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Monthly Archives: February 2007
A Cautionary Tale about Steroids for the Kids
The story goes like this: Michael Beaulieu, 37, who had only been released from jail for assaulting his girlfriend two days prior, decided, I guess, that a man who just finished serving time needs breakfast in bed. And when the same girlfriend he’d assaulted previously didn’t get it for him, Beaulieu got upset. How upset? Well, first he tried to suffocate his girlfriend with a pillow. Nope - that didn’t work. Next, he attempted to stab her in the neck with a telephone antennae. Damn … that didn’t work either. So, what’d he do next?
He threatened to shove a bag of explosives in her mouth and light it if she didn’t stop screaming. I guess it worked, too, because he later allowed his girlfriend to leave, to go get him some breakfast. I suppose one can work up a hearty appetite trying to kill a loved one.
At any rate, Beaulieu was arrested and “charged with possession of an explosive device, first-degree unlawful restraint, possession of a controlled substance and threatening.” When police arrested him, they found in his suitcase a large assortment of steroids. No shit? I’d have never expected that steroids were involved. I suspect the whole argument started when Beaulieu’s girlfriend noted how small his penis had gotten since last she saw him.
The Used Car King Says: Bring Your Baby
Out in Colorado, three folks were arrested for swapping their baby for a down payment on a car and an unspecified amount of cash. Nichole Uribe is accused of trading her 5-month old to a couple, and all three were charged with felony trafficking in children and held on $50,000 bail. The child is being held in foster care.
But here’s what really bugs me: She traded it in for a used Dodge Intrepid. I mean, c’mon! If you’re going to trade your baby for a car, at least get a foreign car. The bluebook value on a 2004 used Intrepid (the latest for which stats are available) is only $8,300 (and it only has mediocre crash-test results). And she only got a down payment.
A five-month-old child is certainly worth more than a down payment on a shitty domestic car. Uribe should’ve held out for better. This country has really got to get its priorities straight.
It does remind me, however, of the best used-car commercial ever created:
Man’s Best Friend Takes on an Entirely New Meaning
In Michigan, it is a crime to have sex with a dog. No surprise there, right? Well, Michigan law does not specifically outlaw sex with a dead dog, which is the defense that Ronald Kuch attempted to mount against charges that he had, in fact, sodomized a deceased canine. Kuch’s attorney argued that a dead dog is not an animal and therefore could not be violated against its will.
A Michigan judge, however, rebuffed Kuch’s defense, deciding that charges of sodomy and indecent exposure would go ahead against the dead-dog fucker. He is scheduled, also, to have a hearing on May 30 to determine if he is a “sexually delinquent person,” which seems like a no-brainer.
Indeed, Kuch is accused of having sex with his girlfriend’s dog about a week after it got hit by a car. A teacher at the local school was leading an Animal Control officer to the carcass, so that he could dispose of it, when they ran upon Kuch, taking care of his business. Kuch allegedly scuffled with the officer (whether that was before or after removing the carcass from himself is not specified) before running off into the woods.
But you know what the craziest thing about this whole ordeal is? It’s not the first time our nation’s court system has had to grapple with this issue. In fact, only a few months ago, Seth wrote up a similar case, in which a man argued that a Wisconsin statute did not outlaw sex with an animal carcass. In that case it was a deer, and I can’t decide if that’s better or worse.
The Daily Memo - 2/28/07
It never ends - an appellate court will now take a stab at the case about where Anna Nicole Smith will be buried. (CNN)
Disney is suing the city of Anaheim because the city wants to add low-cost housing near Disneyland, but Disney says they only object because it’s a tourist area that residents wouldn’t feel comfortable living in…riiiiiiiiiiiight. (FindLaw)
Baltimore is the latest city to ban smoking in its bars and restaurants. (Baltimore Sun)
Director Steven Soderbergh got rejected as a NYC juror earlier this week. (NY Post)
Want to know more about why the Libby jury is continuing to deliberate even though a juror was dismissed, and what happens if another juror has to be benched? (Dorf on Law)
Supreme Court Decision Update - Whorton v. Bockting
Today’s only Supreme decision, Whorton v. Bockting (PDF of the opinion) is a narrow case which clarifies whether an earlier Supreme decision about the Confrontation Clause, which in turn overturned an older Supreme case, applies retroactively. And since the Ninth Circuit said it does, it should come as no surprise that the Supremes said, “nuh-uh” (and since all of the Supremes love a good Ninth Circuit reversal, it should also come as no surprise that this decision was unanimous).
