Justia Law, Technology & Legal Marketing Blog

You Reap What You Patent – Justia Weekly Writers’ Picks

2013-05-17T18:19:19Z

Bowman v. Monsanto, United States Supreme Court (5/13/13)
Agriculture Law, Patents

Monsanto invented and patented Roundup Ready soybean seeds, which contain a genetic alteration that allows them to survive exposure to the herbicide glyphosate. It sells the seeds subject to a licensing agreement that permits farmers to plant the purchased seed in only one growing season. Growers may consume or sell the resulting crops, but may not save any of the harvested soybeans for replanting. Bowman purchased Roundup Ready soybean seed for his first crop of each growing season. To reduce costs for his riskier late-season planting, Bowman purchased soybeans intended for consumption; planted them; treated the plants with glyphosate, killing all plants without the Roundup Ready trait; harvested the resulting soybeans that contained that trait; and saved some of these harvested seeds to use in his late-season planting the next season. After discovering this practice, Monsanto sued for patent infringement. Bowman raised the defense of patent exhaustion, which gives the purchaser of a patented article, or any subsequent owner, the right to use or resell that article. The district court rejected Bowman’s defense; the Federal Circuit affirmed. In a unanimous decision, the Supreme Court affirmed. Patent exhaustion does not permit a farmer to reproduce patented seeds through planting and harvesting without permission. Under the patent exhaustion doctrine, the initial authorized sale terminates all patent rights to the patented item and confers on the purchaser, or any subsequent owner, the right to use or sell the thing, but the doctrine restricts the patentee’s rights only as to the “particular article” sold. It leaves untouched the patentee’s ability to prevent a buyer from making new copies. By planting and harvesting patented seeds, Bowman made additional copies of Monsanto’s patented invention, which falls outside the protections of patent exhaustion. If Bowman were granted an exception, patents on seeds would retain little value.

Hofmann v. Sender, US 2nd Cir. (5/14/13)
Family Law, International Law

Petitioner initiated proceedings pursuant to Article 3 of the Hague Convention on Civil Aspects of International Child Abduction, 51 Fed. Reg. 10, implemented by the International Child Abduction Remedies Act (ICARA), 42 U.S.C. 11601 et seq., and sought return of his children to Canada from New York in order to allow the Canadian courts to determine which parent was to be awarded custody of the children. The court concluded that the district court properly determined under the Convention that the parties’ last shared intention regarding the children’s residence was that they live in Canada and for that reason the habitual residence of the children remained in Canada; there was no basis to conclude that the district court clearly erred in finding that the children have not become so acclimatized to life in New York that returning them to Canada would be harmful to them; and respondent failed to prove any affirmative defense. The court considered respondent’s remaining arguments and found them to be without merit. Accordingly, the court affirmed the judgment.

Dos Santos v. Coleta, Massachusetts Supreme Judicial Court (5/15/13)
Injury Law, Landlord Tenant

Plaintiff was injured when he unsuccessfully tried to flip into an inflatable pool from a trampoline that had been set up directly adjacent to the pool in the backyard of a property he was renting from Defendants. Plaintiff filed a claim for negligence against Defendants for setting up and maintaining the trampoline next to the pool and for failing to warn him of the danger of jumping from the trampoline into the pool. The trial court ruled in favor of Defendants. The appeals court affirmed. The Supreme Court reversed, holding (1) a landowner has a duty to remedy an open and obvious danger where he has created and maintained that danger with the knowledge that lawful entrants would choose to encounter it despite the obvious risk of doing so; and (2) the judge erred in instructing the jury to cease deliberations if they concluded that the danger was open and obvious, and should have further instructed the jury that a landowner is not relieved from remedying open and obvious dangers where he can or should anticipate that the dangerous condition will cause physical harm to the lawful entrant notwithstanding its known or obvious danger.

Okonkwo v. Texas, Texas Court of Criminal Appeals (5/15/13)
Constitutional Law, Criminal Law

According to appellant Chidiebele Gabriel Okonkwo, he received $60,000 dollars in the mail from a man in Nigeria whom he had never met, who told appellant that he needed assistance in making purchases in the United States. Appellant claimed that he believed the money was authentic currency. He took the money to three different locations with the intent of obtaining money orders. After he successfully obtained two money orders, he was arrested when a clerk who was suspicious about the authenticity of the money called the police. The police confirmed that the money had been forged. At trial, the sole issue was whether appellant knew that the money was forged. The State petitioned the Supreme Court for discretionary review to ask whether appellant’s trial counsel rendered ineffective assistance by failing to request a jury instruction on the defense of mistake of fact. Answering in the affirmative, the court of appeals reversed appellant’s conviction for forgery of money. The State raised two issues: (1) that the court of appeals erroneously used a subjective standard to assess whether defense counsel was ineffective; and (2) under an objective standard, counsel could not be held ineffective for failing to request a mistake-of-fact instruction because the State had to prove that appellant knew the money was forged as an element of its case. The Supreme Court disagreed with the State on its first challenge and agreed on its second. “The court of appeals did properly apply an objective standard, although it erred by failing to weigh the evidence in a light most favorable to the trial court’s ruling. Furthermore, the court of appeals erred by determining that counsel was objectively ineffective in light of the record in this case, which shows that it was an inconsistent, alternative theory asserted by appellant’s trial counsel, and its inclusion may have lessened the State’s burden of proof. We, therefore, reverse the judgment of the court of appeals.”

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Four States and D.C. Take Action On Transgender Inclusive Health Insurance

2013-05-14T22:21:04Z

This year has seen some definitive advances in how certain states address the issue of insurance discrimination against transgender people. California, Colorado, Oregon, and Vermont, as well as the District of Columbia, have issued bulletins that clarify their state laws to prohibit discrimination against transgender people for health services deemed medically necessary. Some states, such as California, also outline an appeals process for individuals whose claims are denied. Here is the bulletin California recently issued:

[California law] prohibits health plans from discriminating against individuals because of the individua’s gender, including gender identity or gender expression … If a health plan denies an individual’s request for services on the basis that the services are not medically necessary or that the services do not meet the health plan’s utilization management criteria, the health plan’s decision is subject to review through the Department’s Independent Medical Review (IMR) process … The Department directs health plans to revise all current health plan documents to remove benefit and coverage exclusions and limitations related to gender transition services.

At present, the majority of private insurance plans include coverage exclusions specifically aimed at denying transgender people the ability to access treatment or procedures associated with transitioning, often referred to as sexual reassignment. In addition, insurance plans often exclude coverage of health care services for transgender individuals that would otherwise have been covered, had the person in question not been transgender. These services can include behavioral health, medical, and surgical procedures. Often, the exclusion is justified on the basis that the treatment is not medically necessary, but rather a cosmetic procedure, and the transgender person’s claim is consequently denied when it may otherwise have been covered for treatment not related to gender identity.

Coverage may also be denied in instances where a person’s gender marker on an insurance card doesn’t seem to match up with the treatment being sought. For example, an insurance plan may choose not to cover a yearly gynecological exam for someone who has legally changed their gender to male. The same goes for gender-specific preventative or treatment in instances of breast, ovarian, cervical, or prostate cancer.

In addition, transgender inclusive healthcare is sometimes also provided more exclusively on a city-by-city basis. This was the case in San Francisco when its innovative healthcare program for city residents removed the exclusion for transgender care last year. Most recently, the city of Philadelphia passed an LGBT-inclusive healthcare bill that provides incentives to businesses who offer or expand this type of insurance coverage for their employees. The bill includes two credits, one of which focuses exclusively on offering coverage to employees for transgender care.

There has been concern by transgender advocates that insurance companies in states where bulletins have recently been issued may still continue to deny medical procedures, requiring individuals to endure a potentially lengthy appeals process in order to have their claims approved. As more and more states and cities clarify their laws with respect to transgender care, the chances of this happening will likely be reduced. Approaches to transgender healthcare and insurance coverage have certainly improved over the past few years, but there’s still a long road ahead to ensuring all 50 states provide adequate non-discrimination coverage to trans and gender variant residents.

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Justia Writers’ Round Up – Supreme Court Opinions Issued May 13, 2013

2013-05-13T20:19:19Z

Bowman v. Monsanto Co.
Agriculture Law, Patents

Bullock v. BankChampaign, N. A.
Bankruptcy, Trusts & Estates, White Collar Crime

Petitioner’s father established a trust for the benefit of petitioner and his siblings, and made petitioner the nonprofessional trustee. The trust’s sole asset was the father’s life insurance policy. Petitioner borrowed funds from the trust three times; all borrowed funds were repaid with interest. His siblings obtained a state court judgment for breach of fiduciary duty, though the court found no apparent malicious motive. The court imposed constructive trusts on petitioner’s interests, including his interest in the original trust, to secure payment of the judgment, with respondent serving as trustee for all of the trusts. Petitioner filed for bankruptcy. Respondent opposed discharge of debts to the trust. The Bankruptcy Court held that petitioner’s debts were not dischargeable under 11 U. S. C. 523(a)(4), which provides that an individual cannot obtain a bankruptcy discharge from a debt “for fraud or defalcation while acting in a fiduciary capacity, embezzlement, or larceny.” The district court and the Eleventh Circuit affirmed. The Supreme Court vacated. The term “defalcation” in the Bankruptcy Code includes a culpable state of mind requirement involving knowledge of, or gross recklessness in respect to, the improper nature of the fiduciary behavior. The Court previously interpreted the term “fraud” in the exceptions to mean “positive fraud, or fraud in fact, involving moral turpitude or intentional wrong.” The term “defalcation” should be treated similarly. Where the conduct does not involve bad faith, moral turpitude, or other immoral conduct, “defalcation” requires an intentional wrong. An intentional wrong includes not only conduct that the fiduciary knows is improper but also reckless conduct of the kind that the criminal law often treats as the equivalent. Where actual knowledge of wrongdoing is lacking, conduct is considered as equivalent if, as set forth in the Model Penal Code, the fiduciary “consciously disregards,” or is willfully blind to, “a substantial and unjustifiable risk” that his conduct will violate a fiduciary duty.

Dan’s City Used Cars, Inc. v. Pelkey
Business Law, Commercial Law, Transportation Law

The Federal Aviation Administration Authorization Act (FAAAA) preempts state laws “related to a price, route, or service of any motor carrier … with respect to the transportation of property.” 49 U. S. C. 14501(c)(1). Pelkey sued in New Hampshire state court, alleging that Dan’s towing company towed his car from a parking lot without Pelkey’s knowledge, failed to notify him of its plan to auction the car, held an auction despite Pelkey’s notice that he wanted to reclaim the car, and traded the car away without compensating Pelkey. Pelkey alleged Dan’s did not meet the requirements of New Hampshire statutes, chapter 262, which regulates disposal of abandoned vehicles by a “storage company;” violated New Hampshire’s Consumer Protection Act; and violated its duties as a bailee The court granted Dan’s summary judgment, concluding that the FAAAA preempted Pelkey’s claims. The New Hampshire Supreme Court reversed, finding FAAAA preemption inapplicable to claims related to conduct in post-storage disposal, as opposed to conduct concerning “transportation of property,” or a “service.” The Supreme Court affirmed. Section 14501(c)(1) does not preempt state-law claims stemming from the storage and disposal of a towed vehicle. Pelkey’s claims are not related to “transportation of property” nor the “service” of a motor carrier. The words “with respect to the transportation of property” limit the FAAAA’s preemptive scope. Transportation of Pelkey’s car from his landlord’s parking lot was a service that ended months before the conduct on which Pelkey’s claims are based. The New Hampshire prescriptions Pelkey invokes hardly constrain participation in interstate commerce by requiring a motor carrier to offer services not available in the market. Nor do they “freez[e] into place services that carriers might prefer to discontinue in the future.”

