Legal Profession Blog

To Preserve Life And Health

The North Dakota Supreme Court has upheld the right to abortion to preserve the life and health of a pregnant woman

The North Dakota Constitution guarantees North Dakota citizens the right to enjoy and defend life and the right to pursue and obtain safety, which necessarily includes a pregnant woman has a fundamental right to obtain an abortion to preserve her life or her health. Thus, strict scrutiny analysis applies, and RRWC has a substantial likelihood of demonstrating N.D.C.C. § 12.1-31-12 is not narrowly tailored to achieve a compelling government interest, at least in the limited instances of life-saving and health-preserving circumstances. The district court did not abuse its discretion in granting the preliminary injunction. We deny the requested relief and leave the preliminary injunction in place.

(Mike Frisch)

Delay Dooms Rape Conviction

The New York Court of Appeals has reversed a first-degree rape conviction on pre-indictment delay grounds.

On the morning of August 9, 2009, a woman reported to the police that she had been raped a few hours earlier by someone she knew well, whom she identified to the police. That same day, she submitted to a sexual assault examination that included DNA samples. Also that day, the police questioned the named assailant—defendant herein—who denied any sexual contact with the woman and refused to provide a DNA sample. Defendant’s assertion could have been (and years later was) refuted by obtaining a sample of his DNA via a swab of his inner cheek.

Despite the above facts, the People took over four years to file an indictment. Because of the substantial delay—as to most of which the People offer no explanation whatsoever—the constitutional right to prompt prosecution, embodied in the due process clause of our state constitution, was violated. We must reverse.

Judge Singas dissented

Despite years of progress by lawmakers and courts, including this Court, to dismantle unreasonable barriers to rape prosecutions, women who report sexual violence  continue to face an uphill battle to hold those who rape them accountable. It is a harder fight after today. With the majority decision, the scales, once again, weigh against women’s voices. While the majority aims to punish the People for the pre-accusatory delay in securing DNA evidence—a delay that had no discernible impact on defendant’s ability to defend himself—the result is a stunning nullification of a jury’s first-degree rape conviction and the reinforcement of the bleak history of the treatment of sexual assault victims. Because there was no due process violation, today’s decision serves only to undermine New York’s recent gains in ensuring that sexual assault victims are treated fairly by the criminal justice system. Accordingly, I must dissent.

The harm caused by the reversal

In creating a rule that will systemically bar countless victims from obtaining justice in the event law enforcement fails “to recognize the seriousness of sexual assault,” (majority op at 17), the majority has only reaffirmed rape culture’s pernicious grasp on our criminal justice system. Its opinion will not deter this type of behavior by law enforcement, but instead be weaponized against victims and used in hindsight to rationalize closing long running rape investigations and dismissing prosecutions. The majority, dubiously asserting that reversing the rape conviction here will benefit future rape victims and the public (majority op at 19), fails to appreciate the practical implications of the precedent that they are creating: if law enforcement negligently delays rape investigations, women’s voices will continue to be stifled, rapists held unaccountable, and jury verdicts discarded. It is difficult to comprehend how that result protects victims or our communities. Moreover, it is no comfort to this victim to hear the old refrain that next time it will be different; next time, your voice will be heard.

Using the long-standing sensitive balancing test as required by our precedent, due process does not require the drastic remedy of dismissing this case. Where the crime is of the utmost severity, defendant was not incarcerated, there was no public accusation, and defendant has shown no actual prejudice from the delay, dismissal of the accusatory instrument is unwarranted. The legislature’s clear assertion of the strong societal interest in prosecuting rape cases, compounded with the heightened importance of rape victims having their day in court, cannot be undervalued in our balancing analysis. Overzealous dismissal of accusatory instruments for the delay in bringing those instruments improperly infringes on the public interest in bringing accused persons to trial (cf. United States v Ewell, 383 US 116, 121 [1966]), particularly where those crimes present the most consequential, heinous threats to the safety and health of our society. Despite much progress, and a cultural reckoning surrounding sexual violence and power dynamics, it is clear from today’s decision that there is much work to be done.

(Mike Frisch)

Discomfort Not Dangerous

The United States Court of Appeals for the District of Columbia Circuit has denied mandamus relief to an advocacy group seeking roomier airplane seats

Flyers Rights and its current president have taken aim at the small size of airline seats. In their view, small seats slow emergency evacuations and cause medical problems like blood clots. They have petitioned for a writ of mandamus ordering the FAA “to commence rulemaking to establish minimum seat size and spacing requirements for commercial aircraft and to issue a final rule by a date certain.”

The court was not unsympathetic to the plight in flight

To be sure, many airline seats are uncomfortably small. That is why some passengers pay for wider seats and extra legroom. But it is not “‘clear and indisputable’” that airline seats have become dangerously small. In re Cheney, 406 F.3d at 729. Unless they are dangerously small, seat-size regulations are not “necessary for the safety of passengers.” 49 U.S.C. § 42301 note. And until they are “necessary,” the FAA cannot comply with Congress’s order to promulgate seat-size regulations “necessary for the safety of passengers.” Id.

To be clear about the limits of our holding, evidence might one day show that seat-size regulations are “necessary for the safety of passengers.” Id. The FAA has requested public comments and is currently reviewing them. In addition, Flyers Rights recently petitioned the FAA to promulgate seat-size regulations, and in that proceeding, new evidence might arise.

(Mike Frisch)

 

The Departed: No Cause Of Action For Bulger Death

The United States Court of Appeals affirmed the rejection of claims brought by the estate of James "Whitey" Bulger for his death while in custody of the Bureau of Prisons

Bulger arrived at Hazelton on October 29, 2018, at approximately 6:49pm. Bulger had a “social interview” at 7:25pm, and at 8:21pm, after staff reviewed his Presentence Investigation Report and Inmate Central File, he was referred for a psychological exam. J.A. 108. According to Joshua Brawley, Executive Assistant at Hazelton, “[W]ithin 24 hours of an inmate’s arrival, medical staff [are required to] screen the inmate in compliance with BOP medical procedures to determine if there are medical reasons for housing the inmate away from general population.” Id. However, it is unknown whether Bulger actually received the required psychological exam or any other medical screening while at Hazelton.

The night of his arrival at Hazelton, Bulger was placed in the general population. The following morning at 8:20am -- less than 14 hours after his arrival -- BOP staff found Bulger unresponsive in his cell. According to the complaint, “within hours of [that] placement,” inmates “believed” to be from New England and loyal to the mafia killed Bulger using a “lock in a sock” bludgeoning weapon. J.A. 42

Reasoning

we conclude that Appellant’s Bivens claims arise in a new context and that several special factors, including separation-of-power implications and an increased burden on the federal prison system, counsel against an extension of Bivens in this new context. We also conclude that the discretionary function exception to the FTCA applies to BOP officials’ decisions to transfer Bulger and place him in general population.

