Friday, December 28, 2018

Hungarian Survivor Claims Reinstated

The United States Court of Appeals for the District of Columbia Circuit reinstated claims brought by U.S. citizens arising from the Holocaust in Hungary that had been dismissed by the district court

“Nowhere was the Holocaust executed with such speed and ferocity as it was in Hungary.” Simon v. Republic of Hungary, 812 F.3d 127, 133 (D.C. Cir. 2016) (internal quotation marks and citation omitted). More than 560,000 Hungarian Jews—68% of Hungary’s pre-war Jewish population—were killed in one year. Id. at 134. In 1944 alone, a concentrated campaign by the Hungarian government marched nearly half a million Jews into Hungarian railroad stations, stripped them of all their personal property and possessions, forced them onto trains, and transported them to death camps like Auschwitz, where 90% of them were murdered upon arrival. Id. at 133–134.

Fourteen of the very few survivors of the Hungarian government’s pogrom (collectively, “Survivors”), including four United States citizens, filed suit against the Republic of Hungary and Magyar Államvasutak Zrt. (“MÁV”), Hungary’s state-owned railway company. As relevant here, the litigation seeks compensation for the seizure and expropriation of the Survivors’ property as part of the Hungarian government’s genocidal campaign. See Simon, 812 F.3d at 134.

Majority holding

Winston Churchill described the brutal genocidal expropriations, deportations, and mass extermination of Hungarian Jews at Nazi death camps as “‘probably the greatest and most horrible crime ever committed in the history of the world.’” Simon, 812 F.3d at 132. The district court erred in declining to exercise statutorily conferred jurisdiction over the Survivors’ effort to obtain some measure of reparation for those injuries both by wrongly requiring them to adjudicate their claims in Hungary first, and by misapplying the law  governing the forum non conveniens analysis. We deny the Survivors’ request that the case be reassigned, and remand for further proceedings consistent with this opinion.

KATSAS, Circuit Judge, dissenting: The district court concluded that this foreign-cubed case—involving wrongs committed by Hungarians against Hungarians in Hungary— should be litigated in Hungary. In so doing, the court permissibly applied the settled law of forum non conveniens.

The majority opinion is authored by Circuit Judge Millett joined by Circuit Judge Pillard. (Mike Frisch)

December 28, 2018 in Current Affairs | Permalink | Comments (0)

Tuesday, December 18, 2018

The Answer Is No

The United States Court of Appeals for the District of Columbia Circuit affirmed a decision to deny access to the tax records of a person in the news

The Internal Revenue Service (IRS) collects more than money. It acquires and maintains a reservoir of sensitive information about taxpayers. And time was, the President could—for any reason or no reason at all—order the IRS to make that sensitive information public. The arrangement worked out fine for decades. Then the Nixon administration compiled a list of political enemies and ordered the IRS to harass them. The resulting scandal prompted the Congress to enact sweeping legislation to protect taxpayer privacy. The Internal Revenue Code (IRC) now mandates that tax “[r]eturns and return information shall be confidential” unless they fall within one of the statute’s narrowly drawn exceptions. I.R.C. § 6103(a).

At first blush, the IRC stands in tension with the Freedom of Information Act (FOIA), which vests the public with a broad right to access government records. 5 U.S.C. § 552(a)(3)(A). One statute demands openness; the other privacy. But as we explain infra, the statutes work well together. Not all records are subject to FOIA requests. An agency need not disclose records “specifically exempted from disclosure by statute.” Id. § 552(b)(3). Because the IRC is such a statute, records that fall within its confidentiality mandate are exempt from FOIA.

This case presents the question whether a member of the public—here, a nonprofit organization—can use a FOIA  request to obtain an unrelated individual’s tax records without his consent. With certain limited exceptions—all inapplicable here—the answer is no. No one can demand to inspect another’s tax records. And the IRC’s confidentiality protections extend to the ordinary taxpayer and the President alike. Accordingly, we affirm the dismissal of the Electronic Privacy Information Center (EPIC)’s lawsuit seeking President Donald J. Trump’s income tax records.

The case was brought by the Electronic Privacy Information Center

EPIC is a nonprofit organization dedicated to focusing “public attention on emerging privacy and civil liberties issues.” A few months after the 2016 election, EPIC sent the IRS a FOIA request seeking President “Donald J. Trump’s individual income tax returns for tax years 2010 forward, and any other indications of financial relations with the Russian government or Russian businesses.”

The panel

HENDERSON and MILLETT, Circuit Judges, and EDWARDS, Senior Circuit Judge.

Opinion for the Court filed by Circuit Judge HENDERSON.

(Mike Frisch)


December 18, 2018 in Current Affairs | Permalink | Comments (0)

Monday, December 17, 2018

Howrey Dissolution Certified Questions To Be Argued Today

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

Monday, December 17, 2018 10:00 AM


LLP V. HOGAN LOVELLS US, LLP, ET AL *public interest

Christopher R. Murray, Esquire
Christopher Sullivan, Esquire
Shay Dvoretzky, Esquire
Michael Ryan Pinkston, Esquire
Robert Radasevich, Esquire
Jack Mckay, Esquire
Robert Novick, Esquire
Gregory G. Garre, Esquire
Brian R. Matsui, Esquire
Logan G. Haine-Roberts, Esquire

In a February 2018 opinion, the United States Court of Appeals for the Ninth Circuit had sought guidance on governing District of Columbia law

Pursuant to D.C. Code § 11-723 we respectfully ask the District of Columbia Court of Appeals to resolve three questions of District of Columbia law that “may be
determinative” of this bankruptcy appeal. D.C. Code § 11- 723(a):

(1) Under District of Columbia law does a dissociated partner owe a duty to his or her former law firm to account for profits earned post-departure on legal matters that were in progress but not completed at the time of the partner’s departure, where the partner’s former law firm had been hired to handle those matters on an hourly basis and where those matters were completed at another firm that hired the partner?

(2) If the answer to question (1) is “yes,” then does District of Columbia law allow a partner’s former law firm to recover those profits from the partner’s new law firm under an unjust enrichment theory?

(3) Under District of Columbia law what interest, if any, does a dissolved law firm have in profits earned on legal matters that were in progress but not completed at the time the law firm was dissolved, where the dissolved law firm had been retained to handle the matters on an hourly basis, and where those matters were completed at different pre-existing firms that hired partners of the dissolved firm post-dissolution?

Our phrasing of the questions should not restrict the Court’s consideration of the issues. The Court may rephrase a question as it sees fit in order to best address the contentions of the parties or the specifics of D.C. law.

The argument can be heard in real time on the court's web page. (Mike Frisch)

December 17, 2018 in Billable Hours, Current Affairs, Economics | Permalink | Comments (1)

Thursday, December 13, 2018


A 105-page opinion of the District of Columbia Court of Appeals

These appeals present us with legal issues of first impression concerning the special motion to dismiss created by the District of Columbia’s Anti-Strategic Lawsuits Against Public Participation (Anti-SLAPP) Act, D.C. Code §§ 16-5501 to -5505 (2012 Repl.): whether denial of a special motion to dismiss is immediately appealable and the standard applicable in considering the merits of an Anti-SLAPP special motion to dismiss.

Appellee Michael E. Mann is a well-known climate scientist whose research in studying the “paleoclimate,” or ancient climate, has featured prominently in the politically charged debate about climate change. Dr. Mann filed an action for defamation and intentional infliction of emotional distress against Competitive Enterprise Institute (CEI), Rand Simberg, National Review, Inc. (National Review), and Mark Steyn based on articles written by Mr. Simberg, Mr. Steyn, and National Review’s editor Rich Lowry that appeared on the websites of CEI and National Review. Dr. Mann’s complaint claimed that the articles which criticized Dr. Mann’s conclusions about global warming and accused him of deception and academic and scientific misconduct contained false statements that injured his reputation and standing in the scientific and academic communities of which he is a part.

Defendants argued that Dr. Mann’s lawsuit infringes on their First Amendment right of free speech and moved for dismissal under the Anti-SLAPP Act and, alternatively, under Superior Court Rule 12 (b)(6). The trial court ruled that Dr. Mann’s claims were “likely to succeed on the merits” — the standard established in the Anti-SLAPP Act to defeat a motion to dismiss — and denied appellants’ motions to dismiss and their subsequent motions to reconsider.

