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Monthly Archives: May 2006

That Goddamn Bell Couldn’t Save Everyone

saved.jpg For those of us who came of age during the Reagan/Bush era - before the pop culture landscape became littered with 500 channels of commercialized excrement - there was a certain type of off-network show that provided solace after a long day of geometry problems, bully taunts, and hormonal confusion. I’m not sure what it was about the time period that made these shows so appealing - the influence of John Hughes, trickle-down economics, or a general apathy toward quality - but for some reason, television shows like “Charles in Charge,” “My Secret Identity,” and “Small Wonder,” gave us a modicum of comfort after school and during long, lazy Saturday afternoons. Foremost amongst these shows, and probably highest in terms of vacuity, was the “Saved by the Bell,” juggernaut, which introduced the torrid love affair between Zack Morris and pre-breast implant Kelly Kapowski, the erection-inducing Jessie Spano, the sexually ambiguous A.C. Slater, and the appealingly mentally-challenged Screech (Dustin Diamond), who - contrary to popular opinion - was not related to the Beastie Boys’ Mike D.

Forgotten amongst “Saved by the Bell’s” key players, however, was the token black character, Lark Voorhies (no relation to Jason), who played the vain Lisa Turtle with gleeful aplomb, but who now barely warrants mention in the lore of VH1’s “I Love the 80s.” That is, until today.

As it turns out, there is a reason besides a refusal to pose for a Larry Flynt skin-mags and appear in soft-core porn films that Lark has faded into obscurity. Indeed, according to court papers filed this week in Los Angeles Superior Court, Voorhies has been unable to procure an acting role because the National Enquirer has allegedly libeled her by accusing her of an addiction to nose candy, i.e., cocaine - or what Rick James would call “a hell of a drug.” Lark, understandably, has wiped the encrusted granules off of her upper lip, denied the allegations, and brought suit against the National Enquirer, seeking unspecified damages after the Voorhies feature brought her untold “humilation, embarrassment, hurt feelings, mental anguish, and suffering.”

In other words, Lark Voorhies is trying to raise more money to support her addiction to the white boogies.

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The Daily Memo - 5/31/06

homeland.jpgTim O’Reilly provides a very reasoned and thoughtful response to the “WEB 2.0” trademark flap. (O’Reilly Radar)

homeland.jpgToday, New York’s high court will hear argument on the issue of gay marriage. (CNN)

homeland.jpgThe Supremes are going to hear Philip Morris’ appeal of the $80 million verdict hanging over its head. (CNN)

homeland.jpgBut they won’t be hearing Yahoo’s international fight over Nazi memorabilia or a case about the Boy Scout’s alleged discrimination against nonreligious kids. (Law.com & WMAQ)

homeland.jpgA doctor is suing his own hospital for allegedly failing to safe his wife with emergency surgery. (FindLaw)

homeland.jpgA Virginia teenager, previously employed at Taco Bell, was sentenced to six months in jail after pleading guilty to various charges stemming from her decision to spit into a man’s Mountain Dew. (Fredericksburg.com)

homeland.jpgIn Washington State, if you play online poker you are now committing a felony with a maximum penalty of five years in the clink and up to $10,000 in fines. (The Rolling Good Times Online)


Is it too late to contribute to the Revolutionary War so that I can have my name included on the Declaration of Independence as a booster?

saw.jpgCheck this out. If you’ve ever paid a phone bill, you have contributed to the financing of the Spanish-American War. You know, the one that ended over a century ago.

So…yeah. Apparently, Congress issued an excise tax on long-distance telephone service back in 1898 to help finance the war and when the war ended, well, they just kept taking our money anyways. So every month, three percent of your long-distance bill has gone to the feds as part of this tax. From land line bills and cell phone bills.

But all that’s over. And you can actually thank the big telco’s for this one. The tax actually costs them a lot more than it costs Joe and Jane Taxpayer, so they sued the feds to have the tax repealed, which is what has led to its end. And the IRS is taking it a step further, offering a 2006 tax credit to cover any such contributions you inadvertently made over the last three years. That credit will either be for some predetermined but not yet determined amount, or you can dig through your old phone bills and claim the actual amount you paid.

Of course, the whole thing creates a nice balance, since our grandkids and great-grandkids will probably still be paying for our current war efforts.

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First Rule of Fight Club - No Geeks

fightclub.jpgThe great thing about David Fincher’s 1999 cult classic, Fight Club - besides its anti-consumerist themes, Meat Loaf’s man-breasts, and Helena Bonham Carter holding a cigarette in various stages of undress - was its testosterone-fueled energy, its glorified machismo, and its view of violence as a sort of replacement therapy for Pottery Barn furniture and Martha Stewart’s line of dish towels (“Single-serving sugar, single-serving cream, single pat of butter. The microwave Cordon Bleu hobby kit. Shampoo-conditioner combos, sample-packaged mouthwash, tiny bars of soap.”). For law students and other young professional men of the time, Fight Club’s blood-drenched beat-downs, delivered at the hands of a glistening Brad Pitt and a subversively intelligent Ed Norton, provided a cinematic outlet for our pent-up yuppiefied aggression, which for so long had been tempered by the soul-destroying Socratic Method, complex accounting rules, or the unraveling of intricate tax loopholes. And, for as long as it remained purely theoretical, we could envision ourselves swapping blows, kicking ribs, and spitting out teeth with Bob in HR.

Unfortunately, this week my vision of bloody pummeling and human-based soap products has forever been altered after learning that a bunch of Silicon Valley hi-tech geeks have started their own version of Fight Club. Though police have broken up Fight Clubs involving teens in Jersey and Pennsylvania in recent months, apparently adult-based fight clubs are more likely to escape the attention of the 5-0.

And now, to my utter despair, I will never again be able to think about Fight Club without picturing a bunch of effete Simons and Poindexters chucking mouse pads at each other, pulling each other’s hair, and hurling pi-based epithets until some Microsoft geek starts weeping when he chips a tooth on another guy’s Cathode Corner Nixie Watch. In a world where Steve Jobs, Bill Gates, Sergey Brin and their minions are already on the cusp of world domination, you’d think they could at least leave the ass-whippings to the lawyers, doctors, accountants, and other former frat boys. But no. Now they’ve co-opted one of our few remaining sacred vestiges.

I am Jack’s complete lack of surprise.


The Daily Memo - 5/30/06

homeland.jpgThe Washington Post provides an interesting look into the lives of the lawyers in the Enron case. (Washington Post)

homeland.jpgAn interesting British take on the recent decision handed down against Apple. (The Register)

homeland.jpgThe jury has gone into deliberations in the Maryland trial of the D.C. sniper. (CNN)

homeland.jpgA New York woman plans to sue her daughter’s school district because she told the school that her 15-year-old daughter was not allowed to be given internet access, yet the girl was able to use school computers to meet an 18-year-old on MySpace. (WWTI)

homeland.jpgGlamour Shots? Nah. Just the latest craze in mug-shot posing. (The Smoking Gun)


Supreme Court Decision Update - Garcetti v. Ceballos

supreme1.jpgToday’s lone Supreme Court case, Garcetti v. Ceballos (PDF of the opinion) gives us one of the longest opinions to be published this term (coming in at 43 pages), although this is largely due to the presence of a dissenting opinion that runs longer than the majority opinion. The case deals with how First Amendment speech protections should apply to public employees speaking in their official capacity, and the Supreme say that these protections simply do not apply - that is, when a public employee is speaking in their official role as a government employee, their speech is not protected and their employer (the government) can discipline them for inappropriate comments.

QuizLaw Analysis: The majority has created a hard-and-fast rule that says if you’re a government employee talking about work-related stuff, you have no First Amendment protection, period. So to all you public employees out there - tread lightly.

Before we get into the legal meat of the case, here’s the background story. Ceballos, a Los Angeles deputy D.A., was contacted in 2000 by a defense attorney regarding a pending criminal matter. Specifically, the defense attorney wanted to let Ceballos know that he was challenging a search warrant on the basis that the underlying affidavit was inaccurate, and that he also wanted Ceballos to review the matter. Ceballos did review it and, deciding that the defense attorney was correct, called the deputy sheriff who was the affiant (that is, the person who made the original affidavit). Unhappy with the sheriff’s attempted explanation of what Ceballos saw as clear misrepresentations in the affidavit, Ceballos notified his superiors of the problems and prepared a memo explaining the problems and recommending that the criminal case be dismissed. Despite this memo, a second memo and a follow-up meeting, Ceballos’ supervisors decided to allow the prosecution of the criminal case to continue, pending a hearing on the defense attorney’s motion. Although Ceballos testified for the defense and explained his concerns over the affidavit’s accuracy, the motion was ultimately rejected by the court and the prosecution of the case continued. Following the hearing, Ceballos contends that he was subjected to several retaliatory actions by his supervisor, including being reassigned, transferred and denied a promotion (and the focus of most of the discussion is on the idea that these were in retaliation specifically for Ceballos’ first memo, as opposed to his subsequent memo or testimony at the hearing).

After his claims were denied in an employment grievance, Ceballos filed a lawsuit claiming his First and Fourteenth Amendment rights were violated when his employer retaliated against him for the memo. The D.A.’s office responded by arguing that their actions were not retaliatory and that they were simply called-for by the needs of the office. They also argued that the memo was not protected speech under the First Amendment and moved for summary judgment on this basis. The District Court granted the motion, agreeing that the memo was not protected speech because it was written pursuant to Ceballos’ duties as a governmental employee. The Ninth Circuit reversed this decision, relying on precedent which instructs the court to look at whether the speech was made by someone speaking “as a citizen upon matters of public concern.” Ignoring the question of whether Ceballos was “a citizen,” the Ninth Circuit held that the memo was protected speech because it was expressing Ceballos’ opinion on “a matter of public concern.” The Ninth Circuit then conducted a balancing test, concluding that Ceballos’ interest in the speech outweighed his supervisors’ interest in responding to, or retaliating against, that speech.

The Supremes, in a majority opinion written by Justice Kennedy and joined by Chief Justice Roberts and Justices Scalia, Thomas and Alito, reversed the Ninth Circuit’s decision. Kennedy’s take is that government employers are entitled to exercise rather broad discretion over employee speech and actions in order to efficiently serve the government employer’s public purpose. However, the employer is not entitled to impinge upon rights the employee holds as a private citizen. Thus, there are two inquiries the court must make in determining whether a public employee’s speech is entitled to protection: (i) was the employee speaking as a citizen on a matter of public concern; and (ii) if so, was the government employer adequately justified in taking actions which served to treat that employee differently than members of the general public?

Turning to the specific of this case, the majority finds that Ceballos’ memo qualifies as speech made in his official role as a government employee. The main reason for this decision is not that the memo was internal rather than public, nor is it that the memo addressed a subject specifically related to his employment. Rather, the main factor controlling the Court’s decision is that the expressions presented in the memo were made by Ceballos pursuant to his official duties - writing such a memo is part of his job. Thus, he was not acting as a private citizen and he is therefore entitled to no First Amendment protections. While the Court recognizes the importance of being able to expose misconduct and inefficiencies within government entities, it believes there are already sufficient checks and protections to provide for this, such as whistle-blower statues, labor codes, and rules of conduct.

Justice Souter drafted the longest part of today’s opinion, an 18 page dissent joined by Justices Stevens and Ginsburg. While Souter agrees that government employers need to be able to effectively implement policy and objectives, he believes this is outweighed by the interest in “addressing official wrongdoing and threats to health and safety.” Citing a Robert Frost poem, Souter explains that he believes drawing a categorical line between a person’s interest as a citizen and their interest as a public employee is folly. He agrees with the majority’s point that official communications have consequences in the office and that employers have a need to exercise some control. However, he does not believe that this need means that First Amendment protections should be categorically excluded. He also believes that the majority’s approach will lead to an increase of “factbound litigation” to determine, in any given situation, whether the speech at issue was made “pursuant to official duties.” Souter also doesn’t buy the majority’s argument that whistle-blowers statues and the like sufficiently provide for government oversight, finding that it merely all “add[s] up to a patchwork” because of the differences between various state and federal laws. Ultimately, Souter would treat these cases by always conducting a balancing test, weighing the employee’s speech interests against the government employer’s public interests. However, Souter would have this test favor the employers’ interests (i.e., favor a finding of no First Amendment protection), unless the speech touches on some matter of high importance (e.g., whistle-blowing, health and safety) and was made in a highly responsible way.

In addition to joining in Souter’s lengthy dissent, Stevens wrote a separate dissenting opinion to emphasize his disagreement with the majority’s answer to the question of whether the First Amendment provides protections to speech made by a government employee in his official capacity. While the majority answers “never,” Stevens would like to remind everyone that believes the answer should be “sometimes.” As discussed by Souter, Stevens similarly does not believe that there is a “categorical difference between speaking as a citizen and speaking in the course of one’s employment.” In fact, he thinks the majority’s opinion perversely fashions “a new rule that provides employees with an incentive to voice their concerns publicly before talking frankly to their superiors.”

Finally, Justice Breyer wrote his own dissenting opinion, because he doesn’t fully buy into the rules fashioned by either the majority or Justice Souter. He agrees that application of the First Amendment must be flexible, providing different protection to different categories of activity. He also agrees that when we’re talking about government employees’ speech, First Amendment protection should be limited to that protection which doesn’t get in the way with legitimate government interests. So if government employees are speaking as a citizen with regard to matters of public concern, Breyer believes the speech may be entitled to protection if it passes a balancing test. Thus, Breyer disagrees with the majority’s ruling for the same reason as Souter and Stevens, believing that the notion of no protection, ever, is too harsh. While it appears that Breyer is agreeing with Souter, he goes on to explain that he also doesn’t like the application of Souter’s balancing test, namely, that the government always wins unless the speech was on a matter of unusual importance and satisfying high standards of responsibility. This requires judicial activity, as it requires courts to conduct this balancing test, and he believes that this could interfere with the machinations of the government employer. So Breyer’s ultimate rule would be that First Amendment protection is afforded to government employee speech which is addressing a matter of public concern and which took place as part of the employee’s official duties if the specific situation calls for heightened constitutional protection and avoids “the risk of undue judicial interference with governmental management of the public’s affairs.” I have to admit that I am, personally, confused by this because this rule appears to still have the court sticking its nose into the government employer’s business, so I’m not really sure where Breyer ultimately wanted to go with this.