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Solidarity Forever – Justia’s Weekly Writers’ Picks

2013-05-10T23:56:24Z

Bailey v. Callaghan, US 6th Cir. (5/9/13)
Communications Law, Constitutional Law, Education Law, Labor & Employment Law

Michigan’s 2012 Public Act 53 provides: “A public school employer’s use of public school resources to assist a labor organization in collecting dues or service fees from wages of public school employees is a prohibited contribution to the administration of a labor organization,” so that unions must collect their own membership dues from public-school employees, rather than have the schools collect those dues via payroll deductions. The Act does not bar public employers other than schools from collecting membership dues for unions who represent their employees. Unions and union members challenged the Act under the First Amendment and the Equal Protection Clause. The district court entered a preliminary injunction barring enforcement. The Sixth Circuit reversed, quoting the Supreme Court: “The First Amendment prohibits government from ‘abridging the freedom of speech’; it does not confer an affirmative right to use government payroll mechanisms for the purpose of obtaining funds for expression.” The court further reasoned that there is a legitimate interest in support of the Act’s classification; the legislature could have concluded that it is more important for the public schools to conserve their limited resources for their core mission than it is for other state and local employers.

Goldstein v. City of Long Beach, US 9th Cir. (5/8/13)
Civil Rights, Constitutional Law, Criminal Law, Government & Administrative Law

Plaintiff spent 24 years in prison after being convicted for murder based largely upon the perjured testimony of an unreliable jailhouse informant. Plaintiff filed this action under 42 U.S.C. 1983, claiming that the District Attorney’s Office failed to create any system for the Deputy District Attorneys handling criminal cases to access information pertaining to the benefits provided to jailhouse informants and other impeachment information, and failed to train Deputy District Attorneys to disseminate this information. At issue on appeal was whether a district attorney acted as a local or a state official when establishing policy and training related to the use of jailhouse informants. The court concluded that the policies challenged by plaintiff were distinct from the acts the district attorney undertook on behalf of the state. Even taking into account the control and supervisory powers of the Attorney General, the District Attorney represented the county when establishing policy and training related to the use of jailhouse informants. Therefore, a cause of action could lie against the county under 42 U.S.C. 1983. Accordingly, the court reversed the district court’s grant of summary judgment on the pleadings.

Gartner v. Iowa Dep’t of Pub. Health, Iowa Supreme Court (5/3/13)
Civil Rights, Constitutional Law, Family Law

Melissa and Heather Gartner were a married lesbian couple. Heather conceived a child using an anonymous sperm donor. The child was born during the spouses’ marriage. The Gartners requested a birth certificate recognizing both Heather and Melissa as the child’s parents. The Department of Public Health refused to place the name of the nonbirthing spouse in a lesbian marriage on the birth certificate without the spouse first adopting the child. The district court ordered the Department to issue the Gartners a birth certificate listing both spouses as parents but did not require the Department to extend the same practice to other married lesbian couples. The Supreme Court affirmed as modified, holding (1) Iowa Code 144.13(2), Iowa’s presumption of parentage statute, violates the equal protection clause of the Iowa Constitution because it allows for only “the name of the husband” to appear on the birth certificate; and (2) accordingly, the Department must presumptively list on a child’s birth certificate the nonbirthing spouse in a lesbian marriage when the child was born to one of the spouses during their marriage.

Texas: Baird v. Texas, Texas Court of Criminal Appeals (5/8/13)
Constitutional Law, Criminal Law

Appellant Gregg Baird hired Dawn Killian to stay at his home and care for his dog while he was away on vacation. During her stay, Killian used appellant’s computer in his master bedroom and found child pornography. At a pre-trial suppression hearing, appellant claimed that Killian’s access to his bedroom and computer was illegal; therefore, the State could not use the evidence against him at his trial. The trial court denied appellant’s motion to suppress the images taken from his computer. Specifically, the trial court found that appellant did not explicitly exclude Killian from his bedroom or from his computer; that he walked her through the master bedroom and bathroom; and that he told her to “[h]elp [her]self to anything.” Based on these fact findings, the trial court determined that Killian had the appellant’s effective consent to enter the bedroom and use the computer, and held that, without establishing that Killian violated the law, appellant could not exclude the material. Appellant challenged the trial court’s finding, pointing to his own testimony that this comment was only made in the kitchen, and specifically in reference to food. However, after review of the trial court record, the Supreme Court found that appellant repeated that statement at least once during the tour of the home and told her also to “[h]elp herself to everything.” That supported the trial court’s finding that appellant gave Killian his apparent consent: “[. . .] He did not expressly banish her from the bedroom, nor did he forbid her to use his computer. He showed her how to operate the television and stereo. He did not power the computer down or password-protect it, and he admitted that he allowed his roommate to use it regularly. Given this convergence of facts, the trial court was justified in concluding that Killian had the appellant’s apparent consent–that is to say, it is clear and manifest to the understanding that she had his assent in fact-to enter his bedroom and use his computer.”

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Ripple in Still Water – Justia Weekly Writers’ Picks

2013-05-03T20:11:00Z

United States v. Tebeau, US 8th Cir. (4/30/12)
Criminal Law

Defendant owned more than 300 acres of land where he has held weekend music festivals at which drug use was widespread. Defendant invited various bands to perform at the festivals and he also performed with his own Grateful Dead tribute band. After law enforcement conducted an undercover investigation into the illegal drug sales at the festivals, defendant was indicted on one count of managing a drug involved premises in violation of 21 U.S.C. 856(a)(2). Defendant entered a conditional guilty plea and appealed the district court’s denial of his motion to dismiss the indictment. The court concluded that section 856(a)(2) did not require proof that defendant had the illegal purpose to use, manufacture, sell, or distribute controlled substances; it was sufficient that defendant intended to make his property available to others who had that purpose; section 856(a)(2) did not violate the Fifth Amendment due process clause or defendant’s First Amendment rights; and the indictment satisfied the requirements of Federal Rule of Criminal Procedure 7(c) by adequately stating the offense with which defendant was being charged. Accordingly, the court affirmed the judgment.

McBurney v. Young, US Supreme Court (4/29/13)
Constitutional Law, Government & Administrative Law

Virginia’s Freedom of Information Act grants Virginia citizens access to all public records, but grants no such right to non-Virginians. Citizens of other states, including the owner of a business that obtains real estate tax records on behalf of clients, filed requests under the Act. After each was denied, they filed a 42 U. S. C. 1983 suit, alleging violations of the Privileges and Immunities Clause and the dormant Commerce Clause. The district court granted Virginia summary judgment. The Fourth Circuit and the Supreme Court affirmed. The Constitution does not guarantee the existence of FOIA laws. The Privileges and Immunities Clause protects only privileges and immunities that are “fundamental.” The Clause protects the right of citizens to “ply their trade, practice their occupation, or pursue a common calling,” only with respect to laws enacted for the protectionist purpose of burdening out-of-state citizens. Virginia’s FOIA exists to allow Virginia citizens to obtain an accounting from their public officials; noncitizens have no comparable need. The distinction between citizens and noncitizens recognizes that citizens pay fixed costs underlying record-keeping. The law does not prevent noncitizens from obtaining documents necessary to the transfer of property or deprive noncitizens of “reasonable and adequate” access to Commonwealth courts. It gives noncitizens access to non-privileged litigation documents, to judicial records, and to records pertaining directly to them. Virginia’s FOIA does not violate the dormant Commerce Clause. It neither prohibits access to an interstate market nor imposes burdensome regulation on that market; if there is a “market” for Virginia’s public documents, it is a market for a product that the Commonwealth has created and of which the Commonwealth is the sole manufacturer.

N.C. v. Commonwealth, Kentucky Supreme Court (4/25/13)
Civil Rights, Constitutional Law, Juvenile Law

Defendant was a juvenile who admitted giving hydrocodone to another student. Defendant’s confession was made directly in answer to questions from the school assistant principal, who was working with a deputy sheriff (School Resource Officer or SRO), also present. The SRO did not read Defendant his Miranda rights before the questioning. Defendant was subsequently charged with possessing and dispensing a controlled substance, a felony, in a juvenile petition. After unsuccessfully filing a motion to suppress, Defendant entered a conditional guilty plea to the charge. Defendant subsequently appealed the denial of his motion. At issue before the Supreme Court was whether a student is entitled to the benefit of the Miranda warnings before being questioned by a school official in conjunction with a law enforcement officer, the SRO, when he is subject to criminal charges. The Supreme Court reversed, holding that the statements Defendant made before law enforcement when he was questioned by the assistant principal must be suppressed because he was in custody and was not given the Miranda warnings.

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FastCase to Launch “Bad Law Bot”

2013-04-29T02:10:27Z

A heads up that our friends at FastCase are about to launch the “Bad Law Bot” – or as they refer to it, their newest team member! No, this isn’t some evil case law robot sent to do us all harm from the future, but rather a cool enhancement to FastCase’s authority check feature. The Bad Law Bot algorithmically checks text within opinions for terms which connote a negative treatment (e.g., reversed, overruled) of an opinion and flags the corresponding citation for the user to view. The Bad Law Bot is a great new companion tool to use when cite checking. Great work FastCase!

You can check out more about the Bad Law Bot here:

Press Release

Ed Walters’ Video Announcement

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Justia Weekly Writers’ Picks: One for the Road

2013-04-29T02:08:25Z

Abdouch v. Lopez, Nebraska Supreme Court (4/19/13)
Civil Rights, Constitutional Law, Injury Law

Plaintiff was a resident of Nebraska. In 1963, Plaintiff received a copy of the book “Revolutionary Road,” which was inscribed to her by the late author Richard Yates. Plaintiff’s inscribed copy of the book was later stolen. Ken Lopez and his company, Ken Lopez Bookseller (KLB), bought the book in 2009 from a seller in Georgia and sold it to a customer not in Nebraska. Plaintiff later learned that Lopez had used the inscription in the book for advertising purposes on his website. Plaintiff brought suit against Lopez and KLB for violating her right to privacy. The district court dismissed the case for lack of personal jurisdiction. The Supreme Court affirmed, holding that Plaintiff’s complaint failed to plead facts to demonstrate that Lopez and KLB had sufficient minimum contacts with the state of Nebraska, as (1) the contacts created by the website were unrelated to Plaintiff’s cause of action, and (2) under the Calder v. Jones foreseeable effects test, the pleadings failed to establish that Lopez and KLB expressly aimed their tortious conduct at the state of Nebraska.

Moncrieff v. Holder, United States Supreme Court (4/23/13)
Criminal Law, Immigration Law

Moncrieffe, a Jamaican citizen legally in the U.S., was found with 1.3 grams of marijuana in his car. He pleaded guilty under Georgia law to possession of marijuana with intent to distribute. Under the Immigration and Nationality Act, a noncitizen convicted of an “aggravated felony” is deportable, 8 U.S.C. 227(a)(2)(A)(iii), and ineligible for discretionary relief. The INA lists as an “aggravated felony” “illicit trafficking in a controlled substance,” including conviction of an offense that the Controlled Substances Act (CSA) makes punishable as a felony (by more than one year’s imprisonment). A state conviction is a felony punishable under the CSA only if it involves conduct punishable as a felony under federal law. Possession of marijuana with intent to distribute is a CSA offense, 21 U.S.C. 841(a), punishable by up to five years’ imprisonment. An Immigration Judge ordered Moncrieffe removed. The Board of Immigration Appeals affirmed. The Fifth Circuit denied a petition for review, rejecting reliance on section 841(b)(4), which makes marijuana distribution punishable as a misdemeanor if the offense involves a small amount for no remuneration. The Supreme Court reversed and remanded. If a noncitizen’s conviction for marijuana distribution fails to establish that the offense involved either remuneration or more than a small amount of marijuana, it is not an aggravated felony under the INA. The Court employed the “categorical approach,” examining what the state conviction necessarily involved and not the facts underlying the case, and presuming that the conviction involved the least of the acts criminalized. Conviction under Georgia’s statute, alone, does not reveal whether either remuneration or more than a small amount was involved, so Moncrieffe’s conviction could correspond to either the CSA felony or the CSA misdemeanor. The Court rejected an argument that section 841(b)(4) was merely a mitigating sentencing factor, not an element of the offense. The government’s proposal that noncitizens be allowed, during immigration proceedings, to demonstrate that their convictions involved only a small amount of marijuana and no remuneration is inconsistent with the INA’s text and the categorical approach and would burden immigration courts and the noncitizens involved. Escaping aggravated felony treatment does not necessarily mean escaping deportation, because any marijuana distribution offense renders a noncitizen deportable as a controlled substances offender, but with an opportunity seek relief from removal.