Appellants — CEI, National Review and Mr. Simberg — sought interlocutory review in this court of the trial court’s denial of their motions to dismiss. As a preliminary matter, we hold that we have jurisdiction under the collateral order doctrine to hear appellants’ interlocutory appeals of the trial court’s denial of their special motions to dismiss filed under the Anti-SLAPP Act. We further hold that the Anti-SLAPP Act’s “likely to succeed” standard for overcoming a properly filed special motion to dismiss requires that the plaintiff present evidence — not simply allegations — and that the evidence must be legally sufficient to permit a jury properly instructed on the applicable constitutional standards to reasonably find in the plaintiff’s favor. Having conducted an independent review of the evidence to ensure that it surmounts the constitutionally required threshold, we conclude that Dr. Mann has presented evidence sufficient to defeat the special motions to dismiss as to some of his claims.

Accordingly, we affirm in part, reverse in part, and remand the case to the trial court for further proceedings.

A claim that the court ordered dismissed

The complaint alleges that as a result of the defamatory statements “besmirching Dr. Mann’s reputation and comparing him to a convicted child molester,” Dr. Mann has suffered “extreme emotional distress,” “mental anguish,” and “personal humiliation.” From the statement itself, a jury could infer that the comparison to [Jerry] Sandusky was particularly hurtful. Dr. Mann’s requests for an apology and retraction, and his undertaking this litigation, would allow a jury to infer that he was so deeply aggrieved that he deemed it necessary to restore his public reputation. Dr. Mann has presented no evidence, however, that his understandable consternation met the high bar of “severe emotional distress,” which requires a showing beyond mere “mental anguish and stress” and must be “of so acute a nature that harmful physical consequences are likely to result.” Armstrong v. Thompson, 80 A.3d 177, 189-90 (D.C. 2013) (quoting Futrell, 816 A.2d at 808); see also Hedgepeth v. Whitman Walker Clinic, 22 A.3d 789, 81 (D.C. 2011) (en banc) (noting that claim of negligent infliction of emotional distress requires showing of emotional distress that is “acute, enduring or life-altering”). We, therefore, conclude that, on the record before us, the evidence is insufficient to support a finding that Dr. Mann suffered “severe” emotional distress.

Senior Judge Ruiz authored the opinion, joined by Associate Judges Beckwith and Easterly.

Update: A reader correctly notes that this opinion was issued two years ago and that today's opinion has only minor additions.

This appeal was decided by an opinion issued on December 22, 2016, 150 A.3d 1213. This amended opinion adds a new footnote 39 and revises former footnote 45 (now 46).

Thanks for the correction. (Mike Frisch)

December 13, 2018 in Current Affairs | Permalink | Comments (1)

Wednesday, November 28, 2018

After Midnight: No Playing Hookah

An issue I had not considered has been addressed by the Maryland Court of Special Appeals

In Alice in Wonderland, the blue caterpillar appeared content to smoke a hookah by day. Here, we primarily consider whether legislation requiring hookah lounges to close at midnight violates due process and equal protection guaranteed by the Fourteenth Amendment to the United States Constitution and Article 24 of the Maryland Declaration of Rights. Finding no Constitutional or other legal infirmity, we uphold the restriction as a valid exercise of Baltimore County’s police power.

The court concluded that equal protection was not violated because similar small business are permitted to remain open after midnight.

legitimate concerns for the public safety and welfare undergird the County’s requirement that hookah lounges close at midnight. Over a six-month period prior to the bill’s enactment, Baltimore County police made 37 late-night arrests related to hookah lounges, and police received calls linking hookah lounges to underage drinking, assault, CDS violations, and handgun violations. To repeat a few of the public health concerns—significant concentrations of particulate matter and carbon monoxide have been measured at hookah lounges, and during a one-hour smoking session a typical hookah user will inhale a volume of smoke equivalent to 100 or more cigarettes. Hookah lounges seem to have particular appeal to college students, and as of 2016 at least half of the hookah lounges in the State were within two miles of a college campus. As such, the fact that the County did not require other businesses that offer late-night diversions to close at midnight does not create an arbitrary distinction that rises to the level of an equal protection violation—especially considering that there has been no contention by Appellants that the County drew upon suspect distinctions or trammeled upon any fundamental rights in differentiating between late-night establishments. Despite Appellants’ characterization of hookah lounges as basically equivalent to other sites of late-night diversion (especially cigar bars), we determine that the County’s distinction is reasonable. 

(Mike Frisch)

November 28, 2018 in Current Affairs | Permalink | Comments (0)

Wednesday, November 21, 2018

The Law Of Bobbleheads

From the web page of the Ohio Supreme Court

In a dispute between state tax officials and Cincinnati’s professional baseball team, the Ohio Supreme Court today quoted the team’s longtime radio announcer by declaring, “This one belongs to the Reds.”

A divided Supreme Court determined the Cincinnati Reds were exempt from paying “use” tax on bobbleheads and other promotional items given to attendees at selected home games. The Court concluded the team successfully demonstrated that the cost of the items were factored into the cost of game tickets and counted as a tax-exempt “resale” of the items to fans.

Justice Patrick F. Fischer cited Reds announcer Marty Brennaman and several other sports figures as he delved deeply into the rich history of Ohio’s influence on professional baseball in the Court’s lead opinion. Because of the unique and undisputed evidence in the record, Justice Fischer cautioned that the ruling may not be applicable to other professional sports teams and organizations that sponsor promotional item giveaways. The Reds argued that rather than discount the ticket price to less-desirable games, the team factored a portion of ticket price to cover the costs of giveaways as a means to boost attendance.

“While our conclusion may be viewed as exposing a ‘loophole’ by which sports organizations can avoid paying the use tax on promotional items, we emphasize that our interpretation is compelled by the application of R.C. Chapter 5739 to the specifics facts in the record in this case,” he wrote.

Justice Judith L. French joined Justice Fischer’s opinion. Chief Justice Maureen O’Connor and Justices Terrence O’Donnell and Sharon L. Kennedy concurred in judgment only without a written opinion.

In a dissenting opinion, Justice Mary DeGenaro wrote that the Ohio Board of Tax Appeals (BTA) was justified in concluding the Reds were giving away the items for free as a way of “incentivizing paid attendance,” but that does not mean the team was reselling the items. She noted that because ticket sales themselves are not taxed, then the Reds escape paying sales tax or use tax on promotional items that generally apply to similar purchases in Ohio.

Sixth District Court of Appeals Judge Christine Mayle joined Justice DeGenaro’s opinion. Judge Mayle sat on the case for Justice R. Patrick DeWine, who did not participate.

Items Now Part of Game, Team Maintains
Justice Fischer wrote that professional baseball in Ohio has transformed over the years, enticing fans to attend games, turning stadiums into “mini theme parks” and offering the public the opportunity to receive unique merchandise, such as bobbleheads, shirts, bats, and other items, that can only be obtained by attending the game.

The Ohio tax commissioner conducted an audit of the Reds that included team purchases from 2008 through 2010, and found the team determined it was exempt from paying use tax on the promotional items it purchased. The tax commissioner ruled the team had to pay use tax on the items, which businesses pay as a form of sales tax on goods used to conduct their operations. R.C. 5739.01(E) contains a “sale-for-resale” exemption to the use tax for businesses that buy items that they intend to sell. When the item is resold to a consumer, the customer typically pays state sales tax.

The Reds appealed the tax commissioner’s decision to the BTA. Doug Healy, the Red’s chief financial officer, testified before the BTA that the team distributes promotional items to drive ticket revenue at games that would otherwise be attended by fewer fans. The Reds decide before the season which games would likely have low attendance and offer promotional items for them.

The cost of the promotional items are not stated separately from the ticket price and they are advertised as “free.” But the ticket price is set to cover the cost of the items and then those costs are spread out over the costs for all ticket prices throughout the year, Healy stated.