“Get to da chopper!”

predator.jpgNow granted, Predator didn’t have much of a plot beyond “cool-ass alien with dreadlocks hunts and kills everyone in the jungle,” so it’s understandable that many of you may not remember the small plot-point that caused everyone but The Governator to die in the first place - the helicopter that was supposed to extract the commando team couldn’t land anywhere nearby because the area was not secure. If the helicopter could’ve landed where Arnold and company originally wanted, everyone would’ve survived: Carl Weathers wouldn’t have lost his arm and life and, more importantly, Jesse “the Body” Ventura could’ve lived to go on and become a Governator in his own right.

Well, if local residents of Scottsdale, Arizona one day find themselves in a similar predicament, much like Messieurs Weathers and Ventura, they could well end up becoming prime meat-targets for aliens on the hunt. The reason for this is that the city is considering changing a zoning ordinance to ban helicopters from landing in city neighborhoods. While some residents are happy about the idea (for noise and safety reasons) and others are opposed to the idea (because they apparently need the luxury travel only a helicopter can offer), they’re all missing the big picture here:

No allowance for local helicopter landings = obvious point of first contact for next wave of Predator hunting.

Scottsdale, you’ve been warned. Don’t come crying to QuizLaw when all your local residents find their skulls being collected as trophies by “one ugly motherf’er.”

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The Daily Memo - 5/29/06

memorial.jpg

homeland.jpgO’Reilly is exercising trademark rights for “Web 2.0,” to the ire of many. (c|net)

homeland.jpgThe Arizona Supreme Court has ruled that scumbag pedophiliacs can’t be arrested when lured out by undercover television exposes, if the luring person is not actually a minor or a police officer. (AZ Star)

homeland.jpgIn New York, an ice cream vendor has pled guilty to beating up two of his competitors in an ice cream turf war. (Newsday)

homeland.jpgIn a big win for bloggers and the internet, a California appeals court ruled against Apple, declaring that First Amendment protection applies to bloggers and refusing to force a blogger to reveal where it obtained Apple’s confidential information. (New York Times)

homeland.jpgIn a case supposed to be the first of its kind, a dentist is seeking a divorce decree from beyond the grave. (CNN)

homeland.jpgThe Delaware Supreme Court has upheld the growing trend making it harder to obtain the identity of anonymous internet publishers. (Likelihood of Confusion)


The Daily Memo - 5/26/06

homeland.jpgApple has applied for a trademark for the term “MAC PRO,” presumably for a new line of high-end computers expected later this year. (Gizmodo)

homeland.jpgHoward Stern and CBS have reportedly settled their dispute over Stern’s move to Sirius satellite radio. (TV Squad)

homeland.jpgA California Court has ruled that animal rights activist can hold a protest outside of Marine World’s front gates and that the park’s prior beating of a protestor who was on public property was a violation of his constitutional rights. (Vallejo Times Herald)

homeland.jpgPlaintiffs in class-action lawsuits against dating service Great Expectations are fighting each other over who should be entitled to money from the service. (Law.com)

homeland.jpgThe MPAA has been sued by the parent company of Torrentspy.com for allegedly getting a hacker to steal e-mails and trade secrets from Torrentspy. (Slashdot)

homeland.jpgA net neutrality bill has been approved by the House Judiciary Committee. (c|net)

homeland.jpgA new Senate bill has been introduced, proposing to allow consumers to pick which cable chanels they would like to include in their subscription. (Los Angeles Times’ Calendar Live)

homeland.jpgA variety of television networks have sued Cablevision over its “network DVR,” which allows for the remote storage of recorded shows, claiming that the cable company is essentially providing on-demand service without paying the necessary license fees. (Engadget)


Quick Hits, Part II

slap.JPGIf you didn’t get the memo, this week is “assault your lawyer in open court” week. Hurry to the celebration while you still can. A Washington man getting ready for his assault trial decided to celebrate by slapping his court-appointed lawyer during the jury selection process, getting the judge to declare a mistrial because potential jurors saw and heard the incident. Meanwhile, a Boston man, angered by the performance of his attorney during a murder trial, tried to strangle his lawyer after the court issued several rulings that he was apparently less than thrilled with.

Maybe these guys are all worked up from drinking Red Bull and vodkas, although one must now wonder if that was actually Red Bull in there. Red Bull North America, Inc., the distributor of the “it gives you wings” energy drink, has sued an Iowa bar for trademark infringement. Seems that the bartenders there, when asked for a Red Bull and vodka, or any other drink combined with Red Bull, use the competitive brand Roaring Lion without telling the customers about the substitution. Thus, when these customers notice the sweet-yet-uriney taste in their drink, they don’t realize they’re not tasting Red Bull brand energizing tastes-like-urine.

And finally, this one speaks for itself. “A federal courtroom was transformed into a rhythmic hip-hop battlefield on Tuesday with jurors bobbing their heads in a copyright trial pitting a New Jersey group against rappers Ludacris and Kanye West.”


Quick Hits, Part I

sheep.jpgA Nebraska man was found guilty of molesting a child, but the court decided not to sentence him to prison, instead giving him 10 years probation. Why? Because the judge thought the 5-foot-1-inch man was too small to survive the rigors of prison. Unsurprisingly, this decision has been met with controversy. But the secretary of the National Organization of Short Statured Adults is happy with this ruling, because the child molester “would probably end up being somebody’s woman [in prison].” So shorter people should get special treatment when they commit the most heinous of crimes? Seriously?

Meanwhile, if you live in Arizona, the good times are over. Apparently the only law on the books criminalizing bestiality was one that made it a misdemeanor unless there was a minor present. But now the governor has finally signed a new bill into law fixing this oversight, making such acts a felony. The impetus for this bill was apparently the March arrest of a fire chief accused of molesting his neighbor’s sheep. No word on if the man was short enough to avoid jail time.

And speaking of animals, Rhode Island is on the path to becoming the first state that would require all cats older than 6 months to be spayed or neutered, unless their owners get a special permit or breeder’s license. While the logic behind this bill makes total sense (that is, to hopefully curb the overcrowding in animal shelters and to avoid the unnecessary killing of strays), animal rights advocates are of course all worked up about it because they’re afraid owners will just throw their cats to the street rather than try to comply with the law. But apparently they’re ok with cat owners keeping their cats fertile and then throwing the eventual litter into the street.


Florida Fridays

florida.jpgI’ve talked before about my love for good ol’ Florida. Here’s two more reasons to love the Sunshine State.

First, in a rather tragic turn of events, a family is suing Polk County following the 2002 death of their teenage son. The sixteen-year-old died in a car crash which was the result of a car chase involving speeds up to 120 miles per hour. The boy and his friend were being chased by a local deputy and the “only in Florida” part is that the deputy was allegedly chasing the boys because he was a pedophiliac who intended to sexually assault them. The deputy has since pled guilty to charges of practicing medicine without a license, for pretending to be a doctor’s aide and conducting exams on young men, and is currently rotting in jail.

Second, a Miami man is currently awaiting trial on murder charges. His case is set to go to trial in July, but he has had trial dates come and go before because he apparently doesn’t like lawyers - the man was just appointed his tenth defense lawyer in the case. As a result of having chewed through nine lawyers already, his case is eight years old. The prosecutor on the case, who’s been involved for all eight years, believe the man is strategically not getting along with his court-appointed lawyers to to avoid being tried for the gruesome allegations of kidnapping a woman and her five-year-old daughter, and eventually murdering the little girl. Why hasn’t a judge put the kibosh on this long ago, you ask? Because it’s Florida!

I seriously don’t get what’s in the drinking water down there.

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I want Charles in Charge … of me

eggert.bmpToday, the rest of the legal world is going apeshit over the Kenneth Lay and Jeffrey Skilling verdicts, temporarily forgetting that - to the American Justice system - “white-collar guilty” carries about the same meaning as “a nice vacation” for the rest of us, which I’m guessing means that the future “K-Lay” and “Home Skilling” will probably spend the next 9-12 months in a minimum security prison replete with conjugal visits from plasticine trophy wives, Cuban cigars, DirectTV, a “fenced-in” golf course, conference-calling capabilities, and hummers from their favorite inmate boy-toys. White-Collar Justice - Hoo-Wah!

However, we here at QuizLaw know our target audience, and understand that middle-aged corporate crooks don’t exactly appeal to the 18-34 demographic. But, Myspace.com does, especially for folks who stumble across our site while looking for ways to escape conviction after trolling online for under-age ass (forget about it - you’re going to fry). Which is why we have to hand it to the ingenuity of the Myspace teenage outcasts Shaun Harrison and Saverio Mondelli, who were busted yesterday for attempting to go all Glen Frey on the social-networking site. Allegedly, the two entrepreneuers hacked into the site and pilfered personal information from Myspace users. After Myspace gave them the boot, they threatened to introduce a foolproof method for stealing personal info to the Internets unless the folks at Myspace paid them $150,000. Unfortunately for Harrison and Mondelli, when they went to collect payment, they soon discovered that the Myspace reps were actually undercover cops, and they were arrested and charged with felony counts of illegal computer access and extortion.

And thank god, too, ‘cause it means that for at least a few more days my Myspace alter ego, FineAssLawyer82 (complete with pics of a “Charles in Charge”-era Scott Baio), will remain anonymous and my elusive online-hunt of Nicolle Eggert can continue unabated.


The Daily Memo - 5/25/06

homeland.jpgA woman is refusing probation, opting to instead go to trial over her allegedly fierce attack cat, in an attempt to save the cat from being euthanized. (CNN)

homeland.jpgThe “Son of Sam” David Berkowitz is suing his lawyer under the Son of Sam law, trying to get personal items back from the attorney who, Berkowitz alleges, intends to use them in a book about Berkowitz. (Reuters)

homeland.jpgThe Supreme Court has declined to hear the case of a law school graduate who is being denied an Arizona bar license because of a prior conviction for murder. (Law.com)

homeland.jpgThere’s currently a nice little trademark dispute taking place over “Big Ass” wine. (Law.com)

homeland.jpgA federal appellate judge has said that the government’s attempts to permanently silence companies from talking about the government’s attempts to get customer/subscriber information is probably unconstitutional. (FindLaw)

homeland.jpgAn Oregon judge has thrown out a family’s claim for “loss of companionship” regarding the death of their dog, although other claims were allowed. (Law.com)

homeland.jpgTexas’ Commission on Judicial Conduct has admonished a Texas Supreme Court Justice for improperly using his position and influence to support Harriet Miers in her bid to become a Supreme Court Justice. (FindLaw)

homeland.jpgThe lead plaintiff in the class-action lawsuit over the scratching of iPod nanos has posted an open letter saying that he never wanted anything to do with the case. (Engadget)


In prison you spend your time inside bars thinking about getting out, while at work you spend your time thinking about getting out so you can go inside bars

taps.jpgOk, now this is just going too far! Many people enjoy going out for a good drink after work. You can count me among those people - “happy hour” is happy for a reason. And sure, sometimes I may drink a little excessively and wind up getting a tad blotto. But to those who would object I say: (a) I’m an attorney, and law school teaches you more about drinking than about the law; (b) as Bobby Brown so eloquently put it, it’s my prerogative; and (c) it’s not like I’m drinking while I’m working.

But out in Oregon, the Public Commission on the Oregon Legislature just can’t let people have any fun. On Monday, they adopted a recommendation calling for all state legislators and staff members to avoid drinking or getting drunk after work. That’s just un-American!

Uh…what’s that? The recommendation is that legislatures shouldn’t get drunk while working? Oh, er, never mind then.

So yeah, apparently the president of Crime Victims United was meeting with a legislator to advocate for tougher DUI penalties, while said legislator’s breath was fuming of booze. That was the impetus for this recommendation. Trouble is, the Commission is leaving it up to the legislators to draft their own rules regarding the issue. Why is that legislators seem to be one of the only broad class of people in this country who get to make all the rules about themselves and their pay and what they can and can’t do, with virtually no oversight? If I had that kind of power, I’d probably be drinking on the job too….

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Preparing America’s School Children for Absolutism

salute.jpgOut in Libertyville, Ill., the Community High School Board voted unanimously this week to require all students participating in extracurricular activities to sign a pledge agreeing that any evidence of “illegal or inappropriate behavior” found on the Internet can provide grounds for disciplinary action. According to school officials, about 80 percent of the students participate in extracurricular activities.

Despite issues surrounding: (1) the fact that the school board is extending its oversight outside the bounds of the physical school grounds; (2) the unconstitutional punishment of free speech; and (3) the ambiguity with regard to what constitutes “inappropriate behavior,” we here at QuizLaw fully support this regulation.

Indeed, in light of the NSA wiretapping scandal and the fact that the government is now collecting our phone records, we believe that a regulation like the one passed by the Community High School Board is absolutely critical if high schoolers are going to be prepared to enter the real world. Hell, why should we stop with depriving students of their First Amendment rights to talk shit about their teachers? We should pass more rules, extending subpoena powers to yearbook staff members; encouraging steroid use amongst high-school athletes; promoting the over-consumption of oil; and patrolling school district lines to ensure that undesirables aren’t allowed in. We can do better, America. Our children simply aren’t prepared to live in our society yet, and we here at QuizLaw won’t be satisfied until the nation’s children are sequestered offshore and tortured to within an inch of their lives for chewing gum in class.

Community High School: We salute you.