Arnzen, III, et al. v. Palmer, et al., US 8th Cir. (4/22/13)
Civil Rights, Constitutional Law, Criminal Law

Plaintiffs, patients at the Iowa Civil Commitment Unit for Sex Offenders (CCUSO), filed a complaint under 42 U.S.C. 1983 challenging the placement of video cameras in CCUSO restrooms, and moved for a preliminary injunction to stop their use. The district court denied the motion as to cameras in the dormitory style restrooms but granted a preliminary injunction ordering that cameras in the traditional style bathrooms be pointed at the ceiling or covered with a lens cap. The administrators of CCUSO appealed the district court’s grant of the preliminary injunction. The court concluded that by capturing images of patients while they occupy single-user bathrooms, CCUSO violated its patients’ reasonable expectation of privacy, thus conducting a search under the Fourth Amendment, irrespective of whether there was some chance that those images would not be viewed. The court agreed with the district court that plaintiffs showed the requisite probability of success on their Fourth Amendment claim; plaintiffs established a threat of irreparable harm; plaintiffs’ interests in this case outweighed the injuries that the injunction would inflict on other parties; and there was a greater public interest in protecting the Fourth Amendment rights of plaintiffs and their personal privacy and dignity against unwarranted intrusion by the State. Accordingly, the court affirmed the judgment.

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Justia Weekly Writers’ Picks

2013-04-19T17:49:14Z

Missouri v McNeely, United States Supreme Court (4/17/13)
Civil Rights, Constitutional Law, Criminal Law

McNeely, stopped for speeding and crossing the centerline, declined to take a breath test to measure his blood alcohol concentration (BAC). He was arrested and taken to a hospital. The officer never attempted to secure a search warrant. McNeely refused to consent, but the officer directed a lab technician to take a sample. McNeely’s BAC tested above the legal limit, and he was charged with driving while intoxicated. The trial court suppressed the test result, concluding that the exigency exception to the warrant requirement did not apply because, apart from the fact that McNeely’s blood alcohol was dissipating, no circumstances suggested that the officer faced an emergency. The Missouri Supreme Court and U.S. Supreme Court affirmed. The Court looked to the “totality of circumstances,” declining to announce a per se rule. When officers in drunk-driving investigations can reasonably obtain a warrant before having a blood sample drawn without significantly undermining the efficacy of the search, the Fourth Amendment mandates that they do so. Circumstances may make obtaining a warrant impractical such that dissipation will support an exigency, but that is a reason to decide each case on its facts. Blood testing is different in critical respects from other destruction-of-evidence cases; BAC evidence naturally dissipates in a gradual and relatively predictable manner. Because an officer must typically obtain a trained medical professional’s assistance before having a blood test conducted, some delay between the time of the arrest and time of the test is inevitable regardless of whether a warrant is obtained.

Rios-Pineiro v. United States, US 1st Cir. (4/15/13)
Contracts, Government & Administration Law, Injury Law, Labor & Employment Law

The United States Postal Services (USPS) terminated Plaintiff’s employment contract after discovering, through a sting operation, that Plaintiff had stolen mail containing money. The Postal Service Board of Contract Appeals (PSBCA) convened an evidentiary hearing and determined that Plaintiff’s breach of his employment contract justified the decision to terminate his contract. Plaintiff did not appeal this decision. Meanwhile, Plaintiff initiated a Federal Tort Claims Act (FTCA) suit against the United States for the actions of USPS employees on the date of the sting, alleging six torts. The district court dismissed three of the claims and granted summary judgment to the government on the remaining claims. The First Circuit Court of Appeals affirmed the district court as to all claims, holding (1) the district court correctly concluded that the PSCBA’s findings precluded re-litigation of the factual issues in Plaintiff’s FTCA suit; and (2) summary judgment was properly granted as to Plaintiff’s FTCA claims for negligent supervision, malicious prosecution, and invasion of privacy by postal inspectors.

United States v. Scruggs, US 5th Cir. (4/12/13)
Constitutional Law, Criminal Law, Legal Ethics, Professional Malpractice & Ethics

Defendant, an attorney and the brother-in-law of Trent Lott, appealed from the denial of his 28 U.S.C. 2255 motion challenging one of his two convictions for bribing a judge. Defendant’s conviction stemmed from his bribe of a circuit court judge in a lawsuit involving a fee-sharing dispute with co-counsel (the “Wilson Case”). Defendant offered to recommend the judge to Lott, who at the time was a U.S. Senator, for a district court judgeship in exchange for the judge’s help in winning the Wilson Case. The court concluded that Skilling v. United States, which addressed the constitutionality of the honest-services statute, 18 U.S.C. 1346, had no effect on the district court’s subject matter jurisdiction over defendant’s guilty plea. Defendant had shown neither his actual innocence of post-Skilling honest-services fraud nor that there was cause and prejudice for failing to raise a constitutional-vagueness challenge to section 1346. Therefore, defendant procedurally defaulted on his claim and the district court correctly denied his section 2255 motion. Finally, the court rejected defendant’s First Amendment overbreadth challenge to section 1346. Accordingly, the court affirmed the judgment.

United States v. Conaway, US 7th Cir. (4/16/13)
Criminal Law

Days after a widely-publicized threat by a Florida pastor to burn 200 copies of the Quran on the 2010 anniversary of the September 11 terrorist attacks, Conaway posted on Facebook his plans to burn the “holy quaran” and invited people to witness the event at his home address. Conaway then began making phone calls to an imam and government officials, repeating his threats to burn the Quran and threatening other violent acts. These calls culminated in a standoff at Conaway’s home, with response by more than 12 agencies and evacuation of the street. His threats, including a promise blow up the entire block, were bogus; a device strapped to his chest held squares of putty, not explosive C-4. He was sentenced to concurrent sentences of 60 months’ imprisonment after pleading guilty to making false threats to detonate an explosive device, 18 U.S.C. 1038(a)(1), and influencing a federal official by threat, 18 U.S.C. 115(a)(1)(B). The Seventh Circuit affirmed. The trial court “simply concluded that it was appropriate to assign more weight to the extraordinary nature of the crime and the need to protect the public” from Conaway’s escalating pattern of menacing behavior than to Conway’s claims of mental illness.

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Justia Weekly Writers’ Picks – What Would Sister Bertrille Do?

2013-04-16T15:33:22Z

McCarthy v. Fuller, US 7th Cir (4/10/13)
Constitutional Law, Contracts, Non-Profit Organizations

In 1956, Sister Ephrem of the Most Precious Blood, experienced apparitions of the Virgin Mary, during which, Sister Ephrem claimed, she was told: “I am Our Lady of America.” The Archbishop supported a program of devotions to Our Lady of America. In 1965 Pope Paul VI approved creation of a cloister, which lasted until at least 1977, when surviving members left and formed a new congregation, dedicated to devotions to Our Lady of America. Sister Ephrem directed it until her death in 2000. Sister Therese succeeded Sister Ephrem, who willed to Sister Theres all her property, mostly purchased with donated money. Sister Therese worked with McCarthy, a lawyer, and Langsenkamp until 2007, when Langsenkamp and McCarthy established the Langsenkamp Family Apostolate in the chapel in which the Virgin Mary allegedly appeared to Sister Ephrem. They sued Sister Therese, claiming theft of physical and intellectual property, fraud, and defamation. She counterclaimed alleging theft of a statue and of the website and defamation by calling her a “fake nun.” The district court denied McCarthy’s motion that the court take notice of the Holy See’s rulings on Sister Therese’s status in the Church. The Seventh Circuit reversed, with “a reminder” that courts may not decide (or to allow juries to decide) religious questions. Determination of the ownership of the property is likely possible without resolving religious questions.

United States v. Grigsby, US 6th Cir. (4/11/13)
Civil Rights, Constitutional Law, Criminal Law

Grigsby, a middle-age man who lived in homeless shelters, was charged with three unarmed bank robberies, 18 U.S.C. 2113(a). Psychologists conducted examinations and filed reports that diagnosed paranoid schizophrenia and stated that Grigsby was not competent to stand trial. Neither party objected. The court committed Grigsby to custody (18 U.S.C. 4241(d)(1)) to determine whether he could be restored to competency to stand trial. Forensic evaluators concluded that Grigsby did not understand the seriousness of his legal difficulty; lacked ability to assist his lawyer during trial; and was not capable of waiving his constitutional rights rationally or of testifying on his own behalf. Grigsby refused to take oral medication. Because he was not gravely disabled and did not present a danger to himself, others, or the facility, he did not meet the criteria for involuntary medication. The evaluators requested an order authorizing them to inject Grigsby involuntarily with a first-generation antipsychotic drug, (haloperidol (Haldol) or fluphenazine), or a second-generation antipsychotic drug, risperidone, to restore competency. These medications can cause serious side effects. The district court granted an order under Sell v. U.S. (2003). The Sixth Circuit reversed, finding that special circumstances unique to the case indicate that Grigsby’s liberty interest in avoiding involuntary medication outweighs the government’s interest in prosecution.

Krieger v. Educ. Credit Mgmt. Corp., US 7th Cir. (4/10/13)
Bankruptcy, Education Law

Krieger, age 53, cannot pay her debts. She lives with her mother in a rural community; they have only monthly income from governmental programs. She is too poor to move and her car, more than 10 years old, needs repairs. She lacks Internet access. In her bankruptcy proceeding, Educational Credit moved to exempt her student loans from discharge; 11 U.S.C.523(a)(8) excludes educational loans “unless excepting such debt from discharge under this paragraph would impose an undue hardship on the debtor.” The district court reversed the bankruptcy court, noting that Krieger, although unable to pay even $1 per year, had not enrolled in a program that offered a 25-year payment schedule. The Seventh Circuit reversed, in favor of Krieger. “Undue hardship” requires showing that the debtor cannot maintain a minimal standard of living if forced to repay; that additional circumstances exist indicating that this situation is likely to persist for a significant portion of the repayment period; and that the debtor has made good faith efforts to repay. The court noted that Krieger incurred the debt to obtain paralegal training at a community college, has made about 200 applications in 10 years, and used a substantial part of her divorce settlement to pay off as much of the educational loan as possible.

Kealoha v. Office of Workers Comp. Programs, US 9th Cir. (4/9/2013)
Government & Administrative Law, Injury Law, Labor & Employment Law

In 2001, petitioner fell from a barge to a dry dock while working as a ship laborer. He then filed a workers’ compensation claim under the Longshore and Harbor Workers’ Compensation Act, 33 U.S.C. 901-950, for the injuries from his fall. In 2003, petitioner shot himself in the head, causing severe injuries. Petitioner also sought compensation for these injuries under the Act, alleging that his suicide attempt resulted from his 2001 fall and the litigation over that claim. The Benefits Review Board subsequently affirmed the ALJ’s denial of benefits. The court held, however, that evidence that a claimant planned his suicide did not necessarily preclude compensation under the Act because the proper inquiry was whether the claimant’s work-related injury caused him to attempt suicide. In this case, the ALJ erroneously applied the irresistible impulse test instead of the chain of causation test. Therefore, the court granted the petition for review and remanded for further proceedings. On remand, the question was whether there was a direct and unbroken chain of causation between petitioner’s work-related injury and his suicide attempt.

Simonson v. Schaefer, Oklahoma Supreme Court (4/9/13)
Constitutional Law, Government & Administrative Law

The appellant was a party to a divorce and child custody litigation. The appellee, a court-appointed psychologist, was to serve as an expert to conduct an evaluation of the parties and of their children. The appellant alleged that he paid the appellee for the evaluation and after several months, and as a result of the inaction of the appellee her report had not been provided as ordered. The appellant settled the divorce proceedings in a manner he claimed was injurious to him and his son. The trial court granted the appellee’s motion to dismiss. The motion urged that as a court-appointed witness, the appellee was immune to liability in damages. Though after its review, the Supreme Court found that as a court-appointed expert, appellee may have been immune to liability in damages as “her duty was to the court.” However, because the appellant claimed that the appellee failed to provide any services whatsoever for the amount paid, the Court treated those allegations as true: “[a]n expert would not be entitled to claim a fee for a court-ordered service that was not provided. This does not mean the appellant must be satisfied with the fees, but the appellant has a right to have the court decide if the fees were earned, and whether there was a valid legal defense to the assertions of the appellant that the appellee neither completed the required report, nor testified.” The appellant admitted that the underlying child custody was settled, so the trial court should have also considered the impact the settlement had on the appellee’s opportunity to complete the report or to testify. Accordingly, the trial court’s granting the appellee’s motion to dismiss was reversed and remanded for further consideration.