QuizLaw Analysis: The Supremes take another opportunity to bitch slap the Ninth Circuit with yet another reversal. This time, the Supremes say that the Crawford ruling does not apply retroactively. In Crawford, the Court held that the Confrontation Clause only allows the use of hearsay testimony when the speaker is both unavailable to appear at trial and where the criminal defendant had some opportunity to cross-examine the speaker. But that ruling can’t help the criminal defendant in this case, because his trial and direct appeal happened before this rule. And nobody’s crying about it, really, since the scumbum was convicted of sexually assaulting his 6-year-old stepdaughter.
Ok, so what’s all this Crawford and Roberts business? Well that’s a good place to start. In 1980, the Supremes decided Ohio v. Roberts. In that case, they were looking at when you can introduce hearsay testimony (testimonial statements made by a witness outside of the courtroom). The Supremes essentially said that such out-of-court testimony was permissible as long as the person was unavailable and there was some “indicia of reliability” - that is, some indication or basis of inferring that the statement was reliable.
Then in 2004, the Supremes overturned the Roberts decision in Crawford v. Washington. There, they looked at the Constitution’s Confrontation Clause, which comes from the Sixth Amendment and says:
In all criminal prosecutions, the accused shall enjoy the right…to be confronted with the witnesses against him.
The Crawford Court said that the Roberts Court got it wrong, and that the requirements of the Confrontation Clause are not met simply if the witness is unavailable and there’s an “indicia of reliability.” Since the Confrontation Clause specifically says the accused has a right to confront the witness, reliability of a statement can only be assessed when there is some opportunity for cross-examination. Thus, there are two requirements to allow such out-of-court testimonial statements: (i) as the Roberts Court also held, the witness must be unavailable to testify at trial; and (ii) in contradiction of the Roberts holding, the criminal defendant must have had some opportunity to cross-examine the witness. Only where these two conditions are met can the testimony be used in a criminal proceeding.
So what happened in this case? Well Marvin Bockting was a peach of a guy, on trial for the sexual assault of his six-year-old stepdaughter. During the trial, the trial court held a separate hearing and decided that the girl did not need to testify because she was so distressed already, and instead allowed Bockting’s wife and a detective to provide testimony about what the girl had said about the sexual assault (this is admissible hearsay under Nevada law). Bockting was convicted and appealed. His direct appeal went up to the Nevada Supreme Court and, as this was before 2004, the Nevada Supremes relied on the Roberts rule in allowing the testimony because the girl was unavailable, as declared by the trial court, and because there was an “indicia of reliability:” (i) because of the girl’s “natural spontaneity” in confessing Bockting’s acts to her mother; (ii) because she gave the same story to the detective a few days later; (iii) because she used anatomically correct dolls to show what had happened; and (iv) because she was talking about sexual things which a normal 6-year-old girl probably doesn’t know about.
So Bockting then filed a federal habeas petition, which was denied by the District Court. He appealed to the Ninth Circuit, and before the Ninth gave a ruling, the Crawford decision came down. Bockting then argued that under the Crawford rule, the girl’s statements should have been inadmissible. Bockting made two arguments. First, he argued that the Crawford rule is actually an “old rule” which was in existence at the time of his conviction. Second, he argued that even if it was a new rule, it was a “watershed rule” which should be applied retroactively to cases on collateral review. The Ninth Circuit said it was a new rule, not an old rule, but agreed that it was a “watershed rule,” and it therefore overturned the District Court’s denial of the habeas petition.
Old rule, new rule, watershed ruling and collateral what-now? In 1989, the Supremes had a plurality decision in Teague v. Lane. In that case and its progeny, the Court has explained when a Supreme decision get to apply retroactively to criminal cases which have finished their direct review and are on collateral review (e.g., here, Bockting’s direct review became final when the Nevada Supreme Court bounced him, and his federal habeas petition was a collateral review, related to, but separate from the direct line of his criminal case).