The Daily Memo - 5/24/06

homeland.jpgIf you are breaking into a dark business and having trouble seeing, don’t use your shirt as a torch. (ABC 4)

homeland.jpgA Florida lawyer is suing a sandwich shop for being fax-spammed with the shop’s daily menu specials. (TBO)

homeland.jpgA new copyright bill has been introduced, the Orphan Works Act of 2006, which would provide guidance for how someone can use copyrighted materials when they can’t find the original author/owner. (CopyBites)

homeland.jpgA New Jersey malpractice case is set to settle the issue, at least in that state, of whether a lawyer’s client can pursue a malpractice claim after the original case has settled. (Law.com)

homeland.jpgThe man who claims “The Apprentice” was stolen from his idea for a show called “C.E.O.” says that he has settled his lawsuit against NBC and The Donald. (FindLaw)

homeland.jpgSony has finalized its settlement in the rootkit litigation. (Slashdot)

homeland.jpgFormer law clerks for Bush nominee Judge Terrence Boyle have launched a defense against attacks on Boyle’s alleged violation of federal laws (by issuing orders in cases involving corporations he owns shares in); however, their defense apparently contains many inaccuracies of its own. (Salon)


That ain’t no green thumb

shrubs.jpgI’ve talked about it before, but I’d like to be a judge. All things considered, they’ve got a pretty cush lifestyle. One of the many things I would like about being a judge is that my office would be a big ol’ fancy building. Maybe with granite and columns and marble floors. That’s cool. Walking up to the courthouse every morning would make me feel all big and important-like. And while I’m walking up the outside walkway and into my “office,” I could enjoy the beautiful state-or-federally-funded greenery. Neatly trimmed grass and beautiful shrubs.

Well, unless I’m a West Virginia judge working in the Raleigh County Courthouse. Seems that there was sandblasting that caused damage to the shrubs outside the courthouse. Ok. So far, nothing wrong with that or terribly out of the ordinary. But you know there’s a “but,” right? Right.

So, sandblasting damage. Nothing out of the ordinary. But, the sandblasting damage has been exacerbated by the fact that local homeless are repeatedly pissing on the shrubs and, as a result, the county commission president says the greens are “turning yellow.” Unsurprisingly, he also says that they “don’t want anymore bathroom use there” and are considering moving the shrubs.

Walking into a courthouse every day to go to work? Classy. Walking past urine shrubs every day to go to work? West Virginia.


For the Love of God! Leave a Man’s Blow-up Doll Alone

blowup.jpgCompliments of The Smoking Gun, we get a police report filed by a man who apparently has no shame. It seems that over the weekend, an Iowa man by the name of Trenton Camacho called the cops to report a stolen Priority USPS package containing his “Jenna Haze Love Doll.” According to TSG:

Camacho said that he purchased the $32 item after receiving an e-mail solicitation and did not plan on replacing the stolen goods. Camacho added that he had not previously ordered any blow-up dolls and was not certain what he was going to do with the life-size replica of the popular Haze, who’s starred in films like “Big Bottom Sadie” and “Phuk Factor” and was named “Best New Starlet” at the 2003 Adult Video News awards. Online ads describe the Haze doll as having “soft, perky breasts” and “sexy silkscreen crotchless panties & she has the tightest holes.”

We here at QuizLaw, however, take issue with Mr. Camacho’s uncertainty as to what to do with the blow-up doll. Indeed, we have two suggestions:

1. Father’s Day is just around the corner, and nothing says STD-free father-son moment like swapping a plastic replica of Jenna Haze with your old man, and it sure beats the hell out of a tie shaped like a sea bass. Or,

2. Camacho could show up with it at a party where he knows his ex-girlfriend is gonna be, so that she and the rest of the world can see that Trenton has moved on with his love life and is absolutely not a pathetic loser.

You see, QuizLaw provides much more than easy-to-understand legal information, we go that extra mile to advise those in need of assistance what to do when given a blow-up doll modeled after a real-life porn star. You’re welcome!


The Daily Memo - 5/23/06

homeland.jpgLast week, the California Supreme Court ripped into a former county prosecutor, telling him about his reputation for lacking honesty and integrity. (Law.com)

homeland.jpgThe discarded evidence from a Colorado Springs Police Department is causing more and more trouble for the local cops. (Denver Post)

homeland.jpgAccording to Attorney General Gonzales, the First Amendment doesn’t trump a nonexistent right “that Americans would like to see,” a right allowing the feds to prevent leaked classified information from being reported by the press. (NY Times)

homeland.jpgThe Supreme Court has sidestepped getting into the issue of parental rights for gay couples. (CNN)

homeland.jpgA lawsuit filed on behalf of author Studs Terkel, among others, has been filed against AT&T over its delivery of phone records to the NSA. (CNN)

homeland.jpgA man has been arrested for a murder he allegedly committed 19 years ago, thanks to DNA evidence from cigarette butts originally taken from the crime scene. (WKMG)


“Orange you glad to see me clocking you doing 65?”

radar.jpgGood ol’ Florida. That’s where you’ll find the city of Gulf Breeze which, earlier this year, decided it wanted to put up one of those camera setups that tags speeders. The state attorney general told the city this was a bad idea as it would violate state law. Specifically, Florida has a law which says that local municipalities cannot enact ordinances that touch on certain matters covered under state law without express approval from the state lawmakers. The City of Gulf Breeze told this legal objection to bugger off and put the camera up anyway, overlooking a highway intersection from a local high school.

Then the state Department of Transportation got into it, pissed off about the fact that the camera was put on land that is part of the DOT’s right of way. The city ignored the DOT’s repeated letters, which argued that the camera was illegally placed without a utility permit from the Department, claiming that it had already spent two years unsuccessfully trying to get that permit. So to avoid the DOT’s continued legal objections over the land use, the city decided to move its toy further from the road, onto land that unquestionably belongs to the school.

That’s where this debacle of city and state politics rests at the moment. But since the move doesn’t appear to touch on the attorney general’s objections, one would think that this is not the last fight Gulf Breeze will have over this camera. You gotta’ love Florda, where a little thing like the law doesn’t stop the local cities from taking steps to make a little extra cash ensure the safety of its citizens.

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John Roberts Rocks the Hoyas

roberts.jpgChiseled and studly Supreme Court Frontman John “McDreamy” Roberts melted some panties yesterday at Georgetown Law School, delivering his first law-school commencement speech as a member of the nation’s highest court. In his brief, 15-minute remarks, Roberts called upon the Supreme Court to provide greater consensus, arguing the importance of deciding issues on the “narrowest possible ground.” The youngest, and arguably hunkiest Chief Justice in the Supreme Court’s history observed that the nation would benefit greatly if the Court could get its shit together and stop disagreeing all the time, waving a peace sign and calling upon the Court to stop arriving at 5-4 decisions and come to a “broader agreement” on narrow issues.

Roberts, in what presumably was an effort to elicit the brassiere removal of the female grads, also showed his snarky side. In discussing the scrutiny that he and Justice Samuel Alito endured during the last year’s confirmation hearings, Roberts noted, “Look at the graduates around you. Twenty some years from now, these are the people the press is going to track down to find something embarrassing about you. Today is the day to decide among yourselves,” he said with a grin, “What happens at Georgetown stays at Georgetown.”

Most relieved among Georgetown law students to hear that statement: Drew Hoffman, the jackass who was sentenced to 12 days of jail after getting clocked going 126 mph trying to impress his girlfriend.


The Daily Memo - 5/22/06

homeland.jpgWhen a Kentucky Judge banned the use of prayer at a local high school’s graduation, about 200 seniors showed their ire over the decision by standing during the principal’s opening remarks and reciting the Lord’s Prayer, to the thunderous applause and standing ovation of the attending audience. (WKYT)

homeland.jpgThe Senate has voted to raise the fines which the FCC can levy against indecency violations. (ABC News)

homeland.jpgThe town council for Appalachia, Virginia is seeking the removal of the local Mayor, believing that he rigged his election two years ago by buying votes with beer and smokes. (ABC News)

homeland.jpgAgents from U.S. Immigration and Customs seized a Mercedes-Benz from an Army reservist, believing the armor-plated car from Iraq to be a possible war trophy. (Yahoo News)

homeland.jpgA new Congressional bill would setup a program to expand the number of federal judges capable of handling complex patent matters. (c|net)


Supreme Court Decision Update - Brigham City v. Stuart

supreme1.jpgToday’s Supreme Court case, Brighton City v. Stuart (PDF of the opinion) deals with search and seizure, and specifically, the “emergency aid doctrine,” which allows officers to enter a home without probable cause in the event of an emergency.

QuizLaw Analysis:The Supremes today decided to further erode the protections of the Fourth Amendment by expanding the emergency aid exception to basically include the threat of an emergency, in addition to actual emergencies. So in response to this, QuizLaw’s advice is to watch where you’re roughhousing in the future, lest the fuzz perceive an imminent emergency and seize your rainy-day stash.

The case involves one of those raucous 3 a.m. parties at a house in Brigham City, Utah. After police were called about the loudness, they arrived, walked down the driveway, and saw two juveniles getting hammered in the backyard. Entering into the yard, they also saw through a screen window and into the kitchen where four more juveniles and an adult were involved in an altercation. Specifically, one of the kids had punched the adult, causing him to spit blood into the sink. The officers entered the kitchen, whereupon the hoo-ha subsided, and the officers then arrested several of the adults, charging them with contributing to the delinquency of a minor and related offenses. Stuart, one of the arrested adults, filed a motion to suppress the evidence obtained after the officers entered the home, arguing it was not admissible because the warrantless entry violated the Fourth Amendment. The trial court, the Utah Court of Appeals, and the Utah Supreme Court all agreed, holding that the juvenile’s punch was insufficient to trigger the “emergency aid” exception to the Fourth Amendment.

The Supreme Court, however, disagreed. In a unanimous opinion written by Chief Justice Roberts, the Supremes held that the officers’ entry was “plainly reasonable under the circumstances.” They noted that, given the fracas going on when they arrived, the officers had an “objectively reasonable basis for believing both that the injured adult might need help and that the violence was just beginning.” Previously, the emergency aid doctrine had stated that police could only enter a home if they had an “objectively reasonable belief that an unconscious, semiconscious, or missing person feared injured or dead was in the home.” The money shot in this opinion, however, is how the Supremes relaxed that requirement, stating that “[n]othing in the Fourth Amendment required them to wait until another blow rendered someone unconscious, semiconscious, or worse before entering.” In other words, the emergency aid doctrine has unofficially been renamed “the threat of an emergency doctrine.”

Justice Stevens filed a several-page concurrence to the unanimous decision, to add his own thoughts to this “odd flyspeck of a case.” In particular, J.P. is a bit flummoxed about how this case actually got to the Supreme Court in the first place, and wants to affirm his earlier refusal to deny certiorari to this case (he obviously lost that fight, or we wouldn’t have this opinion today).


Of Communists, speeders, smoker and Scalitos…

garfield.jpgSince there was no story that particularly tickled my legal funny bone this tiring Monday a.m., let’s do some quick hits.

My favorite quote of the week comes from Fort Lauderdale’s Mayor Naugle, who is incensed at the notion that he’s “supposed to subsidize some schlock sitting on the sofa and drinking a beer, who won’t work more than 40 hours a week.” This was in response to a proposed law which would provide for affordable housing by requiring residential developers to give up a percentage of their fees for the greater good of the community. The Mayor and these developers believe the proposal to be communistic - “[t]he concept of this ordinance is from each according to his ability, to each according to need, which is the Communist Manifesto.”

Meanwhile, an Oregon man who claimed to be running late for a meeting wound up in the clink after getting clocked doing 146 miles per hour in his Beamer. He thought he was simply risking a hefty speeding ticket, not knowing that Oregon law treats folks who go more than double the limit with a trip to jail and the loss of their car. And he didn’t even set the state’s ticketed speeding record, which belongs to a man who got pegged in 1993 going 159 miles per hour.

Poor Big Tobacco. When they are fighting against the wrongful death lawsuits brought by smokers, they like to rely on the popular “personal choice defense,” which says that it’s not their fault because smokers should know better. The Massachusetts Supreme Court has now ruled that they’re not entitled to this defense, as it only applies where a reasonably safe product has been used in an unreasonable way. Since cigarettes simply aren’t safe, the Court reasoned, there is no such thing as a “nonunreasonable” use of them.

And finally - it appears that, back in the day, oral advocates would often mistakenly refer to Justices O’Connor and Ginsburg by the other’s name, despite the fact that the Justices bore no physical resemblance to each other aside from being the only two women on the bench. Well it now appears, with Justice Ginsburg the only presiding female Justice, that the honor of misnomers is falling to Justices Scalia and Alito. Again, while there is no physical resemblance, nervous oral advocates are mixing up the two due their names’ similar sounds:

Both “Scalia” and “Alito” consist of three syllables. The second syllable of each surname sounds identical. The third syllable of Scalia sounds identical to the first syllable of Alito. And the first syllable of Scalia has the same vowel sound as the first syllable of Alito.