The BTA sided with the tax commissioner, finding the items were given away for free, and that patrons paid the same price for tickets for games with no giveaways, and also paid the same price even if they did not receive a promotional item because the supply ran out. The BTA determined the Reds must pay use tax on the items.

The Reds appealed the decision to the Ohio Supreme Court, which at the time was required to hear the case.

Club Intended to Sell Items
The lead opinion stated the resell exemption can apply only if the Reds intended to sell the items. Referencing the definition of “sale” in R.C. 5739.01(E), Justice Fischer explained that the definition contains the legal concept of “consideration,” which means the receiver of the items has to provide something in exchange for it. The Reds argued the fans provided consideration in the form of the ticket purchase, meaning they paid for the both right to attend the game and to receive an item.

While not all ticket buyers are guaranteed to receive an item, the Reds maintained, without contradiction, that they created a contractual expectation with the fans that attendees would receive the giveaway or a suitable substitute if the club ran out. Healy testified that in some cases, the team refunded money to ticket purchasers who insisted on receiving the giveaway but were unable to attain it.

“Healy’s unrefuted testimony indicates that in the specific circumstances here, fans gave consideration in exchange for promotional items,” the lead opinion stated.

The opinion contrasted the “expected” giveaway with the unexpected free items a fan might receive while attending a game, such as a foul ball hit into the stands or a T-shirt tossed to fans.

“In these instances the fan had no expectation of receiving the item and did not purchase a ticket under the assumption that the item would be provided by the team,” the opinion stated.

The opinion indicated that if the Reds’ argument exposes a “loophole” in the law, the Ohio General Assembly can amend the Revised Code to require the team to pay use tax on promotional items.

The decision reversed the BTA’s ruling and remanded the matter to the BTA for further proceedings.

Dissent Maintains BTA Findings Appropriate
In her dissent, Justice DeGenaro wrote that her principal disagreement with the lead opinion is its conclusion that the BTA’s decision was not “supported by any reliable and probative evidence found in the record.”

At the BTA proceedings, the burden was on the Reds to prove they intended to resell the items. The evidence at the hearing demonstrated that the Reds advertised the items were free and in limited quantity, and the club provided no written guarantee that a ticket buyer would receive a giveaway.

Healy’s testimony indicated the Reds were in the business of selling tickets and not reselling promotional items, and the BTA concluded the Reds built the price of items — like any other business overhead cost — into the price of the ticket. The dissent maintained the BTA was “justified in concluding that the purchase of a game ticket constituted consideration for nothing more than the right to attend the baseball game,” and the Reds were using the free items to drive ticket sales, not reselling the items.

Because all ticket purchasers at every game helped pay for the giveaways whether they received one or not, those “circumstances breaks the link” between buying a ticket and being offered a giveaway, the dissent stated. That indicated the BTA was justified in concluding the items were not being resold, the dissent concluded.

2017-0854Cincinnati Reds LLC v. TestaSlip Opinion No. 2018-Ohio-4669.

Video camera icon View oral argument video of this case.

(Mike Frisch)

November 21, 2018 in Current Affairs | Permalink | Comments (0)

Friday, November 2, 2018

Ohio Addresses Attorney Obligations In Confronting Elder Abuse

Kathleen Mahoney reports on an important step by the Ohio Supreme Court to address an attorney's obligations in an area of real concern

Ohio attorneys now have access to a resource for understanding, identifying, and reporting elder abuse.

Attorneys admitted to practice law in the state have a duty to immediately report suspected elder abuse to the county department of job and family services where the elderly adult resides. The requirement arises when an attorney has “reasonable cause to believe that an adult is being abused, neglected, or exploited, or is in a condition that is the result of abuse, neglect, or exploitation,” according to state law.

Attorneys are among several groups with mandatory reporting duties including those working in law enforcement, health care, or financial services. If mandatory reporters fail to report possible abuse, they could face criminal charges and fines of up to $500.

The guide for legal professionals, developed by the Ohio Department of Job and Family Services (ODJFS), can be accessed free of charge from the link below:

Understanding Elder Abuse: A Guide for Legal and Law Enforcement Professionals

The materials also can be obtained on the Ohio Supreme Court’s website. For hard copies, visit the Job and Family Services Forms Central website and enter form number JFS 08096.

Elder abuse can include physical, sexual, or psychological abuse, as well as neglect, abandonment, or financial exploitation. In addition to physical injuries, the following are a few of the possible indicators of abuse: being isolated, missing appointments, appearing frightened or avoiding specific people, suddenly withdrawing from usual activities or interactions, changes in mood or temperament, changes in personal hygiene, or being resistant to touching.

For questions about the training materials, email ODJFS at

Bravo Ohio! (Mike Frisch)

November 2, 2018 in Current Affairs | Permalink | Comments (1)

Sunday, October 28, 2018

The Retreat Of The Vermont Rebels

The Vermont Supreme Court has rejected a citizen effort to restore the name of a high school's sports teams

Students in South Burlington attended Burlington High School until the 1960s when South Burlington opened its own high school. The new high school adopted the name “Rebels” for its sports teams after it was used during a game that South Burlington played against Burlington, where students formerly attended school. Although the name did not originate from a connection to the Civil War, over the years, individual students at times waved the Confederate flag at highschool football games. The practice was banned by school officials, but some individuals continued to use the name “Rebels” to express racist attitudes and beliefs at the school.

In 2015, there was a request that the District cease using the name “Rebels” because of the associated racist bigotry and intolerance. The request was included as an action item on the school-board agenda and the school board engaged in a discussion regarding the topic. Some board members expressed their view that the moniker was not meant to be racist, but to symbolize those who are critical thinkers and do not necessarily follow the mainstream. After consideration, the board reached a consensus to keep the name, but asked the superintendent to suggest ways to rebrand the name to express a positive connotation and not be misunderstood as an endorsement of the Confederacy or slavery. The superintendent presented five recommendations in a January 2017 memorandum, but the Board took no action at that time.

At the school board’s meeting on February 1, 2017, the superintendent reported that he was recommending that the “Rebel identifier” be retired. He explained that the recommendation was based on, among other things, shared stories from students, staff, and families, and research about the impact of racial bias on children. He stated that biases existed in the community and that the “Rebels” name felt exclusive to members of the student community. Many residents attended this meeting and it was live-streamed by the local newspaper. Following the superintendent’s presentation, the board voted to discontinue using the “Rebels” name.

A petition was filed by those who rebelled at the action, who sought to put the issue to a vote.

The court here 

We conclude that the District did not have a duty imposed by law to include the petitioned article in a district-wide vote. See Bargman v. Brewer, 142 Vt. 367, 369-70, 454 A.2d 1253, 1255 (1983) (explaining that mandamus is to enforce “a simple and definite duty, imposed by law, and arising under conditions admitted or proved to exist” (quotation omitted)). Because the article involved nonbinding, advisory questions outside of the electorate’s authority to grant or refuse at town meeting, the District was not required to present the article to voters under 17 V.S.A. §§ 2642-2643. Further, we conclude that the “right to instruct” in Article 20 of the Vermont Constitution is an individual right and does not require the District to present a petitioned advisory article to voters. Therefore, we reverse the trial court’s order and remand for entry of judgment in favor of the District.

What's in a name

Here, the item—the name of the District’s sports teams—that residents sought to include in a district-wide vote is not a matter within voters’ authority to decide at a district-wide meeting. The powers of the electorate are delineated by statute and include discrete items, including voting for the annual salaries for school-board members and authorizing the amount of money to be expended. 16 V.S.A. § 562. The electorate is neither given authority to specifically designate the name of school teams nor general authority over that area. In contrast, the school board has broader, more general powers, including determining “the educational policies of the school district” and taking “any action that is required for the sound administration of the school district.” Id. § 563(1), (2).

Nor is there a right to instruct here

We need not delve deeply into the contours of the right to instruct in Article 20 to conclude that it does not entitle residents to mandamus relief in this case. To the extent that an enforceable right exists under Article 20, it is an individual right and not a collective one.

Burlington Free Press reported on the controversy and court decision.

More  in depth coverage of the controversy from the Free Press

The three-month blow up over the decision to change the schools' team name, which culminated in murder threats and a federal indictment, is not the first time the Rebel name has become a flashpoint for racial tension at the school.

