Wednesday, April 10, 2019

Law In Action

Whenever a court improves access to information, I am moved to applaud.

Today's nachas to the Tennessee Supreme Court, which now provides online links to oral arguments bef ore the court.

Of interest 

Polly Spann Kershaw v. Jeffrey L. Levy - M2017-01129-SC-R11-CV

This case is a legal malpractice lawsuit in which the plaintiff claims she suffered financial harm and was convicted of criminal contempt as a result of the defendant’s negligent representation of the plaintiff in her divorce case.  The defendant moved for summary judgment, arguing that the plaintiff’s claims were barred under the judicial estoppel doctrine.  The trial court granted summary judgment, and the Court of Appeals affirmed the trial court’s judgment.  The plaintiff argues before the Supreme Court that the doctrine of judicial estoppel should not apply when the defendant’s own negligence caused the plaintiff to “settle in a compromised position.”

Dialysis Clinic, Inc. v. Kevin Medley, et al M2017-01352-SC-R11-CV 

This case considers whether the attorney-client privilege applies to communications between an attorney and a corporate client’s third-party agent.  The trial court in this case denied the defendant’s motion to compel the production of roughly 200 emails based on attorney-client privilege.  The defendants argue that the trial court denied them their procedural due process rights and that there is an absence of law regarding the standards for determining third-party agency privilege in Tennessee.  In response, the plaintiff argues that the trial court properly held that communications by and between plaintiff’s counsel and the third party were protected by the attorney-client privilege.  The plaintiff also argues that the Tennessee Supreme Court already has determined attorney-client privilege as it pertains to a third-party agent.

Enjoy! (Mike Frisch)

April 10, 2019 in Current Affairs | Permalink | Comments (0)

Thursday, April 4, 2019

Hostile Work Environment Claim Rejected

An appeal of a bus driver's dismissed claim of hostile work environment was rejected by the New Jersey Appellate Court

plaintiff argues that "the trial court erred in granting defendants' motion for summary judgment and dismissing [his] claim for hostile work environment based upon perceived disability under" the LAD. We disagree.

The basis of the claim

Plaintiff began working as a bus driver for defendant Community Bus Lines, Inc. (Community) in 2005. In order to maintain his employment as a bus driver, plaintiff must hold a valid Commercial Driver's License (CDL). The United States Department of Transportation (DOT) requires all CDL holders to pass a medical examination every two years and obtain a medical certification card verifying that they are fit to drive.

During the ten years he worked for Community as an active driver, plaintiff weighed between 500 and 600 pounds. He passed his required medical examinations during this period, and Community recognized his accomplishments on the job by giving him several awards. As a bus driver, plaintiff was required to inspect his bus before beginning his route, and inspect it again at the conclusion of his work day. Combined, these tasks took approximately forty minutes to complete. Plaintiff drove his bus during the remainder of his shift. At the end of the day, plaintiff sometimes spent time in Community's breakroom talking and joking with the other drivers. Plaintiff testified at his deposition that the drivers were his friends. He also only had contact with his supervisors when he was at the Community depot.

Plaintiff testified that the other drivers and his supervisors regularly made rude comments to him about his weight. Among other things, they told plaintiff that he was "fat," "must weigh a thousand pounds," would likely eat all the food out of the snack machines, was "as big as a bus" or "a 747," and might break chairs if he sat on them. At the same time, however, plaintiff conceded that he made jokes with, and teased, other employees at the depot. He referred to himself as "fat boy" in the presence of his coworkers, and also admitted that he called himself "fat" on his Facebook page, where he had "friended" some of the other drivers so that they could view and comment on his posts.

Although plaintiff was a union member, and alleged that he complained to his supervisors about the remarks he heard at work, he presented no documentation to support this assertion. Plaintiff's supervisors denied ever hearing any comments of this nature, and stated that plaintiff never complained about anything during his employment. The supervisors also testified that no one at Community viewed plaintiff as disabled; instead, he was a valued employee and a good driver.