(Mike Frisch)

You Bet Your Life

The Oklahoma Supreme Court denied liability for serving alcohol to a patron who later died driving while intoxicated, with a twist

Plaintiff/Appellant Nancy Carol MeGee, as Personal Representative of and on behalf of the Estate of David Anthony MeGee, brought a wrongful death action against Defendants/Appellees El Patio, LLC and Dylan Scott Welch. Personal Representative alleges that Welch and other employees of El Patio over-served alcoholic beverages to David Anthony MeGee and then bet him $200 to drive from Weatherford, Oklahoma, to Oklahoma City. MeGee died in a motor vehicle accident on his way to Oklahoma City. The trial court granted El Patio and Welch's motion to dismiss for failure to state a claim. Personal Representative appealed. We reaffirm our holding in Ohio Casualty Insurance Co. v. Todd, 1991 OK 54, 813 P.2d 508, that a voluntarily intoxicated adult does not have a cause of action against a commercial vendor for personal injuries or death resulting from his own intoxication. We also hold that, regardless of the sale of alcohol, an intoxicated adult who accepts a bet to drive a motor vehicle and is injured as a result of his own intoxication does not have a cause of action against the bettor.

Gambler's risk

our analysis hinges on to whom the duty is owed, i.e., whether there is a duty to protect the plaintiff from injury. There may be a duty not to bet an intoxicated person to drive, but that duty is owed to innocent third parties, not the voluntarily intoxicated adult. MeGee was not an innocent third party. Rather, he was a voluntarily intoxicated adult who drove a motor vehicle and, tragically, died as a result of his own intoxication. El Patio employees may have had a duty not to bet MeGee to drive to protect third parties from injuries caused by MeGee, but they did not have a duty to protect MeGee from injuring himself.

We hold that a voluntarily intoxicated adult who accepts a bet to drive a motor vehicle and is injured or dies as a result of his own intoxication does not have a cause of action against the bettor. A voluntarily intoxicated adult is responsible for his condition and must be accountable for his own injuries. Allowing an intoxicated adult to be rewarded for his decision to drive does not deter drunk driving or further the public policy of protecting the innocent from the intoxicated. Echoing what this Court said in Ohio Casualty, in the absence of harm to a third party, betting an intoxicated adult to drive does not constitute a breach of duty actionable in common law negligence. Our holding does not ignore the conduct of the bettor. If a third party is injured, there may be a cause of action against the bettor as well as the driver.

We do not recognize a common law duty to protect a voluntarily intoxicated adult from injuring himself. The facts alleged are egregious, but, without the existence of a duty, Personal Representative has failed to state a claim upon which relief may be granted. No cognizable legal theory supports Personal Representative's claims. The trial court properly dismissed the lawsuit.

Dissent

 There are several material issues that should be resolved by the fact finder, such as whether or not the overconsumption by the decedent was voluntary; whether the decedent was noticeably intoxicated; and whether the establishment continued to serve the decedent after he was noticeably intoxicated. Further, the actions of a server who sells or furnishes alcohol to a noticeably intoxicated person should be imputed to the establishment if the restaurant manager or supervisor had knowledge, encouraged the behavior, or failed to supervise, under a theory of respondeat superior. Fox v. Mize, 2018 OK 75, 428 P.3d 314,¶ 8. El Patio is in the business of selling alcohol, so it only makes sense that increasing sales of liquor will increase profits. Tips for servers/bartenders also increase as a customer's tab increases.

Under the facts of this case, the decedent was served seventeen alcoholic beverages by four different servers over seven hours. Eventually, employees of El Patio bet decedent $200.00 he could not drive from the restaurant location in Weatherford, Oklahoma, to a bar in Oklahoma City by a designated time. There are many reasons to reconsider our prior authority. Drunk drivers are a constant threat to the law-abiding users of our roads and highways. Encouraging noticeably intoxicated persons to drive by sellers of alcohol should be actionable. The trial court's order should be reversed, vacated and remanded to allow the case to proceed.

A second dissent

To not protect the intoxicated driver from harm by allowing for potential liability upon the tavern cheapens that person's life. To just say it was their choice, they should suffer the consequences alone, don't burden the tavern with looking out for their safety is, in my opinion, off the mark.

Serving intoxicated patrons is a crime in Oklahoma, and prosecution for that crime is not dependent upon a resulting death or injury to anybody. Why then is the tavern's civil liability dependent upon who gets hurt as a result of their wrongdoing? Possibly that is what the people of Oklahoma want; maybe not. The answer is not an easy one. The Oklahoma Legislature may want to set the parameters of the tavern's liability. Personally, I find former Justice Opala's suggestions to be the most logical and legally sound.

While I join in the court's refusal today to disturb this principle to benefit the uncoerced sui juris consumer, I would extend Brigance to allow actionable claims for only three narrowly defined classes of intoxicated consumer--all comprised of persons clearly unable to exercise free will: (1) those sui juris claimants whose will was overborne by duress, coercion or other wilful or grossly reckless misconduct, (2) those who were induced into imbibing by false misrepresentations that the potion was nonalcoholic or harmless and (3) those under legal disability--minors and mentally disabled--i.e., persons whose will the law recognizes as impaired by definition.

(Mike Frisch)

Smartmatic Claims Reviewed In New York

A decision today from the New York Appellate Division for the First Judicial Department

Supreme Court correctly declined to dismiss the defamation claims asserted against Fox News, Dobbs, Bartiromo, and Giuliani. Under New York's Anti-SLAPP statute (Civil Rights Law §§ 76-a[1][a], [2]), to withstand dismissal under CPLR 3211(g)(1), the claims pleaded must have "a substantial basis in law," which requires "such relevant proof as a reasonable mind may accept as adequate to support a conclusion or ultimate fact" (Golby v N & P Engrs. & Land Surveyor, PLLC, 185 AD3d 792, 793-794 [2d Dept 2020]). The meticulously detailed complaint satisfied the requirements of CPLR 3211(g)(1).

The causes of action for defamation were based on significant allegations that defendant Giuliani (and defendant Powell, against whom the action has been dismissed) made defamatory statements about plaintiffs' involvement in the 2020 Presidential election while knowing that the statements were false, or at least with reckless disregard for the truth. Those causes of action also allege that defendants Fox News, Dobbs, and Bartiromo did not merely report the newsworthy fact that the President's campaign lawyers were recklessly making statements conveying false information. Rather, the complaint alleges in detailed fashion that in their coverage and commentary, Fox News, Dobbs, and Bartiromo effectively endorsed and participated in the statements with reckless disregard for, or serious doubts about, whether the assertions or implications that plaintiffs had participated in election fraud had any basis in truth or were supported by any reliable evidence.