In fact, the high school's Rebel name — coupled with the Confederate flag — has faced opposition since at least 1963.

In that year, Bill Schneider's mother in South Burlington wrote to urge the superintendent to choose another name because of its association with the Confederacy. South Burlington High School's first class chose the mascot in 1961, but Bill Schneider, 70, of Middlebury recalled his mother thought the name would compromise the school. He said he didn't understand his mother's concern until taking college classes.

"It was simply that they wanted a mascot with emotional appeal," Schneider, a 1964 graduate, said explaining that students who chose the Rebel name had little understanding of race or politics.

(Mike Frisch)

October 28, 2018 in Current Affairs | Permalink | Comments (0)

Friday, October 12, 2018

Prosecutor Cover Up Taints More Drug Convictions

WBUR reported on a decision issued yesterday by the Massachusetts Supreme Judicial Court

Thousands of drug cases tied to a state-run Amherst drug lab will be dismissed, and the state attorney general's office will bear the costs, the Massachusetts Supreme Judicial Court ruled Thursday. The decision is the result of the court's finding that prosecutors withheld evidence about a state chemist's wrongdoing.

Already, 7,500 cases linked to the same lab have been ordered dismissed by the SJC since April, after former state drug lab chemist Sonja Farak admitted to stealing and using drugs while working inside the lab.

But the latest case before the SJC went further. It sought to dismiss many more of the drug cases that came before the Amherst lab — not just the ones tested by Farak — because two former assistant attorneys general did not disclose evidence about the extent of misconduct by Farak — exculpatory evidence that could have been helpful to defendants.

 "We conclude that Farak's widespread evidence tampering has compromised the integrity of thousands of drug convictions apart from those that the Commonwealth has agreed should be vacated and dismissed," Justice Frank Gaziano wrote in the decision. "Her misconduct, compounded by prosecutorial misconduct, requires that this court exercise its superintendence authority and vacate and dismiss all criminal convictions tainted by governmental wrongdoing."

It's unclear how many cases will be affected. The American Civil Liberties Union of Massachusetts estimated it could affect at least 12,000 cases — possibly more.

Rebecca Jacobstein, with the Committee for Public Counsel Services  — the state public defender — said the decision goes beyond the important step of securing justice for thousands of people.

“It also sets a precedent," she said. "It says, this behavior is unacceptable. We will dismiss cases when prosecutors don’t play by the rules. And we will hold them accountable.”

The decision says the new "Farak defendants" will include: those convicted of methamphetamine offenses while Farak worked at the Amherst lab, and any defendants who had drugs in their cases tested between January 2009 and January 2013, when the lab closed.

The attorney general's office will have to pay for the costs related to the dismissal, including providing notice to thousands of people whose cases will be dismissed. Gaziano wrote that the office is the one responsible for the prosecutorial misconduct — and the additional dismissed cases.

In a statement Thursday, a spokeswoman for Attorney General Maura Healey said the office is "grateful to the court for its thoughtful opinion and its commitment to justice for the Farak defendants."

"We share that commitment and welcome the role the court has given our office to help facilitate notice to impacted defendants and secure comprehensive and speedy relief," the statement said. "AG Healey and her administration are fully committed to ensuring that the mistakes of the past never happen again.”

The two former assistant attorneys general did not work under Healey, but rather former Attorney General Martha Coakley.

The court ruled new checklists should be created to clarify what might be considered exculpatory evidence. That checklist would emphasize that when a prosecutor is unsure if something should be turned over to defense attorneys, that the attorney will have to present the information to a judge to review in chambers.

In a separate Massachusetts drug lab scandal in 2012, more than 20,000 cases were dismissed after another chemist, Annie Dookhan, admitted to falsifying drug tests at the Hinton lab where she worked.

For Jacobstein and other defense attorneys, the work is just beginning on the newest Farak defendants. She said now, lawyers need to identify who is still behind bars, and who needs help cleaning up their criminal record and getting their life back in order.

"There’s a lot of work to be done," she said. "But we are incredibly pleased to have all this work to do, to get these people the justice they deserve and to be able to move on from this disaster.”

(Mike Frisch)

October 12, 2018 in Current Affairs | Permalink | Comments (0)

Thursday, September 13, 2018

Power And Responsibility

The Indiana Supreme Court has allowed suit against cities of sexual assault by its police officers

Two on-duty police officers—one in Fort Wayne and one in Evansville—sexually assaulted women, who then brought civil actions against the officers’ city employers. We address two theories of employer liability: (1) the scope-of-employment rule, traditionally called respondeat superior, and (2) the rule’s common-carrier exception, which imposes a more stringent standard of care on certain enterprises. We hold that the cities may be liable under the scope-of-employment rule and that the exception does not apply.

Resounding in our decision today is the maxim that great power comes with great responsibility. Cities are endowed with the coercive power of the state, and they confer that power on their police officers. Those officers, in turn, wield it to carry out employment duties—duties that may include physically controlling and forcibly touching others without consent.  For this reason, when an officer carrying out employment duties physically controls someone and then abuses employer-conferred power to sexually assault that person, the city does not, under respondeat superior, escape liability as a matter of law for the sexual assault.

We thus affirm the denial of summary judgment to the City of Fort Wayne on the respondeat superior issue. In doing so, we clarify when an officer’s tortious acts will fall within the scope of employment, making the city liable.

(Mike Frisch)

September 13, 2018 in Current Affairs | Permalink | Comments (0)

Friday, August 17, 2018

Free Speech On Campus Rights Not Violated By University's Inquiry

The United States Court of Appeals for the Fourth Circuit affirmed a decision that campus free speech rights were not violated by the University of South Carolina

In 2015, two student groups at the University of South Carolina sought approval for a “Free Speech Event” to highlight perceived threats to free expression on college campuses. According to the groups, the event they were planning would include visual displays of material that had provoked free-speech controversies at other schools, including a swastika. The University approved, and the Free Speech Event took place on campus without interference.

The event did, however, generate complaints from other students, who objected to the displays and accused its sponsors of making sexist and racist statements at the scene. A University official met with Ross Abbott, one of the event’s student sponsors, to review the complaints and determine whether an investigation was warranted. A few weeks later, he notified Abbott that there was no cause for investigation and that the matter had been dropped.

The result was a First Amendment action against the University, filed by Abbott and the two student groups behind the Free Speech Event. According to Abbott and the other plaintiffs, University officials violated their First Amendment rights when they required Abbott to attend a meeting to discuss complaints about their event. The plaintiffs also mounted a facial challenge to the University’s general policy on harassment, arguing that it is unconstitutionally vague and overly broad. The district court rejected both claims and entered summary judgment for the University defendants.

We agree with the district court and affirm on both counts. The University neither prevented the plaintiffs from holding their Free Speech Event nor sanctioned them after the fact. Its prompt and minimally intrusive resolution of subsequent student complaints does not rise to the level of a First Amendment violation. And because the plaintiffs cannot show a credible threat that the University will enforce its harassment policy against their speech in the future, they lack standing to pursue their facial attack on the policy.

The complaint had alleged a section 1983 violation

This is an unusual First Amendment claim. University officials approved the plaintiffs’ Free Speech Event, knowing that it would include displays of a swastika and other controversial material; allowed the plaintiffs to hold their Event in the precise campus location they requested; did nothing to interfere with the Event as it transpired; and imposed no sanction on the plaintiffs after the fact, notwithstanding student complaints...As a result, the plaintiffs are left to argue that the very fact of a University inquiry into those complaints – and, in particular, the requirement that Abbott meet with Wells to discuss the complaints and the Event – violated their First Amendment rights.

The court rejected the claim that the University "chilled" free speech rights.

What is clear,,,is that a threatened administrative inquiry will not be treated as an ongoing First Amendment injury sufficient to confer standing unless the administrative process itself imposes some significant burden, independent of any ultimate sanction.