Issues arose after a series of medical exams revealed some serious health issues but did not establish plaintiff was disabled.


Even assuming that plaintiff had established that he was disabled within the intendment of the LAD, the judge found no merit to plaintiff's assertion that he was subjected to a hostile work environment in violation of the LAD.


obesity alone is not protected under the LAD as a disability unless it has an underlying medical cause, a condition that plaintiff failed to meet in the present case. Viscik, 173 N.J. at 17. Here, plaintiff did not establish that defendants viewed him as anything other than obese, which is not a protected class under the LAD. Just as significantly, he did not demonstrate that defendants perceived him as being disabled.

In this regard, the record was one-sided in support of the fact that plaintiff's supervisors never took any actions to change the conditions of his employment as the result of any "perceived disability." For the ten years plaintiff worked at Community, he drove a regular route, and never alleged that he received less pay than other drivers or had to work longer or fewer hours. In fact, Community recognized plaintiff's good work on several occasions by giving him awards.

In addition, plaintiff passed each of his mandatory medical examinations between 2005 and 2015 even though he weighed over 500 pounds from the date of his hire. Both of his supervisors testified that they did not consider plaintiff to be disabled, and neither of the independent doctors who examined plaintiff ever made that determination...

Because plaintiff was not able to demonstrate that he suffered from a disability or a perceived disability covered by the LAD, the judge properly dismissed his hostile work environment claim. Even if this were not the case, we discern no basis for disturbing the judge's conclusion that plaintiff also failed to demonstrate that the comments his coworkers made to him about his weight created such an environment...

Community never fired plaintiff, and kept his job open in the hope that he would be able to pass his licensing examination. Under the totality of these circumstances, we agree with the judge that the cumulative effect of the coworkers' comments was not sufficiently "severe or pervasive" to create an actionable hostile work environment claim under the LAD.

(Mike Frisch)

April 4, 2019 in Current Affairs | Permalink | Comments (0)

Thursday, March 14, 2019

Sandy Hook Plaintiffs' Case Survives On Single Claim

The Connecticut Supreme Court has ruled in the high-profile litigation arising out of the Sandy Hook that defendants may be liable on a theory of knowingly marketing the weapon for offensive operations 

From the majority opinion

On December 14, 2012, twenty year old Adam Lanza forced his way into Sandy Hook Elementary School in Newtown and, during the course of 264 seconds, fatally shot twenty first grade children and six staff members, and wounded two other staff members. Lanza carried out this massacre using a Bushmaster XM15-E2S semiautomatic rifle that was allegedly manufactured, distributed, and ultimately sold to Lanza’s mother by the various defendants in this case. There is no doubt that Lanza was directly and primarily responsible for this appalling series of crimes. In this action, however, the plaintiffs—administrators of the estates of nine of the decedents—contend that the defendants also bear some of the blame. The plaintiffs assert a number of different legal theories as to why the defendants should be held partly responsible for the tragedy. The defendants counter that all of the plaintiffs’ legal theories are not only barred under Connecticut law, but also precluded by a federal statute, the Protection of Lawful Commerce in Arms Act (PLCAA), Pub. L. No. 109-92, 119 Stat. 2095 (2005), codified at 15 U.S.C. §§ 7901 through 7903 (2012), which, with limited exceptions, immunizes firearms manufacturers, distributors, and dealers from civil liability for crimes committed by third parties using their weapons. See 15 U.S.C. §§ 7902 (a) and 7903 (5) (2012).

For the reasons set forth in this opinion, we agree with the defendants that most of the plaintiffs’ claims and legal theories are precluded by established Connecticut law and/or PLCAA. For example, we expressly reject the plaintiffs’ theory that, merely by selling semi automatic rifles—which were legal at the time—to the civilian population, the defendants became responsible for any crimes committed with those weapons.