Under the Teague framework, an old rule applies both on direct and collateral review, but a new rule is generally applicable only to cases that are still on direct review. [citation] A new rule applies retroactively in a collateral proceeding only if (1) the rule is substantive or (2) the rule is a “‘watershed rul[e] of criminal procedure’ implicating the fundamental fairness and accuracy of the criminal proceeding.”
So the question here is two-fold. First, is the Crawford rule a new rule? And if not, does it meet one of the two requirements which allow an old rule to apply retroactively to collateral appeals?
And is Crawford an old rule? In a unanimous opinion penned by Justice Alito, the Supremes say no. Alito explains that:
A new rule is defined as “a rule that…was not ‘dictated by precedent existing at the time the defendant’s conviction became final” (emphasis is from the original quote, not from me or Alito).
Under this definition, Alito says it’s obvious that the Crawford rule is a new one, because it wasn’t dictated by any prior precedent. After all, it actually overturned prior precedent by overruling Roberts.
So does the Crawford rule meet those other requirements to apply retroactively anyway? No sir, it does not. First, Alito says it’s obvious that the rule is procedural rather than substantive, because it’s specifically about the procedural matter of hearsay admissibility. Thus, Bockting’s only saving grace is if the rule is a “watershed” rule. Alito notes that it’s very rare to find a watershed rule, particularly since, “in the years since Teague, we have rejected every claim that a new rule satisfied the requirements for watershed status.”
And what are the requirements for watershed status? Well, there are two:
First, the rule must be necessary to prevent “an ’ “impermissibly large risk” ’ ” of an inaccurate conviction. [citation] Second, the rule must “alter our understanding of the bedrock procedural elements essential to the fairness of a proceeding.”
So why isn’t the Crawford rule necessary to prevent an impermissible large risk of an inaccurate conviction? Alito says that the rule is certainly intended to help ensure that a trial is accurate, by trying to keep inaccurate out-of-court statements out of the trial. The Court then turns to the helpful 1963 case of Gideon v. Wainwright. In Gideon, the Supremes ruled that all indigent defendants charged with a felony are entitled to appointed counsel, and that denying such a defendant legal counsel would created an “intolerably high” risk of an unreliable conviction. This is the only rule which the Supremes have ever said meets this “impermissible risk” requirement, and Alito says:
The Crawford rule is in no way comparable to the Gideon rule. The Crawford rule is much more limited in scope, and the relationship of that rule to the accuracy of the factfinding process is far less direct and profound.
Well then it doesn’t even matter of the Crawford rule altered our understanding of the bedrock procedural elements essential to the fairness of a proceeding, does it? No, but Alito tells us that it fails to meet this factor as well. A new rule meets this requirement if the rule “itself constitute[s] a previously unrecognized bedrock procedural element that is essential to the fairness of a proceeding.” Such a rule is exemplified, once again, by Gideon. But the Crawford rule, while important, just isn’t the same - it didn’t alter our understanding of any bedrock procedural element, and so it just doesn’t qualify as a watershed rule. End of story.
Well this is just silly
As you probably know, the NFL has a trademark stranglehold on its “Super Bowl” mark. But as Deadspin notes, the NFL now wants to lock up “the big game” as well. It currently has a trademark application pending for “the big game” applied to a host of goods and services (including football magazines and newsletters, stickers and bumper stickers, posters and calendars, non-fiction books related to football, and toys and sporting goods).
Deadspin asks:
Do we have to call it “that game they play on Sunday’s that’s kinda’ like rugy, except they were pads and run plays and stuff”?
Rolls off the tongue, don’t it?
Is there so little to do in Vermont that the cops have resorted to this?
Police in Vermont unsuccesfully tried to bust a local attorney in a bizarre sting. Eileen Hongisto is an area defense attorney, and she had a criminal case where she was defending someone against domestic violence charges.