...we have a University that approved and encouraged a speech event intended to be controversial, with the knowledge that it would cause “[d]iscomfort.” J.A. 156. And in the face of student complaints, the University made no effort to sanction that speech after the fact. The plaintiffs suggest that a ruling against them will make it impossible for any student to mount a successful challenge to an overly broad campus harassment policy, but we must disagree. Our decision today is limited to the facts before us, and the courthouse door remains open to the claims of students who experience cognizable restrictions on their right to free expression.

Circuit Judge Harris authored the opinion. (Mike Frisch)


August 17, 2018 in Current Affairs | Permalink | Comments (0)

Monday, June 18, 2018

Workers Comp and Medical Marijuana

The Maine Supreme Judicial Court has held that an employer cannot be required to reimburse for an injured employee's use of medical marijuana

Through its enactment of the MMUMA, the Maine Legislature has  exempted qualifying patients and other specified individuals from state  prosecution that otherwise could arise from the medical use of marijuana. The Legislature, however, does not have the power to change or restrict the  application of federal law that positively conflicts with state law. See U.S. Const.  art. VI, cl. 2. So long as marijuana remains a Schedule I substance under the  CSA, see 21 U.S.C.S. § 812(c)(Sched. I)(c)(10), an employer that is ordered to  compensate an employee for medical marijuana costs is thereby required to  commit a federal crime defined by the CSA. See 18 U.S.C.S. § 2(a); 21 U.S.C.S.  § 844(a). This creates a positive conflict between the CSA and this application the MMUMA. See 21 U.S.C.S. § 903. As invoked against Twin Rivers, the MMUMA requires what federal law forbids, and the authority ostensibly  provided by the Maine law is “without effect.” Mut. Pharm. Co., Inc. v. Bartlett,  570 U.S. 472, 486-87 (2013) (quotation marks omitted); Robards, 677 A.2d at  543 (quotation marks omitted).

Because the CSA preempts the MMUMA when the MMUMA is used  as the basis for requiring an employer to reimburse an employee for the cost of  medical marijuana, the order based on the MMUMA must yield. We therefore vacate the decision of the Appellate Division.

Dissent from Justice Jabar

Here, there is no positive conflict between the CSA and the  MMUMA because there is no state law that requires the employer—or any  person or entity—to possess, manufacture, or distribute marijuana. In other  words, compliance with both the federal law and the Workers’ Compensation  Board (WCB) order is possible: reimbursement does not require the employer  to physically manufacture, distribute, dispense, or possess marijuana, and, as a result, no physical impossibility exists between the federal law and the WCB  order in this case.

Justice Alexander

I am pleased to join Justice Jabar’s thoroughly researched and  carefully written dissenting opinion. I write separately because in the extensive  discussion of the law of preemption, we must not lose sight of the injured  worker whom this opinion is really about.

Gaetan Bourgoin has endured chronic, disabling pain from a  workplace injury he sustained three decades ago. The result of the Court’s  opinion today is to deprive Bourgoin of reimbursement for medication that has  finally given him relief from his chronic pain, and to perhaps force him to return  to the use of opioids and other drugs that failed to relieve his pain and may have  placed Bourgoin’s life at risk.

(Mike Frisch)

June 18, 2018 in Current Affairs | Permalink | Comments (0)

Thursday, June 7, 2018

You Can't Keep Guns Out Of Mississippi Courthouses

The Mississippi Supreme Court rejects local court efforts to limit guns in the courthouse

In 2011, the Mississippi Legislature amended Mississippi Code Section 97-37-7, granting enhanced concealed-carry licensees the privilege of carrying a concealed firearm in the courthouses of this state, save for courtrooms, which the Legislature left within the province of judges. Litigants, witnesses, and family members who do not have enhanced concealed-carry licenses are subject to the general ban found in Mississippi Code Section 97- 37-1 (Rev. 2014), which makes carrying a concealed weapon illegal for persons without enhanced concealed-carry licenses. Nonetheless, the three chancellors of the Fourteenth Chancery District, on their own motion, issued a court order prohibiting enhanced concealed carry licensees from possessing a firearm in and around courthouse buildings of the Fourteenth District.

Thereafter, Ricky Ward, an enhanced concealed-carry licensee, filed a petition to modify or dismiss the order. The chancellors issued another order denying Ward’s petition and reiterated that enhanced concealed-carry licensees would be prohibited from possessing a firearm in all Fourteenth District courthouses. Ward then filed an Extraordinary Writ of Prohibition in this Court, seeking to have the orders vacated as unconstitutional and in direct conflict with state law...

Having considered the law and arguments offered by the aforementioned, the Court finds that the orders are facially unconstitutional. Furthermore, the orders defy existing Mississippi statutory and caselaw. Accordingly, the orders are vacated. They are nullius juris–of no legal force.


The chancellors may have good and noble intentions, and their concerns are well founded. However, their personal fears and opinions do not trump, and cannot negate, constitutional guarantees. The ultimate outcome of today’s issue is reserved for the Legislature, not to be commandeered by unilateral local judicial proclamations. Courts must give more than lip service to the rule of law; they must insist upon its lawful application. Judges cannot allow their sense of superior knowledge, perceptions, or understandings to justify open defiance of the very laws that they are called upon to uphold. Indeed, we have held repeatedly that courts are guardians of the Constitution, not guardians of the courthouse. Without question, the orders defy existing law and seek to exercise a power that plainly is reserved for the other branches of government. The orders contain no authority to suggest otherwise. The law of Mississippi is clear: enhanced-carry licensees are permitted to possess a firearm in courthouses. No matter how well-intentioned, judges are without the power to limit enhanced concealed-carry licensees’ right to carry a firearm beyond courtrooms in the State of Mississippi. The orders are vacated.

Chief Justice Waller concurred and dissented

The trial judges in this State possess the inherent, constitutional authority to secure their courtrooms for the fair, efficient, and independent administration of justice. However, because the subject order is facially overly broad, I would vacate the trial-court order without prejudice for the trial judges to enter specific detailed analysis in a modified order supporting gun-carrying restrictions beyond the courtroom for the security of the courtroom.

As did Justice Beam

The majority’s holding today that judges are without authority to control the security outside their courtrooms renders a sad day for justice in Mississippi. I have witnessed firsthand the volatility that embodies the courthouse in situations where emotions are running high in even the most reasonable and steadfast citizens among us. Knowing that litigants, witnesses, and court participants are secure in the sacred halls of the courthouse is imperative to assure “justice for all.”

Justice King dissented

Because the chancellors’ orders are a valid exercise of their inherent power and do not violate the Mississippi Constitution, I dissent.

...While a review of Mississippi law does not reveal any general restrictions or prohibitions on concealed carry of weapons prior to the late 1800s, African Americans, both slave and free, were restricted from carrying or owning weapons. Slaves were generally banned from carrying weapons, absent permission from a justice of the peace on application of his master, and then the slave was only allowed to carry and use a weapon within the limits of his master’s land.

Justice King recites the racist origins of state gun laws and notes that in 1892

The Legislature criminalized concealed carry of weapons, with only narrow exceptions, for approximately one hundred years.

He cites separation of powers considerations

The safety of those compelled to be at the courthouse is necessary for the fair administration of justice; keeping safe and free from threat those people necessary to the judicial process, such as parties, criminal defendants, witnesses, and jurors, is crucial for the administration of justice, the integrity of the judicial system, and the preservation of the constitutional rights implicated at the courthouse. The majority subjugates all of these constitutional rights and provisions to the phrase “the Legislature may regulate or forbid carrying concealed weapons,” instead of harmonizing them...

I would find that the order is an appropriate exercise of inherent judicial authority and that Section 97-37-7(2), as applied to the courts, violates the separation of powers. I disagree with the majority’s holding that the phrase “the Legislature may regulate or forbid carrying concealed weapons” reigns supreme over every other provision in our Constitution. I would deny Ward’s petition for writ of prohibition, and accordingly dissent.