The plaintiffs have offered one narrow legal theory, however, that is recognized under established Connecticut law. Specifically, they allege that the defendants knowingly marketed, advertised, and promoted the XM15-E2S for civilians to use to carry out offensive, military style combat missions against their perceived enemies. Such use of the XM15-E2S, or any weapon for that matter, would be illegal, and Connecticut law does not permit advertisements that promote or encourage violent, criminal behavior. Following a scrupulous review of the text and legislative history of PLCAA, we also conclude that Congress has not clearly manifested an intent to extinguish the traditional authority of our legislature and our courts to protect the people of Connecticut from the pernicious practices alleged in the present case. The regulation of advertising that threatens the public’s health, safety, and morals has long been considered a core exercise of the states’ police powers.

Accordingly, on the basis of that limited theory, we conclude that the plaintiffs have pleaded allegations sufficient to survive a motion to strike and are entitled to have the opportunity to prove their wrongful marketing allegations. We affirm the trial court’s judgment insofar as that court struck the plaintiffs’ claims predicated on all other legal theories.

The court's reasoning

We are confident...that, if there were credible allegations that a firearms seller had run explicit advertisements depicting and glorifying school shootings, and promoted its products in video games, such as ‘‘School Shooting,’’ that glorify and reward such unlawful conduct, and if a troubled young man who watched those advertisements and played those games were inspired thereby to commit a terrible crime like the ones involved in the Sandy Hook massacre, then even the most ardent sponsors of PLCAA would not have wanted to bar a consumer protection lawsuit seeking to hold the supplier accountable for the injuries wrought by such unscrupulous marketing practices. That is not this case, and yet the underlying legal principles are no different. Once we accept the premise that Congress did not intend to immunize firearms suppliers who engage in truly unethical and irresponsible marketing practices promoting criminal conduct, and given that statutes such as CUTPA are the only means available to address those types of wrongs, it falls to a jury to decide whether the promotional schemes alleged in the present case rise to the level of illegal trade practices and whether fault for the tragedy can be laid at their feet.

A dissent would strike the case in its entirety.

In summary, whether this court agrees with Congress or not, in adopting the arms act, Congress adopted findings and statements of purpose in 15 U.S.C. § 7901; see footnote 1 of this dissenting opinion; which made very clear its intent to absolve defendants like these— gun manufacturers and distributors—from liability for criminal use of firearms by third parties except in the most limited and narrow circumstances and, particularly, to shield them from novel or vague standards of liability. This court is obligated, therefore, to construe the predicate exception to the arms act, 15 U.S.C. § 7903 (5) (A) (iii), narrowly in light of that clear expression of congressional intent.

(Mike Frisch)

March 14, 2019 in Current Affairs | Permalink | Comments (0)

Sunday, March 3, 2019

A Win For The Winklevi

The Delaware Court of Chancery dismissed counterclaims brought against the real Armie Hammer[s]

Plaintiffs, brothers Tyler and Cameron Winklevoss, through Winklevoss Capital Fund, LLC, made a substantial investment in an upstart magazine operated by Defendant, Treats! LLC, and founded by Defendant, Stephen Shaw. Plaintiffs allege they have not achieved the return on investment promised them by Defendants and that Shaw’s mismanagement of Treats! is to blame. Defendants deny the allegations of mismanagement and bring counterclaims against the Winklevoss brothers in which they allege the brothers breached commitments to allow Treats! to announce and capitalize on the publicity surrounding the brothers’ investment.

According to the counterclaims, the brothers made their investment in Treats! soon after the release of the movie The Social Network in which their association with the social networking site, Facebook, was depicted. Shaw allegedly accepted the investment, in part, based on the brothers’ commitment that Treats! could announce (presumably with some fanfare) that the brothers had selected Treats! as one of the first investments of their newly created firm, Winklevoss Capital Fund, LLC. The counterclaims purport to state claims for fraud, fraudulent inducement, “fraudulent misrepresentation” and promissory estoppel.