In fact, according to the allegations in the complaint, Fox News, Dobbs, and Bartiromo stated that Smartmatic's election technology and software were widely used in the 2020 election and in Dominion machines to switch votes, when they actually knew, or easily could have known had they not purposefully avoided publicly available knowledge, that in 2020, the Smartmatic technology was used only in Los Angeles County and that the vote switching claims otherwise had no support (see Harte-Hanks Communications v Connaughton, 491 US 657, 692 [1989]; accord Dominion v Fox News, [*2]2021 WL 5984265, *22-24, 2021 Del Super LEXIS 706, *59-69 [Del Super Ct 2021, C.A. No.: N21C-03-257 EMD]; Dominion v Newsmax, 2022 WL 2208580, *26, 2022 Del Super LEXIS 256, *69 [Del Super Ct 2022, C.A. No.: N21C-08-063 EMD]). Based on the same reasoning, the claims against Pirro, which are based on similar allegations of defamatory statements made with actual malice, must be reinstated.

However, Supreme Court erred in dismissing the third and fifth causes of action as against defendant Giuliani, and we reinstate those claims. As pleaded, those causes of action allege defamatory statements forming the basis for defamation per se claims and do not sound in product disparagement or otherwise require the pleading of special damages. We need not consider plaintiffs' contention that Supreme Court erred in dismissing the ninth cause of action as against defendant Giuliani, as that claim was subsequently reinstated by the court.

We further find the Supreme Court should have granted Fox Corporation's motion to dismiss the claims asserted against it, without prejudice to plaintiffs' ability to replead the claims. With respect to Fox Corporation, which is a corporate entity separate from Fox News, the complaint does not adequately allege that any Fox Corporation employee played an affirmative role in the publication of the challenged defamatory statements. Nor does the complaint adequately allege that Fox Corporation wholly dominated Fox News so as to liable for the acts of its subsidiary. Even if reasonable, the inference that Fox Corporation, merely by virtue of its ownership of Fox News and its profits, actively took part in the procurement, composition, and publication of the challenged statements, does not alone suffice to allege defamation claims against a corporate parent based on conduct by its wholly owned subsidiary.

We decline to find that plaintiffs should be deemed limited purpose public figures required to allege facts that, if true, would "clearly and convincingly" show defamation with actual malice (see Gottwald v Sebert, 193 AD3d 573, 578-579 [1st Dept 2021]). 

With Malice Not Alleged

The United States District Court dismissed without prejudice defamation claims brought by the Trump campaign against The Washington Post for two published articles

Here, the Trump Campaign fails to allege that the Sargent Article was published with actual malice. For starters, the Complaint is replete with conclusory allegations. See, e.g., Compl. ¶ 6. (“The Post was well aware at the time of publishing . . . that [the statement in the Sargent Article was] not true.”); id. ¶ 20 (“The Post clearly had a malicious motive, but more importantly acted with reckless disregard for the truth.”); id. (claiming that the Post “knowingly disregarded” “[t]he Mueller Report” and “[e]xtensive public information”). As the Trump Campaign knows, these “[t]hreadbare recitals of the elements of a cause of action” cannot survive a Rule 12(b)(6) motion to dismiss. 

And

The Trump Campaign’s defamation claim concerning the Waldman Article fares no better because the statement at issue there is non-actionable opinion.

The court allows plaintiff to give it another shot

The Post seeks dismissal with prejudice. See Mot. at 37. Although the Court grants the Post’s motion to dismiss, it will dismiss the Complaint without prejudice to afford the Trump Campaign another opportunity to adequately plead factual allegations on the element of actual malice. See Cottle, 404 F. Supp. 3d at 87. The Court will give the Trump Campaign 30 days to file a motion seeking leave to amend that attaches a proposed amended complaint. If no proposed amended complaint is received within that 30 day period, the dismissal will convert to with prejudice.

The case was a bit of a lucky charm

The case was randomly assigned to then-Judge Ketanji Brown Jackson, who held oral argument on the Post’s fully briefed motion to dismiss. Min. Entry (Dec. 10, 2020); Tr. of Mot. Hr’g, ECF No. 18. Upon then-Judge Jackson’s confirmation to the D.C. Circuit, the case was reassigned to Judge Florence Pan. See Docket Entry (Oct. 1, 2021). Upon Judge Pan’s confirmation to the D.C. Circuit, it was randomly reassigned to this Court.

Judge Contreras authored the decision.

In an unrelated decision last Friday, the Delaware Superior Court denied Newsmax Media, Inc.'s motion for judgment on the pleadings in a defamation suit brought by Smartmatic USA. (Mike Frisch)

Claims Against McDonald's Former Officer Survive

The Delaware Chancery Court denied a motion to dismiss claims against a former senior officer of McDonald's

Defendant David Fairhurst served as Executive Vice President and Global Chief People Officer of McDonald’s Corporation (“McDonald’s” or the “Company”) from 2015 until his termination with cause in 2019. In that position, Fairhurst was the executive officer with day-to-day responsibility for ensuring that one of the largest employers in the world provided its employees with a safe and respectful workplace.

In this action, stockholders of the Company have sued Fairhurst derivatively on the Company’s behalf. They allege that during Fairhurst’s tenure as the head of human resources, he breached his fiduciary duties by allowing a corporate culture to develop that condoned sexual harassment and misconduct. They assert that Fairhurst’s fiduciary duties included a duty of oversight, which required that he make a good faith effort to establish an information system that would generate the information necessary to manage the Company’s human resources function. They maintain that Fairhurst had a duty to use the resulting information to do his job and to report on his areas of responsibility to the CEO and the board. Those duties, they say, demanded that he address or report upward about any red flags regarding sexual harassment and misconduct at the Company. The plaintiffs do not allege that Fairhurst failed to make a good faith effort to establish information systems. They argue instead that Fairhurst breached his duty of oversight by consciously ignoring red flags.

Fairhurst has moved to dismiss the oversight claim under Rule 12(b)(6) for failing to state a claim on which relief can be granted. Fairhurst contends that Delaware law does not impose on officers any obligations comparable to the duty of oversight articulated by Chancellor Allen in In re Caremark International Inc. Derivative Litigation, 698 A.2d 959 (Del. Ch. 1996).

This decision clarifies that corporate officers owe a duty of oversight. The same policies that motivated Chancellor Allen to recognize the duty of oversight for directors apply equally, if not to a greater degree, to officers. The Delaware Supreme Court has held that under Delaware law, corporate officers owe the same fiduciary duties as corporate directors, which logically includes a duty of oversight. Academic authorities and federal decisions have concluded that officers have a duty of oversight.

The fact that corporate directors owe a duty of oversight does not foreclose officers from owing a similar duty. Just as a junior manager with supervisory duties can report to a senior manager with supervisory duties, so too can an officer with a duty of oversight report to a board of directors with a duty of oversight. And just as a senior manager with supervisory duties can hold a junior manager accountable for failing to fulfill the junior manager’s supervisory duties, so too can a board with a duty of oversight hold an officer accountable for failing to fulfill the officer-level duty.