Strickland v. Medlen, Texas Supreme Cour (4/5/13)
Animal / Dog Law, Injury Law

The Medlens’ dog Avery escaped the family’s backyard and was picked up by animal control. Before the Medlens could retrieve Avery, shelter worker Carla Strickland mistakenly placed Avery on the euthanasia list, and Avery was put to sleep. The Medlens sued Strickland for causing Avery’s death and sought damages for Avery’s “intrinsic value.” The trial court dismissed the suit with prejudice, concluding that Texas law barred such damages. The court of appeals reversed, becoming the first Texas court to hold that a dog owner may recover intangible loss-of-companionship damages in the form of intrinsic or sentimental-value property damages. At issue before the Supreme Court was whether emotional-injury damages were recoverable for the negligent destruction of a dog. The Supreme Court reversed, holding that under established legal doctrine, recovery in pet-death cases is, barring legislative reclassification, limited to “loss of value, not loss of relationship.”

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Justia Weekly Writers’ Picks – 4th Amendment Friday

2013-03-29T18:20:57Z

Florida v. Jardines, United States Supreme Court (3/26/13)
Civil Rights, Constitutional Law, Criminal Law

Police took a drug-sniffing dog to Jardines’ front porch, where the dog gave a positive alert for narcotics. The officers then obtained a warrant for a search, which revealed marijuana plants. Jardines was charged with trafficking in cannabis. The Supreme Court of Florida approved the trial court’s suppression of the evidence. The U.S. Supreme Court affirmed. The investigation of Jardines’ home was a search within the meaning of the Fourth Amendment. When the Government obtains information by physically intruding on persons, houses, papers, or effects, a search within the original meaning of the Fourth Amendment has “undoubtedly occurred.” The right of a man to retreat into his own home and there be free from unreasonable governmental intrusion is the “very core” of the Fourth Amendment. The area immediately surrounding and associated with the home, the curtilage, is part of the home itself for Fourth Amendment purposes. The front porch is the classic exemplar of an area to which the activity of home life extends. The officers’ entry was not explicitly or implicitly invited. Officers need not “shield their eyes” when passing a home on public thoroughfares but “no man can set his foot upon his neighbour’s close without his leave.” A police officer without a warrant may approach a home in hopes of speaking to occupants, because that is “no more than any private citizen might do” but the scope of a license is limited not only to a particular area but also to a specific purpose, and there is no customary invitation to enter the curtilage simply to conduct a search.

Johnson v. Priceline.com, Inc., US 2nd Cir. (3/27/13)
Consumer Law, Contracts

Plaintiffs initiated this putative class action against Priceline, seeking compensatory, punitive, and equitable relief for alleged breaches of fiduciary duty and contract, as well as a violation of Connecticut’s Unfair Trade Practices Act (CUTPA), Conn. Gen. Stat. 42-110b. Plaintiffs’ claims arose from Priceline’s alleged failure to disclose to users of its “Name Your Own Price” booking service that a successful bid for a hotel room would generally exceed the amount Priceline itself compensated the hotel vendor, with Priceline retaining the difference as profit. Because plaintiffs failed as a matter of law to allege an agency relationship between Priceline and consumers who use its “Name Your Own Price” service to reserve hotel accommodations, they could not plausibly claim that Priceline breached an agent’s fiduciary duty in failing to apprise consumers that it might have procured the accommodations at costs lower than their bids, retaining the difference as profits. Accordingly, the court affirmed the district court’s dismissal of plaintiffs’ claims.

Ryan Development Company, LC v. Indiana Lumbermens Mutual Insurance Company, US 10th Cir. (3/27/13)
Bankruptcy Law, Contracts, Insurance

Defendant-Appellant Indiana Lumbermens Mutual Insurance Company (ILM) appealed the district court’s denial of its motion for judgment as a matter of law, or in the alternative, for a new trial following a $2.2 million jury verdict in favor of Plaintiff-Appellee Ryan Development Company, L.C., d/b/a Agriboard Industries (Agriboard). This case arose from a fire that destroyed a Texas manufacturing facility in April 2009. Agriboard, manufactured building panels made of compressed straw. At the time of the fire, Agriboard was insured under a fire and related losses insurance policy issued by ILM with various coverages including lost income. By May 2009, ILM had paid $450,000; Agriboard filed suit and thereafter ILM paid $1.8 million. Agriboard continued to seek recovery under the policy, but ILM refused to pay the amount requested and Agriboard re-filed suit, seeking $2.4 million in unpaid coverages. The trial court denied ILM’s motion for judgment as a matter of law, or in the alternative, for a new trial. ILM timely appealed that denial to the Tenth Circuit. Upon review, the Tenth Circuit found no abuse of the trial court’s discretion in denying ILM’s motion and affirmed the lower court’s judgment.

Commonwealth v. Ousley, Kentucky Supreme Court (3/21/13)
Civil Rights, Constitutional Law, Criminal Law

Without a search warrant, police walked onto Appellee’s property and into an area near his home late at night to search trash in closed trash containers that had not been put out on the street for trash collection. The containers ended up containing evidence of drug trafficking. The trial court denied suppression of the evidence, concluding that Defendant had no reasonable expectation of privacy in the trash cans or their contents. Defendant entered a conditional guilty plea to all the charges, reserving his right to appeal the suppression question. The court of appeals reversed, holding that Defendant had a constitutionally recognized expectation of privacy in his trash at the time of the searches that required suppression of the evidence. The Supreme Court affirmed, holding that because the police retrieved Defendant’s trash from the curtilage of his home without a search warrant, the search violated Defendant’s Fourth Amendment rights, and Defendant was entitled to have the evidence obtained suppressed.

Photo credit: KellyNelson/Shutterstock.com

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Justia’s Weekly Writers’ Picks – Down by the Mystic River

2013-03-23T05:37:59Z

In re Bulger, US 1st Cir. (3/14/13)
Constitutional Law, Criminal Law, Legal Ethics

James “Whitey” Bulger was the leader of a criminal organization in Boston from 1972 to 1999. An indictment returned by a federal grand jury charged Bulger with a number of federal offenses, including violations of the Racketeer Influenced and Corrupt Organizations (RICO) Act, and the indictment alleged that Bulger committed nineteen murders ancillary to the RICO conspiracy. Bulger’s case was assigned to U.S. District Court Judge Richard Stearns. Bulger moved that Judge Stearns recuse himself, arguing that the judge’s prior employment as head of the U.S. Attorney’s Criminal Division in Boston and his close friendship with FBI Director Robert Mueller created an appearance of impropriety necessitating recusal. Judge Stearns denied the motion. Bulger subsequently petitioned the First Circuit Court of Appeals for a writ of mandamus requiring reversal of the judge’s order denying the motion for recusal. In an opinion written by Hon. David H. Souter, the First Circuit granted the petition and ordered the case to be reassigned to a different judge “because it is clear that a reasonable person would question the capacity for impartiality of any judicial officer with the judge’s particular background in the federal prosecutorial apparatus in Boston during the period covered by the accusations.”

Northington v. H & M Int’l, US 7th Cir. (3/21/13)
Labor & Employment Law

Northington worked for H & M. She dated a fellow employee who was also involved with employee Sims. Sims made threats. Northington reported Sims’ behavior to manager Collins, who was then dating (subsequently married) Sims’ mother, the assistant manager. Sims ultimately physically assaulted Northington away from H & M property. The state court issued a protective order. Northington provided the order to the Union, but not to H & M. Northington complained to H & M officers, but did not complain that the harassment was based on race or gender. Based on her behavior during a safety inspection, the inspector suspected that Northington was under the influence of drugs. Northington left the testing facility without giving a required urine sample. Three company officers concurred in terminating her employment, unaware of her criminal complaint against Sims. Northington claimed retaliation in violation of Title VII. The district court found that H & M’s conduct in deleting inactive email accounts was negligent but not willful; assessed H & M costs and fees; deemed specific facts admitted; and precluded H & M from making certain arguments, but granted H & M summary judgment, finding that Northington did not establish that she had participated in protected activity under Title VII. The Seventh Circuit affirmed. The discovery sanction did not preclude summary judgment.

Li, et al. v. Kerry, et al., US 9th Cir. (3/20/13)
Constitutional Law, Immigration Law

Plaintiffs brought suit on behalf of a class of individuals from China who were seeking to acquire permanent resident status in the employment-based third preference category (EB-3). Plaintiffs alleged that during the 2008-2009 fiscal years, defendants did not allocate immigrant visas to eligible applicants in the correct order, thereby delaying their applications, and their eligibility for adjustment of status. The court held that the district court properly dismissed the complaint because there was no live case or controversy about the establishment of visa cut-off dates, and the allocation of visa numbers, in the 2008 and 2009 fiscal years. The district court did not err in dismissing plaintiffs’ claims for prospective relief because they did not allege that defendants failed to take discrete actions they were legally required to take. Accordingly, the court affirmed the judgment of the district court.

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The Color of St. Patrick’s Day

2013-03-15T19:38:54Z

St. Patrick’s Day is a day when we celebrate the Irish in all (or at least 35 million) of us. We honor our Irish ancestors, relatives and friends by dressing in green, visiting an Irish pub, or participating in a festive parade.

Food manufacturers also observe St. Patrick’s Day through the creative use of food coloring, which is regulated by the U.S. Food and Drug Administration. Pigments used to color food and derived from vegetables, minerals or animals are exempt from certification. A natural source of green food coloring would be grape skin extract.

On the other hand, man-made or synthetic food coloring must be certified. The nine certified color additives approved for food use in the United States are FD&C Blue No. 1, FD&C Blue No. 2, FD&C Green No. 3, Orange B, Citrus Red No. 2, FD&C Red No. 3, FD&C Red No. 40, FD&C Yellow No. 5 and FD&C Yellow No. 6.

For each color, the regulations provide a detailed chemical description, as well as specifications or restrictions on the use of the product. For example, for FD&C Green No. 3, the regulation states:

The color additive FD&C Green No. 3 may be safely used for coloring foods (including dietary supplements) generally in amounts consistent with current good manufacturing practice except that it may not be used to color foods for which standards of identity have been promulgated under section 401 of the act unless added color is authorized by such standards.

I thought that the green cupcakes and cookies at work would contain a splash of FD&C Green No. 3, which according to Wikipedia, is banned in the European Union and some other countries for use as a food dye. 21 CFR §81.30 lists the color additives banned in the United States.

Instead, the label for the decorated brownie bites read Blue 1 or 2, Red 3 or 40, Yellow 5 or 6, Yellow 5 or 6 Lake. For the frosted sugar cookies, the artificial colors were Yellow 5 Lake, Blue 1 Lake, Blue 1, Blue 2, Blue 2 Lake, Red 3, Red 40, Red 40 Lake, Yellow 5, Yellow 6 Lake and Titanium Dioxide. Wikipedia has an explanation of lake pigments, if you are interested.

The sobering section is 21 CFR 81.10, which details the provisional color additives that have been terminated. If you are looking for motivation to step away from the tempting green cupcake, read about the adverse effects of certain color additives on laboratory animals. Cheers!

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California Assembly Bill Seeks to Add CC License to State Regs

2013-03-15T17:45:44Z

California Assemblyman Brian Nestande (R-42nd Dist.) has put forth a bill to apply a Creative Commons License to the California Code of Regulations (CCR). According to Mr. Nestande’s site, “AB 292 will provide that the full text of the California Code of Regulations shall have an open access creative commons attribution license, allowing any individual, at no cost, to use, distribute and create derivative works based on the material for either commercial or noncommercial purposes.”

Right now, the Office of Administrative Law (OAL) owns and publishes the CCR. The OAL was created by Cal. Gov’t Code §11340. Cal. Gov. Code §11343 et seq governs the filing and publication of the Cal. Code Regs. The Office of Administrative law collects the regulations from issuing agencies, and after notice, sends them to the Secretary of State for certification. The OAL is then charged with providing for the “or the official compilation, printing, and publication of adoption, amendment, or repeal of regulations, which shall be known as the California Code of Regulations.” (Cal. Gov’t Code §11344(a)).

Section 11344.4(a) also allows them to sell the CCR: “The California Code of Regulations, the California Code of Regulations Supplement, and the California Regulatory Notice Register shall be sold at prices which will reimburse the state for all costs incurred for printing, publication, and distribution.”