A local police detective went to court and got a warrant to execute this sting. After getting the warrant, the detective called Hongisto, pretending to be a witness in the case:
Saying he wanted to help Hongisto’s client, he asked whether he should try to avoid police efforts to serve him a subpoena to come and testify in court or whether, if served with a subpoena, he should fail to show up in court.
Court papers say police thought Hongisto might commit the crime of obstruction of justice by advising the phony witness to take these steps. The sting failed when Hongisto told the caller she wasn’t his lawyer and that if he got a subpoena he would need to go to court.
This is pretty ridiculous, especially when you look more closely at why the cops tried to catch Hongisto. Apparently, they recorded phone calls between the defendant and both his mother and girlfriend. And during these calls, the defendant suggested that Hongisto said that the charges would be dropped if witnesses didn’t show up to court. As Hongisto’s lawyer says, however, that’s simply a factual statement explaining the process to her client. “If you can’t tell your client about the state’s burden of proof, your ability to do your job is not just chilled, it’s frozen.”
What really confuses me the most about this, however, is that a judge actually signed off on the warrant. Doesn’t make much sense to me.
(Hat tip to The Legal Reader)
A nifty new website for the political wonks out there
OpenCongress is a pretty cool new site. Its goal is to bring “together official government data with news and blog coverage to give you the real story behind each bill.” In meeting this goal, the website gives you access to all types of Congressional information, including bills, votes and campaign contribution information. Where it can be especially useful is in tracking what your own Congressmen are up to:
I went to one of my Member of Congress’ site and viewed his votes, an analysis of his votes showed where the majority of his campaign contributions came from (real estate, insurance and finance) and the latest coverage on him from news and blogs. Best of all, there are live feeds to which you can subscribe and get yourself whenever your Member of Congress does anything new. There’s even a button to contact your representative so when they do something naughty or nice, you can always be sure to stay in touch.
The site itself doesn’t seem to be running so smoothly right now (and it does note in its banner that it’s still in the beta stage), but once they get the kinks worked out, this could be a real cool little tool. Unfortunately, I don’t think it’ll do anything to change the general political apathy of most folks.
It’s Funny ‘til Someone Gets Hurt …
A 42-year-old San Francisco man, Herbert Watt, was driving his car last month without a license plate. He was pulled over and when the police performed their search, they found a baggie of crack cocaine in his pocket. Officers had placed the baggie of crack on the hood of the car, but before they could handcuff Watt, he grabbed the bag and swallowed it.
Now, that’s funny!
Until someone got hurt, in this case Watt — who went limp as he was taken to the hospital, where he died.
(It’s still a little funny.)
It is a Small World
A crazy woman out in San Mateo, California is being threatened with fines or jail time, mostly because she’s crazy. She’s painted the roof of her home with slogans she claims are from God, which allege vast government conspiracies and, sadly, violate the city’s regulations on the size of signs (suggesting that if God delivered her smaller messages, maybe she wouldn’t be up shit creek).
The woman, Estrella Benavides, is asserting that the city is violating her freedom of speech rights (isn’t that what the crazies always allege), though the city hasn’t stopped her from broadcasting messages from God through a loudspeaker on her car.
Benavides further claims that the messages from God come to her through a statue at her church, which had me curious? I wonder if the geese that delivered the messages from God that told Carol Lynn Papas to stab her granddaughter to death flew over and unleashed their holy geese droppings on the very statue that speaks to Benavides. Then, it really would be a small world.
Spank!
Here’s an indictment of a school system that’s a little too concerned for the well-being of its children. Two middle school kids out in Oregon are in juvey this week, facing sex abuse charges with a maximum sentence of 10 years in prison. The two boys, ages 12 and 13, were accused of inappropriately touching classmates and arrested for five counts of sexual abuse.
And what was so awful that these kids are facing an extended stay in juvenile hall and, possibly, 10 years in prison? The two students were a among a larger group of students who spank each others’ backsides as a part of their handshake.
“We have this handshake we do and some of the people at [the school] took it too seriously and they thought that it was meant in a sexual way. It’s not. We’re all friends,” said one student. The school saw it differently, deeming it “inappropriate dancing.”