The Daily Memo - 5/19/06

homeland.jpgAccording to the Wisconsin Supreme Court, it’s ok for cops to force suspects to drink laxatives in order to recover swallowed drugs. (ABC News)

homeland.jpgKraft Foods is being sued for allegedly including a rodent tooth in a pack of peanuts. (Chicago Sun-Times)

homeland.jpgA Missouri town has rejected a proposal which would allow unmarried couples with multiple kids to live together, and the mayor has said that people in this situation may soon be evicted. (FindLaw)

homeland.jpgThe US Patent and Trademark Office has ordered a reexamintation of Amazon’s “one-click” patent, the controversial patent covering one-click online shopping. (IGDMLGD)

homeland.jpgThe DOJ put the kibash on an offshore Internet gambling ring which had pulled in $2.5 billion. (SiliconValley.com)

homeland.jpgThe National Gallery of Art has admitted to copyright infringement in using the unauthorized research materials of two art scholars in its catalogues. (CopyBites)

homeland.jpgA Los Angeles grand jury has indicted a law firm, in a 102-page indictment, for an alleged scheme that netted millions of dollars in kickbacks. (LawInfo)

homeland.jpgA Kentucky juror has been thrown in the clink for sending an e-mail to the case’s defense lawyer to say that he thought the state’s case sucked. (WLKY)

homeland.jpgSmartest criminal of the week (other than the Bentonville guy we told you about earlier)? The man who stole the identity of a sex offender. (Tennessean)


Stupid criminals need the most love

benton.jpg
It would appear that Bentonville, Arkansas is a great place for the victims of petty crime to live. For example, let’s say you’re a Wal-Mart cashier and you recently had your wallet snatched. In most other cities in our fair nation, there are several possible outcomes. First potential outcome? The cops ignore your filed complaint and you carry on with your walletless life. Second potential outcome? The cops don’t ignore your complaint, but since they don’t have any real leads and there are various murders and drug crimes going on all over the place, you’re still stuck carrying on with your walletless life. Third potential outcome? You try to track down your vanished wallet on your own and of course get nowhere, leaving you to carry on with your walletless life. I think you see the pattern here - you’re most likely not getting your wallet back.

But the criminals in Bentonville make it nice and easy. Remember our hypothetical? You’re a Wal-Mart cashier. So two days after your wallet was lifted, when a customer comes up to your register to pick up some stuff, whose credit card does she give you? Yup - yours!

That customer has of course been charged with all sorts of good things, like forgery, breaking and entering, fraudulent use of a credit card and even two drug charges, while the store clerk is carrying on with her walleted life.

“Come to Bentonville, where the criminals are so stupid they give you your stuff back!”


Hey Mary Poppins! Watch it with the umbrella, alright

poppins.jpgIn what’s sure to trigger a flood of umbrella-related litigation, a 53-year-old woman settled a lawsuit with the State of New York yesterday after she was struck in the forehead by a beach umbrella. Yeah. A beach umbrella.

According to the New York Times, Phyllis Caliano-Bahaj and her son were dallying on the beach one day, when the weather suddenly took a turn for the worse and a 6-foot, 15 pound umbrella was dislodged from the sand by a strong gust and torpedoed into her forehead, leaving a nasty gash that required 13 stitches and left the poor beach-goer with permanent nerve damage to her neck. After a 2003 decision that held the state responsible for the accident regardless of who owned the umbrella - due to the state’s responsibility to “safeguard its patrons” - the state settled the case yesterday, awarding Caliano-Bahaj a hefty $200,000. As Ms. Caliano-Bahaj’s attorney remarked, “Summer’s coming. Believe it or not, beach umbrellas like this can be a real hazard to your health.”

Actually, the lawsuit got me to thinking: If a woman can successfully sue a state for negligently allowing an umbrella to strike her in the forehead, I bet it’d be a helluva lot easier to go after someone who intentionally struck you in the forehead with an umbrella. And I have to say, you have no idea how many scratches and cuts I’ve gotten over the years compliments of little cocktail-umbrellas tossed into my face. Note to single men out there; unless you want an umbrella stuck to your cornea, you probably oughtn’t ask a lady if she is wearing astronaut pants, even if her ass is out of this world.


The Daily Memo - 5/18/06

homeland.jpgA Colorado man was treated with 41 months in the clink after making death threats to his judge, including making a stick figure of a hangman. (Denver Post)

homeland.jpgA bill under consideration in Louisiana, based on the project of an eighth-grade girl, would require new state flags to include blood on the chest of the pictured mother pelican feeding her young. (KTBS)

homeland.jpgThe Coca-Cola Company has been sued over concerns about the lead content of the Mexican-made cola. (News.com.au)

homeland.jpgHawaii’s Supreme Court has delivered a ruling that golfers aren’t liable when they accidentally hit another golfer with a bad shot, even if they don’t yell “fore” (golf etiquette requires “fore” but the law does not). (Law.com)

homeland.jpgThe courts have ruled with the EFF in its lawsuit against AT&T, saying it does not have to return documents it received from an AT&T whistle-blower. (Salon)

homeland.jpgA Florida woman who shot an alligator that was trying to eat her golden retriever has been cited for hunting without a permit. (World Net Daily)

homeland.jpgThose wacky Lithuanians - a Baltic pizza chain is trying to trademark the scent of pizza. (Examiner)

homeland.jpgThe Oregon Court of Appeals has thrown out the 2002 verdict against Philip Morris for $150 million. (CNN)


When the good times start rolling, they just keep coming

knightleyAlba.jpgSo back in the mid-’90s, a 19-year old Midge* meets 43-year-old Anthony Scaffidi and falls for him, even though he was a quarter-century her elder, and despite his criminal record. Their relationship appears to be going swimmingly, and at some point Scaffidi agrees to pay for her to get a law degree from Temple University. Scaffidi says that while she was in law school they became more than lovers, as she would offer him legal advice, and that by 1997, when she was admitted to the bar, she was basically acting as his personal attorney.

As I’m sure you can guess, however, things took a turn for the worse.

In 1997, Scaffidi was indicted for something (unfortunately, the Law.com article neglects to mention for what, and I couldn’t find the info elsewhere) and he was worried that the prosecution and his creditors were going to get their grubby hands all over his worldly possessions. So he claims that Midge*, as his attorney, convinced him to hide his assets by giving them to her, with the plan being that she would hold them in a constructive trust for him. So he says he gave her everything. Not thinking things through, he then beat on her, locked her in bathrooms, etc., to the point that she got a restraining order against him in 2001 (and he pled guilty to charges of domestic violence). Following that, she scooped up all of his property, emptied out his bank accounts and safe depost boxes, and went off for the hills.

So in 2002 Scaffidi sued Midge* for legal malpractice, fraud and unjust enrichment, among other things, claiming that she used her legal intellect to swindle him out of over $1 million. The allegedly stolen property includes a condo in New Jersey, a North Carolina beach house, some undeveloped land, an interest in a restaurant, three cars, jewelry, stocks and cash. Oh yeah, and he also sued her for breaching an implied palimony contract, arguing that there was an understanding that she would use her law practice to support him evermore - the court threw that one out. Midge*, for her part, then countersued him for the years of threats and abuse she says to have suffered, said behavior allegedly going on even after she had dumped him and took off (he admits to, at least, making threatening phone calls to her when she vamoosed).

While this legal battle was going on, in March 2005, Scaffidi decided that his life was getting too boring so he went and got himself arrested as a part of a gambling sting, and last August he pled guilty to charges of gambling and drug possession. And Midge* was also concerned that there wasn’t enough going on, so she filed for bankruptcy, claiming that defending her case against Scaffidi has wiped her out (while that forced an automatic stay of Scaffidi’s state-based case against her, that stay was recently lifted, in part).

Let’s tally this up here. The personal lives of lawyers? Check. Heated legal battles in state and federal court? Check. Guilty pleas? Check. Domestic violence? Check. New Jersey? Check. Stolen money, cars and property? Check. Drugs and gambling? Check. If Hollywood turned this into a movie and cast Keira Knightly or Jessica Alba as Midge*, this would have everything that we here at QuizLaw hold near and dear to our hearts.

* Five years after this article was published, the woman we now refer to as “Midge” asked us to remove her name from this article. Actually, “asked” is a polite word - she sent a questionably thought out cease and desist threat. Though her request had/has no legal basis, and despite countless articles on the internet discussing this story and including her full legal name, we’ve taken her true name out of the article and comments. Not because we agree with her threats, but because it’s just not worth our time or money to defend against baseless accusations and lawsuits when there are already enough baseless suits clogging up the judicial system. Plus, we’re busy being real lawyers doing actual law-talking stuff.

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“Piiiiiiiigs…..iiiiiin…..laaaaaaaaaw!”

pigsinspace.jpgA New York lawyer has been having a bit of a family tiff with his aunt and uncle, who live in Florida. The Florida uncle, Robert Davidoff, had taken a Rolex watch that belonged to his father, after the man died. The New York lawyer, the deceased’s grandson, was not happy about this and initiated an action against Robert - Robert was ultimately held in contempt and required to return the Rolex to the estate. As this legal tiff was wrapping up, the aunt and uncle then allegedly hacked into the New York lawyer’s website, deleting all of his files and putting up a picture of the attorney labeled as “Pig of the Year” with a cartoon-like word bubble of him saying “I’m going to eat everything in site [sic].”

The New York lawyer filed a lawsuit against his aunt and uncle in New York, unhappy with their alleged shenanigans because “[a]t no time in 2005, or at any time, did Plaintiff ever receive the title or honor of ‘Pig of the Year.’” Similarly, “[a]t no time in 2005, or at any other time, has Plaintiff stated that he would eat everything in sight.’” Thus, the New York attorney was suing for, among other things, defamation, computer trespass and tampering, and intentional infliction of emotional distress. However, his case became a nonstarter asthe New York judge has dismissed the lawsuit saying that the New York court lacked personal jurisdiction over the Florida couple. The court reasoned that it lacked personal jurisdiction because the website was maintained on servers located in Florida, not New York, and because the couple lived in Florida and that’s where their alleged conduct took place.

The New York lawyer has said this may not be over, as he may appeal or re-file in Florida.


The Daily Memo - 5/17/06

homeland.jpgThere are some interesting thoughts about copyright theory in today’s Rocketboom. (Rocketboom)

homeland.jpgIn Cal-uh-fornia, Governor Schwarzenger, on his way to sign a state bill attempting to diminish traffic congestion, caused a traffic jam. (SFGate)

homeland.jpgSome attorneys from Rhode Island have now joined the fray over the NSA records flap, filing lawsuits on behalf of customers against Verizon, BellSouth and AT&T. (Boston.com)

homeland.jpgAn Arkansas mayor, instead of using city funds, paid for his prostitute by discounting her city water bill. (KTHV)

homeland.jpgThe RIAA has sued satellite radio company XM over one of its portable tuners, which can record songs, arguing that this capability requires XM to get a new license in addition to the one it already has for playing the songs like a radio station. (Engadget)

homeland.jpgGeorgia’s ban on same-sex marriages has been struck down by a Georgia Superior Court judge because the original 2004 proposal violated a rule requiring ballot quesions to focus on a single question. (FindLaw)

homeland.jpgA New Jersey appeals court has ruled that, until a teenage sex offender turns 18, he cannot date a girl until he first tells her parents about his conviction. (ABC News)


No Ups for the “Big Love”

biglove.jpgThis one is for those of you who have some understanding of the law and who watch HBO’s sometimes stellar, sometimes bland polygamy drama, “Big Love,” wondering about the intricacies of polygamy law out in the multiple-wife capitol of our nation, Salt Lake City, Utah. Well, Utah’s highest court handed down a contentious, 85-page decision that doesn’t particularly clear the confusion. The case itself involved Rodney Holm, a 32 year-old-police officer who entered into a “spiritual” marriage with 16-year-old Ruth Stubbs. The problem was, at the time of this “spiritual” marriage, Holm was already legally married to Ruth’s sister and had a second “spiritual” wife on the side. He was eventually convicted of bigamy and other sex offenses, and the Utah Supreme Court upheld that conviction.

The court’s majority reasoned that Holm’s spiritual relationship with the 16-year-old was exactly the kind of thing criminalized by Utah’s polygamy statutes. However, the court’s Chief Justice dissented with this reasoning, arguing at great length (37 pages!) that Utah’s interest against polygamy only addresses multiple legal marriages, and should not be extended to religious unions where there is no claim of legal status.

The majority decision, upholding Holm’s conviction, certainly squares with our nation’s conventions of morality, although at the same time it manages to apparently avoid any real grounding in the law. The problem is that if the court wanted to criminalize spiritual cohabitation, it seems that 1) it’s getting into dicey matters of state/religion conflict, and 2) it would then be able to legally ascribe morally favorable cohabitation agreements. In other words, if the state can forbid one man from schtupping two other women outside of the context of a “legal” marriage, it ought to be able to criminalize adultery, prohibit unmarried couples from living together, or even criminalize same-sex partners who hold themselves out to be “spiritually” married. In essence, the state law criminalizes the behavior of consenting adults who chose to live in an intimate relationship differing from the norms of the majority, without seeking or taking any additional legal benefits - which seems fine in the context of polygamy, but runs into all sorts of slippery-slope problems in other contexts.

Moreover, Holm was a member of a Fundamentalist offshoot of the Church of Jesus Christ of Latter Day Saints, a sect which embraces polygamy and encourages religious unions with other women as a way to reach the highest level of heaven. Agree or disagree with the decision, the court is essentially prohibiting this poor man from reaching nirvana. And it seems to me that, if a man has to put up with three wives nagging him to go shopping on football Sunday, he deserves a little peace in the afterlife.

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Further evidence of global warming …

hatch.jpgFor those of you who might have somehow missed it, a court has sentenced “Survivor’s” Season One victor, Richard Hatch, to a whopping four years and three months in prison for tax invasion. The judge in the case gave Hatch a harsher sentence because he felt that the naked wonder of Borneo had lied when he suggested that he thought the producers of “Survivor” would pay his taxes for him. Hatch now sits in a cell in a prison affectionately known as “The Rock,” where I’m guessing that he’s not going to want to flaunt his nudity, lest he fall and land in a cellmate’s lap - over and over and over.

In other legal news this afternoon, out in Hawaii, an appeals court - in a unanimous opinion - threw out Ryan Yoneda’s lawsuit against Andrew Tom. The suit sought personal injury compensation against Tom after his errant golf ball struck Yoneda in the head and permanently damaged his vision. However, the court ruled that golfers assume the risk of injury by getting onto the course, stating that it is “common knowledge that not every shot played by a golfer goes exactly where he intends it to go,” adding there wouldn’t be much “sport” in the “sport of golf,” if golf balls went exactly where the player wanted. The court also noted that, while yelling “fore,” is appropriate golf etiquette, it is not “a requirement recognized by law.”