The votes

    Majority Opinion: Randolph, P.J. Disposition: Vacated. Petitioner and Respondents are taxed with costs of appeal. Votes: Coleman, Maxwell, Chamberlin and Ishee, JJ., Concur. Maxwell, J., Specially Concurs with Separate Written Opinion Joined by Randolph, P.J., Coleman, Chamberlin and Ishee, JJ. Chamberlin, J., Specially Concurs with Separate Written Opinion Joined by Randolph, P.J., Maxwell and Ishee, JJ.; Waller, C.J., and Beam, J., Join in Part. Waller, C.J., Concurs in Part and Dissents in Part with Separate Written Opinion Joined by Beam, J. Beam, J., Concurs in Part and Dissents in Part with Separate Written Opinion Joined by Waller, C.J. King, J., Dissents with Separate Written Opinion Joined by Kitchens, P.J.; Waller, C.J., and Beam, J., Join in Part. Specially Concurring Opinion: Maxwell, J. Votes: Randolph, P.J., Coleman, Chamberlin and Ishee, JJ., Join This Opinion. Specially Concurring Opinion: Chamberlin, J. Votes: Randolph, P.J., Maxwell and Ishee, JJ., Join This Opinion. Waller, C.J., and Beam, J., Join This Opinion in Part. Concurring in Part and Dissenting in Part Opinion: Waller, C.J. Votes: Beam, J., Joins This Opinion. Concurring in Part and Dissenting in Part Opinion: Beam, J. Votes: Waller, C.J., Joins This Opinion. Dissenting Opinion: King, J. Votes: Kitchens, P.J., Joins This Opinion. Waller, C.J., and Beam, J., Join This Opinion in Part.

 Forewarned is forearmed. (Mike Frisch)

June 7, 2018 in Current Affairs | Permalink | Comments (0)

Chesley Injunction Maintained

An injunction against disbarred lawyer Stanley Chesley remains in force and effect per a decision of the united States Court of Appeals for the Sixth Circuit.

Circuit Judge Suhrheinrich tells the well-known tale of true evil succinctly and well, leading to the relevant denouement

At the time of his disbarment and subsequent retirement, Chesley was the sole shareholder of an Ohio-based law firm, Waite, Schneider, Bayless, & Chesley, L.P.A. (“WSBC”). Trouble was, in Ohio, Chesley could no longer own and operate a law firm because he was not an admitted attorney. See Ohio Rev. Code § 1785.05. So Chesley got together with a fellow WSBC lawyer—Thomas Rehme—and executed a so-called “wind-up agreement” on April 15, 2013. Ostensibly, the agreement’s purpose was to help wind up WSBC’s business en route to dissolving the firm. It also served as a vessel through which Chesley could move his assets.

Through the wind-up agreement, Chesley conveyed all of his WSBC shares to Rehme for no consideration. Meanwhile, both before and after executing that agreement, Chesley funneled $59 million of his personal funds into the firm. This left Chesley with empty pockets to show his judgment creditors when they inevitably came knocking.

And knocking they came...


The district court held that freezing Chesley’s assets served the public interest because “hundreds of judgment creditors will likely otherwise lose their ability to recover anything while the creditors of WSBC are satisfied [through the ABC action].” That conclusion was not an abuse of discretion in light of Chesley’s past behavior and the concerns over the legitimacy of the ABC action. And, despite the ABC action’s dismissal, that conclusion remains as relevant (if not more so) today. For the same reasons discussed within the context of irreparable harm, Chesley has offered no reason to trust that he will discontinue his years-long scheme to avoid the $42 million judgment. The central focus of that scheme has been to ship all of his money away to places safe from the plaintiffs’ reach but still within his control. If we were to lift the injunction, he would be free to continue doing that, which raises the same concerns about his judgment creditors’ ability to recover what they are owed. Accordingly, this factor also weighs in favor of affirming the injunction.

Moreover, there are institutional interests at stake. The litigation stemming from the Guard case settlement has been lumbering its way through federal and state courts for two decades. In its wake, officers of the court have been disbarred and imprisoned; Kentucky and Ohio state courts have been pitted against one another; and Chesley has forced the federal courts to use judicial resources to try to stop it all. There is a fundamental public interest in ending such abuse of the judicial system, in conserving judicial resources, and in preventing further confusion and disruption in this litigation...

The preliminary injunction serves an important purpose—“to allow a victory by [the plaintiffs] to be meaningful.” AIG Aviation, Inc. v. Boorom Aircraft, Inc., 142 F.3d 431, 1998 WL 69013, at *3 (6th Cir. 1998) (unpublished table case). Balancing the four preliminary injunction factors, it is clear that the district court did not abuse its discretion in entering this relief to serve that purpose. Even with the ABC action’s dismissal, this relief is necessary today. Chesley and his co-defendants have proven apt at moving money around to evade the plaintiffs, and freezing his assets affords both the district court and the plaintiffs the time they need to resolve this case.

(Mike Frisch)

June 7, 2018 in Current Affairs | Permalink | Comments (0)

Monday, June 4, 2018

Sanctioned Teacher Chose Wrong Avenue For Relief

The Georgia Supreme Court denied a petition for certiorari review with a concurring opinion

PETERSON, Justice, concurring.

This is a case about just how far the First Amendment bends in allowing government to punish its employees for the viewpoints they communicate in their private lives. I am doubtful that it allowed the punishment imposed here. But the petitioner cannot prevail on the claims she actually brought even if her right to free speech was violated, and so I concur in the denial of the writ of certiorari.

Kelly Tucker, a public school teacher in Tift County, engaged in a written debate on Facebook regarding the Black Lives Matter movement. The exchange became heated and racially charged; after another participant addressed her with an epithet, Tucker posted a lengthy message dismissive of the movement and derogatory of “thugs.” See Atwater v. Tucker, 343 Ga. App. 301, 302-303 (807 SE2d 56) (2017). This message was plainly about a topic of public concern, with no obvious link to her employment in public education. In this procedural posture (reversal of the denial of summary judgment), we assume that Tucker posted the message on her own time and on her own computer, and without referencing her employment.

Nevertheless, people viewing the debate who disagreed with the viewpoint she expressed discovered she was a teacher and complained to a local elected official, Tucker’s principal, and the local school superintendent. The school administration determined that the message Tucker posted was offensive and decided to punish her. They eventually suspended her for five days and required her to participate in diversity training. Tucker did not avail herself of her right of administrative appeal; instead, she filed a lawsuit against the superintendent and the school board chair alleging claims under 42 USC § 1983 for violation of her First Amendment rights.

Those claims failed on immunity grounds but

Tucker’s Facebook screed does not strike me as possessing any redeeming social value. But the First Amendment does not turn on whether a judge or society as a whole believes a particular viewpoint is worth sharing. Indeed, “[i]f there is a bedrock principle underlying the First Amendment, it is that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable.” Texas v. Johnson, 491 U. S. 397, 414 (109 SCt 2533, 105 LE2d 342) (1989); see also Snyder v. Phelps, 562 U. S. 443, 458 (131 SCt 1207, 179 LE2d 172) (2011). This “bedrock principle” is difficult to reconcile with allowing government to punish its employees for viewpoints they communicate wholly unrelated to their employment.

Government employers clearly have authority to control their employees in the course of their employment. But it is something else entirely to hold that government employers can punish their employees based on viewpoints expressed in private speech, as the school officials did here. It is far from obvious that the precedent of the Supreme Court requires us to allow such a thing.

The concurrence notes that Tucker could have raised the First Amendment issue in an appeal of the suspension. 

Chief Justice Hines and Justice Blackwell joined  the concurrence.

The Tifton Gazette reported on the controversy. (Mike Frisch)

June 4, 2018 in Current Affairs | Permalink | Comments (0)

Saturday, May 26, 2018

Massey Wins, Did Justice Lose?

Over an impassioned dissent that brings into question the integrity of the decision, the West Virginia Supreme Court of Appeals denied plaintiffs in a shareholders derivative suit arising from the Upper Big Branch disaster leave to amend their complaint to establish standing to pursue their claims. 

The circuit court concluded that under controlling Delaware law, the petitioners lack standing to pursue a derivative shareholder suit. Furthermore, the circuit court found that it would be futile to allow the petitioners to file their proposed Second Amended Complaint. For the reasons set forth below, we find no error in the circuit court’s rulings and, accordingly, we affirm.