Although the duty of oversight applies equally to officers, its context-driven application will differ. Some officers, like the CEO, have a company-wide remit. Other officers have particular areas of responsibility, and the officer’s duty to make a good faith effort to establish an information system only applies within that area. An officer’s duty to address and report upward about red flags also generally applies within the officer’s area, although a particularly egregious red flag might require an officer to say something even if it fell outside the officer’s domain. As with the director’s duty of oversight, establishing a breach of the officer’s duty of oversight requires pleading and later proving disloyal conduct that takes the form of bad faith.

Fairhurst thus owed a duty of oversight. He had an obligation to make a good faith effort to put in place reasonable information systems so that he obtained the information necessary to do his job and report to the CEO and the board, and he could not consciously ignore red flags indicating that the corporation was going to suffer harm.

Fairhurst next argues that even if he owed a duty of oversight, the plaintiffs have failed to allege sufficient facts to state a claim against him. The plaintiffs have identified red flags indicating that sexual harassment occurred at the Company. They also have alleged facts supporting a reasonable inference that Fairhurst knew about the red flags. The analysis comes down to whether Fairhurst acted in bad faith by consciously ignoring the red flags.

Holding

The plaintiffs have pled a claim against Fairhurst for breach of the duty of oversight. The plaintiffs also have pled a claim against Fairhurst for breach of the duty of loyalty based on the specific acts of sexual harassment in which he engaged. Fairhurst’s motion to dismiss under Rule 12(b)(6) is denied.

(Mike Frisch)

"A Match Into The Tinderbox"

A majority of the Wisconsin Supreme Court affirmed the grant of summary judgment to a municipality in connection with a sexual assault by a correctional official against an inmate

We conclude that Slabey's § 1983 claim against Dunn County fails because, under Monell v. Department of Social Services, 436 U.S. 658 (1978), no reasonable fact finder could conclude that Dunn County was the causal, moving force behind the sexual assault. A § 1983 plaintiff suing a municipality for a constitutional deprivation must prove that the municipality caused——that is, was the moving force behind——the constitutional deprivation. This requires evidence "that the municipal action was taken with 'deliberate indifference' as to its known or obvious consequences." Bd. of Cnty. Comm'rs of Bryan Cnty. v. Brown, 520 U.S. 397, 407 (1997) (quoting City of Canton v. Harris, 489 U.S. 378, 388 (1989)). Here, there is insufficient evidence demonstrating Dunn County acted with deliberate indifference to a known or obvious consequence that Boigenzahn would sexually assault Slabey. The circuit court was correct to grant Dunn County summary judgment on Slabey's § 1983 constitutional deprivation claim. We affirm the court of appeals.

The court majority focuses on the training provided rather than the facts pled in support of the case.

Dissenting Justice Jill Karosky suggests that, perhaps, the deliberate indifference lies elsewhere

Prisons and jails must take steps to prevent and detect sexual misconduct. And important to this case, when sexual abuse does occur, it is incumbent on the judicial system to hold to account those who are responsible in order to protect vulnerable inmates. It is here where the majority falls short. In wrongly concluding that the circuit court's grant of summary judgment for Dunn County should be upheld, the majority allows the county to escape all responsibility for (1) ignoring clear warning signs that former Dunn County correctional officer Ryan Boigenzahn had engaged in inappropriate and escalating behavior with female inmates, and (2) creating the circumstances that allowed Boigenzahn to sexually assault Rachel Slabey while she was incarcerated in the Dunn County Jail.

Inconvenient well-pled facts to counter the majority

Boigenzahn sexually assaulted Slabey  while she was in her bunk in the Dunn County Jail on March 25, 2016.2 It was the middle of the night in the Huber Dorm.  Boigenzahn was tasked with checking the women's dorm despite his recent suspension for violating the jail's fraternization policy. Boigenzahn surveyed the women's dorm alone, unmonitored, and entirely unsupervised. That night, Boigenzahn spent 45 minutes in Slabey's dorm, an extraordinarily long time compared to the few seconds that guards usually took to check the dorm during the night. And although the Dunn County Jail practice is for the central office of the jail to conduct radio checks when an officer fails to report back to the central office after 10 minutes, no supervisor checked in on Boigenzahn during the 45 minutes he was in the dorm, despite his known history of fraternization. By all accounts, no one was monitoring Boigenzahn as he abandoned his duties to prowl around Slabey's dorm.

The jail assigned Slabey to the only bunk in the dorm that was entirely unmonitored by security cameras, a fact both Boigenzahn and Slabey knew. Boigenzahn himself previously denied Slabey's request to be moved to a different bunk. Additionally, the jail recently transferred Slabey from administrative segregation, causing her concern that if she did anything to "make a scene" or displease Boigenzahn, she would be transferred back. And, unsurprisingly, Slabey did not think that anyone would believe her or protect her if she spoke up and complained about Boigenzahn. In a word, Slabey was vulnerable.

Armed with the knowledge of his victim's vulnerabilities, Boigenzahn entered the Huber Dorm, found Slabey and her bunkmate, D.S., and began talking with them. One of the topics of conversation was Boigenzahn's reputation for spending an inappropriate amount of time with female inmates. Slabey "made a comment [to Boigenzahn] about do you ever get in trouble. . . . And [Boigenzahn was] like yeah, I've gotten in trouble before, he's like, but I can——pretty much saying he didn't care, you know." As he was talking to the inmates, Boigenzahn began touching Slabey, first by rubbing her hand. Slabey tried to protect herself by moving away and lying down, but Boigenzahn persisted. He went after her, grabbing her pants, then her leg, then Boigenzahn shoved his hand down Slabey's pants and inside  her underwear.

Notably

This sexual assault did not occur without warning. It was not a freak occurrence, a force majeure that could have neither been foreseen nor prevented. Instead, sheriff's department officials——importantly here, the Sheriff himself—— first ignored the clear warning signs that Boigenzahn had already engaged in inappropriate and escalating behavior with female inmates, and then created the circumstances that allowed Boigenzahn to sexually assault Slabey.

Prior to the sexual assault, the Sheriff had ample warning that Boigenzahn was, in the words of one inmate, "dangerously close to crossing the line." Sheriff's department officials were first alerted to Boigenzahn's conduct in July 2015, about eight months before the sexual assault. Inmate J.W.B. informed a correctional officer, and subsequently a jail sergeant, that officials needed to "keep a close eye on" the male correctional staff. When asked for an example, J.W.B. explained that on two separate occasions, an officer passed notes between female and male inmates. J.W.B. originally refused to identify the officer in question for fear of retaliation, but upon further questioning, she identified Boigenzahn. Passing notes was a violation of the Dunn County Jail's fraternization policy, one that historically resulted in suspension or termination. Despite the seriousness of the allegations, the sergeant only reviewed surveillance video for one of the two instances J.W.B. reported, and he failed to question Boigenzahn or the inmates directly. After this cursory investigation, the sergeant concluded that there was no factual basis for J.W.B's claims.