Finally, in a case that takes the cake, a school teacher in Missouri was suspended for a week without pay and placed on six month’s probation after he asked students in a beginning drafting class to write about whom they would kill and how they would carry out the crime.

And what do all three cases have in common? Nothing, really. But it certainly does provide ample evidence that global warming does exist - and that it’s melting our brains.

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The Daily Memo - 5/16/06

homeland.jpgCreative Technology has sued Apple for patent infringement in two separate legal actions, alleging that the iPod infringes its patent and seeking damages and injunctions banning Apple from selling the iPod and iPod in the United States. (ZDNet)

homeland.jpgLast Friday, two New Jersey lawyers filed a lawsuit against Verizon on behalf of all Verizon subscribers over the NSA phone records debacle, seeking approximately $50 billion in damages and an order requiring Verizon to stop handing its records over. (CNN Money)

homeland.jpgTexas, after reviewing research which suggests that higher speed limits make traffic safer and actually decresase speeding, is considering raising the speed limit on some of its highways to 80 mph. (Leftlane News)

homeland.jpgThe First Circuit Court of Appeals has joined the Ninth Circuit Court of Appeals in ruling that companies cannot contractually ban class action lawsuits simply by including an arbitration provision in their contracts. (Law.com)

homeland.jpgA tentative settlement has been reached between donut-maker Krispy Kreme and workers who allege that their retirement savings went in the tank because of Krispy Kreme hiding evidence about its finances. (FindLaw)


Lawyers suing lawyers because they just want to be lawyers…

justice.jpgLawyers don’t like it when laws tell them what they can or can’t do. So in Connecticut, a lawsuit has been filed on behalf of thousands of bankruptcy attorneys by the Connecticut Bar Association and the National Association of Consumer Bankruptcy. Their panties are in a bunch over several parts of the relatively new bankruptcy law, most particularly, a part which requires lawyers to give certain specific advice to clients, including advice that they should not get into any more debt if they are at risk of going into bankruptcy. Attorneys are especially tweaked by this because they say it interferes with attorney-client relationship, hampering their ability to give clients legal advice that best fits the client’s needs. For example, as one attorney said, “Someone could be down and out but have access to a student loan to go to school for retraining…[w]e couldn’t advise that client to take that student loan.”

Actually, that seems pretty reasonable. So does another attorney’s argument that he would be prevented from suggesting to certain clients that they borrow money against an equity line of credit or a 401(k) retirement plan, even if that makes sense in their particular situation.

And faced with a reasonable argument, the Department of Justice responded with basic silence, saying it was looking into the lawsuit. Ladies and gentlement - your federal government, hard at work, not answering your questions.


Supreme Court Decision Update - Sereboff v. Mid Atlantic Medical Services, Inc.

supreme1.jpgThe last of today’s four Supreme Court decisions is Sereboff v. Mid Atlantic Medical Services, Inc. (PDF of the opinion), which focuses on a fight between a couple and their insurance company, and whether the insurance company properly sued the couple under ERISA.

QuizLaw Analysis: While we’re not usually ones to take the side of the insurance companies, it seems that the plaintiffs in this case were just looking to take the insurance company for a ride and not live up to the terms of their agreement. So we’re ok with the Supremes unanimously siding with Big Health. This time.

The Sereboff’s had health insurance with Mid Atlantic, through Mrs. Sereboff’s employer. Their health plan included a provision which says that when the Sereboff’s are sick or injured because of a third party, and where they receive benefits from that third party, they are required to reimburse Mid Atlantic for any benefits it had previously paid. This came into play after the Sereboff’s got into a car accident. They filed a claim with Mid Atlantic, and Mid Atlantic paid their medical expenses. They then sued various third parties for damages suffered from the accident, and eventually settled for $750,000. Mid Atlantic then sued the Sereboff’s, who refused to give any money back to the insurance company, for almost $75,000 (the amount of benefits Mid Atlantic had covered). Mid Atlantic brought its suit under the Employee Retirement Income Security Act of 1974 (ERISA), based on the “third party” provision of the insurance plan. The District Court ruled in Mid Atlantic’s favor, and the Fourth Circuit Court of Appeals affirmed that ruling, although it noted that there was a split between the Courts of Appeal as to whether a specific section of ERISA (section 502(a)(3)) allowed for recovery by an insurance company in a case like this.

This is the issue that the Supremes cover in this decision - that is, they want to end the split between the Courts of Appeals and settle the issue once and for all.

In a unanimous decision, Chief Justice Roberts begins by noting that section 502(a)(3) of ERISA authorizes fiduciaries, like Mid Atlantic to seek and obtain equitable relief in order to enforce a covered plan. So the question in this case is whether Mid Atlantic was seeking “equitable” relief. Roberts reasons that Mid Atlantic was seeking equitable relief because this case is similar to other equitable situations. In essence, the Sereboff’s, in entering into a contract with Mid Atlantic, agreed to convey money specifically received from third parties (as opposed to money sitting in their general assets) to Mid Atlantic. This agreement essentially gives Mid Atlantic a lien on the $75,000 it’s after, and the enforcement of that lien is equitable relief. So the Sereboff’s have to cough up the $75,000.


Supreme Court Decision Update - DaimlerChrysler Corp. v. Cuno

supreme3.jpgThe third of today’s four Supreme Court case, DaimlerChrysler Corp. v. Cuno (PDF of the opinion), deals with taxes, specifically, tax breaks given to large corporations to the detriment of your average taxpayer. Here, taxpayers and residents of Toledo, Ohio sued DaimlerChrysler after it was offered large tax credits and property tax exemptions in an effort to get it to expand its Toledo operations. The taxpayers sued under the Commerce Clause, claiming that the tax breaks depleted the state and local treasuries to which they contributed.

The Supremes, in a unanimous opinion written by Chief Justice Roberts, sided with Daimler Chrysler and reinstated the $300 million in tax breaks, stating - in essence - that the taxpayers lacked the legal right (or standing) to challenge the tax credit. The decision overturned the federal appeals court decision, which stated that the state’s credit illegally discriminated against Ohio corporate taxpayers that invested in other states. In the Court’s decision, Roberts wrote that the injury to the taxpayers was mere conjecture and that they had no standing to challenge tax or spending decisions, anyway, “simply by virtue of their status as taxpayers.”

In other words, paying taxes gives you no legal rights to challenge what the government does or does not do with those taxes, or in how it decides to charge corporations for taxes, or, alternatively: Pay your taxes and shut the hell up.


Supreme Court Decision Update - S.D. Warren Company vs. Maine Board of Environmental Protection

supreme2.jpgThe second of today’s four Supreme Court cases, S.D. Warren Company v. Main Board of Environmental Protections (PDF of the opinion), deals with the very exciting Clean Water Act and, more specifically, what the term “discharge” means, aside from its viler medical connotations.

And so, here we go: S.D. Warren (a company, not a man with an odd name) asked the Federal Energy Regulatory Commission (FERC) to renew some licenses the company had for running hydroelectric dams it operated to run a paper mill. FERC told Warren that it had to get certain water quality certifications under the Clean Water Act from the Maine Board of Environmental Protection - these certifications would require Warren to maintain a minimum stream flow and to allow passage for certain fish and eels. Warren didn’t feel it needed to apply for those certifications because its dams do not result in “discharge,” which is what triggers the Clean Water Act. Warren applied anyway, under protest, and was denied the certifications.

So Warren appealed, arguing again that the company should not have to apply for the certifications under the Clean Water Act, because dams do not discharge water. Justice Souter, who wrote the unanimous decision, disagreed with Warren’s position, stating that “because a dam raises a potential for a discharge, §401 (of the Clean Water Act) is triggered and state certification is required.” Souter wrote that, though the Clean Water Act does not define “discharge,” its ordinary meaning is clear in the context of water to mean “flowing or issuing out.” Under that definition, “discharge” does indeed apply to dams, and therefore, certification under The Clean Water Act was required.


Supreme Court Decision Update - eBay, Inc. v. MercExchange, L.L.C.

supreme1.jpgThe first of today’s four Supreme Court decisions is eBay, Inc. v. MercExchange, L.L.C. (PDF of the opinion), which is about the standard courts should use in deciding whether to grant injunctive relief to a plaintiff who wins in a case under the Patent Act.

QuizLaw Analysis: Believe it or not, the legal part of this is actually more boring then the sentence above makes it sound. What is interesting however, is that even though this was a unanimous decision, there are two concurring opinions, the second of which appears to have been written just to cat-fight a little with the first one. The Supremes are getting feisty.

You all know who eBay is and what they do. As for MercExchange, who they are is unimportant. What is important is that MercExchange holds a business method patent which covers using “an electronic market designed to facilitate the sale of goods between private individuals by establishing a central authority to promote trust among participants.” Sound a little like what eBay does? Yeah, MercExchange thought so too, and so it sued eBay (as well as Half.com, which is now a wholly owned subsidiary of eBay) for patent infringement. MercExchange won, as a jury found that its patent was valid and that eBay infringed it. MercExchange then asked the District Court for a permanent injunction, requiring eBay to stop using business methods that infringe the patent. The District Court declined to grant such an injunction. However, the Court of Appeals for the Federal Circuit reversed the District Court’s decision not to grant an injunction, relying on what it said was a general rule that courts should issue permanent injunctions against patent infringers unless there are exceptional circumstances.

The Supremes, in a unanimous decision written by Justice Thomas, overruled the Court of Appeals’ decision, finding that the “general rule” which it relied upon was “a major departure” from the way courts have always decided whether injunctions should be granted. Typically, court’s use a four-pronged test, looking at: (i) whether the plaintiff suffered an irreparable injury; (ii) whether there are legal remedies (such as money damages) which can adequately compensate the plaintiff; (iii) whether an injunction is called for when you compare the hardships suffered by the plaintiff (if there were no injunction) against the hardships suffered by the defendant (if there was an injunction); and (iv) whether a permanent injunction would go against public interest. This test, and these four factors, should be used in cases under the Patent Act, just as in other cases. Thus, the Supremes reversed the Court of Appeals. The Supremes also vacated the District’s Court’s decision, finding that it did not use this test either. So the District Court must decide the injunction issue again, using this analysis.

Chief Justice Roberts filed a concurring opinion, joined by Justices Scalia and Ginsburg. The purpose of this opinion was just to place extra emphasis on this fact: even though most courts, since the early 19th century, have granted injunctions after finding patent infringement, this does not mean that there’s a general rule that such injunctions should be issued. Instead, it is simply a nature of the patent context, i.e., that it is difficult to protect patent holders solely with money damages while an infringer continues to use the patented subject matter.

Justice Kennedy also filed a concurring opinion, joined by Justices Stevens, Souter and Breyer. This opinion was basically written to squibble with Chief Justice Roberts over how history should be applied in deciding cases like this.


The Daily Memo - 5/15/06

homeland.jpgOur ever-litigious society takes another progressive step backwards, as schools are banning things like tag from school recess while safety advocate are going after swings and merry go rounds. (KATU 2)

homeland.jpgA pet owner has sued TV’s “Dog Whisperer” based on injuries his dog received. (LawInfo)

homeland.jpgIf you help your kid make Ex-Lax cookies, you, too, can be charged with assault. (Billings Gazette)

homeland.jpgIs it legal for a school to run criminal background checks on prom dates? (Cape Cod Times via ALOTTFMA)

homeland.jpgThe Florida Legislature has voted to close a loophole that could have caused many breathalyzer test to be thrown out of court - they have outlawed the release of information relating to the software that runs the breathalyzer machines. (Orlando Sentinal)

homeland.jpgIn yet another attempt to cloud all government action in utter secrecy, the feds are trying to quash the EFF’s lawsuit against AT&T. (Slashdot)


Help fight the good fight!

eff.jpgQuizLaw is really down on all things government right now, thanks in large part to last weeks’ debacle, courtesy of your very own Department of Homeland Security. And this whole NSA/phone thing, is utterly despicable. Which is why we support the Electronic Frontier Foundation’s call-to-arms for everyone to tell their Senators and Representatives that the Judiciary and Intelligence committees should investigate this, and not let it just pass on by.


These are all just ridiculous….

stupid.jpgThere’s a wealth of stupid legal news today, and we don’t even need to write any jokes for them, because the stories themselves are jokes - happy Friday y’all!

Take, for example, Representative Duncan Hunter’s plea to President Bush to use eminent domain to declare land a national park because there’s a cross on that land, and a local court has ordered the city to remove the cross or pay a $5,000 per day fine.

Then there’s our old friend Wal-Mart. It wants to build a new distribution center and is claiming that it will use its power of eminent domain to take the land if the families owning that land refuse to sell. Apparently, Wal-Mart now thinks it’s its own government.

And here’s the makings of a great lawyer - a Georgetown law student got pulled over and sentenced to 12 days in jail for speeding at 126 miles per hour. His excuse? He just got his new car and wanted to impress his girlfriend.

Meanwhile, in San Bernadino, California, a court has ruled that the city owes a strip joint $1.4 million for wrongfully trying to shut the place down.

A police officer has been criticized by a judge because he testified that anyone driving after midnight is clearly a suspect of drunk driving.

The police aren’t the only idiots in the news. Missouri’s state legislators debated a bill that would throw reporters out of the state capital so that their office can be turned into a fitness center. The bill was eventually withdrawn, but still.

And speaking of lawmakers, a New Hampshire state representative has been charged in a hit-and-run accident, after knocking another car off the road and continuing on his way because he was too busy eating to pay attention to what was going on.

And finally, a man from the wonderful town of Bear, Delaware (trust me, you don’t ever want to go there), was arrested after standing around naked in the middle of the street and cussing up a storm. He had to be tasered!