The OAL currently contracts with Thompson West/Barclay’s to publish the official version of the CCR. According to Mr. Nestande’s office, the OAL licenses the CCR to West for $400,000 per year, plus 7% of all royalties. [The office did not have a copy of the latest contract, but you can see the contract for 2009-2012 here]. We don’t how much it would cost to produce the CCR in house, but it’s not a stretch to imagine that the OAL is turning a profit on this deal – which seems to be outside the scope of its charter in 11344.4. Mr. Nestande’s office points out that this creates a conflict of interest for the OAL – “As more businesses are covered by new regulations, more businesses need to purchase access to those regulations from Thomson, and OAL derives a larger profit. This makes it difficult to be truly objective when approving new regulations, if it directly benefits from expanding the state’s regulatory burden.”

I think the bigger conflict of interest is that Cal Gov’t Code §11344(a) requires the OAL to post the CCR’s online for free, but their incentive for profit is interfering with the public’s ability to view and use those regulations. The CCR is hosted online by Westlaw. They are papered over with disclaimers (“The Official California Code of Regulations is available in looseleaf printed format from Thomson – West / Barclays (1-800-888-3600)) and copyright statements (© 2013 Office of Administrative Law for the State of California;” “Use of all or part of the data displayed on this site for commercial or other unauthorized purposes is prohibited.”). The regs on the site are not indexed by Google, and users cannot download or copy them without violating the copyright. What’s more, they’re not official. The Bluebook requires you to cite to the official version, which is the Westlaw Compilation.

There’s another absurdity in the status quo: Westlaw actually sells copies of its Compilated Regs to other state offices. You know, state regulatory offices that devised the regs to begin with. According to the Assemblyman’s office, “Nearly all state agencies and departments purchase the compilation from West, in addition to hundreds of trade associations, and individual business owners that purchase single section subscriptions.”

Let’s back this up and explain it slowly:

The OAL’s job is to publish state regulations.

It licenses that job to West, in exchange for a bunch of money (including royalties).

West takes the CCR and sells it BACK TO THE STATE, and a different state agency gets a cut of the profits.

I’ve got an idea. Let’s put the Creative Commons license on the CCR, make the OFFICIAL version available for bulk download online, and then let the government agencies, businesses, and trade associations use, remix, and improve it at will. Nothing is preventing West from doing the same.

If you’re getting tired of blog posts like these, I suggest you write to Mr. Nestande’s office and tell him that you support his bill, and why.

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Public.Resource.Org Sues for Declaratory Judgement on Standards Incorporated by Reference

2013-03-15T17:46:26Z

Last week, Public.Resource.Org, through their counsel at the Electronic Frontier Foundation, filed an action for declaratory judgement against the Sheet Metal and Air Conditioning Contractors’ National Association, Inc. [SMACNA]. In its complaint, Public.Resource.org asserts that since SMACNA’s copyrighted standards were explicitly incorporated into federal and state law, they have become part of the public domain and are no longer subject to copyright restrictions.

This saga began when Carl Malamud of Public.Resource.Org began buying copies of privately issued, copyrighted building codes and putting them up online. These codes were incorporated by law into federal and state statutes, so Carl believed that they should be publicly available – a proposition we agreed with.

When Attributor, an agent for SMACNA, discovered the codes on Public.Resource.Org, they sent a DMCA takedown notice. Public.Resource.Org now seeks a declaratory judgment from the federal courts that it is not infringing. It asserts that since these standards were incorporated by reference into federal law, the manual is now “the law of the United States and compliance with the 1985 manual is mandatory,” and thus is part of federal law – which is not subject to copyright.

In addition to seeking this declaratory judgment, Public.Resource.Org is asking the court for an injunction against SMACNA from asserting copyright claims against it, and costs.

I’ll be following this suit closely. At Justia, our mission is to provide access to the laws of the United States – all cases, codes, and regulations. As I’ve written about before, it seems obvious that these things should be available free of charge and copyright restrictions – but they’re not. Privately owned building codes are just one small part of the corpus of law that is locked behind a paywall. Many final appellate decisions and many state codes are only published in their official form by a private publisher. In order to cite to them, you must access a copyrighted, paid version of the statute or case.

You can follow the case here.

“A sniff is up to snuff . . . ” Justia Weekly Writers’ Picks

2013-02-22T22:15:00Z

We start off our picks this week with a dog sniff case from the Supreme Court. A side note that several opinions came down from the High Court this week – to check them all out go to Justia’s Supreme Court Center , or sign up for our USSC Summary Newsletter.

Florida v. Harris, US Supreme Court (2/19/13)
Civil Rights, Constitutional Law, Criminal Law

Officer Wheetley pulled Harris over for a routine traffic stop. Wheetley sought consent to search Harris’s truck, based on Harris’s nervousness and seeing an open beer can. When Harris refused, Wheetley executed a sniff test with his trained narcotics dog, Aldo, who alerted at the driver’s-side door, leading Wheetley to conclude that he had probable cause to search. The search turned up nothing Aldo was trained to detect, but did reveal ingredients for manufacturing methamphetamine. Harris was charged with illegal possession of those ingredients. In a subsequent stop while Harris was out on bail, Aldo again alerted on Harris’s truck but nothing of interest was found. The trial court denied a motion to suppress. The Florida Supreme Court reversed, holding that if an officer failed to keep records of field performance, including how many times a dog falsely alerted, he could never have probable cause to think the dog a reliable indicator of drugs. The Supreme Court reversed. Training and testing records supported Aldo’s reliability in detecting drugs and Harris failed to undermine that evidence, so Wheetley had probable cause to search. Whether an officer has probable cause depends on the totality of the circumstances, not rigid rules, bright-line tests, and mechanistic inquiries. Requiring the state to introduce comprehensive documentation of a dog’s prior hits and misses in the field is the antithesis of a totality-of-the-circumstances approach. Field records may sometimes be relevant, but the court should evaluate all the evidence, and should not prescribe an inflexible set of requirements.

And for Fun – Check out Jake the German Shepherd. The newest member of Justia’s Dog Pack! :)

Aqua Log Inc. v. Lost and Abandoned Pre-Cut Logs and Rafts of Logs, US 11th Cir. (2/15/13)
Admiralty & Maritime Law, Real Estate & Property Law

These consolidated appeals concerned segments of two Georgia waterways, the Flint River and Spring Creek. Aqua Log, a company that finds, removes, and sells submerged logs, brought three in rem actions seeking a salvage award for the logs submerged at the bottom of the waterways or, in the alternative, an award of title to the logs based on the American Law of Finds. Because the segments of the Flint River and Spring Creek at issue in these cases were capable of supporting commercial activity, they were navigable waters for admiralty-jurisdiction purposes. The court therefore held that the district court erred in concluding that the waterways were not navigable and dismissing the cases for lack of subject-matter jurisdiction. Accordingly, the court reversed and remanded for further proceedings.

Sowers v. Forest Hills Subdivision, Nevada Supreme Court (2/14/13)
Injury Law, Real Estate & Property Law

Respondents sought to permanently enjoin their neighbor, Appellant, from constructing a wind turbine on his residential property, asserting that the proposed turbine would constitute a nuisance. The district court agreed and granted the permanent injunction. The Supreme Court affirmed the order granting a permanent injunction prohibiting the wind turbine’s construction, holding (1) the aesthetics of a wind turbine alone are not grounds for finding a nuisance, but a nuisance in fact may be found when the aesthetics are combined with other factors, such as noise, shadow flicker, and diminution in property value; and (2) substantial evidence supported the district court’s finding that the proposed residential wind turbine would be a nuisance in fact.

Photo credit: KellyNelson/Shutterstock.com

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The Dog Did It – Justia’s Weekly Writers’ Picks

2013-02-15T18:51:05Z

Caldwell v. Cablevision Sys. Corp., New York Court of Appeals (2/7/13)

After falling on the street and injuring her leg, Plaintiff commenced this negligence action against Communications Specialists, Inc. (CSI) for creating a hazardous condition in the road by failing to properly pave over a trench CSI cut to install high-speed fiber-optic cable underneath the street. To rebut Plaintiff’s testimony that a dip in the trench caused her to fall, CSI subpoenaed a physician who treated Plaintiff shortly after the accident and declared that Plaintiff “tripped over a dog.” CSI paid the doctor $10,000 for appearing at trial. Plaintiff’s counsel asked the court to charge the jury that, pursuant to N.Y. C.P.L.R. 8001, the doctor was entitled to a witness fee of $15 per day. The court gave the jury a general bias charge but made no specific reference to the payment the doctor received for appearing at trial. The jury found that CSI was negligent but that such negligence was not a substantial factor in bringing about the accident. The Court of Appeals affirmed, holding (1) the trial court should have issued a bias charge specifically tailored to address the payment CSI made to the doctor; but (2) the court’s failure to issue such an instruction in this case was harmless.

U.S. v. Terry, US 6th Cir. (2/14/13)

Ohio Governor Ted Strickland appointed Steven Terry to fill a vacancy on the Cuyahoga County Court of Common Pleas. Terry sought reelection to retain the seat and enlisted the help of County Auditor Russo, a presence in Cleveland politics. The FBI was investigating Russo and had tapped his phones. Russo had a phone conversation with an attorney about foreclosure cases on Terry’s docket and promised to make sure Terry did what he was “supposed to do.” Later, by phone, Russo told Terry to deny motions for summary judgment. Terry said he would and did so. Russo ultimately pled guilty to 21political corruption counts and received a 262-month prison sentence. Terry was convicted of conspiring with Russo to commit mail fraud and honest services fraud; and honest services fraud by accepting things of value from Russo and others in exchange for favorable official action, 18 U.S.C. 201(b)(2). The district court sentenced him to 63 months. The Sixth Circuit affirmed, quoting once-Speaker of the California General Assembly, Jesse Unruh, “If you can’t eat [lobbyists’] food, drink their booze, . . . take their money and then vote against them, you’ve got no business being [in politics],”

United States v. May, US 9th Cir. (2/12/13)

Defendants pled guilty to one count of receipt of stolen mail and one count of mail theft. During the 2010 holiday season, defendants drove through neighborhoods on “Christmas shopping” trips in search of packages on porches, doorways, or in community mailboxes to steal. On appeal, defendants argued that the district court erred by including certain expenses the USPS incurred to avert future mail thefts as loss, for purposes of both sentencing and restitution. The court held that the district court was not clearly erroneous in concluding that the expense the USPS incurred was a reasonably foreseeable pecuniary harm resulting from defendants’ actions. The USPS theft prevention measures were directed at defendants’ ongoing crime spree that concluded after the USPS changed its delivery procedures. The court held, however, that the district court plainly erred in ordering restitution for the USPS’s expenses where mail theft – not unlawful possession – caused the USPS to change its procedure. Accordingly, the court affirmed defendants’ sentences but vacated that portion of the restitution order awarding restitution for the USPS’s expenses.

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Crowdsourcing Bills and Law Revisions

2013-02-06T20:50:49Z

Two legislative crowdsourcing efforts came across my desk today: OpenPACER and Fork the Law. I love the idea of collective effort to make laws.

The government has tried this to some extent with Regulations.gov. There, you can sort, view, and comment on proposed regulations. An even better iteration of this is GovPulse, a site that was created in the private sector to categorize and search proposed regulations. GovPulse encourages users to comment and contact their representatives, but it’s not an official comment site.

OpenPACER and Fork the Law are something entirely new, however. They are created by citizens for citizens in order to change the law. If you’re reading this blog, you probably already know about PACER and efforts underway to eliminate the paywall. The folks at RECAP (a PACER recycling tool) have started OpenPACER to solve this problem legislatively. You know that saying “There ought to be a law?” – well, OpenPACER is acting on that by proposing legislation to “provide free and open access to electronic federal court records.”

From their site:

The courts currently offer an expensive and difficult-to-use web site. They charge more than their cost of offering the service—more than Congress has authorized—violating the E-Government Act of 2002. This Act seeks to, once and for all, compel the courts to fulfill Congress’ longstanding vision of making this information “freely available to the greatest extent possible“.

If you have an opinion on how this law should be drafted, what should be included, what should be left out – you can visit OpenPACER and let them know. You can help draft the law that will eventually be proposed.