Defendants have moved to dismiss the counterclaims on multiple grounds, including that the claims are barred by laches and by a fully integrated contract governing the parties’ relationship that makes no mention of the brothers’ alleged commitment to promote Treats!. In rare circumstances, the Court may apply laches at the pleadings stage to bar a claim when it is clear on the face of the claim that it is untimely and that equity would not be offended by the claim’s dismissal. This is especially so when the claimant brings common law claims and seeks common law remedies after the applicable statute of limitations has expired. That is what Defendants/Counterclaim Plaintiffs have done here. Accordingly, Plaintiffs’ Motion to Dismiss Defendants’ Counterclaims as time barred must be granted.

The allegations

In early 2011, a mutual friend introduced Shaw to Cameron and Tyler. When they met Shaw, Cameron and Tyler were seeking to strengthen their Los Angeles network. Shaw, a professional photographer well known to many celebrities, opened the door to his social circle for Cameron and Tyler by introducing them to his friends, inviting them to exclusive dinners and parties and photographing their various girlfriends.

When Cameron and Tyler learned about Treats!, they were intrigued and offered to invest in the company. They emphasized to Shaw the potential significance of the fact that Treats! would be the first investment they made through their newly-formed investment firm, WCF. Shaw believed Treats! would develop into a lifestyle brand and he thought a partnership with WCF would provide the perfect launch pad. The notoriety of the Winklevoss brand following the release of the blockbuster film, The Social Network, in which the brothers were depicted, was the main attraction for Shaw as he sought to secure their investment in, and promotion of, Treats!.

WCF invested 1.31 million dollars.

Following WCF’s investment, the parties’ relationship was marked by a consistent refrain. Shaw pressed the brothers to promote Treats! while the brothers pressed Shaw to enhance their personal and professional profiles. For example, Defendants allege that, on October 4, 2012, Tyler asked Shaw to arrange a “special casting” with multiple women he selected from Facebook and a modeling agency’s website. Tyler followed this request on October 17, 2012, with further direction to Shaw: “[d]on’t hire any of them . . . get their details and call the hot ones up, invite them, and then I can shag them ;).” Shaw refused.

It got worse

As Shaw was accusing the brothers of failing to honor their promise to promote Treats!, the brothers were accusing Shaw of mismanagement and failing to grow Treats! as promised.

Litigation followed as night follows day.

As to the counterclaims

Delaware’s statute of limitations for claims sounding in fraud or promissory estoppel claims is three years...

The allegations in the counterclaims reveal that Defendants’ claims accrued for statute of limitations (and laches) purposes no later than June 17, 2013.

The counterclaim came two years too late but

For the reasons stated above, I am satisfied Defendants’ counterclaims must be dismissed as time-barred because they were filed after the expiration of three year statute of limitations and no tolling doctrine applies. With that said, Defendants may present evidence of Plaintiffs’ alleged fraud and broken promises in order to set off any potential damages arising from the affirmative claims asserted against them. In this regard, I note that Defendants have asserted as affirmative defenses fraud, fraudulent inducement, fraudulent misrepresentation, and unclean hands, among others, based on the same facts alleged in the counterclaims. I can discern no basis to restrict Defendants from presenting evidence of the Defendants’ failure to honor agreements to promote Treats! as grounds to defend against Plaintiffs’ claim that Defendants have not delivered all that was promised. Counterclaims based on this evidence, however, are time-barred.

Vice Chancellor Slights authored the opinion. (Mike Frisch)

March 3, 2019 in Current Affairs | Permalink | Comments (0)

Friday, February 8, 2019

Topless In New Hampshire: Crime Or Gender Discrimination?

The New Hampshire Supreme Court has affirmed three public nudity ordinance violations. 

Defendant Pierro

The following facts are drawn from the trial court’s order on the defendants’ motion to dismiss or are otherwise supported by the record. On May 28, 2016, Pierro went to Endicott Park Beach in Laconia. At the hearing on the defendants’ motion to dismiss, Pierro testified that she “was topless” and was there “to enjoy the beach.” She agreed with defense counsel that she was “performing yoga on the beach.” She stated that she “was violently harassed” by “[s]everal citizens,” but that “out of everybody on the beach, there were only actually a handful that were upset.”