About one week later, another inmate, B.M., told a different sergeant that Boigenzahn was dangerously close to "crossing the line," and that he had been getting "too chummy" with some of the female inmates.

Thus

Despite knowing that Boigenzahn had, at the very least, violated the jail's fraternization policy and attempted to conceal and lie about his violations, the Sheriff decided against terminating Boigenzahn. The Sheriff made this choice despite the fact that violations of the fraternization policy "historically" resulted in termination, and despite the fact that Boigenzahn's lying, in and of itself, was grounds for termination. The Sheriff opted instead for a far more lenient response and suspended Boigenzahn for three days before allowing him to return to work——in the same position——where he continued to have unfettered access to vulnerable women inmates. The Sheriff did not put Boigenzahn on a different shift, one where more staffing would allow for more supervision. He did not assign Boigenzahn to a different section, away from female inmates. He did not bar Boigenzahn from having further unsupervised contact with female inmates; in fact, he did not assign any staff to further monitor or investigate Boigenzahn at all. Instead, the Sheriff sent an officer who violated jail policies, lied to officials, and raised such serious red flags that multiple inmates reported him despite fears of retaliation, back to guard female inmates on the lightest-staffed shift with little to no monitoring. And that is how former officer Boigenzahn accessed, cornered, and sexually assaulted, Slabey on March 25, 2016.

Consequences

When municipalities take inmates into custody, they assume a responsibility to protect them from sexual assault. But this responsibility means little if the justice system is unwilling to hold municipalities accountable when they fail to protect their inmates. When municipalities are not held to account, measures like PREA, enacted to eliminate sexual assault in jails and prisons, are reduced to little more than a perfunctory policy for correctional staff to sign, then freely disregard. Dunn County threw a match into the tinderbox when it sent Boigenzahn back to guard female inmates. The majority's failure to hold Dunn County accountable is akin to standing idly by as the fire burns.

I am authorized to state that Justice ANN WALSH BRADLEY joins this dissent.

(Mike Frisch)

D.C. Court To Hear Aspect Of Trump V. Carroll Defamation Suit

An oral argument scheduled for this morning before the District of Columbia Court of Appeals

Tuesday, January 10, 2023 10:00 AM  ENBANC

No. 22-SP-0745 DONALD J. TRUMP, ET AL. V. E. JEAN CARROLL
Mark R. Freeman, Esquire
Jason C. Greaves, Esquire

Insider reported on the issues

A defamation lawsuit against former President Donald Trump will be heard by the District of Columbia Court of Appeals on Tuesday, and while the case stems from a rape allegation, what's at stake is whether presidents can be sued for comments they make in office. 

The case concerns longtime Elle advice columnist E. Jean Carroll's rape allegation against Trump, and his subsequent denials. 

In June 2019, Carroll wrote in an essay for New York Magazine that Trump forced himself on her in a dressing room at Bergdorf Goodman in the mid-1990s. 

Trump was president at the time Carroll went public with the rape claim, and he loudly denied her allegation in a series of statements to the press, in which he insulted her appearance and claimed she made the accusation up to sell her memoir. Trump went so far as to claim he never met Carroll, but that was quickly refuted with an image of the two chatting at a party in 1987. 

Carroll sued Trump for defamation in November 2019, saying her career suffered "as a direct result of Trump's defamatory statements."

Trump — and the Department of Justice, which later intervened in the case — have argued that he is protected by a federal law known as the Westfall Act.

The Westfall Act protects government employees from being sued for actions in the line of their work. A common use of the act is protecting US Postal Service workers from being sued for car accidents they're involved in. Instead, the US government becomes the defendant in such suits. 

The DOJ has argued in court filings that Trump's comments were protected by the Westfall Act because part of the job of being president is "speaking to the public and the media on matters of public concern — including, at times, responding to allegations about the elected official's own private conduct bearing on his fitness to hold office."

Carroll's legal team has countered that Trump "acted with private motives, and not in furtherance of any official federal purpose or function, in seeking to punish and humiliate Carroll for revealing his decades-old crime," according to their court filings. 

The legal question of whether Trump was protected by the Westfall Act has divided judges as the case has made its way through the courts. 

US District Judge Lewis Kaplan sided with Carroll's lawyers, ruling in October 2020 that Trump wasn't acting in his official capacity when he denied Carroll's rape allegation.

"His comments concerned an alleged sexual assault that took place several decades before he took office, and the allegations have no relationship to the official business of the United States," Kaplan wrote. 

But when Trump's lawyers appealed Kaplan's decision to the US Court of Appeals for the Second Circuit, a three-judge panel was split on the issue, favoring Trump 2-1.

However, the panel agreed there was some uncertainty over whether Trump's comments were made within the scope of his employment, and ultimately passed the case to the DC Court of Appeals since the case focuses on DC law. That court will hear oral arguments in the appeal on Tuesday.

The DC Court of Appeals will be hearing the case "en banc," meaning every judge in the court will hear the case and offer an opinion — a situation reserved for particularly complex cases. 

What's at stake

The appeals court decision likely won't have too much of an impact on Carroll, since she filed a second lawsuit against Trump in November.

That lawsuit also stems from her rape allegation, and includes a defamation complaint over Trump calling her allegations a "Hoax and a lie" on his social media platform, Truth, in October 2022. Because he made those comments after leaving the White House, he won't be able to claim Westfall Act protection. 

The second lawsuit also includes a claim of battery. Previously, Carroll had not been able to sue Trump for the alleged rape itself, because the statute of limitations had expired. But a new New York law, the Adult Survivors Act, temporarily allows the filing of lawsuits claiming sexual assault in cases where the statute of limitations has expired. 

This means that one way or another, Carroll's allegations against Trump are likely to go in front of a jury — if Trump doesn't settle the case first. 

But the case is still important when it comes to determining just how much protection the Westfall Act offers a sitting president. 

If the court sides with Trump, it could further expand the protections a president is given, making it incredibly difficult to sue a president for anything he or she says while in office — even if those statements are libelous. It also means that the suit will likely be dismissed, since the federal government can't be sued for defamation. 

Denny Chin, the lone dissenter on the Second Circuit Court of Appeals, who sided with Carroll, underlined how Trump winning on this issue could have ramifications for the presidency: 

Chin wrote that "no President could be held accountable for damage done in front of a microphone or in an official meeting — whether defaming a citizen, exposing classified national security information, or inciting a riot."

"This is not, and should not be, the law," Chin wrote. 

Shanlon Wu, a partner at DC law firm Cohen Seglias, told Insider that the case is so specific to Trump's personal situation that a win for Trump wouldn't necessarily apply to future presidents. 

However, he said one potential consequence of the court siding with Carroll is that it could open Trump up to lawsuits from other people he verbally attacked in office. 

"That makes it very high stakes for Trump, but not as a matter of legal precedent," Wu said.