The Daily Memo - 5/12/06

homeland.jpgSenator Daniel Inouye of Hawaii is trying to keep up the good fight for net neutrality. (c|net)

homeland.jpgNew Jersey may become the 12th state to give the finger to the FDA by legalizing medical marijuana. (NBC10)

homeland.jpgKanye West has been sued for over $50,000 for missing several payments on his 2003 Mercedes G500. (The Superficial)

homeland.jpgWyoming is suing the ATF because the ATF rejected the state’s attempt to enact a law allowing people with misdemeanor convictions for domestic violence to regain the right to own a gun. (FindLaw)

homeland.jpgA New York judge has ruled a U.S. policy unconstitutional for violating free speech - the policy requires those who are overseas fighting AIDS to also denounce prostitution if they want to receive federal funding. (ABC News)

homeland.jpgThe National Nuclear Security Administration has been sued over a planned Nevada explosive test, which some think may be part of a new nuke program. (CNN)

homeland.jpgA Harvard study has found that approximately 40% of medical malpractice cases brought in the United States are groundless, but that they only account for 15% of the settlement and verdict payouts. (LawInfo)


Big Ups to Hillary

hillary.jpgAs reported by the Daily Kos, Senator Clinton has apparently introduced a fantastic little piece of legislation, and we here at QuizLaw would like to recognize her for this, because fantastic legislation is so rarely offered up anymore.

Senate Bill 2725, entitled the “Standing with Minimum Wage Earners Act of 2006”, would provide for three raises in the abysmally low federal minimum wage over the two years after enactment of the Act. But more importantly, it also ties the minimum wage to Congressional salaries. That is, anytime the Congress increases its own salary, it would be required to increase the minimum wage by the same percentage (thus, “standing with minimum wage earners” means that Congress would be standing with the minimum wage earners).

What’s great about this bill is that it’s short and simple, and takes a reasonable approach to two problems - the ever-more unsatisfactory minimum wage and the fact that the Hillmongers can unilaterally raise their salaries at any time to keep their pockets loaded. Of course, what’s really great about this bill is that it will make Hillary’s base very happy, and since it has little likelihood of actually passing, Hillary won’t take any financial hits from it down the road (i.e., when she loses the 2008 Presidential election despite trying to pander to her base).

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QuizLaw Lives Again!

homeland.jpgSo you may have noticed that the site is a mess at the moment. Well, that would be courtesy of your very own Department of Homeland Security. But don’t worry, QuizLaw is alive and well, and will be continuing to blog as we work to rebuild.

Anyway, we don’t know too much information, but here’s the apparent skinny. Seems that someone who was publishing a website via the same host that we use was publishing some illegal content (don’t know if we’re talking kiddie porn, mp3s, plans of the White House tunnels or what). So yesterday, the Department of Homeland Security came a-knocking at our host’s door. They wanted the harddrive and backups containing this illegal content. So they took the drives, and off they went.

Lucky us, QuizLaw lived on that same drive, so off all of QuizLaw’s data went with DHS. They have told our host that the non-criminal data (which we assume QuizLaw qualifies as) may get returned, in days or weeks. But in the meantime, they basically gave us the presidential salute.

So we’re working to rebuild the site through the information we have backed up, and information stored in various search engine caches. But the blog is now back in full swing, and the legal content will come pouring in over the next days and weeks. Please bare with us.

The one brightside to all this is that maybe someone at Homeland Security will read the QuizLaw content they’ve now snatched in their grubby little mits, and maybe someone over there will actually learn something about how the law is supposed to work!

Update: Lest you think QuizLaw is alone in suffering the travesties of our government, go see what Pajiba and Howard Empowered People have to say about it.


All That Jazz …

chicago.jpgLet’s say that a couple of neighborhood grammar kids get together and decide to start a Lemon-Aid stand. They hit their parents up for a few dollars for sugar and lemons, spend three days building the perfect lemon-aid stand, buy yellow aprons as uniforms, fashion a beautiful sign replete with a backwards “S,” and offer up their wares for a nickel a pop. And these kids are excited! Really excited. Cause they’re going to spend their summer selling delicious lemon-aid to raise money so that they can buy themselves a Red Rider BB gun.

And then let’s imagine that Wal-Mart, terrified that the two 11-year-old kids are gonna chase them out of the Lemon-Aid business, finds a legal loophole of some sorts, and fires off a cease-and-desist letter to the children, threatening to sue them for $250,000 unless they pack up their stand and get the hell off the curb.

Pretty harsh, huh?

Well, that’s just about the equivalent of what happened this week when the Broadway production of the hit musical, Chicago, hit a Bronx high-school with a severe cease-and-desist letter, ordering them to shut down their amateur production of the Bob Fosse play days before the show was set to open … at $7 a ticket … in a high school … performed by teenage drama mods … who had spent three months preparing.

Harsh.

Indeed, the high school was slammed with a “cease and desist” order from Samuel French Inc., representing the authors of the play, citing copyright law and licensing agreements and threatening the school with a $250,000 fine. As it turns out, the school failed to get permission to perform the play; but even if it had tried to get such permission, the school wouldn’t have been allowed to move forward, because the producers of Chicago won’t allow production of the play within 75 miles of the Ambassador Theater, where the Broadway production is performed.

On the plus side, however, about 75 testosterone-fueled Bronx fathers were relieved to hear the news, meaning that they wouldn’t have to don a fake smile after each production and pretend their teenage son was straight after he refused to take off the three-inch pancake makeup before going over to Timmy’s house to listen to some Andrew Lloyd Webber records.


The Daily Memo 5/8/06

homeland.jpgThe city of Hercules is considering seizing property from Wal-Mart by eminent domain. (SF Gate)

homeland.jpgRIM, the Blackberry guys, are fighting back in their latest patent infringement lawsuit. (Slashdot)

homeland.jpgA Washington DC law firm has accused IBM of hacking into its e-mails and the e-mails of its clients. (The Inquirer)

homeland.jpgThe Library of Congress is considering adding video games to its preservation program. (Game Politics)

homeland.jpgReggie Bush and his family may be helped out of their little agent issue thanks to California’s Athlete Agent Act. (ESPN)

homeland.jpgUnder new legislation in Arkansas, it is illegal to smoke in your car if there is a child in the car. (NWAnews)


You put the balm on? Who told you to put the balm on? I didn’t tell you to put the balm on. Why’d you put the balm on?

chiles.jpgProbably one of the most famous personal injury cases - and the one most cited by your average layman to demonstrate the need for tort reform and the ridiculousness of our litigious country - is the McDonald’s hot-coffee case. You remember - that lady who successfully sued McDonald’s in 1994 for $2.9 million after she spilled hot coffee on her lap, claiming that the coffee was “defective, because it was too hot.”

What your average person doesn’t know, however, is that the lady in question was an 81-year-old lady who suffered burns so severe that she was laid up in the hospital for over a week recuperating from skin grafts to her groin. Moreover, at the time, McDonald’s had already received over 700 reports of coffee-burns - ranging from mild to third-degree - and the company had refused to do anything about the coffee temperature, preferring to quietly settle many of those cases for up to $500,000 a piece. But, for some reason, in this case Mickie D’s refused to pay the elderly lady the mere $800 she was asking for to cover her medical bills, which is the only reason she was forced to bring the lawsuit in the first place.

Knowing these facts, you might better understand why the jury handed down the verdict it did. The award may have been disproportionate to the injury, but the jury was trying to send a message to McDonald’s, telling the company that it probably oughtn’t ignore over 700 reported injuries and a feeble old woman’s attempts to secure $800 from a multibillion dollar corporation.

But, never mind your opinion on the merits of the hot-coffee case - if you think $2.9 million is an outrageous award for a burnt lap, then get a load of this. Out in The Hamptons last week, a judge allowed a dog-bite case to go forward in which the victim is seeking $33 million in punitive damages. $33 million! For that much money, you would imagine the victim must have suffered some serious damn injuries at the mouth of a pretty vicious dog, right? Well, not exactly. According to the case, the victim suffered a “four-inch laceration” that pierced the underlying muscle. And what kind of dog was it? A cockapoo! Yeah. You’re heard right; a half cocker spaniel, half poodle. Four-inch laceration. $33 million!

If you ask me, $2.9 million for a scalded lap is a freakin’ bargain.


A court-ordered time-out…

prison.jpgA Detroit man was called for jury duty in January and ended up sitting on a grand jury. After three days on the grand jury, he asked to be excused, listing a variety of reasons in support of his request: (i) that he believed violence and crimes are more likely caused by minorities than whites; (ii) that he had no respect for law enforcement or the judicial process; and (iii) that he believed the expected six month jury assignment would leave him bankrupt. The court was not pleased by this and, instead of finding the man in contempt, fining him or imprisoning him, it came it up with a rather more creative sanction. So on February 14, the court ordered the man to appear at the courthouse three times every other week, and to spend the entirety of those days sitting on a first-floor court bench, without being entitled to any juror pay or mileage reimbursement that he would have gotten in his role as an active juror. After almost three months, the court has now ended the punishment, believing its purpose has been served.

This reminds me of a story I heard about from the L.A. courts a few years back. During a criminal case voire dire (the period when potential jurors are questioned to determine whether they are going to be dismissed or made part of the jury), one potential juror insisted that he could not be unbiased because he essentially believed the LAPD were unreliable crooks. The judge pushed the man on this issue, and the man insisted that he could not be unbiased in any criminal action because of this belief. Smelling that the man was simply trying to get out of jury duty, the court informed him that he was being relieved from the criminal courthouse but not being relieved from jury duty. The judge went on to explain that the civil courthouse was right across the street and that the man was being ordered to leave the courtroom and immediately report to the civil courts to fulfill his jury duty obligation, since his “bias” against the police would not come into play in just about any civil case. The man was also admonished that the judge knew everyone in that courthouse and would be checking up on him.

The moral of these stories? If you get called for jury duty, be a good citizen and just do the damn time.


UPDATE: Vegas, baby, Vegas

vegas.jpgLast week, we told you about the fun little political corruption trial taking place out in Vegas. Well, those two county commissioners who were on trial have been found guilty of conspiracy, wire fraud and extortion under color of official right. Each commissioner intends to appeal the decision, in an attempt to put off the considerable amount of jail time that will come with these guilty verdicts. The issue on appeal, however, will not be whether whatever happens in Vegas stays in Vegas, although that would certainly make for some entertaining oral argument.


The Return of the Sleep Eaters

sleep.jpgAs you may have heard (unless you’ve avoided television, newspapers, or the Internet the last two days), Rhode Island Congressional Representative, Patrick “Son of Edward” Kennedy, received three notices of infractions after he crashed his Ford Mustang into a security barrier at 3 a.m. near the Capitol on Thursday night. At the time of the incident, when asked what he was doing out at that time of night, Kennedy claimed he needed to get to a vote on the House floor (a vote that ended three hours prior).

The next day, Kennedy decided to enter the Mayo Clinic rehab facility, asserting that he was addicted to the prescription sleeping aid. Kennedy claims,”I simply do not remember getting out of bed, being pulled over by the police or being cited for three driving infractions. That’s not how I want to live my life, and it’s not how I want to represent the people of Rhode Island.”

And while it would be easy to dismiss Kennedy’s sleep-driving excuse as the ramblings of a drunken Congressman who’d had one-to-many highballs before scouring Capitol hill for an easy intern, you may remember that QuizLaw brought the “Sleep Eating” phenomenon to your attention several weeks ago. At the time, we told you about a lawsuit brought by a New York attorney on behalf of “sleep eaters,” who claimed that the the sleeping pill, Ambien, causes people to eat, drive, have violent outbursts, and hallucinations, and then wake up with absolutely no memory of it.

In fact, we also suggested that:

Sleepeaters would be a perfect bookend to George Romero’s zombie-movie career that included the classics Day of the Dead and Dawn of the Dead: A real life documentary on sleep eaters, who abuse Ambien and go on brain-eating benders only to awake with no memory, other than the trickles of blood drooling on their pillow.

Well, in honor of Patrick Kennedy, we’d like to modify that script treatment, turn it into a legal thriller, and get Ridley Scott to direct. In our new movie, the storyline will follow a copy-cat Congressman who, after bar-hopping for several hours, starts trolling the District for homeless men and cheap prostitutes, who he then murders Patrick Bateman-style (i.e., while listening to Phil Collins). Following his arrest, our Congressman/murder uses the so-called “Ambien defense,” but a young D.C. prosecutor (here played by QuizLaw favorite, Kiera Knightley) ultimately derails it with her hard-hitting, Matlock-inspired cross-examination.

We’ll call it: Ambien, My Ass - Dude, You Were Three Sheets to the Wind


The Daily Memo - 5/5/06

homeland.jpgThere’s a growing trend of law school professors banning the use of laptops in their classroom. (Billings Gazette)

homeland.jpgThe mayor of a Colorado town has been charged with domestic violence and child abuse after being arrested for being so drunk that he broke the breathalyzer. (Denver 7)

homeland.jpgNine states have sued the Bush administration over the ever-escalating gas/oil flummox. (Washington Post)

homeland.jpgA California Assemblyman has introduced a bill banning the private use of ultrasound machines, thanks to Crazy Cruise. (The Superficial)

homeland.jpgIntel has filed a motion to dismiss in the antitrust lawsuit based upon AMD’s allegations, arguing that overseas activities should not be part of the case. (c|net)

homeland.jpg“Are the RIAA’s $750-per-song fines unconstitutional?” (Techdirt)

homeland.jpgAllen Iverson will have to travel to D.C. next week to give his deposition, despite his attempts to have it done in Philly. (Sports Illustrated)


Mmmmmm…pie

One of the few news shows that the QuizLaw folks watch on a regular basis is MSNBC’s “Countdown with Keith Olbermann.” Last month, Keith honored Florida by inducting it, en masse, into the Countdown Hall of Fame:

Florida! Nine hundred-miles of gator taping, doctor shopping, tiger groping, mullet wearing, kitty snatching, Virgin Mary sandwich selling Countdown contributors. When network news anchors want to get whipped around in a storm, they head to Florida. When Vanilla Ice loses his wallaroo, which state does he lose it in? Florida.
When dumb criminal with dumb hairdos get drunk and ride scooters, where does it happen? Florida. When you need a robotic Rasta refrigerator to bring you cool beers, where can you find it? Florida. When Donald trump gets married again, where does he get married? Florida. When Fifi and Toto the dogs get married, where do they get married? Florida. When an Orange County sheriff’s deputy uses an elevator as a port-a-john, Florida. When amateur dentists decide to open a practice in a garage, Florida. When sumo wrestlers go street surfing, get caught and aren’t worried about the charges? …Florida. When are Fidel Castro gets crank called, whose on the line? Florida.
Car chases, blowed up bridges, alligators, sharks, manatees and even Tarzan’s tiger…Florida. Our most favoritest peninsula in the whole wide world including Rangaparoa (ph) Peninsula in New Zealand. When it comes to the news that we here at Countdown use, Florida is numero uno.