Sergeant Black of the Laconia Police Department testified that, on that same day, he and Officer Callanan responded to the beach because the department had “received several calls about a female . . . doing nude yoga.” Callanan testified that they approached a woman, later identified as Pierro, who was “not wearing any shirt and her breasts, as well as her nipples, were both exposed.” Callanan stated that she “made attempts to speak to” Pierro, but that Pierro “continued to do her yoga poses.” She explained that “after
about a minute or so, [Pierro] looked up and acknowledged that we were, in fact, trying to speak to her.” She testified that they “explained to [Pierro] that the reason [they] were making contact with her was in reference to a Laconia City Ordinance, since her nipples were exposed on the beach in a public place.” Callanan stated that they asked Pierro “multiple times to cover up, to put her bathing suit top back on, or put her shirt back on,” but that Pierro “refused.

Defendants Sinclair and Libbey

In 2015, Sinclair became involved in the “Free the Nipple” movement. Sinclair testified that she was one of the people who “started” the movement in New Hampshire after having her son and realizing “that there was a very big stigma on breastfeeding.” She explained that she believed that breasts, specifically nipples, are “hypersexualize[d]” and “consider[ed] pornographic and taboo,” which she stated results “in that stigma” and “contributes to the low breastfeeding rates that the United States has compared to the rest of the world.” Sinclair told Lilley about the movement, which Lilley then joined. Lilley testified that she is “a feminist” and joined the movement because she “believe[s] in the equality of the male and female.”

On May 31, 2016, Sinclair and Lilley went topless to Weirs Beach in Laconia. While at the beach, they were arrested for violating the ordinance. Sinclair testified that she “purposely engaged in civil disobedience knowing that the City of Laconia has an ordinance against the exposure of the female nipple and areola.” She stated that she was “protesting [Pierro’s] case where she had been arrested a few days prior.” Lilley testified that she was also protesting Pierro’s arrest and that she “announced to the arresting police officer that [she] was acting in a protest and that [she] did not believe that [she] could be arrested for protesting.” She further agreed with the prosecutor that, on that day, she “chose to take it upon [herself] to violate the ordinance to give attention to [her] cause.”

The court majority rejected both Constitutional and state claims raised by the defendants.

LYNN, C.J., and DONOVAN, J., concurred; BASSETT, J., with whom HICKS, J., joined, concurred in part and dissented in part.

We agree with our colleagues in most respects: Laconia’s ordinance does not violate the defendants’ rights to freedom of speech and expression; it falls within the regulatory authority of the City of Laconia; it is not preempted by statute; and it does not violate RSA chapter 354-A. However, we part company with the majority when it rejects the defendants’ equal protection claim. We strongly disagree that rational basis is the lens through which the defendants’ equal protection challenge should be analyzed. Laconia’s ordinance facially classifies on the basis of gender: if a woman and a man wear the exact same clothing on the beach, on Laconia’s main street, or in a backyard “visible to the public,” the woman is engaging in unlawful behavior— but the man is not...

We agree with the reasoning of the Seventh Circuit. Public nudity ordinances such as the ordinances in Chicago and Laconia — i.e., those that use explicit, gendered language to make it unlawful for a female to engage in certain behavior, while the same behavior is lawful for a male — clearly classify by gender. The majority asserts that such reasoning is “flawed” and “deceptively simple.” We fail to see the flaw or deception in our simple reasoning: when a law uses the word “female” to classify between those who
can violate the ordinance — females — and those who cannot — males — it contains a gender-based classification. We freely acknowledge that the question of whether basic physiological differences between the sexes justify disparate treatment of men and women is a more nuanced and complicated question. But classification and justification present different questions.