Another thing to keep in mind: if the court sides with Carroll, her case could be heard in a matter of months. 

Carroll's lawyers have petitioned to try both cases at the same time, and the current trial date for the first lawsuit is scheduled for April 10. 

The argument can be accessed in real time through a link on the court's web page. (Mike Frisch)

Software Has No Physical Existence

A hack into a software company's computers and resulting blackmail payment was not covered by insurance, according to a decision issued today by the Ohio Supreme Court

Facts

EMOI is a computer-software company that uses software it has developed, along with outside software, to provide medical offices with service and support for setting appointments, record keeping, and billing. On September 12, 2019, EMOI became the target of a ransomware attack when an unknown party, i.e., a “hacker,” illegally gained access to EMOI’s computer systems and encrypted files needed for using its software and database systems. As a result of the attack, when a file was opened, a ransom note appeared notifying the user that the files were encrypted and therefore unavailable but that the files could be restored to normal by a decryption key the hacker would provide in exchange for the payment of three bitcoins—approximately $35,000 at the time.

After looking into the timing and financial feasibility of recovering the files through the assistance of a third-party company, EMOI decided to pay the ransom. Upon payment, EMOI received an email from the hacker with a link to download a program that would decrypt the files. A majority of the system files were returned to normal following the decryption process. An automated phone system, however, remained encrypted because the decryption key had not worked on the separate server that attended to that system. There was no hardware or equipment damage as a result of the ransomware attack. Following the attack, EMOI upgraded its software systems and took other steps to protect its systems from future attacks.

The coverage dealt with "physical damage"

Computer software cannot experience “direct physical loss or physical damage” because it does not have a physical existence. See Ward at 850. Software is essentially nothing more than a set of instructions that a computer follows to perform specific tasks. Fantasy Sports Properties, Inc. v. Sportsline.com, Inc., 287 F.3d 1108, 1118 (Fed.Cir.2022) (“Software is a set of instructions, known as code, that directs a computer to perform specified functions or operations”). It is information stored on a computer or other electronic medium. See Ward at 850. While a computer or other electronic medium has physical electronic components that are tangible in nature, the information stored there has no physical presence. Id. In other words, the information—the software—is entirely intangible. Focusing on what the parties would have intended, see Alexander, 53 Ohio St.2d at 246, 374 N.E.2d 146, we are unpersuaded that the policy covered “physical damage” to computer software (an intangible) without there also being physical damage to the hardware on which the software was stored.

Because the insurance policy at issue did not cover the type of loss EMOI experienced, Owners did not breach its contract with EMOI. Accordingly, we reverse the judgment of the Second District Court of Appeals and reinstate the trial court’s grant of summary judgment in favor of Owners on EMOI’s claim of breach of contract and bad-faith denial of insurance coverage.

( Mike Frisch)

The Most Disturbing Deposition I Have Ever Read

I have now read the transcript of Cassidy Hutchinson's last deposition before the January 6 Committee. I encourage anyone who has an interest in legal ethics or the rule of law to do the same.

I expect that pertinent excerpts of this deposition will be taught in law schools for years to come. 

Much like Watergate, the role of lawyers in recent events should be carefully examined and cause thoughtful reflection by and on the profession.

Back then, there was virtually no enforcement of ethics rules. Now there is. 

As a Watergate veteran myself, the one statement that amused me (and there is not much levity in the testimony of a young woman who wanted to tell the truth and do the right thing) was when she had to use google who find out who Alexander Butterfield was.

Now she knows. (Mike Frisch)

COVID And The Constitution

A divided Iowa Supreme Court has reversed and remanded a criminal conviction due to COVID restrictions that violated the defendant's Constitutional rights

Criminal jury trials in Iowa and around the country over the last two and a half years would have looked strange to an observer plucked out of pre-pandemic times. Witnesses speaking through masks and see-through face shields; brightly colored tape on floors every six feet to mark where people could stand; clients sitting at different tables from their attorneys, trying to nonetheless communicate in private; separate “in” and “out” doors to courthouses and courtrooms to direct traffic patterns; juries selected in school gymnasiums or large warehouses; jurors spread out in the back of a courtroom instead of sitting in the jury box. These are but a few of the accommodations courts in Iowa and across the country made in trying to stem the spread of COVID-19 while preventing the wheels of justice from grinding to a halt.

Ronald Brimmer was set to stand trial on serious felony charges on March 31, 2020, but then, well, COVID, and his trial was repeatedly rescheduled. A full year later, at which time Brimmer was in jail awaiting trial, his trial was finally set to go on April 6, 2021. When he requested that his family and friends be allowed to attend trial in person, the answer was “no,” not even his mom. The district court considered rearranging the already rearranged courtroom but ultimately concluded that while it could make room for a few people and comply with the COVID protocols this court had previously implemented, anyone allowed in would still be too close to jurors for the court’s liking. The district court also dismissed the option of livestreaming the trial so the public could participate virtually because the judge couldn’t navigate that technology by himself.

“[E]ven in a pandemic, the Constitution cannot be put away and forgotten.” Roman Cath. Diocese of Brooklyn v. Cuomo, 141 S. Ct. 63, 68 (2020) (per curiam). A public trial is among the most fundamental of constitutional rights—a stalwart feature of a criminal prosecution that distinguishes a free society from “Star Chamber” techniques. State v. Lawrence, 167 N.W.2d 912, 913–14 (Iowa 1969) (recognizing the right has been “universally regarded by state and federal courts as basic and substantial, and the language declaring it as mandatory”). It was included in the constitution to “ensure that [it] will not be sacrificed to expediency.” Hudson v. Palmer, 468 U.S. 517, 556 (1984) (Stevens, J., concurring in part and dissenting in part). And it is our obligation to jealously guard it. See 1 Annals of Cong. 439 (1789) (Joseph Gales & William W. Seaton eds., 1834) (statement of Rep. Madison) (envisioning courts as “the guardians of [constitutional] rights; . . . an impenetrable bulwark against . . . every encroachment upon [those] rights” from whatever quarter).

As such, and as the head of the judicial branch, we recognize our responsibility to guide Iowa courts through these unprecedented times. Our concern here is whether Brimmer’s constitutionally-protected right to a public trial was violated, not who is to blame. We do not doubt the district court judge’s sincere belief that he was doing the best he could under the circumstances, nor do we intend to disparage his efforts, recognizing we have the luxury of unhurried deliberation. But if we, as a branch, failed to protect Brimmer’s rights, then we, as a branch, must own up to that failure. No solution to the COVID conundrum was ideal. But simply closing Brimmer’s trial to the public violated his constitutional rights, and that structural error entitles him to a new trial.

The scorecard

Oxley, J., delivered the opinion of the court in which McDonald, J., joined, McDermott and May, JJ., joined except as to section IV.B.2, and Christensen, C.J., and Mansfield and Waterman, JJ., joined as to part III only. Mansfield, J., filed an opinion concurring in part and dissenting in part, in which Christensen, C.J., and Waterman, J., joined. May, J., filed a special concurrence, in which McDermott, J., joined.