Well, in honor of Olbermann, let’s talk about the latest stupid news to come out of Florida. Most states have all sorts of official state “This, That and the Other.” Well, Florida’s about to get pie. Key lime pie is now the official state pie of Florida, unless Governor Jeb Bush refuses to sign the just-passed legislation.

That news is not, in and of itself, what I think is so stupid. What I do think is so stupid, however, is that there was apparently heated debate about whether the nod should go to key lime pie or sweet potato pie. “I can’t understand how anyone in the world can present a bill making a state pie from a fruit that’s not even grown in Florida,” complained one state lawmaker. Another countered with “let’s bring key limes back to Florida - and bring sunshine back to the state.”

Uh, riiiiiight. I’m not sure what the connection is between key lime and sunshine, but big ups to the Florida legislature for doing Olbermann proud yet again and focusing on truly important social issues.


Crazy like a fox

litterbox.jpgAn Indiana man who goes by the name “Vampire Killer” is protesting a small claims case he’s involved in. Instead of taking a page from the book of successful protests that have taken place in the past, Vampire Killer is treading in new waters. His protest consists of mailing boxes of sandwiches to the courthouse. More specifically, sandwiches made of cat shit. “They all say I’m crazy,” says Mr. Killer, “but I’m crazy about my rights.” He intends to continue mailing such treats on a weekly basis, and will only leave his house if the police show up with an arrest warrant and a federal agent.

In a related story, a local Denny’s is planning to introduce the Cat Scat Fever Sandwich. Taste-testers have said it’s a marked improvement over other menu choices.


Vegas, baby, Vegas

vegas.jpgThere’s a great little political corruption trial that’s currently wrapping up in Vegas. The city sits in Clark County, and the county is basically run by the Clark County Commission. Well, one commissioner has already pled guilty to corruption charges, two others are about to have a verdict handed down in a trial of their own, and a fourth will be going up on trial in August.

While there are various FBI wire taps and videos, the current trial apparently hinges upon the testimony of Michael Galardi, a strip club owner how has become the star witness for the prosecution. Galardi testified to buying off various politicos with bags full o’ money and, when the money didn’t cut it, with good ol’ fashioned sex. For example, one of the commissioners currently on trial admits to playing a golf game with Galardi and taking a break mid-game to head into the course shrubs and, uhm, sink one in the hole with one of the girls from Galardi’s clubs. Galardi claims to have used many of his club women to thusly ply the commissioners with sex, and he claims to have schtupped a female commissioner several times himself (while she has pled guilty to other charges, she denies ever having slept with Galardi).

Closing arguments began on Monday, which means a verdict could come soon.

And what do I take out of this story? I am really overdue for another trip to Vegas.


The Daily Memo - 5/4/06

homeland.jpgD.C.’s Council has passed legislation requiring cable company Comcast to air Washington Nationals games, despite its continued refusal. (Washington Business Journal)

homeland.jpgThe Second Circuit Court of Appeals has ruled that polygraph tests can be used to make sure that sex offenders are following their probation rules and that some offenders should be banned from having internet access. (FindLaw)

homeland.jpgA class-action lawsuit has been filed against Yahoo, alleging fraud and improper use of spyware and typosquatting. (Washington Post)

homeland.jpgRandy Quaid has dropped his ridiculous lawsuit against Focus Features, alleging that they snookered him out of millions regarding Brokeback Mountain - he claims the studio has paid him a bonus, while the studio denies any type of settlement. (Cinematical)

homeland.jpgSupreme Court Justice Ginsburg believes that a Congressional proposal for oversight of federal courts is “really scary” and sounds “very much like the Soviet Union was.” (FindLaw)


And, if you like celery, congratulations! It’s on the house….

trump.jpgReal-estate mogul, blowhard, and egomaniacal twit, Donald Trump, recently lodged a formal complaint against his ex-wife’s application to trademark her name, “Ivana Trump.” According to U.S. Patent and Trademark Office records (obtained by The Smoking Gun), The Donald argues that Ivana’s trademark would create a likelihood of confusion because of its similarities to his own name (which, presumably, already has its own, well-coifed trademark). Ivana and The Dillweed divorced in 1992, but Ivana chose to keep her married name, and is now attempting to use it in a similar line of business, namely real-estate. The Donald opposes this because Ivana’s trademark is similar to his own, in that they both “include the word TRUMP.” Therefore, argues Donald, Ivana’s trademark would “dilute the distinctive qualities of Mr. Trump’s famous TRUMP mark.”

Dilute, eh? Earlier this year, Donald made similar accusations against Martha Stewart, accusing her version of “The Apprentice” of diluting the popularity of Donald’s version and, thus, the entire “Apprentice” franchise.

But really, how many more ways could you possibly dilute a name that is affixed to failed casinos, cheap suits, vodka, an online college, and a freakin’ cologne, already. Seriously, man: If I wanted to smell like dirty money, Binaca, and hubris, I’d buy Dick Cheney’s cologne. At this point, Donny, the only way you could really dilute your name any further would be to make that SNL skit a reality, and open up Trump’s House of Wings (right next to Al Sharpton’s Casa de Sushi!). Cock-a-doodle-doo, folks.


You know what … I think I’ll just have that taco to go, actually.

God Bless The Smoking Gun. Today, it seems they’ve unearthed a rather unusual police report, concerning Amber Mumma and Marcelo Gonzales, a couple who were arrested last month after a police officer caught them …er… baking goods in a parking lot. According to the police report, the two lovebirds, who were highly spifflicated, were spotted pressed up against a car in the parking lot of a billiards establishment as several onlookers got themselves quite a show.

As noted by the police officer: “Mumma was facing the passenger door of the car and leaning on it with her arms on the roof. Her pants and underwear were around her knees … I had to tell them several times to stop what they were doing before they realized I was a police officer … Gonzales took a step back and as he did it was clear he was removing his penis from her anus. He stood there staring at me with his penis hanging out in clear view … all of this was clearly visible without the use of a flashlight.”

Well, I suppose that Mr. Gonzales should be flattered that the officer didn’t need a flashlight to check out his goods. But I’ll say one thing - the couple works at Moe’s Southwest Grill in Tampa, Florida, and for residents of that city who decide to swing by after a Devil Ray’s game, a word of warning: you might not want to order “The Ugly Naked Guy,” a popular vegetarian taco item on Moe’s menu. Seriously, unless you make yourself very clear, you may not get the vegetarian option.

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The Daily Memo - 5/3/06

homeland.jpgTwo “Sopranos” cast members have gotten into a little legal hot water. (LawInfo)

homeland.jpgThe Electronic Frontier Foundation is planning to open a downtown D.C. office in order to be more involved in the lawmaking process. (c|net)

homeland.jpgCheap Trick and The Allman Brothers are claiming that Sony is short-shrifting them on royalties from music downloads. (Slashdot)

homeland.jpgTechie Pete Ashdown is fighting the good fight, going up against Orrin Hatch for his Senate seat, and attempting to focus the battle on Hatch’s support of the MPAA and the RIAA’s ongoing clampdown of consumer rights. (Wired News)

homeland.jpgWal-Mart has won a lawsuit brought against it for the hiring of a convicted sex offender (the lawsuit was brought by the family of a 10-year-old girl who was fondled by the employee in the store). (LawInfo)

homeland.jpgThe first Renu with MoistureLoc solution lawsuit has movied ahead, after a woman allegedly lost her eye because of an infection caused by the contact lens solution. (Findlaw)


“But if I have to get out of my car in the scorching heat of summer, I might start sweating, and this state already stinks enough!”

Growing up, many people I knew referred to New Jersey, the so-called Garden State, as “the armpit of America.” It should go without saying that there are many bad things about the state and, as such, many folks use it for little more than a thoroughfare to and from New York, via the Jersey Turnpike. Those people know that one of the things at the top of the list of bad things about New Jersey is its law prohibiting the self-service of gas. When you pull into a turnpike rest stop, you invariably have to get at the back of one of the wretchedly long lines of cars waiting to refuel. These lines are long because the attendant service is slower than molasses, largely due to the fact that there is often a single attendant handling four pumps at once, casually walking to the various pumps in between conversation breaks with another attendant. It is a nightmare, and just makes you want to get out of the state all the quicker.

Well, these commuters will be happy to know that the state is finally considering dumping this prohibition, behind the push of Governor Corzine, in an effort to lower gas costs. Apparently, however, this does not come without heated debated. Seems many locals are outraged at the proposition, unhappy about the prospect of having to step out of their vehicle in rain or heat. Said one Jerseyan, “it’s intrinsic to New Jersey’s culture.” And another added that “this is what makes New Jersey unique - the fact that we don’t have to pump our own gas.”

Seriously, the best these folks can come up with in terms of state pride is “New Jersey - the home of attendant-only gas pumping.” And they wonder why they’re the armpit of America.


And they lived happily ever after … in Hell

In what is considered to be the first case of its kind, two Massachusetts families are suing their public school system, after the book King and King was read to a classroom of approximately 20 seven-year-old students. King & King is a storybook about a crown prince who rejects all the beautiful princesses, instead deciding to settle down with another prince and live happily ever after. The parents are suing, claiming that the school district broke a 1996 Massachusetts law that requires parents to be informed before sex-education lessons are given. The school, however, is arguing that it had no legal obligation to inform the parents of the books it reads and that the book was not intended as sex education but as a way to educate children about their cultural environment - Massachusetts is the only state where gays and lesbians are allowed to marry.

According to Boston.com, the suit also alleges that town and school officials have violated the Massachusetts civil rights code and the state’s parental notification law. The parents further accuse the school district of “intentionally indoctrinating very young children to affirm the notion that homosexuality is right and normal in direct denigration of the [parents’] deeply held faith.”

And what would that “deeply held faith” consist of? Perhaps, the belief espoused by the Kansas Westboro Baptist Church, whose protests at the funerals of fallen U.S. servicemen include banners reading, “God Hates Fags,” and “Thank God for Dead Soldiers,” because of their belief that God is punishing American troops in Iraq for defending a nation of homosexual sinners?

Well, if that is the case, then perhaps the parents can suggest an alternative fairy tale: The Little Prince Who Liked Other Princes Until God Sent Him Straight to Hell! I suspect that would be more in tune to their deeply held faith - and, from what I hear, it’s quite a page-turner.


The Streets of Philadelphia

Last week I espoused about my love for Philadelphia and the crazy things my hometown comes up with. Well, a combinatory corpse/pizza delivery man wasn’t good enough and the city has yet again one-upped itself.

Last Friday, a local zoning board held a meeting over the hotly contested proposition of a plan for allowing Scores to set up one of its strip clubs. On the one side, a Scores lawyer quoted the Reverend Doctor Martin Luther King Jr. in support of “a man’s right to a lap dance,” to the boos of those in attendance. On the other side, a lawyer for a nearby Church opposing the plan appeared in the period garb of Andrew Hamilton. Presumably, their verbal sparring went something like this:

Scores Lawyer: I have a dream that one day the women of this city will rise up on poles and live out the true meaning of this creed: “We hold these truths to be self-evident: that all dollar bills are created equal.”

Hamilton of the Church: Nay, good sir, thy dream is but a fleeting fancy. This Scores of which you proselytize is but sure to cause vast harm to this fair city of ours.

Scores Lawyer: But we must forever conduct our struggle on the high plane of dignity and discipline, and is not this city’s creed that it is the City of Brotherly Love?

Hamilton of the Church: This is most assuredly true. But your dream shall turn the City of Brotherly Love into the City of Seedy Love.

Scores Lawyer: But do you not want to be able to join hands and sing, “Free at last! Free at last! Thank God Almighty, the breasts are free at last!”

Hamilton of the Church: …Well good sir…a dream like that, one can take no fault with. We withdraw our objection.


The Daily Memo - 5/2/06

homeland.jpgApparently, the Supremes forgot to publish four parts to yesterday’s Anna Nicole Smith Case. (Slate)

homeland.jpgAn investigation has found that Bush’s controversial nominee for the Fourth Circuit Court of Appeals has repeatedly decided cases involving corporations in which he held an interest, in violation of the federal law prohibiting judicial conflicts of interest. (Salon)

homeland.jpgThe California woman who was spanked at work has been awarded $1.7 million by a jury, including $1.2 million in punitives. (Law.com)

homeland.jpgThe coded message hidden in The Da Vinci Code judgment has been decoded. (The Register)

homeland.jpgA San Francisco temporary prosecutor has been reprimanded by a judge for writing about a case in his blog. (Law.com)

homeland.jpgThe Connecticut state legislature has approved a ban of all sodas and other sugar-based beverages in state public schools, in an effort to fight the epidemic of fat kids. (Yahoo News)


And They Lived Happily Ever After … in Hell

In what is considered to be the first case of its kind, two Massachusetts families are suing their public school system, after the book King and King was read to a classroom of approximately 20 seven-year-old students. King & King is a storybook about a crown prince who rejects all the beautiful princesses, instead deciding to settle down with another prince and live happily ever after. The parents are suing, claiming that the school district broke a 1996 Massachusetts law that requires parents to be informed before sex-education lessons are given. The school, however, is arguing that it had no legal obligation to inform the parents of the books it reads and that the book was not intended as sex education but as a way to educate children about their cultural environment - Massachusetts is the only state where gays and lesbians are allowed to marry.