Of course, the superintendent of schools suggests that there was more to it, though she has yet to specify what. I’m guessing, however, that there was some sort of slam dancing involved, which she school mistook for mid-air love making.
This isn’t the first such incident at Patton Middle School. Last year, a 9-year-old boy was brought up on 10 counts of sexual abuse after he spanked his best friend on his 10th birthday. Fortunately, the school decided not to prosecute for the “one to grow on.”
The Daily Memo - 2/27/07
A Blawg Review a day keeps the doctor away. (Health Care Law Blog)
Clifton, NJ’s city council plans to introduce a new ordinance to put the kibosh on dogs that bark for too long (more than 30 minutes for two days in a row). (WCBS)
A Vermont mayor wants the state to legalize pot and impose the death penalty for crack and heroin dealers. (Rutland Herald)
A deceased woman’s family is challenging the fact that she adopted her lesbian partner fifteen years ago. (LawInfo)
A Florida judge has ruled that a sex offender accused of kidnapping, raping and killing a 9-year-old girl can continue to color his coloring books during the trial. (FindLaw)
A man’s been sued by a local car dealership for putting a magnet on his truck advertising that the dealership sucks. (Philly.com)
In a flip-around of the usual sexual harassment case, a male former employee of a state agency is suing his female boss for calling him a “nice boy-toy” and trying to get him to do naughty things to her. (Chicago Sun-Time)
Well maybe if the damn lawyers would stop waving their shiny pens back and forth, back and forth, back and….
This month’s Utah Bar Journal published an anonymous letter which says that local judges are falling asleep, at the bench (!), during hearings:
“I’ve seen the problem in more than one county, but since my practice is pretty geographically limited, I’d rather not be identified,” stated the letter. “I would like suggestions on how to wake the snoozing judge. I’d like to think I’m not the only boring attorney in Utah.”
Utah’s Judicial Conduct Commission, meanwhile, says that it’s only received a single complaint about a sleeping judge over the last five years. The problem here is of course that:
Attorneys appearing in court may be hesitant to point out that a judge has drifted off, so the responsibility is on judges to stay alert.
It’s the old “who’s watching the watcher” problem.
Meanwhile, an appellate judge offers this plum wisdom to sleepy judges - get more sleep and drink more caffeine.
Wisdom like that - that’s why he’s a judge, and we’re just lowly blog-writers and blog-readers.
Landshark
Democrats: Knock-knock.
Bush: Who’s there?
Democrats: Some type of legislation limiting the Iraq war. Maybe something like a revocation of the 2002 vote authorizing the use of force.
Bush: Dubya isn’t here.
Democrats: Sir, you’re speaking right now.
Bush: …I’m only a dolphin.
Democrats: Seriously sir, no surge.
Bush: Condi, it’s for you.
Condi: You don’t have the votes.
Democrats: Well, we could.
Condi and Bush: Well then, fuck off.
Drunk People are So Nice
Out in Florida (where else), a man pulled over for suspicion of drunken driving was a little more cooperative and forthcoming than most police officers might expect. In fact, Craig Shelton — who was pulled over early Saturday morning after he was seen driving erratically — agreed to perform field sobriety tests, but inexplicably gave up after the first test, saying “Just call it a DUI, man. You got me.”
I like a guy that makes it easy on a police officer. Of course, it only got easier after the officer checked Shelton’s trunk and found two beers, some Bacardi, and a green leafy substance. Shelton, then handcuffed and sitting in the back of the police cruiser, asked “Did you find my weed?”
It’s nice that Shelton didn’t bother wasting the officer’s time. I understand, also, that once he arrived at the station and underwent the requisite strip search, he said: “Man, that heroin in my ass is killing me – will somebody please pull it out,” before later offering: “When do you think they’ll let me out of the clink? I’ve got a hooker back at my apartment who is still on the clock. $100 an hour ain’t cheap, fellas.”
The Insanity Plea is Alive and Kicking
Out on Colorado, a 53-year-old woman was found not guilty, by reason of insanity, for stabbing her 21-month-old granddaughter to death.
And why did she do it?