Justice Mansfield dissented from the grant of a new trial

Much of the discussion of public trial rights in the majority opinion is well-stated, and I agree with it. However, in this case, it is essentially academic. I see no reason to put someone who was serially raped by two men as a sixteen-year-old through another trial simply to make an academic point about the importance of the public trial right. The victim’s impact statement is gut-wrenching and describes a suicide attempt, the loss of a job, and having “[m]y adolescence . . . ripped away from me against my will by these two men.”

..we don’t know what would have happened if Brimmer had pressed the issue of livestreaming, because he never did. He failed to preserve error. It would be unfair to the district court, the State, and the victim to now give Brimmer a do-over based on failure to provide a livestream that Brimmer didn’t ask for, that he presumably didn’t want, and that potentially could have been provided to him if he had wanted it.

COVID cases from other jurisdictions have indicated that public trial rights are subject to normal error preservation rules. It is not up to the district court to make arguments for the defendant...

(Mike Frisch)

"Pinky Swear" Binds State

The Georgia Supreme Court has held that the State is contractually obligated to honor a commitment to waive sovereign immunity

After an order was issued setting the execution of Virgil Delano Presnell, Jr., the Federal Defender Program, Inc., (“Federal Defender”) filed a breach of contract action against the State of Georgia and Christopher M. Carr in his official capacity as Attorney General (collectively, the “State”) alleging that the State breached a contract governing the resumption of the execution of death sentences in Georgia after the COVID-19 pandemic. The State contends that the trial court erred in denying its motion to dismiss based on sovereign immunity and in granting the Appellees’ emergency motion for a temporary restraining order and an interlocutory injunction. As explained below, we conclude that an e-mail exchange between a deputy attorney general and certain capital defense attorneys, including an attorney employed by the Federal Defender, constituted a written contract sufficient to waive sovereign immunity in this matter, and we in turn conclude that the trial court did not abuse its discretion in weighing the equities in granting the Appellees’ motion for injunctive relief. Accordingly, we affirm.

From the thoughtful and impassioned concurrence of Justice Bethel

Though it may prove inconvenient, uncomfortable, or undesirable to the State, when both a Deputy and an Assistant Attorney General are on record agreeing that the State will do or not do something, absent a showing that those lawyers were engaged in an illegal or unethical endeavor or that honoring the agreement will incur an unauthorized cost to the State, everyone should be able to count on the State to honor its word. Not because it entered a contract that waived sovereign immunity. Not because the party asking the State to do as it said it would was sufficiently copied on an electronic communication message or was a third-party beneficiary. Not because the author of a message followed the correct electronic “pinky swear” that is necessary to transform a statement into a binding commitment. Rather, the State should keep its promises because The People of Georgia, who are the very source of the State’s sovereignty, are owed a government that honors its commitments.

In a society governed by the rule of law, courts must entertain lawfully filed cases and vindicate rights of parties, as defined by the law. And if the law allowed the State to avoid fulfilling the promises it made here, this Court would be bound to allow that. For the reasons explained in the opinion of the Court, however, the law thankfully does not allow that avoidance here. It’s a shame anyone thought it appropriate to ask.

The oral argument is linked here.

Murderpedia reports that the death penalty at issue here was originally  imposed in 1976. (Mike Frisch)

The Law Of Errant Balls

The Massachusetts Supreme Judicial Court remanded a multi-million dollar verdict against a country club but declined to grant judgment to the defendant

We conclude that the trial judge erred when he did not interpret the documents creating the covenants and restrictions as a whole and in light of attendant circumstances. When read as a whole, the documents provide that the plaintiffs' home was subject to an easement allowing for the "reasonable and efficient operation" of a golf course in a "customary and usual manner." As the jury were not instructed accordingly, and the failure to give the instruction was prejudicial, the verdict must be reversed and the injunction lifted. We decline, however, to direct a verdict in the defendant's favor, as we cannot decide as a matter of law that the operation of the fifteenth hole and the number of errant shots hitting the plaintiffs' home was reasonable. With golf, some errant shots, way off line, are inevitable, but a predictable pattern of errant shots that arise from unreasonable golf course operation is not. In the instant case, a properly instructed jury are required to resolve whether the operation of the fifteenth hole, including the number of errant shots hitting the plaintiffs' home, was reasonable.

NBC News reported on the verdict below

A Massachusetts couple won a verdict worth nearly $5 million against a local country club after suffering from the years-long, "continuous threat" of wayward golf balls struck by hackers.

A Plymouth County Superior Court jury awarded Erik and Athina Tenczar $4.93 million in December, finding that Indian Pond Country Club was at fault for not protecting the couple's home from a constant barrage of bad golfing, court records showed.

The Tenczars originally sued both Indian Pond and Spectrum Building Inc., which built their new home in Kingston, about 40 miles south of downtown Boston. They settled with the builders, leaving Indian Pond Country Club as the sole defendant.

“The continuous threat of golf ball strikes occurring at any time prevents the Tenczars from the use and enjoyment of their property,” which was purchased for $750,000 on April 27, 2017, according to the complaint.

The Tenczars' attorney, Robert Galvin, said he understands skepticism about his clients' dismay over errant golf balls, knowing they were buying property that abuts the 15th hole.

But the inconvenience of an occasional backyard golf ball pales in comparison to the 651 dimpled spheres that have struck their property, Galvin said.

There have been "multiple broken windows," according to the lawsuit and one particularly jarring shot on July 18, 2018 that "struck a window in the home shattering the glass and terrifying the plaintiffs' young daughter and resulting in the Tenczars contacting the Kingston Police Department to file a report."

Where Did Our Name Go?

The Maryland Court of Appeals is now the Maryland Supreme Court as noted in a recent opinion

At the time of oral argument in this case, the Supreme Court of Maryland was named the Court of Appeals of Maryland. At the November 8, 2022 general election, the voters of Maryland ratified a constitutional amendment changing the name of the Court of Appeals of Maryland to the Supreme Court of Maryland. The name change took effect on December 14, 2022.

(Mike Frisch)

The Fast Track

The District of Columbia Court of Appeals has released the January 2023 oral argument schedule with this first on the docket

Tuesday, January 10, 2023 10:00 AM

ENBANC

No. 22-SP-0745 DONALD J. TRUMP, ET AL. V. E. JEAN CARROLL

Mark R. Freeman, Esquire
Jason C. Greaves, Esquire

The Hill covered the story

The District of Columbia Court of Appeals on Tuesday said it would expedite former President Trump’s challenge of a defamation suit filed by writer E. Jean Carroll, who accused Trump of rape.

Carroll, a longtime columnist for Elle magazine, accused Trump of raping her in a New York City department store in the 1990s. She sued the former president for defamation three years ago after he dismissed her allegations against him and accused her of lying.