Respectfully, we find the reasoning of the majority — which obscures the simple threshold question — needlessly convoluted and artificially complex. Indeed, a court upends the safeguards of equal protection if it reasons that, because a law is premised upon physiological or anatomical differences between the sexes, the law does not classify by gender and therefore it need not be analyzed under strict scrutiny. For example, because women have a longer life expectancy than men, by the majority’s reasoning, a hypothetical law that mandates that women work four years longer than men in order to qualify for a pension, or prevents women from retiring until age 70 as opposed to age 66 for men, or reduces a woman’s social security benefits if she retires at the same age as a man, does not classify on the basis of gender. Such a law would be constitutional so long as it was “rationally related to a legitimate government interest.” Boulders, 153 N.H. at 641. Analyzing whether a law comports with equal protection does not require that the court be blind to basic physiological or anatomical differences. In some cases, applying the constitutionally required level of scrutiny, this court might conclude that such differences justify disparate treatment under the law. However, a court subverts the basic guarantee of equal protection if it concludes that, because men and women have physiological or anatomical differences, a law that classifies on the basis of those differences does not trigger strict scrutiny.


A court would no longer say, as a Supreme Court Justice did over 100 years ago, that a woman did not have a right to practice law because “the civil law, as well as nature herself, has always recognized a wide difference in the respective spheres and destinies of man and woman. . . . This is the law of the Creator. . . . [T]he rules of civil society must be adapted to the general constitution of things . . . .” Bradwell v. The State, 83 U.S. 130, 141-42 (1872) (Bradley, J., concurring). We revisit that bygone era, and thwart the very protections the Equal Rights Amendment was enacted to provide, if we allow stereotypical notions about women’s bodies to alter our analysis of the straightforward question of whether Laconia’s ordinance classifies on the basis of gender. This is precisely why the New Hampshire Constitution requires that legislation which discriminates on the basis of a suspect classification be subject to strict scrutiny.

The law has often been used to perpetuate discrimination based on “public sensibilities” or “common understandings” about individuals on the basis of immutable characteristics — however misinformed or ill-motivated those understandings might be. “One of the most important purposes to be served by the Equal Protection Clause is to ensure that ‘public sensibilities’ grounded in prejudice and unexamined stereotypes do not become enshrined as part of the official policy of government.”

The ordinance does not withstand strict scrutiny

applying the strict scrutiny standard required by Part I, Article 2, we conclude that the State has not carried its burden to prove that its asserted interests are compelling and that Laconia’s ordinance is necessary and narrowly tailored.

...over four decades, we have fashioned an analytical framework which subjects laws that distinguish on the basis of gender to the highest level of constitutional scrutiny: strict scrutiny. See Holbrook, 140 N.H. at 189; Sandra H., 150 N.H. at 637; LeClair, 137 N.H. at 222. However, perhaps mindful of the State’s obvious failure to present evidence sufficient to meet the exacting burden of strict scrutiny in this case, the majority strains to conclude that an ordinance that prohibits women — but not men — from engaging in certain behavior does not discriminate on the basis of sex, but is, in fact, gender-neutral. Such an approach is not in service of our constitutional role: it is an abdication of it.

The Laconia Daily Sun covered the controversy. (Mike Frisch)

February 8, 2019 in Current Affairs | Permalink | Comments (0)

Saturday, January 26, 2019

D.C. Bar Is On!

The District of Columbia Court of Appeals Committee on Admissions posted this notice late yesterday


  1/25/2019 In light of the recent announcement concerning a temporary end to the government shutdown, we’re pleased to report that the District of Columbia Court of Appeals has determined that the February 2019 bar exam will be administered in the District of Columbia! Please be advised that the District of Columbia Bar has expressed a commitment to ensure that the February 2019 bar exam goes forward in the event of any future government shutdown beyond February 15, 2019.

We apologize for the added stress and uncertainty that the government shutdown has caused; but we are pleased to be able to process your applications to sit for the February 2019 bar exam, and wish you success on the exam.