Because she received spiritual messages from geese, of course. Carol Lynn Papas and her son apparently received the summons to kill from geese flying over their house at the time. She had called 911 and stated, “I flipped … the baby was crying and I couldn’t handle it.” When police arrived, Pappas was still holding the phone, as well as an 8-inch knife.
Geese, huh? I’m not so sure about spiritual messages, but I could sort of see it if she had been watching hours and hours of AFLAC commercials, which of course is enough to drive anyone to murder.
She has been sentences to a mental facility, where she may just remain for the rest of her days.
The Daily Memo - 2/26/07
A former chapter president for the ACLU has been busted for (allegedly) subscribing to kiddie porn sites. (ABC News)
A Philly food critic’s been sued for libel over a three-sentence review. (Philly.com)
The editor and vice-president of The Enquirer has offered a public apology for publishing the names of the twelve jurors who convicted a man of murdering his foster child, because “[i]t was a mistake that could cause harm to those citizens.” (The Enquirer)
A Florida middle-school principal has been arrested and charged with buying crack from an undercover cop in the principal’s office. TBO.com)
A judge has ruled that former baller Latrell Sprewell can’t see his kids in person because of allegations that he beat on his girlfriend in front of the kids. (SI)
A New York state appellate court ruled that NYC’s old prohibition-era law banning “social dancing” everywhere but in specially zoned venues is legal because “[r]ecriational dancing is not a form of expression protected by the federal or state constitution.” (FindLaw)
“Have I got a deal for you!”
Larry Manzanares is a city attorney in Denver, Colorado. At the moment, however, he’s on paid leave while a little debacle is investigated. You see, last Friday, a stolen computer was found in his home. And to make matters worse, the computer happens to have been stolen from a Denver court (cops tracked it down to his house via internet traffic).
Manzanares says that he purchased the computer last month - get this - from a dude in a parking lot, a block away from the courthouse.
“It was rather foolish of me to even think about buying a computer from a fellow in a parking lot,” Manzanares said. “But being kind of naive, I bought it. I didn’t have any idea that it was stolen.”
Even if he didn’t know it was stolen, he should be fired and disbarred just for buying a computer from a dude on the street in the first place. I mean, come on!
If it’s anything like my experience, it’ll be a wildly entertaining flick
The WSJ Law Blog reports that a documentary entitled A Lawyer Walks Into a Bar will be debuting at the South by Southwest Festival next month in Austin. The documentary follows six lawyer-hopefuls as they study for last July’s California bar exam (California has the distinction of being the only consecutive three-day bar exam in the U.S., and is considered one of the toughest, along with New York, Texas and Virginia).
One of the test takers in the documentary is Donal Baumeister, an ex-Marine, who had failed the California bar 41 times and is shown in the movie gearing up for attempt #42. Semper Fi, indeed.
I’m not exactly sure how interesting a documentary about six people studying will be, particularly if these folks are actually doing the study and preparation they should be doing. However, if they’re preparing for the California bar exam the way I did many a summer ago, the film could awesome. That movie would include a house full of recent law school grads all studying for different bar exams with varying degrees of seriousness, a lot of drinking, naked Texas co-eds, a lot of drinking, drunken bicycle lessons at 3 a.m., a lot of drinking, a rapidly gorwing ledge full of empty cigarette packs smoked by the housemates in just the two months of study time, a lot of drinking, the appearance of several holes in the walls, a lot of drinking, some of the angriest intra-relationship fighting you’ll ever see (which may or may not have something to do with some of the wall-holes), a lot of drinking, and last but certainly not least, a lot of drinking.
Oh, and teriyaki.
Booyakasha
Sacha Baron Cohen has become quite familiar with the whole legal process lately, thanks to the onslaught of Borat lawsuits. Well, now he’s got another one to add to the “pending litigation” file. Only this time he’s being sued over his Ali G character, and the details of this are rather odd for several reasons.