 

The D.C. Court of Appeals scheduled oral arguments for Jan. 10, according to a new filing obtained by Axios, to answer the specific legal question of whether Trump made the allegedly libelous statements against Carroll within the scope of his role as president of the United States.

In the complex series of legal moves that followed Carroll’s initial suit, Trump’s legal team attempted to dismiss and delay the case, and eventually to countersue Carroll for bringing the lawsuit against him in the first place.

The Justice Department then moved to step in and argue that Trump could not be sued in his personal capacity, since he made the statements during his tenure in the White House, and that the Justice Department should be substituted as defendant in the case.

The former president sat for his deposition in the case earlier this month after his legal team repeatedly attempted to delay the proceedings. 

All active judges on D.C.’s highest court will hear the January arguments before the trial reportedly scheduled for February, according to the filing.

“We are pleased that the DC Court of Appeals set an expedited schedule to determine the issue certified by the United States Court of Appeals for the Second Circuit. As we’ve said several times by now, we are eager to get to trial on all of E Jean’s claims as soon as possible,” Carroll’s attorney Robbie Kaplan said in a statement.

(Mike Frisch)

No Slam Dunk

The Delaware Court of Chancery has ruled against basketball legend Julius Erving's effort to avoid arbitration of an agreement concerning the sale of his trademark and intellectual property rights

Julius W. Erving II, known by the moniker “Dr. J,” is a basketball legend. In 2016, Mr. Erving agreed to sell a majority interest in his trademark and other intellectual property to Authentic Brands Group, LLC (“ABG”), a brand development and marketing company. ABG and its controlling member and CEO, James Salter, promised to grow Mr. Erving’s brand exponentially by obtaining new licensing agreements, promotional appearances, and other marketing opportunities.

The dispute

Plaintiffs brought this suit on September 22, 2021, bringing claims for breach of contract and specific performance against ABG Intermediate.

Holding

Because the parties evidenced a clear and unmistakable intent to have the arbitrator decide issues of substantive arbitrability, the action is STAYED pending the arbitrator’s decision. “If the arbitrator determines the claim is arbitrable, then this action will be dismissed for lack of jurisdiction . . . . If the arbitrator determines the matter is not arbitrable, then the parties may return to this Court for further proceedings.”

(Mike Frisch)

Appealing An (Inaudible) Trial

A deficient trial record  has led the Washington State Supreme Court to remand a conviction for an effort to  reconstruct the record for meaningful appellate review

In August 2020, Waits was tried and convicted of child molestation and attempted child molestation, both in the first degree. The underlying facts of these conviction are not in dispute. Instead, the issues for this court’s review arise from the bad acoustics of the building where the trial took place—a former church that was used to accommodate social distancing during the height of the COVID-19 pandemic.

Over the course of Waits’ two-day trial, the transcription contained over 2,000 “inaudible” notations from the judge, lawyer, jurors, and witnesses. The transcriptionist was later able to fill in some of the gaps, but about 1,500 inaudibles still remain.

The Court of Appeals had set out a reconstruction procedure

Waits sought emergency review here. He objected to the Court of Appeals’ reconstruction procedure. The State offered no response. At oral argument before Commissioner Michael Johnston, the State was allowed a brief comment and indicated it was not opposed to review, citing the need for definitive guidance on the process of recreating a record. Commissioner Johnston granted review. The Washington Appellate Project submitted amicus curiae briefing in support of Waits.

Contentions

Waits contends that the federal constitution places the burden of reconstructing a lost or damaged record on the State rather than, as the Court of Appeals held, on the criminal appellant. We agree in part.

As to the State

We reject this argument. First, it assumes the conclusion that appellate attorneys (who are almost always different from trial counsel) will know on what portions of the record to focus their attention, ignoring completely that an adequate record is first necessary for an appellate attorney to identify any such issues for appellate review. Next, it is not inevitable that placing the burden where it constitutionally belongs (on the State) will result in a record for every single hearing. A verbatim report of proceedings generally allows an appellate attorney to review the entire record (of every hearing), identify issues, and transmit those relevant portions of the record to the reviewing court. When a verbatim report is unavailable and an alternative is necessary, a narrative or agreed report of every hearing may be necessary in order to provide an indigent defendant with a record of sufficient completeness to allow for adequate and
effective appellate review. Mayer, 404 U.S. at 194.

Regarding the remedy, the State concedes that Waits’ originally proposed process is “the most viable.” Br. of Resp’t at 4. We therefore remand the case to the trial court for the parties to attempt reconstruction, with the State undertaking its constitutional duty to lead the effort and recourse to the trial court if the parties disagree or third parties are reluctant to participate as required by the RAPs and our case law.

Justice Yu concurred

“the State is responsible” should be read to mean that the costs of record reconstruction must be paid at public expense by the state government. Moreover, to allow for an expedited process, courts should promptly approve the costs when reconstruction pursuant to RAP 9.3 and 9.4 is deemed necessary. For this reason, I respectfully concur.

(Mike Frisch)

Unactionable Hackery

The United States District Court for the District of Columbia has dismissed a suit brought under the Ku Klux Klan Act 

Lieutenant Colonel Alexander Vindman’s name entered the public lexicon in 2019. Vindman was serving a detail on the National Security Council on July 25 of that year when he listened in during the now-infamous phone call between former President Donald Trump and Ukraine’s President Volodymyr Zelensky, which conversation would lead to Trump’s first impeachment. Vindman alleges that, after he reported concerns about the call through official channels and testified before the House Intelligence Committee, a group of conspirators formed an agreement to intimidate and unlawfully retaliate against him. He brings this action against some of those alleged conspirators — namely, Donald Trump, Jr., Rudolph Giuliani, Julia Hahn, and Daniel Scavino, Jr. — alleging that they thereby violated provisions of the Ku Klux Klan Act of 1871, codified at 42 U.S.C. § 1985(1) and (2). Defendants now move to dismiss the case.

History will be the final judge of Vindman’s actions and the former Administration’s response. This Court’s task is to adjudicate something far narrower: whether Plaintiff’s Complaint pleads facts sufficient to state a claim for civil conspiracy under Federal Rule of Civil Procedure 12(b)(6). As the Court will explain, Vindman must allege facts that plausibly suggest two things: first, that each Defendant agreed with others not just to vigorously defend their boss, but to unlawfully intimidate or injure Vindman; and second, that one of the co-conspirators committed an unlawful act — e.g., defamation — to further such scheme.

Plaintiff’s pled facts, taken as true, certainly suggest that Defendants leveled harsh, meanspirited, and at times misleading attacks against him. But political hackery alone does not violate § 1985. Because Vindman does not sufficiently allege a violation of the 1871 Act, the Court will grant Defendants’ Motions to Dismiss.

The opinion was authored by District Judge Boasberg. (Mike Frisch)