Along those lines, Fork the Law seeks to amend existing legislation by crowdsourcing proposals to change it. They are starting with the Computer Fraud and Abuse Act, 18 USC §1030 et seq.

From their site:

Fork the Law is an effort to bridge the gap between rapidly evolving technology and governing law. Our initiative is to take all necessary steps to move from where we are to where we must coalesce, from drafting new legislation, to educating Congress and the People about the issues we face as a nation, to promoting passage of new laws that continue our forward progress.

If you have expertise or opinions on the law, you can join the effort by suggesting text, changes, deletions, etc. The folks at Fork the Law will then lobby these changes.

PS. I had to ask about “fork” – according to the engineer on my couch, it means to make a copy, or a clone, of code. It can also be used to describe the process by which you take an opensource code that you don’t like, clone it, and change it to make it better.

HT Robert Richards at Legal Informatics Blog, who keeps us up to date on all this stuff.

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Federal Court Opinion Pilot Project Expanded

2013-02-04T19:37:41Z

The Judicial Council announced last week that they plan to expand a pilot program to push federal court opinions to FDSys. In theory, that means that all federal court opinions could be published and freely available in the FDSys database soon.

FDSys is the digital repository for federal publications. It is operated by the Government Printing Office. Last year, the Judicial Council announced that it would begin integrating some opinions from PACER into FDSys. It began with opinions from 28 courts (three circuit courts of appeal). In December, I checked up on that and saw that FDSys had slip opinions in it and that they were actually being indexed by Google. I noted that they were a little behind, and they were slip opinions, not the officially published opinion, but hey – better than nothing.

In the latest announcement, the Judicial Council tells us that “the functionality to transfer opinions to FDsys is included in the latest release of CM/ECF which is now available to all courts. Twenty-nine courts participated in the original pilot, and now, all courts may opt to participate in the program.” If I am reading this correctly, federal courts may now opt in to have their opinions transferred to FDSys. It’s not automatic or mandatory.

The GPO takes pains to establish their documents in FDSys as “authentic” and “digitally signed,” but that doesn’t mean a lot for court opinions. They are slip opinions, and they are not official. They can only be cited until they are officially published by the Federal Reporter (i.e., Thompson West), and that probably happens before they are even uploaded to FDSys. By the time they are in FDSys, they may already be moot. Sure, the public can read them free of charge – but we can’t use them for anything. In order to cite to that opinion, you must look it up in the Federal Reporter, and pay for the privilege.

Don’t get me wrong – I love the idea of a free, accessible database of all government publications, but we’ve got a ways to go. It seems as though there is a genuine disconnect between AOC and GPO folks about the usefulness of slip opinions. All circuit courts publish their slips online right away – but then they pass ownership on to Thompson West. It’s great that we get immediate access to the decision, and that has paved the way for innovation in the private sector (free Justia caselaw summaries, for example). But it’s time to take the next step and start self publishing case law. You can read all about that here.

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CourtCloud Helps Courts Publish Their Own Opinions – For Free

2013-01-28T22:30:37Z

CALI has developed a prototype for uploading, storing, and sharing official court opinions called CourtCloud. Elmer Masters, the Director of Internet Development there, calls it a “Dropbox for courts.” The purpose of CourtCloud is to help courts self-publish their opinions.

I’ll break it down for non-technical people (such as myself):

The court clerk or judge has a CourtCloud folder on their computer desktop. When the opinions are written and ready to go, the clerk will drag it into the folder. From there, it is uploaded to the secure Court Cloud server. There, an algorithm converts it to pdf, html, and xml formats and places them into the same folder. The clerk can retrieve them in the chosen format and publish them to the court website. A copy will also automatically go to the Free Law Reporter, CALI’s court opinion database.

CourtCloud can only be accessed by the courts who use it, so there’s no risk that the opinions will somehow be altered. It will be free for them to use, or perhaps they can run their own instance. We know that some courts are paying a hefty fee to West for a similar service ($350k per year, to be exact, according to the U.S. Court of Appeals for the Ninth Circuit).

All state and federal courts (except for Alabama) post copies of their slip opinions for free on their websites. CourtCloud would make their job easier and get their opinions into the Free Law Reporter stream, which is aiming to create electronic casebooks for law students. It could potentially be used to add in paragraph numbers or a citation format as well, helping them to self-publish official opinions instead of just the slips.

As Mr. Masters says, “It’s a win for the courts who are provided with free opinion storage and conversion and a win for the public who will be provided with free access to the laws that govern them.”

If you want more information, contact him at emasters at cali dot org.

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“That is not a drug. It’s a leaf.” Justia’s Weekly Writers’ Picks

2013-01-25T20:41:28Z

Americans for Safe Access, et al v. DEA, US DC Cir. (1/22/13)
Constitutional Law, Drugs & Biotech, Government & Administrative Law, Health Law

The DEA, under the authority of the Controlled Substances Act of 1970, 21 U.S.C. 812(b)(1)(B), classified marijuana as a Schedule I drug, the most restricted drug classification under the Act. Petitioners challenged the DEA’s denial of its petition to initiate proceedings to reschedule marijuana as a Schedule III, IV, or V drug. The principal issue on appeal was whether the DEA’s decision was arbitrary and capricious. First, the court denied the Government’s jurisdictional challenge because the court found that at least one of the named petitioners had standing to challenge the agency’s action. On the merits, the court held that the DEA’s denial of the rescheduling petition survived review under the deferential arbitrary and capricious standard where the petition asked the DEA to reclassify marijuana, which, under the terms of the Act, required a “currently accepted medical use.” A “currently accepted medical use” required, inter alia, “adequate and well-controlled studies proving efficacy.” The court deferred to the agency’s interpretation of these regulations and found that substantial evidence supported the agency’s determination that such studies did not exist. Accordingly, the court denied the petition for review.

Colby v. Union Sec. Ins. Co., US 1st Cir. (1/17/13)
ERISA, Government & Administrative Law, Insurance Law, Labor & Employment Law

Plaintiff was a partner in a medical practice where she served as a staff anesthesiologist. When Plaintiff’s dependence on opioids came to light, her employer had in force a group employee benefit plan, underwritten and administered by Union Security Insurance Company & Management Company for Merrimack Anesthesia Associates Long Term Disability Plan (USIC), which included long-term disability (LTD) benefits. When Plaintiff applied for those benefits, USIC refused to pay benefits past the point when Plaintiff was discharged from a treatment center, finding that Plaintiff’s risk for relapse was not the same as a current disability. Plaintiff brought suit in the federal district court. The district court ultimately awarded Plaintiff LTD benefits for the maximum time available under the plan, concluding that categorically excluding the risk of drug abuse relapse was an unreasonable interpretation of the plan. The First Circuit Court of Appeals affirmed, holding that, in an addiction context, a risk of relapse can be so significant as to constitute a current disability.

Connelly v. Steel Valley Sch. Dist., US 3rd Cir. (1/24/13)
Constitutional Law, Education Law, Labor & Employment Law

The school district hired Connelly as a teacher. Connelly had nine years of teaching experience, all in Maryland. Because Connelly acquired his teaching experience outside Pennsylvania, the district credited him with only one year. Other new teachers with like experience acquired within Pennsylvania (but not in the district) received at least partial credit for each year they had taught. Connelly’s initial annual salary was $38,023, which was substantially less than the $49,476 Connelly alleged he would have received with full credit for his experience. Connelly‘s initial salary determination continued to adversely affect his pay. In 2011 Connelly filed suit, asserting Fourteenth Amendment claims under 42 U.S.C. 1983: that failure to fully credit his out-of-state teaching experience violated his right to interstate travel under the Privileges and Immunities Clause and denied him equal protection of the law. The district court dismissed, holding that the classification alleged is based on location of teaching experience, not residency. The Third Circuit affirmed, applying rational basis review. A school district may rationally place a premium on teachers who have more experience working within the Pennsylvania school system in order to achieve the legitimate goal of an efficient and effective public education system.

Doe v. Prosecutor, US 7th Cir. (1/23/13)
Communications Law, Constitutional Law, Criminal Law

Indiana Code 35-42-4-12 prohibits certain individuals required to register as sex offenders (Ind. Code 11-8-8) from knowingly using a social networking web site, an instant messaging, or chat room program that the offender knows allows access or use by a person who is less than 18 years of age. Violation constitutes a Class A misdemeanor; subsequent violations constitute Class D felonies. The law does not differentiate based on the age of victim, the manner in which the crime was committed, or the time since the predicate offense. It provides a defense if the individual did not know the website allowed minors or upon discovering it does, immediately ceased use, and exempts persons convicted of consensual “Romeo and Juliet relationships” where the victim and perpetrator are close in age. In 2000, Doe was convicted of child exploitation. He challenged the law on First Amendment grounds on behalf of a class of similarly-situated sex offenders. The district court rejected the challenge. The Seventh Circuit reversed, finding the law unconstitutional. Though content neutral, it is not narrowly tailored to serve the state’s interest. It broadly prohibits substantial protected speech rather than specifically targeting the evil of improper communications to minors.

Bedor v. Johnson, Colorado Supreme Court (1/22/13)
Constitutional Law, Injury Law

The Colorado Supreme Court court ordered a new trial for a man who sued after he was hit by a car that skidded across an icy patch in the road near Telluride in 2004. The jury ruled in favor of Michael Johnson, who skidded into a car driven by Richard Bedor. Bedor was injured and filed a negligence lawsuit. The Supreme Court concluded jurors may have been confused after they were told a person confronted by a sudden emergency could be expected to respond normally. The Court abolished the “sudden emergency” doctrine entirely, saying the potential to mislead a jury outweighed the benefits.

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There’s No Place Like Home – Justia’s Weekly Writers’ Picks

2013-01-18T21:25:13Z

Lozman v. City of Riviera Beach, US Supreme Court (1/15/13)
Admiralty & Maritime Law, Transportation Law

Lozman’s floating home was a plywood structure with empty bilge space underneath to keep it afloat. He had it towed several times before deciding on a marina owned by the city of Riviera Beach. After various disputes and unsuccessful efforts to evict him from the marina, the city brought an admiralty lawsuit in rem against the home, seeking a lien for dockage fees and damages for trespass. The district court found the floating home to be a “vessel” under the Rules of Construction Act, which defines a “vessel” as including “every description of watercraft or other artificial contrivance used, or capable of being used, as a means of transportation on water,” 1 U. S. C. 3; concluded that admiralty jurisdiction was proper; and awarded fees and damages. The Eleventh Circuit affirmed, noting that the home was “capable” of movement over water despite subjective intent to remain moored indefinitely. The Supreme Court reversed, holding that the case was not moot, although the home has been destroyed. Lozman’s floating home is not a “vessel.” The definition of “transportation” must be applied in a practical way; a structure does not fall within its scope unless a reasonable observer, looking to the home’s physical characteristics and activities, would consider it designed to a practical degree for carrying people or things over water. But for the fact that it floats, nothing about Lozman’s home suggests that it was designed to any practical degree to transport persons or things over water. It had no steering mechanism, had an unraked hull and rectangular bottom 10 inches below water, and had no capacity to generate or store electricity. It lacked self-propulsion, unlike an ordinary houseboat. The Court considered only objective evidence to craft a “workable and consistent” definition that “should offer guidance in a significant number of borderline cases.”

Stickley v. Byrd, et. al., US 8th Cir. (1/14/13)
Civil Rights, Constitutional Law, Criminal Law

Plaintiff brought this action under 42 U.S.C. 1983, alleging that his constitutional rights were violated while he was detained at Faulkner County Detention Center (FCDC). The court held that, in the circumstances presented in this case, defendants’ refusal to grant plaintiff’s request for additional toilet paper did not violate any clearly established right. Accordingly, defendants were entitled to qualified immunity. Therefore, the order denying qualified immunity was reversed and the case was remanded to the district court for the entry of an appropriate order.