The dissent of Chief Justice Workman

There are few tenets of civil procedure as well-established as the rule of liberality in permitting amendments of a complaint. In an action as substantively and procedurally complex—as well as inevitably protracted—as the case at bar, the equity and necessity of such liberality is made plain. The majority’s rejection of petitioners’ entirely reasonable attempt to amend their complaint to comport with newly-discovered facts which were previously well beyond their reach smacks of blatant result-orientation. As is evident from even a casual read of the opinion, the majority—rather than confining itself to the allegations viewed in the light most favorable to petitioners—indulges itself in the entire universe of facts adduced to date in limited discovery and in other litigation, draws inferences and makes conclusions thereon, and summarily declares respondents to be the victors. Because the Rule 12(b)(6) stage is indisputably not the appropriate setting for such factual assessments, nor is it this Court’s role to sit as a trier of fact, I dissent.

After the tragically well-known explosion at the Upper Big Branch mine owned and operated by Massey Energy Company (“Massey”) which killed twenty-nine miners, petitioners filed a derivative shareholder action against Massey directors and officers alleging that they breached their fiduciary duties by failing to comply with worker safety laws. Contemporaneous with this action, other shareholders filed derivative actions in Delaware. Those Delaware derivative actions have continued along a track parallel to the instant action; however, the instant action was stayed for a long period of time pending the federal prosecution of Don Blankenship and the bankruptcy of Alpha Natural Resources Inc. (“Alpha,” Massey’s successor).

Subsequent to the explosion and petitioners’ original complaint in this action, Massey undertook a merger with Alpha. Subsequent to that merger, additional discovery was obtained, along with newly-available evidence from the federal prosecution, allegedly revealing that certain Massey directors and/or officers orchestrated the merger to ensure their most culpable employees (certain mine superintendents) and officers had continued employment and could therefore protect themselves by controlling the investigation into the explosion. Petitioners allege that a higher bidder was discouraged because Alpha had agreed to a “social contract” which involved retention of these culpable employees. Petitioners allege this was all done to limit the personal liability of these individuals with respect to the explosion.

Petitioners now seek to amend their long-ago-filed complaint to assert facts in support of causes of action previously unavailable to them before receipt of this new complaint to even allege such a cause of action. In short, the majority has reviewed the cobbled-together evidence from various proceedings and determined, before even being permitted to amend their complaint, that petitioners cannot win under any circumstance. Making this bold proclamation before full discovery is even conducted seems less like legal analysis and more like reverse-engineering the outcome...

To suggest that petitioners’ proposed amended complaint—on its face—is starkly lacking in sufficient allegations of actionable malfeasance on the part of Massey’s officers, given all that is publicly known (and has been federally adjudicated) about this tragic incident is flabbergasting to say the least. If petitioners cannot satisfy the high bar set by the causes of action they seek to plead, that legal issue may be presented and determined at the summary judgment stage or resolved by the jury, as appropriate. To refuse petitioners the opportunity to even conduct discovery on their allegations now that the restraints of the federal prosecution and bankruptcy proceedings have been removed casts a pall over the majority’s analysis and potential motivations. “[T]he grant or denial of an opportunity to amend is within the discretion of the [court], but outright refusal to grant the leave without any justifying reason appearing for the denial is not an exercise of discretion; it is merely abuse of that discretion and inconsistent with the spirit of the [] Rules.” Foman, 371 U.S. at 182...

I adamantly dissent.

Judge Tabit, sitting by designation, joined the dissent. (Mike Frisch) 

May 26, 2018 in Current Affairs | Permalink | Comments (2)

Tuesday, May 8, 2018

No Habeas For Chimpanzees

The New York Court of Appeals denied habeas relief with a concurring opinion from Judge Fahey

In these habeas corpus proceedings brought by petitioner Nonhuman Rights Project on behalf of Tommy and Kiko, two captive chimpanzees, petitioner seeks leave to appeal from an order of the Appellate Division, First Department affirming two judgments of Supreme Court declining to sign orders to show cause to grant the chimpanzees habeas relief. The adult chimpanzees, according to the habeas petition, have been confined by their owners to small cages in a warehouse and a cement storefront in a crowded residential area, respectively...

However, I write to underscore that denial of leave to appeal is not a decision on the merits of petitioner’s claims. The question will have to be addressed eventually. Can a non-human animal be entitled to release from confinement through the writ of habeas corpus? Should such a being be treated as a person or as property, in essence a thing? “A person illegally imprisoned or otherwise restrained in his liberty within the state, or one acting on his [or her] behalf . . . may petition without notice for a writ of habeas corpus to inquire into the cause of such detention and for deliverance” (CPLR § 7002 [a]). The lower courts in this appeal and related cases, in deciding that habeas corpus is unavailable to challenge the legality of the chimpanzees’ confinement, rely in the first instance on dictionary definitions. The habeas corpus statute does not define “person,” but dictionaries instruct us that the meaning of the word extends to any “entity . . . that is recognized by law as having most of the rights and duties of a human being” (Black’s Law Dictionary [10th ed 2014], person [3]; see also e.g. Oxford English Dictionary, [last accessed May 4, 2018], person [7] [“An individual . . . or corporate body . . . recognized by the law as having certain rights and duties”])...

The better approach in my view is to ask not whether a chimpanzee fits the definition of a person or whether a chimpanzee has the same rights and duties as a human being, but instead whether he or she has the right to liberty protected by habeas corpus. That question, one of precise moral and legal status, is the one that matters here. Moreover, the answer to that question will depend on our assessment of the intrinsic nature of chimpanzees as a species. The record before us in the motion for leave to appeal contains unrebutted evidence, in the form of affidavits from eminent primatologists, that chimpanzees have advanced cognitive abilities, including being able to remember the past and plan for the future, the capacities of self-awareness and self-control, and the ability to communicate through sign language. Chimpanzees make tools to catch insects; they recognize themselves in mirrors, photographs, and television images; they imitate others; they exhibit compassion and depression when a community member dies; they even display a sense of humor. Moreover, the amici philosophers with expertise in animal ethics and related areas draw our attention to recent evidence that chimpanzees demonstrate autonomy by selfinitiating intentional, adequately informed actions, free of controlling influence...

Does an intelligent nonhuman animal who thinks and plans and appreciates life as human beings do have the right to the protection of the law against arbitrary cruelties and enforced detentions visited on him or her? This is not merely a definitional question, but a deep dilemma of ethics and policy that demands our attention. To treat a chimpanzee as if he or she had no right to liberty protected by habeas corpus is to regard the chimpanzee as entirely lacking independent worth, as a mere resource for human use, a thing the value of which consists exclusively in its usefulness to others. Instead, we should consider whether a chimpanzee is an individual with inherent value who has the right to be treated with respect (see generally Regan, The Case for Animal Rights 248-250).

The Appellate Division’s approach to these proceedings is mistaken in another respect. Petitioner seeks the transfers of the chimpanzees to a primate sanctuary, rather than the wild. The Appellate Division held that habeas relief was properly denied, because petitioner “does not challenge the legality of the chimpanzees’ detention, but merely seeks
their transfer to a different facility” (Nonhuman Rights Project, Inc., 152 AD3d at 79; see also Matter of Nonhuman Rights Project, Inc. v Presti, 124 AD3d 1334, 1335 [4th Dept 2015], lv denied 26 NY3d 901 [2015]). Notably, the Appellate Division erred in this matter, by misreading the case it relied on, which instead stands for the proposition that habeas corpus can be used to seek a transfer to “an institution separate and different in nature from the . . . facility to which petitioner had been committed,” as opposed to a transfer “within the facility” (People ex rel. Dawson v Smith, 69 NY2d 689, 691 [1986]). The chimpanzees’ predicament is analogous to the former situation, not the latter.
The reliance on a paradigm that determines entitlement to a court decision based on whether the party is considered a “person” or relegated to the category of a “thing” amounts to a refusal to confront a manifest injustice. Whether a being has the right to seek freedom from confinement through the writ of habeas corpus should not be treated as a simple
either/or proposition. The evolving nature of life makes clear that chimpanzees and humans exist on a continuum of living beings. Chimpanzees share at least 96% of their DNA with humans. They are autonomous, intelligent creatures. To solve this dilemma, we have to recognize its complexity and confront it.

