided to light the bar on fire," Sclafani said. "The next thing I know, I am on fire."
Her suit, filed in Manhattan Supreme Court, charges the bottle of booze exploded, shooting flames that engulfed Sclafani's face, arms and arms.
"It's like lighting gasoline," said her lawyer, Thomas Moore.
Sclafani, a financial worker, spent three weeks in the burn center at New York-Presbyterian Hospital, where she underwent surgeries and skin grafts.
"I can't understand why they would light the bar on fire," she said. "It's mind-boggling to me that they would put so many people in peril."
A spokesman for Brother Jimmy's - which no longer keeps bottles of 151-proof rum in stock - defended the chain's safety record.
"It is a fun, safe environment that people have come to know for 20 years," said Ron Berkowitz.
Sclafani said her injuries will force her to wear compression garments on her hands and to stay out of the sun.
"I just want to go on with my life," she said. "But I really can't."
Her suit also targets Bacardi.
"If you want to do some drinking, I can't think of why 100-proof wouldn't be enough," Moore said.
October 04, 2011
Bar Bar Upheld
A woman who was convicted of participation in a theft scheme with her husband appealed her sentence in two respect. One, she objected to the amount of restitution. Two, she objected to a condition that prohibited her from going to bars.
The Wyoming Supreme Court agreed that the restitution order should be reversed but rejected her appeal on the bar condition and held that the sentencing court had acted within the bounds of the law:
[The defendant] has a long hisdtory of illegal drug use and continues to use on a daily basis. A restriction on entering bars is sufficiently connected to her circumstances and furthers her rehabilitation by preventing her from being places where alcohol is purveyed, which may lessen the chance that she will replace or supplement her use of illegal drugs with alcohol and thereby hinder her rehabilitation.
The husband was sentenced to prison time. (Mike Frisch)
September 28, 2011
Indigent Defendants Entitled To Publicly-Funded Resources In Utah
The Utah Supreme Court has held that a criminal defendant who is declared to be indigent may qualify for court-paid resources even after retaining private counsel.
In another case, a defendant who was represented by retained counsel sought an order required the Salt Lake Legal Defender Association ("LDA") to pay the costs of an expert witness. The trial judge granted the motion without notice to the LDA.
On appeal, the Utah Supreme Court held that LDA had a due process right to notice and to be heard before being ordered to pay for the expert. (Mike Frisch)
September 16, 2011
A University of Tennessee at Chattanooga professor was removed as department head but continued as a professor. He sued, alleging that the action had been taken when he had refused to delete his unfavorable evaluation of a colleague who was seeking tenure.
The complaint alleged:
• Dr. [H.]’s duties as department head included the review of the academic
credentials and professional performance of professors within the Department.
• [T.W.], hired as an assistant professor in the Department in 2001, was
scheduled to be considered for tenure in the spring/summer of 2008. During 2007, as part
of his administrative duties as department head, Dr. [H.] concluded that Ms.[W.]’s
professional conduct was not acceptable. His conclusions were based in part on her repeated
and unannounced absences from the classroom, her refusal to accept his advice when she
engaged in an extra-marital affair with an undergraduate student in the department, her
falsification of information in several year-end reports and in her resume, and her fraudulent
claims for several alleged publications that did not exist.
• When the Dean of the College of Arts and Sciences...became aware
of Dr. [H.]’s evaluation of Ms. [W.], he instructed the Acting Dean to order Dr. [H.]
to remove all negative information from the evaluation.
• Dr. [H.] informed Dean Burhenn that he did not intend to remain silent about
these matters while the University conducted a final tenure review for Ms. [W.]. Dr.
[H.] sent Dean Burhenn an e-mail stating “I cannot any longer obey orders to cover up
professional malfeasance on the part of any member of this department, and I cannot agree
to having such information suppressed.” In a meeting following the email, Dean Burhenn
asked Dr. [H.] to resign as department head.
• When Dr. [H.] refused to resign or remain silent about Ms. [W.]’s “academic
fraud,” he was “informed that he would be terminated as Department Head at the end of the
academic year. This termination was based on [his] refusal to alter official documents or
remain silent as to the academic fraud and professional malfeasance which was perpetrated
on the University and the citizens of the State of Tennessee.”
The Tennessee Supreme Court affirmed the dismissal of the action, concluding that the loss of the department head position did not create a cause of action under the Tennessee Public Protection Act:
It is not disputed that Dr. [H.] was removed as department head, but continued to
be employed as a professor. Whether his complaint is sufficient depends on whether the
TPPA applies to an employee whose employment relationship is completely severed or only
modified in some manner. By its language, the TPPA applies to an employee who is
“discharged or terminated.” Because these terms are unambiguous, we look to “the natural
and ordinary meaning of the statutory language within the context of the entire statute
without any forced or subtle construction that would extend or limit the statute’s meaning”
to determine the legislature’s intent.
A dissent would find the allegations sufficient to state a claim, as the plaintiff had been "terminated" as department head. (Mike Frisch)