New Jersey v. Sowell, New Jersey Supreme Court (1/14/2013)
Constitutional Law, Criminal Law

Bonita Pitt visited inmate defendant Ralph Sowell in a prison area monitored by security cameras. Sergeant Salvatore D’Amico of the Department of Corrections (DOC) observed Pitt and defendant lean forward. Defendant appeared to kiss Pitt on the cheek. She lifted her shirt slightly, reached into her left front pocket, took out an item, and placed it in defendant’s hand. D’Amico then saw defendant lean back and place the item into a bag of potato chips. D’Amico immediately radioed an officer to seize defendant and the bag of chips. When the officer approached defendant, D’Amico, still monitoring the security cameras, saw defendant place the bag of chips under the seat next to him, and an officer recover the bag of chips. D’Amico emptied the contents of the bag of chips, which contained a balloon with thirty envelopes of heroin inside it. After waiving his Miranda rights, defendant admitted to a DOC investigator that he received drugs during the visit. Defendant was charged with drug offenses. At trial, D’Amico testified as to his observations, and the State played the videotape recording of the entire incident. A DOC investigator was accepted as the State’s expert in “narcotics investigation.” During testimony, the expert opined that “an exchange of narcotics took place.” The issue on appeal before the Supreme Court centered on whether the State properly elicited expert testimony in response to a hypothetical question that in this case, “an exchange of narcotics took place.” Upon review, the Court concluded that the expert’s opinion was improper because it related to a straightforward factual allegation that was not beyond the understanding of an average juror and because the expert referred to facts not contained in the hypothetical. The Court affirmed defendant’s conviction however, concluding that under the plain error standard, there was overwhelming evidence in the record of his quilt.

In re Guardianship of Stevenson, South Dakota Supreme Court (1/9/13)
Family Law

Daughter was born with cerebral palsy and developmental disabilities. Daughter’s Father and Mother later divorced. After Daughter turned eighteen, a California court appointed Mother as Daughter’s guardian and conservator. Mother later moved to South Dakota with her new husband and Daughter. Father subsequently sought to end Mother’s role as guardian and conservator. Following a hearing, a South Dakota circuit court terminated Mother’s appointment as guardian and conservator for Daughter, finding that she failed to adequately address Daughter’s obesity and transition to more independent living. Mother appealed. The Supreme Court affirmed, holding that the circuit court did not abuse its discretion in (1) preventing Mother from questioning attorneys appointed to represent Daughter about certain statements attorneys made in an investigative report, as the report was not entered into evidence at the hearing; and (2) removing Mother as Daughter’s guardian and conservator, as Mother did not make significant progress toward the goal of moving Daughter into an independent residential living situation and failed to promptly and aggressively manage the issue of Daughter’s weight.

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Justia’s Weekly Writers’ Picks

2013-01-11T20:36:40Z

Happy new year! We’re starting off 2013 with opinion picks that cover four “c”s of legal practice areas: copyright, construction law, contracts, and criminal law.

Harney v. Sony Pictures Television, Inc., US 1st Cir. (1/7/13)
Copyright

Plaintiff, a freelance photographer, took a photograph of a man, who called himself Clark Rockefeller, and the man’s daughter. Later, it was discovered that the man had abducted his daughter and that his real name was Christian Gerhartsreiter. The photo was used by the FBI in a “Wanted” poster and was distributed in the media. Appellee Sony Pictures Television, Inc. subsequently produced a movie based on Gerhartsreiter’s identity deception. In the movie, Sony pictured the photo using an image similar and pose and composition to Plaintiff’s original. The photo, however, was different in a number of respects. Plaintiff filed this infringement action, alleging a copyright violation. The district court granted summary judgment for Appellees, concluding that no reasonable jury could find substantial similarity between Sony’s recreated photo and Plaintiff’s original. The First Circuit Court of Appeals affirmed, holding that no jury could properly conclude that Sony’s adaption of the photo infringed Plaintiff’s copyright in his work.

Read More: Appeals Court Rejects Photographer’s Claim That Sony TV Movie Stole Image
West Bend Mut.l Ins. Co v. Arbor Homes, LLC, US 7th Cir. (1/8/13)
Construction Law, Insurance Law

Arbor builds homes in Indiana and contracted with Willmez Plumbing, which was to obtain insurance naming Arbor as an additional insured. Willmez subcontracted to Alarcon. After the work was ostensibly completed, the buyers noticed a foul odor and felt ill. Alarcon had not connected the plumbing to the main sewer line. Raw sewage had discharged into the crawl space. Willmez corrected the connection. Arbor contracted for cleanup that required excavation and decontamination and cost about $65,000. The owners demanded replacement of the house. Arbor told Willmez to notify its insurer West Bend. Hearing nothing, Arbor assumed the insurer had no objections and agreed to build a new home, pay closing costs and moving expenses, and to compensate for any increase in mortgage rate. Arbor sued Willmez, alleging negligence, breach of contract, slander of title, and constructive fraud, and sent West Bend a copy. The district court granted West Bend summary judgment, finding that it was relieved of duties to defend or indemnify by “fungi and bacteria exclusion” and “voluntary payments” provisions. The Seventh Circuit affirmed. Although Arbor’s quick and decisive action was laudable, failure to obtain West Bend’s consent to the settlement relieved it of any obligation.

Read More: 7th Circuit Holds Insured’s Voluntary Payments Barred Coverage
General Mills Operations, LLC v. Five Star Custom Foods, Ltd., US 8th Cir. (1/07/13)
Agriculture Law, Contracts

General Mills sued Five Star for breach of contract and breach of warranties after the meatballs General Mills purchased from Five Star contained beef that was recalled. The district court granted summary judgment to General Mills on the breach-of-contract claim and to Five Star on the breach-of-warranty claims. The parties cross-appealed. The court concluded that the press release that General Mills relied upon to recall the meatballs constituted hearsay. However, the press release set out findings from an investigation pursuant to authority granted by law and was therefore admissible. The court also concluded that sufficient admissible evidence supported the conclusion that the meat was procured in violation of regulations and that it was adulterated. Therefore, the district court properly granted summary judgment to General Mills on the breach-of-contract claim. The court further concluded that the district court properly analyzed the breach-of-contract and breach-of-warranties claims separately. The court dismissed General Mills’ cross-appeal as moot and affirmed the award of attorneys fees to General Mills.

Read More: Supplier on the Hook for Spoiled Progresso Soup
Clay v. Texas, Texas Court of Criminal Appeals (1/9/13)
Constitutional Law, Criminal Law

The issue before the Supreme Court in this case was whether a law-enforcement officer seeking to obtain a search warrant, under Article 18.01 of the Texas Code of Criminal Procedure, must swear out the affidavit in support of that warrant in the physical presence of the magistrate or whether he may do so telephonically. On June 29, 2008, the appellant was arrested and charged with misdemeanor driving while intoxicated. The stipulated facts established that the appellant was stopped by State Trooper J. Ortega for traveling 80 miles per hour in a 70 mile-per-hour zone. When probable cause to suspect the appellant of driving while intoxicated arose in the course of the stop, Ortega placed appellant under arrest and requested that she provide a breath specimen for testing. The appellant refused, so Ortega filled out an affidavit for a search warrant to obtain a specimen of her blood. Ortega then called Hill County Court at Law Judge A. Lee Harris on the telephone. Ortega and Harris “each recognized the other’s voice[,]” and in the course of the telephone conversation, Ortega “swore to and signed” the search warrant affidavit. The trial court denied the appellant’s motion to suppress. On appeal, appellant argued that the search warrant was invalid because the affidavit in support of the warrant was not sworn to in the physical presence of the magistrate, as she contended was required by Article 18.01 of the Code of Criminal Procedure. The Court of Appeals disagreed, holding that “a face-to-face meeting between the trooper and the judge was not required and the making of the oath over the telephone did not invalidate the search warrant.” The Supreme Court concluded that because Ortega and Judge Harris recognized one another’s voices on the telephone at the time Ortega swore out his warrant affidavit, it was properly solemnized. And because Ortega reduced the affidavit to writing and faxed it to Judge Harris for filing, the basis for probable cause was properly memorialized. Under these circumstances, the Court held that Article 18.01(b)’s requirement of a “sworn affidavit” was satisfied.

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On FISA and Access to the Law

2013-01-10T22:16:28Z

Access to opinions and codes is of particular interest to the bloggers at Justia. We complain mightily about private citation formats, paywalls to codes and caselaw online, privatization of court services and filings, and the government’s overall failure to provide us with official, free access to the public record. Last week’s news about the reauthorization of the FISA Amendments Act, however, highlights an altogether different problem of access to the law: secret, sealed court opinions from the nation’s Foreign Intelligence Surveillance Act Court. This body of law is not available for free or for purchase. It is sealed and hidden from the American people.

There is plenty of news coverage about the Act, and plenty of opinions online about the threat it poses to the freedom and privacy of Americans and non-Americans here and abroad. I’d like to highlight the problem of access to the output of the FISA Courts, and why we are still in the dark about their decisions – decisions that are legally binding precedent but that we know nothing about.

The Foreign Intelligence Surveillance Act was enacted in 1978. It was codified at 50 USC 1801 et seq. FISA sets forth rules on collecting surveillance data on agents of a foreign power. That law was amended by the FISA Amendments Act in 2008, codified at 50 USC 1881 et seq. Those amendments broadened the scope and released third party telecommunications companies from liability for assisting the government in its search. The FISA Amendments Act expired on 12/31/2012, and last week, Congress voted to extend it to 2017. FISA is more colloquially known as the “warrantless wiretap act” because it permits warrantless searches of information over phones and computer networks in certain investigations. For a more detailed overview, see EPIC’s page.

The Foreign Intelligence Surveillance Act Courts, created by 50 USC 1803, have jurisdiction over FISA warrants and activities. The FISA Court of Review is available to hear appeals. Appeals from there may be submitted to the Supreme Court of the United States, under seal.

The text of FISA doesn’t specifically require opinions or orders to remain sealed, but since most of the information going in is classified and under seal, the opinions remain behind the government firewall. 50 USC §1881 (k) prescribes that: “All petitions under this section shall be filed under seal. In any proceedings under this section, the Court shall, upon request of the Government, review ex parte and in camera any Government submission, or portions of a submission, which may include classified information.” 50 USC 1803, which creates the FISA Courts, contemplates appeals to the USSC, which should be sealed:

The Chief Justice shall publicly designate three judges, one of whom shall be publicly designated as the presiding judge, from the United States district courts or courts of appeals who together shall comprise a court of review which shall have jurisdiction to review the denial of any application made under this chapter. If such court determines that the application was properly denied, the court shall immediately provide for the record a written statement of each reason for its decision and, on petition of the United States for a writ of certiorari, the record shall be transmitted under seal to the Supreme Court, which shall have jurisdiction to review such decision.

In the FISA Rules of Court, Rule 62 governs the publication of opinions and orders. Under this Rule, the Court may choose to publish documents sua sponte, and the Government may release documents without a court order. In Rule 62 (a) “The Judge who authored an order, opinion, or other decision may sua sponte or on motion by a party request that it be published. Upon such request, the Presiding Judge, after consulting with other Judges of the Court, may direct that an order, opinion or other decision be published. Before publication, the Court may, as appropriate, direct the Executive Branch to review the order, opinion, or other decision and redact it as necessary to ensure that properly classified information is appropriately protected pursuant to Executive Order 13526 (or its successor).” Rule 62 (b) “Other Records” states that: “Except when an order, opinion, or other decision is published or provided to a party upon issuance, the Clerk may not release it, or other related record, without a Court order. Such records must be released in conformance with the security measures referenced in Rule 3.” Rule 62 sets the default option for the output of the FISA Court as not published, or sealed. The BlueBook, ever thorough, does provide a citation format for FISA Opinions. Per Rule 10.4, use FISA Ct. and FISA Ct. Rev.

As far as I can tell, the FISA Court has issued only one opinion, in May 2002. The case does not even have a name; the best I can do to cite it is In re all matters submitted to the Foreign Intelligence Surveillance Court, FISA Ct. (2002). This case was appealed to the FISA Court of Review, which also published its opinion on the matter. That opinion, In re Sealed Case, is discussed in the following paragraph.

The FISA Court of Review, which hears appeals from the FISA Court, has published two opinions. The first, In re: Sealed Case, is published at 310 F.3d 717 (2002) [the DOJ published the slip]. In that case, the FISA Court imposed restrictions on aspects of the Government’s surveillance, and the Government appealed, seeking permission to implement those. The FISA Court of Review held that the restrictions were not required by FISA or the Constitution, and remanded the case back to FISA to remove the restrictions. The second opinion, In re: Directives pursuant to Section 10(5)(b) of the Foreign Intelligence Surveillance Act, published at 551 F.3d 1004 (2008), challenged the legality of a directive compelling a communications service company to assist the government in acquiring information on third parties reasonably believed to be outside the United States. The analysis was centered on the Protect America Act, which was later repealed and superceded by the FISA Amendment Act of 2008. The FISA Court of Review held for the government, and found the PAA to be constitutional, and the directive valid. Unlike In re Sealed Case, In re Directives is redacted in several areas. In re Directives cites the prior FISCR case throughout.