We expect that our Office of the Committee on Admissions will be reopened on Monday, January 28, 2019. Any follow-on inquiries can be directed to 

(Mike Frisch)

January 26, 2019 in Current Affairs | Permalink | Comments (0)

Thursday, January 3, 2019

Pillow Talk

The United State Court of Appeals for the Fourth Circuit remanded a civil claim brought by a whistleblower who was terminated for reporting police misconduct, albeit to his spouse, who worked for a television station

In the early morning hours of October 20, 2013, [prisoner] Grose was strapped to a prisoner restraint chair that rendered him completely immobile while Officer James Moore punched him multiple times in the head. After Moore’s brutal assault, other correctional officers, who had watched the attack, tased Grose in “drive stun” mode and placed his head into a football helmet strapped to the restraint chair. Grose died a few hours later. Just months before, Moore had been the target of an internal investigation at YCDC and ordered by Sheriff Bryant to undergo psychological evaluation for repeatedly striking the head and neck of another inmate in a restraint chair.

Later that day, Trent Faris, a public information officer for the York County Sheriff’s Office (YCSO), held a press conference about Grose’s death. He stated that Grose had been placed in a restraining chair for his own safety because he had been “very, very combative,” and that Grose died as a result of injuries that he gave himself by hitting his head on the back of the chair. J.A. 987. Faris said nothing about Moore punching Grose 12 times in the head. When asked by a reporter whether officers would face disciplinary action for Grose’s death, Faris answered “[a]ll our officers, detention officers, did exactly what they were supposed to do last night.” J.A. 991.

At the time of Grose’s death, Billioni was a Master Control Specialist at YCDC, a position that gave him access to the correctional facility’s video surveillance system. Billioni heard Faris’s statement while off-duty. At work the next day—October 21, 2013—he decided to watch the surveillance video of the incident. What he saw disturbed him. Later that day, Billioni told his wife, a research analyst for WCNC, the NBC affiliate in Charlotte, North Carolina, about the existence and contents of the video. Billioni’s wife contacted Stuart Watson, an investigative reporter at WCNC, about the contradictions between the video and the YCSO press conference. Watson subsequently filed a request for the video pursuant to the Freedom of Information Act and contacted the YCSO’s general counsel about the circumstances surrounding Grose’s death.

On October 22, 2013, Sheriff Bryant held a meeting to determine whether there was a witness who knew something about Grose’s death that had not been publicly reported. Sheriff Bryant also called in the State Law Enforcement Division (SLED), the South Carolina agency that conducts internal investigations for law enforcement agencies. YCDC administrators James Arwood and Richard Martin began their own internal investigation by interviewing Billioni, because they knew that his wife worked at WCNC. During the interview, Billioni admitted to watching the video but lied about describing it to his wife. The next day, Billioni sent Arwood and Martin an email admitting that he had told his wife—who had subsequently told WCNC reporters—about the video.

Billioni was given the choice to either resign or be fired. He reported the conduct to the Department of Justice and

Soon after his termination, Billioni filed suit against Sheriff Bryant, YCDC, York County, and the YCSO alleging various violations of state and federal law. The district court dismissed or granted summary judgment to defendants on all of Billioni’s claims but one: a claim of retaliatory discharge in violation of the First Amendment, brought under 42 U.S.C. § 1983.

The court

By looking to whether Sheriff Bryant made a “showing of disruption within the YCSO” instead of whether Sheriff Bryant made a showing that he reasonably apprehended a disruptive effect from Billioni’s speech, the district court committed legal error. Instead of conducting this fact-intensive balancing in the first instance, we remand to the district court to use the correct legal standard to determine whether the evidence permits a conclusion that a reasonable factfinder could find that Sheriff Bryant reasonably apprehended disruption within the YCSO as a result of Billioni telling his wife about the surveillance video that outweighs Billioni’s interest in speaking out about the surveillance video...

We remand to the district court to use the correct legal standard to determine whether Billioni’s speech is protected under the First Amendment.

The unpublished decision does not have precedential value.

The District Court decision is linked here. (Mike Frisch)

January 3, 2019 in Current Affairs | Permalink | Comments (0)

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)