According to Boston.com, the suit also alleges that town and school officials have violated the Massachusetts civil rights code and the state’s parental notification law. The parents further accuse the school district of “intentionally indoctrinating very young children to affirm the notion that homosexuality is right and normal in direct denigration of the [parents’] deeply held faith.”

And what would that “deeply held faith” consist of? Perhaps, the belief espoused by the Kansas Westboro Baptist Church, whose protests at the funerals of fallen U.S. servicemen include banners reading, “God Hates Fags,” and “Thank God for Dead Soldiers,” because of their belief that God is punishing American troops in Iraq for defending a nation of homosexual sinners?

Well, if that is the case, then perhaps the parents can suggest an alternative fairy tale: The Little Prince Who Liked Other Princes Until God Sent Him Straight to Hell! I suspect that would be more in tune to their deeply held faith - and, from what I hear, it’s quite a page-turner.


Supreme Court Decision Update - Holmes v. South Carolina

supreme2.jpgThe first of today’s three Supreme Court decisions is Holmes v. South Carolina (PDF of the opinion) which is all about criminal defendants pointing the finger at a third-party as the one who “did it.”

QuizLaw Analysis: based on the Supremes’ analysis of this case, we would argue that it is your constitutional right to use the “whoever smelt it, dealt it” defense.

Here’s the background you need to know. A South Carolina man was put on trial for various crimes, including murder, following the gruesome beating and raping of an 86-year-old woman (who died as a result of her injuries). Holmes was convicted and sentenced to death. During the appeals process, he was granted a new trial, and during that second trial, the prosecution introduced forensic evidence which strongly supported a finding that Holmes was guilty (among other things, his palm print was at the crime scene, there were matching fibers, and there was DNA and blood evidence). In defending himself, Holmes wanted to introduce evidence that another man was actually responsible for the crime (Holmes was going to offer the testimony of several witnesses to support this position). During a pretrial hearing, however, the court excluded any evidence that the third-party had committed the crime, because a South Carolina Supreme Court decision had created a rule that essentially meant a criminal defendant could not introduce evidence suggesting a third-party was guilty if there is strong forensic evidence of the defendant’s guilt. As there was such forensic evidence in this case, the court ruled that Holmes could not introduce his evidence about the other man.

In a unanimous decision written by freshman Justice Alito, the Court held that the South Carolina rule violated criminal defendants’ constitutional rights. While state and federal rulemakers have broad powers in limiting what evidence can be used in criminal trials, these powers are not outweighed by the Due Process Clause of the Fourteenth Amendment or the Compulsory Process or Confrontation clauses of the Sixth Amendment, all of which guarantee criminal defendants the ability to provide a total defense during their trial. As such, evidence rules which are arbitrary or disproportionate to the alleged purpose they serve are unconstitutional, as they abridge these defendant rights. Now, there are evidence rules which forbid defendants from introducing evidence accusing others of the alleged crimes, and these rules have been found constitutionally valid. However, these rules only forbid such evidence when it does not have any “meat” to it - that is, when the defendant is just casting bare suspicious or raising conjectures. The South Carolina rule at issue here, however, is much broader than these constitutionally valid rules, forbidding evidence of third-party guilt even where that evidence is probative and potentially meaningful. Worse yet, the rule requires virtually no determination about whether the prosecutions’ forensic evidence and witness are reliable. Thus, the rule does not meet its purported purpose of excluding weak and illogical evidence to keep the trial focused, and it is therefore unconstitutional.


Supreme Court Decision Update - Arkansas Department of Health and Human Services vs. Ahlborn

supreme2.jpgThe second of today’s three Supreme Court decisions is Arkansas Department of Health and Human Services vs. Ahlborn (PDF of the Opinion), which is about the state’s right to be fully reimbursed for Medicaid costs when an injured party settles a third-party case for an amount in excess of the costs of medical care but for less than the amount of the claim.

QuizLaw Analysis: Those folks over at Medicaid are hard-core; you know the system is in trouble when it’s trying to attach a lien to an injured party’s future earnings damages.

The facts to Arkansas Department of Health and Human Service (ADHS) vs. Ahlborn are pretty straightforward, but the issues are complicated. Ahlborn was involved in a vehicle accident with allegedly negligent third parties. After the accident, Medicaid and other state medical providers paid $215,645 on her behalf for medical costs. Ahlborn then filed a lawsuit against the negligent third parties, seeking damages for past medical costs, pain and suffering, loss of earnings and work time, and permanent impairment, a case that settled for $550,000. Though ADHS didn’t participate in settlement negotiations, it did attach a lien to the settlement, asking to be refunded for the full amount it paid on Ahlborn’s behalf. The settlement, however, only amounted to one-sixth of Ahlborn’s actual claim; therefore, she argued that ADHS was only due $35,581, the prorated reimbursement amount of medical payments made (one-sixth of $215,645). ADHS, however, argued that it was entitled to be reimbursed for the full $215,645.

The Supreme Court, in a unanimous decision written by Justice Stevens, sided with Ahlborn, holding that the Federal Medicaid law does not authorize ADHS to assert a lien on Ahlborn’s settlement in an amount exceeding $35,581.47, and the federal anti-lien provision affirmatively prohibits it from doing so.

Stevens reasoned that the Arkansas statute in question required that Medicaid recipients, as a condition of eligibility, “assign the State any rights…to payment for medical care from any third party.” ADHS did not, however, have a right to attach a lien to payments made for lost wages, pain and suffering, etc. As Stevens wrote, “because the tortfeasors accepted liability for only one-sixth of Ahlborn’s overall damages, and ADHS has stipulated that only $35,581.47 of that sum represents compensation for medical expenses, the relevant ‘liability’ extends no further than that amount.”

ADHS argued that this result would encourage manipulation of settlement agreements to, for instance, provide more settlement monies for lost wages, pain and suffering, etc. than for medical costs, thus depriving ADHS of its rightful reimbursement amount. The Supreme Court, however, rejected that argument because there was no evidence that Ahlborn engaged in manipulation tactics, and, besides “the risk that parties to a tort suit will allocate away the State’s interest can be avoided either by obtaining the State’s advance agreement to an allocation or, if necessary, by submitting the matter to a court for decision.”

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The Daily Memo - 05/1/06

homeland.jpgAnna Nicole’s neverending legal struggles continue. Score one for the stripper. (Quizlaw)

homeland.jpgSkadden Arps stays on top among large firms for profitablity. Latham & Watkins takes second place. (The Law Blog)

homeland.jpgKiss Your Civil Liberties Goodbye: 9,251 subpoenas filed by the FBI under the Patriot Act last year. (The Legal Reader)

homeland.jpgPart-time rocker and part-time drug addict gets nabbed again; this time, because tabloid newspaper photos showed him shooting up. (Yahoo News)

homeland.jpgA diner found some human flesh in his hamburger after a restaurant worker cut off part of his finger. The company is “very, very sorry.” No word as to whether the burger was “finger-licking good.” (groan) (Findlaw)


Supreme Court Decision Update - Marshall v. Marshall (a.k.a. The Anna Nicole Smith Case)

supreme1.jpgThe last of today’s Supreme Court decisions is Marshall v. Marshall (PDF of the opinion), which is the Anna Nicole Smith case we’ve mentioned before. You’re going to have to bare with us on this one, because we’re going to have to throw a lot at you to really explain what’s going on.

QuizLaw Analysis: if you want to skip the long discussion below, all you really need to know is that when old rich men take on young trophy wives, the shit will inevitably hit the fan.

As you are no doubt aware, Anna Nicole Smith married billionaire J. Howard Marshall II in the summer of 1994. When Marshall died a year later, he did not include anything for her in his will. According to Anna, Marshall intended to provide for her through a “catch-all” trust. However, Marshall’s son E. Pierce Marshall, the ultimate beneficiary of Marshall’s estate, argued otherwise. The whole situation got extremely messy, and the fight has been going on for ten years.

Following Marshall’s death, there were ongoing proceedings before the Texas Probate Court, which were focused on what, precisely, was to be done with the estate. Over in the California federal courts, meanwhile, Smith had filed for bankruptcy. Now here, you need to know that shortly after Marshall’s death, Anna Nicole’s lawyer had made public statements that Pierce had committed fraud and forgery in trying to take control of all of his father’s assets. Pierce claimed that these accusations were untrue and amounted to defamation and so he filed a proof of claim in Anna’s bankruptcy case, asking the court not to discharge his claim (i.e., when the bankruptcy was all done, he still wanted to be able to sue her for defamation, but if the bankruptcy court discharged his claims, he would not be able to do so). For her part, Anna Nicole claimed that there was no defamation because the statements were true. She also filed her own claims back against Pierce, arguing that he had committed tortious interference by interfering with the gift she expected from Marshall. This turned into what is called an adversary proceeding, and the bankruptcy court ultimately ruled in Smith’s favor, finding that Pierce had interfered with the gift she was entitled to. In a well publicized ruling, the bankruptcy court awarded Anna Nicole almost half a billion dollars (mostly for compensatory damages, although some was for punitive damages). Pierce then appealed this decision to a California District Court. Through some procedural wrangling that you don’t need to worry about, the District Court took a fresh look at the case and again ruled in Anna Nicole’s favor, although for substantially less money (but still, the court awarded her about $44 million in compensatory damages and another $44 million in punitive damages, so she was still sitting pretty).

Pierce appealed this decision to the Ninth Circuit, and it is here that we get into the actual issue that is the subject of the Supreme Court decision. There is something which the Supreme Court has recognized, called the “probate exception.” Basically, this exception says that even though a federal court may have proper jurisdiction over a matter, if the underlying subject has to do with the probate of a will or the administration of an estate, the federal court only has jurisdiction if it does not interfere with any of the state probate proceedings or interfere with the state court’s ability to control the underlying property. So during the appeal before the Ninth Circuit, Pierce argued that the decisions of the bankruptcy court and the District Court interfered with the Texas Probate Court proceedings and that the probate exception applies. In other words, Pierce argued that the California federal courts did not have proper jurisdiction, and the District Court decision was therefore invalid. While recognizing that Anna Nicole’s claims did not directly involve any purely probate matter, the Ninth Circuit used a very broad interpretation of this probate exception in ruling that it also applied to fraud claims that were merely related to probate. In addition, as the Texas Probate Court had determined that it held exclusive jurisdiction over any and all of Anna Nicole’s claims relating to the estate, the Ninth Circuit reasoned that the Texas Probate Court had stripped the federal courts of any jurisdiction. Thus, the Ninth Circuit reversed the District Court’s decision, ruling that these issues all had to be handled by the Texas Probate Court.

Take a breath, because we are finally at today’s decision, which was written by Justice Ginsburg on behalf of a unanimous Court (while Justice Stevens wrote a separate opinion concurring in part, he was in total agreement with the Court’s ultimate judgment). The Supremes, except for Justice Stevens, agreed that there is a probate exception which will sometimes remove jurisdiction from a federal court, requiring the issues to be handled by a state court instead. However, the Court believes that the Ninth Circuit made a “sweeping extension” of this exception and that the probate exception should not actually apply to Anna Nicole’s claims because her claims do not involve the probate of a will, the administration of an estate or any other matter which is purely based in probate. Her claims sought a personal judgment against Pierce, not against Marshall’s estate, and she was not seeking any annulment of his will. Similarly, she was not attempting to get her hands on any of the actual property which was in the Texas court’s custody - she was simply making claims against Pierce. These are issues which were properly before the California federal courts because the probation exception simply should not have been applied. Similarly, the Ninth Circuit’s reliance on the Texas Probate Court’s determination that it had exclusive jurisdiction was also misguided. While Texas law governs Anna Nicole’s claims (because they are tort claims based in state law), there was proper federal jurisdiction and no state has the right or ability to impair that jurisdiction simply by creating probate courts and claiming they, instead, have sole jurisdiction.

So ultimately, the Supremes remanded the case back down to the Ninth Circuit so that it could address some additional issues which it did not consider the first time around (specifically, these other issues relate to that “procedural wrangling” we mentioned above and told you not to worry about).

As mentioned, Justice Stevens filed a separate opinion. While he concurred with the Supremes’ ultimate judgment, he only concurred in part with the substance of the decision itself. Specifically, he wrote to explain why he believes there is no “probate exception” at all.

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Herpes: The One Thing Michael Vick Can’t Outrun!

Good news for Atlanta Falcons fans: Star Quarterback and part-time running back, Michael Vick, has settled a case with a 26-year-old health care worker, who claimed she contracted herpes from Vick after having unprotected sex with him in April 2003. Sonya Elliott asserted that Vick “apologized profusely” for failing to disclose he was infected with the disease, which can be treated but not cured. The lawsuit also claimed Vick used the alias “Ron Mexico” when seeking treatment for the disease. Details of the settlement were not disclosed.

In the case’s original court filings obtained by The Smoking Gun, Elliot allegedly approached Vick after their sexual relationship ended and responded, “I’ve got something to tell you. I’ve got it.” Vick then told her that “he had not known how to tell her about his condition, and that it was not something that he liked to talk about.”

Not something you like to talk about!? Listen, Mike: If the Falcons get beat by the Arizona Cardinals, that’s something you don’t like to talk about. If you throw four interceptions in a game, that’s something you don’t like to talk about. Hell, if you get bully-sacked and thrown to the ground by Deion Sanders, maybe even that’s something you don’t like to talk about. But herpes?! We’re talking genital sores and ulcers, and an outside shot at brain infection. And, sir: Herpes - like that elusive Super Bowl ring - is a lifelong gift, my friend. And before you go scoring TD’s with the ladies without putting on your helmet, that is most certainly something you’re gonna wanna talk about.

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