In re Directives issues the following order regarding publication:

WHEREAS,
1. An opinion that addresses and resolves issues of statutory and constitutional significance has been filed under seal;
2. It would serve the public interest and the orderly administration of justice to publish this opinion;
3. Publication of an unredacted opinion would disclose materials that have been properly classified by the Executive Branch;
4. Redactions, after consultation with the Executive Branch, can be made to exclude such classified materials without distorting the content of the discussion of the statutory and constitutional issues;
5. Such redactions have been made by the Court;
IT IS HEREBY ORDERED that:
1. The redacted opinion shall be published in the usual manner employed by the United States Courts of Appeals.” (1016)

In this case, then, the Court did not unseal the underlying opinion by the FISA Court.

FISA warrants have also been addressed in published opinions by other courts. See U.S. v. Duggan, 743 F.2d 59 (2d Cir. 1984) and U.S. v. Megahey, 553 F.Supp. 1180 (E.D.N.Y. 1982); challenging evidence admitted in furtherance of a prosecution obtained without a warrant under FISA. Since the issues are raised in a public, non-secret court, the opinions are published just like any other.

In 2010, the Justice Department and the Office of the Director of National Intelligence established a procedure to declassify the opinions of the FISA Court, and FISA Court of Review, that contained “important rulings of law.” In 2012, the Federation of American Scientists submitted a FOIA request to produce the declassified opinions, but the request was returned with “no records found.” According to declassified information from their semiannual reports, the court is hearing upwards of 1,000 petitions per year. It seems unlikely that in two years, not one of these cases generated an opinion that dealt with “important rulings of law,” but there you have it.

Without expounding on the merits of FISA – that is a much more involved debate – I think the lack of transparency for the Court’s decisions is troubling. There is certainly a delicate balance involved here. I do not take my safety as a citizen for granted, but we have an absolute right to know the law to which we are held accountable.

In In re Directives, Judge Selya describes the balance as thus:

Our government is tasked with protecting an interest of utmost significance to the nation — the safety and security of its people. But the Constitution is the cornerstone of our freedoms, and government cannot unilaterally sacrifice constitutional rights on the altar of national security. Thus, in carrying out its national security mission, the government must simultaneously fulfill its constitutional responsibility to provide reasonable protections for the privacy of United States persons. The judiciary’s duty is to hold that delicate balance steady and true. (1016).

I contrast this statement with this rather hubristic nugget I found on the website for the Federal Judicial Center. In describing the relationship between FISA Ct. and FISA Ct. Rev, the FJC tells us “Because of the almost perfect record of the Department of Justice in obtaining the surveillance warrants and other powers it requested from the Foreign Intelligence Surveillance Court, the review court had no occasion to meet until 2002.” I assume that by “perfect,” the author means that the court has not turned down any requests, and thus the government has not had occasion to appeal. But reading that description sends a little chill down my spine. To the lay person, it means the Court and Government have been without fault in their surveillance. We have no idea what standards, outside of the 4 corners of the statute and the 2 cases that discuss it, the Court is applying to make these decisions. Court opinions serve an objective beyond research material for lawyers. They inform the public of exactly how courts are arriving at their decisions. They provide transparency to the legal system to which we are all held accountable. They also provide us with a mechanism by which to keep the judiciary in check: their work is available for all of us to review. In the case of FISA and FISA Ct. Rev., we are in the dark.

For fun, check out the CATO Institute’s video on FISA http://freegovinfo.info/node/3840

Also check out Clapper v. Amnesty Int’l, an ongoing case regarding FISA and challenging its constitutionality.

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A Clean Well Lighted Place for Justia Weekly Writers’ Picks

2012-12-14T22:07:27Z

Ernest Hemingway makes his way into our Daily Summary picks this week. . .

907 Whitehead Street, Inc. v. Secretary of the U.S. Dept. of Agriculture, et al., US 11th Cir. (12/07/12)
Agriculture Law, Government & Administrative Law

The Ernest Hemingway Home and Museum appealed the district court’s post-trial order denying it declaratory and injunctive relief. The Museum challenged the jurisdiction of the USDA to regulate the Museum as an animal exhibitor under the Animal Welfare Act (AWA), 7 U.S.C. 2131 et seq. The court concluded that the Museum’s exhibition of the Hemingway cats (descendants of Hemingway’s polydactyl cat, Dexter), which roamed freely on the Museum’s grounds, substantially affected interstate commerce where the Museum invited and received thousands of admission paying visitors from beyond Florida, many of whom were drawn by the Museum’s reputation for and purposeful marketing of the Hemingway cats and where the exhibition of the Hemingway cats was integral to the Museum’s commercial purpose. Therefore, Congress had the power to regulate the Museum and the exhibition of the Hemingway cats via the AWA.

Moore v. Madigan, US 7th Cir. (12/11/12)
Constitutional Law

Plaintiffs challenged an Illinois law that forbid carrying a gun ready to use (loaded, immediately accessible, uncased), with exceptions for police, security personnel, hunters, members of target shooting clubs, a person on his own property, in his home, in his fixed place of business, or on the property of someone who has permitted him to be there with a ready-to-use gun,720 ILCS 5/24-2. Carrying an unloaded gun in public, uncased and immediately accessible, is prohibited, other than excepted persons, unless carried openly outside a vehicle in an unincorporated area and ammunition is not immediately accessible. The district court dismissed, holding that the Second Amendment does not create a right of self-defense outside the home. The Seventh Circuit reversed, but stayed its mandate for 180 days to allow the legislature to draft new restrictions. The Supreme Court has decided that the amendment confers a right to bear arms for self-defense, which is as important outside the home as inside. Evidence, although inconclusive, is consistent with concluding that a right to carry firearms in public may promote self-defense. Illinois failed to provide more than merely a rational basis for believing that its sweeping ban was justified by increased public safety.

Rayess v. Educ. Comm’n for Foreign Med. Graduates, Ohio Supreme Court (12/6/12)
Contracts

Appellee, a graduate of a foreign medical school, was required to be certified by the Educational Commission for Foreign Medical Graduates (commission) before applying for medical residency in Ohio. Appellee thus applied to take a United States Medical Licensing Examination (USMLE) examination administered by the commission. Appellee took and failed Part I of the examination. Fifteen years later, Appellee sued the commission for breach of an express written contract, alleging that the commission had failed to administer part I of the USMLE in accordance with the terms and conditions contained in an informational pamphlet provided by the commission, and the breach caused him to fail the examination and suffer damages. The trial court granted the commission’s motion for judgment on the pleadings, concluding that the documents attached to the complaint did not constitute an express written contract and that, even if a contract existed, the statute of limitations for oral contracts barred recovery. The court of appeals reversed. The Supreme Court reversed, holding that the informational pamphlet was not a written contract, and thus, Appellee could prove no facts in support of his claim entitling him to relief, and the commission was entitled to judgment as a matter of law.

Hogg v. Oklahoma County Juvenile Bureau, Oklahoma Supreme Court (12/11/12)
Government & Administrative Law, Injury Law, Insurance Law, Labor & Employment Law, Public Benefits

Petitioner Vincent James Hogg, Sr. sought review of a Workers’ Compensation Court order which denied his workers’ compensation benefits based upon the court’s interpretation of 85 O.S. 2011, section 312 (3). Petitioner was employed by the Oklahoma County Juvenile Detention Center when in late 2011, he sustained an injury to his right shoulder and neck while subduing an unruly and combative juvenile. Petitioner was given a post-accident drug screen and a follow-up screen the next day. Both screens showed a “positive” result for the presence of marijuana in his system. Petitioner did not dispute the test results but Petitioner denied ever smoking marijuana. The trial court ultimately found there was no evidence presented to establish Petitioner was “high,” nor was there any evidence to establish the marijuana in his system was the “major cause” of the accidental injury. The trial court did, however, deny Petitioner’s eligibility for workers’ compensation benefits by reason of its interpretation of the newly created 85 O.S. 2011, section 312 (3). The dispositive issue presented to the Supreme Court was whether the trial court erred in its interpretation of the statute. The trial court found the last sentence of paragraph 3 expressed the legislative intent of the entire paragraph without giving any weight to the other sentences in the same paragraph. In its order, the trial court indicated this sentence created an ir-rebuttable presumption. Upon review, the Supreme Court disagreed. The Court concluded that Petitioner overcame the rebuttable presumption of ineligibility for workers’ compensation benefits. The case was reversed and remanded for further proceedings.

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Ninth Circuit to Publish Opinions In-House, Sort Of

2012-12-13T22:58:08Z

The Ninth Circuit Court of Appeals recently announced that it will move to “in-house publishing” of its opinions. According to the press release, “Court staff now manage the process of converting opinions from the original word processing documents into Adobe PDF files, which are then uploaded onto the website, where they can be viewed and/or downloaded by the public.” This task was previously managed by West Publishing, and bringing it in house is expected to save the court $350,000 in the first year.

Hooray? Sort of. I’m glad the Ninth Circuit will be saving itself over a quarter of a million dollars, but that’s basically the only public benefit here. In fact, the headline on the press release is a bit misleading, because the court is not officially publishing their own opinions – West is still doing that. The documents they post are only slip opinions. They are official and can be cited only for a short time before they are published by the official publisher (The Federal Reporter, owned by Thompson West). In order to effect real savings and provide true open access for the public, the Ninth Circuit needs to take this further and actually publish their own opinions.

Right now, when the Ninth Circuit judges issue an opinion and release it on the Web, it is immediately available to read and cite as a slip. After that, however, they send the opinions to Westlaw, who copy-edits each opinion and adds a citation in order to resell it in this final “official” version (in the Federal Reporter). I talked with David Madden in the Public Information Office at the Court, and he confirmed that this process will not change; West’s Federal Reporter will continue to publish the official opinions.

I guess we shouldn’t be surprised that it remains staus quo – Westlaw must have a mighty grip on the courts if they are able to charge $350k per year to post documents to a website. Stop and let that number sink in: $350k to convert word docs to pdf and upload them to the web. That is insane. And when you consider that Westlaw is taking those same opinions and selling them back to us, it’s even more insane. The law is produced at great expense to the American taxpayer (courts, judges, clerks, public attorneys, court reporters all cost money). It carries the imprimatur of government, but is technically owned by private publishers. Judges are actually paying Westlaw to read the law they have written.

There is a solution: universal citation, which is a jargony way of saying courts should just put their own simple citation on an opinion and publish it as official. Drafters insert paragraph numbers into the document for pinpoint citation. Opinions are official and instantly citable once they are online. If the document is declared official by the court, they will also require you to cite to it. Implementing universal citation wouldn’t take much effort, especially now that in-house support is formatting, converting, and posting the documents for the Ninth Circuit.

At the very minimum, the court should have a copy of the final, official opinion. Right now, the only states that actually provide free online access to their official opinions are those states that employ universal citation (and the United States Supreme Court). Hell, get a copy of the official opinions and put them online – we’ll add the paragraph numbers and citations.

The court has a major opportunity here. This is the American West – we started the digital revolution and we are leaders in innovation and technology worldwide. The Ninth Circuit has taken the first step toward eliminating the virtual paywall around court opinions, and now it needs to go further. Other courts of appeal will follow their lead.

The court cites cost savings and ease of use for bringing web posting in house. They want to make the documents friendly to read on a tablet, so they are using a .pdf format. That’s one way to embrace technology, but innovation would be better served by taking a leadership role in applying universal citation to the opinions.

Don’t worry about Lexis and Westlaw, though. They will still find a way to make money off of the slip opinions. As a matter of fact, they are currently fighting over using the temporary slip opinion citation that West produces.

PS. The court is now adding brief summaries to its opinions, which actually IS very useful to those who read them. The release notes that “West previously produced the summaries, but for copyright reasons they could not be included with opinions made online.” $350k doesn’t go very far these days, huh?

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