(Mike Frisch)

May 8, 2018 in Current Affairs | Permalink | Comments (0)

Monday, May 7, 2018

Freddie Gray Prosecutor Immune From Civil Liability

Immunity prevents a lawsuit against the Baltimore City State's Attorney for the prosecutions in the death of Freddie Gray, according to this opinion of the  United States Court of Appeals for the Fourth Circuit

Freddie Gray, Jr., suffered fatal injuries while handcuffed and shackled in the custody of the Baltimore City Police Department. The Baltimore State’s Attorney’s Office, led by State’s Attorney Marilyn Mosby, conducted an investigation into Gray’s death. After the State Medical Examiner ruled Gray’s death a homicide, Major Samuel Cogen of the Baltimore City Sheriff’s Office criminally charged six of the police officers involved in Gray’s arrest and detention. The same day, State’s Attorney Mosby announced the charges and read the supporting probable-cause statement to the public at a press conference. A grand jury subsequently indicted the officers on substantially similar counts,  but ultimately, none was convicted.

Five of the charged officers—Officer Edward Michael Nero, Officer Garrett Edward Miller, Lieutenant Brian Scott Rice, Officer William Porter, and Sergeant Alicia White (“Officers”) —now seek to make State’s Attorney Mosby stand trial for malicious prosecution, defamation, and false light invasion of privacy. They claim that her role in independently investigating their conduct strips her of absolute prosecutorial immunity and that their bare allegations of malice or gross negligence overcome Maryland’s statutory immunity protections. We resoundingly reject the invitation to cast aside decades of Supreme Court and circuit precedent to narrow the immunity prosecutors enjoy. And we find no justification for denying Mosby the protection from suit that the Maryland legislature has granted her.

The court had little patience for the claims

In conclusion, none of the Officers’ claims can survive the motion-to-dismiss stage. That the Officers disagree with Mosby’s decision to prosecute—as most defendants do— or with the information in the application for Statement of Charges—which inherently contains defamatory information—does not entitle them to litigate their disagreement in court, and much less recover damages.

The Officers’ malicious-prosecution claims epitomize the “vexatious litigation” that absolute prosecutorial immunity is designed to preclude. See Pachaly v. City of Lynchburg, 897 F.2d 723, 727‒28 (4th Cir. 1990). Having “transform[ed] [their] resentment at being prosecuted into the ascription of improper and malicious actions to the State’s advocate,” see Imbler, 424 U.S. at 425, the Officers ask us depart from well-settled law so that they can force Mosby to defend her decision to seek justice on behalf of Freddie Gray. We find their arguments both meritless and disconcerting.

The Officers’ defamation and false-light claims are equally bereft of support. The Officers cite no facts showing that Mosby spoke at the press conference with malice or gross negligence, as required by the MTCA. Their allegations, accepted as true, do not even negate that Mosby had probable cause to charge them. And the Officers’ contention that Mosby acted outside the scope of her employment by telling the public that she would pursue justice borders on absurd.

Perhaps to the Officers’ chagrin, they must accept that they are subject to the same laws as every other defendant who has been prosecuted and acquitted. Those laws clearly bar the type of retaliatory suits that the Officers brought here. The district court therefore erred in allowing their claims to proceed.

Judge Wilkinson concurred

I wish only to underscore my colleague’s concern about the perils of appellees’ defamation claim. State’s Attorney Mosby is an elected official. After the death of Freddie Gray, her community, her constituents, and her city faced a crisis of confidence. Baltimore’s citizens had their faith shaken, not only in the police, but in the very ability of government to administer justice. As any of us would expect of our political leaders, Mosby responded to a crisis. And as all of us should demand from our political leaders, Mosby explained her actions to the public. At a press conference, she read from a charging document, praised investigators, and explained the basis of the prosecution. To say that an elected official exposes herself to liability by discharging her democratic duty to justify the decisions she was elected to make is to elevate tort law above our most cherished constitutional ideals...

By advancing a theory of tort liability for explanations of official acts, the officers here strike at the very heart of the democratic dialogue. Courts must repel such attacks. In doing so, we honor our “profound national commitment to the principle that debate on public issues should be unlimited, robust, and wide-open” on all sides. Sullivan, 376 U.S. at 270.

Defamation law unbound is inimical to free expression. I thought the principle of New York Times v. Sullivan secure. But no. As the saying goes, the censors never sleep. Here they come again.

(Mike Frisch)

May 7, 2018 in Current Affairs | Permalink | Comments (0)

Wednesday, April 4, 2018

Conviction Affirmed In Law Office Murder

The Minnesota Supreme Court affirmed the conviction in a case involving the murder of a law firm employee

In April 2016, Petersen, a client of Northstar Criminal Defense, went to the law firm’s office and shot and killed the firm’s law clerk. The State initially filed a complaint charging Petersen with second-degree intentional murder. At his second court appearance, Petersen attempted to plead guilty to this charge. The district court refused to accept Petersen’s plea, however, when it learned that the State had amended its complaint to charge first-degree premeditated murder and was seeking a grand jury indictment. A grand jury indicted Petersen for first-degree murder 5 days later. Following a bench trial, the district court convicted and sentenced Petersen to life in prison without the possibility of release. Because the district court did not abuse its discretion in rejecting the plea, and because the circumstantial evidence is consistent with first-degree premeditated murder and inconsistent with any other rational hypothesis, we affirm.

Minnesota News Network reported on the crime. 

 A Saint Paul man faces second-degree murder charges for alleging shooting a law clerk at his attorney’s office because he was upset with how his case was being handled and couldn’t reach his lawyer. 37-year-old Ryan Peterson has a first court appearance Monday afternoon and prosecutors will ask that bail be set at one-and-a-half million dollars. 23-year-old Chase Passauer of Minneapolis was shot inside his office at North Star Criminal Defense in Saint Paul’s Cathedral Hill neighborhood. Petersen was apprehended late last night near Stillwater after a chase through Chisago and Washington counties.

The Star Tribune also had a story. (Mike Frisch)

April 4, 2018 in Current Affairs | Permalink | Comments (0)

Tuesday, March 27, 2018

But Her Server

The United States Court of Appeals for the District of Columbia Circuit affirmed the dismissal of Benghazi- inspired litigation

Sean Smith and Tyrone Woods tragically perished in the September 11, 2012, attacks on United States facilities in Benghazi, Libya. Their parents, Patricia Smith and Charles Woods, sued former Secretary of State Hillary Rodham Clinton for common-law torts based on her use of a private email server in conducting State Department affairs while Secretary of State and public statements about the cause of the attacks she made in her personal capacity while a presidential candidate. They appeal the substitution of the United States as the defendant on the claims involving the email server and the dismissal of their complaint for lack of subject matter jurisdiction and failure to state a claim. We affirm.

The court found that the various proposed causes of action either failed to state a claim or lacked subject matter jurisdiction

“An allegedly defamatory remark must be more than unpleasant or offensive; the language must make the plaintiff appear odious, infamous, or ridiculous.” Id. (internal quotation marks and citation omitted).

Clinton has made no such remarks here. In the ABC News interview, she contradicted Smith and Woods’s version of events but did not state or imply they were lying, instead noting she “underst[ood] [their] continuing grief.” Compl. ¶ 23(a). And in the Conway Daily Sun interview, it was the reporter, not Clinton, who posits someone is lying; all Clinton did was deny that she was lying. Id. ¶ 23(b). In the two subsequent interviews, Clinton bolstered her own version of events by noting that others present at the meeting supported her account and suggesting reasons why her recollection differed from that of Smith and Woods. Id. ¶ 23(c) and (d). Clinton did state that Ms. Smith was “absolutely wrong,” id. ¶ 23(c), but disagreeing with another person’s recollection does not necessarily imply that the other person is lying.

The appellants were represented by Larry Klayman. Secretary Clinton was represented by David Kendall. Jessie K. Liu represented the United States.

The per curiam opinion was signed by Circuit Judges Rogers, Millett and Pilliard. (Mike Frisch)

March 27, 2018 in Current Affairs | Permalink | Comments (0)