Ali G is, like Borat, one of the fictional characters Cohen uses to have some fun at others’ expense. Ali G purports to be a British gangster who happens to conduct interviews and has some of the worst grammar you’ve ever heard. Anyway, in August 2004, HBO aired an episode of “Da Ali G Show” where Ali G was interviewing Gore Vidal. In talking about the Constitution, Ali G said the following:
Aint it better sometimes, to get rid of the whole thing rather than amend it (the constitution) cos like me used to go out with this bitch called Heddi Cundle and she used to always trying amend herself. Y’know, ger her hair done in highlights, get like tattoo done on her batty crease, y’know have the whole thing shaved - very nice but it didn’t make any more difference. She was still a minger and so, y’know me had enough and once me got her pregnant me said alright, laters, that is it. Ain’t it the same with the constitution?
Wanna’ guess who’s suing Cohen? Yup, Heddi Cundle. While she lives out in Cali now, she grew up in the UK. And in the summer of 1987 she took a youth group to Israel, and she claims that Cohen was also on the trip. While they spoke, she says “Plaintiff and Baron Cohen never engaged in any sexual activity.” After the trip, Cundle claims that their friendship went their separate ways, and while she watched him becoming increasingly popular on TV, there was never any further contact between them.
Then, after the August ‘04 episode aired, Cundle claims to have received calls from friends, telling her that she was name-checked on the show. She became upset because she says none of these statements are true, particularly the whole getting-knocked-up part. She had her lawyers contact HBO to pull the show, but they did not. So now she’s suing Cohen, HBO and Da Ali G Show productions for a whole gaggle of causes of action: libel, slander, invasion of privacy, fraud, negligent misrepresentation and negligent infliction of emotional distress.
As I mentioned at the top, there are a couple of really bizarre elements to this.
First, she filed the lawsuit as a “Jane Doe.” You’ll recall last week I mentioned Fuzzy Zoeller having filed a lawsuit as “John Doe” to protect his identity, which was then quickly figured out anyway. Well this is even more ridiculous because at least he keep his name out of the complaint. But here, “Jane Doe” included the alleged libelous statement in her complaint, and that statement includes her name! So we know that “Jane Doe” i Heddi Cundle, so what could possibly be the point of filing as a “Jane Doe?”
Another bizarre thing here is her allegations against HBO. So in November of 2004, she and HBO actually entered into a settlement agreement, and HBO agreed to make her name inaudible. However, she claims that the show aired unedited in December 2005. So she and HBO entered into a second settlement agreement last November, where HBO again agreed to make sure the name was made inaudible on a global scale. But she claims that last month she discovered an audible copy on YouTube and alleges that HBO must have made it available to someone since signing the November ‘06 agreement. Which is just plain weird, especially considering that the show has been on DVD for a while now, so, you know, there are presumably a ton of folks who have a “clear” copy of the show, any one of whom could’ve posted it on YouTube.
But the most bizarre part of this case (to me, at least) is that she’s particularly upset by the statement that she was knocked up because it allegedly exposed her “to hatred, contempt, ridicule and obloquy because it outright imputes unchastity to her, and it describes a sexual relationship with Plaintiff and an assertion of Plaintiff’s pregnancy by Baron Cohen as a result of that sexual relationship.” But she ignores the fact that Cohen didn’t say that he slept with her. Rather, the fictional character Ali G said he went with a person named Heddi Cundle. It was a fictional character speaking. Plus, no other identifying details were given which could connect the named female, Heddi Cundle, with the actual Heddi Cundle (unless she actually does have “her batty crease” shaved). So this whole thing just seems kind of ludicrous, and another attempt at a money-grab.
Westside!
What a douche
Michael Melnitzky is a 69-year-old who has “become something of a fixture” in the Lower Manhattan federal courthouse. Back in 1994, the former art expert become involved in a fun little suit when his wife filed for divorce. And now, 13 years later, he’s been involved as a pro se litigant in a whole rash of cases, both related and unrelated to the divorce (although most were related to the divorce and are tied to a collection of 750 watches, valued at $500,000, which his wife went after in the divorce).
He has sued virtually everyone involved [in the divorce]: one of his former lawyers, his wife’s lawyer, three banks, five judges and a psychiatrist appointed by the court to evaluate his mental health. In unrelated cases, he has sued a neighbor, a thrift shop, the city and his former employer. And he has almost always lost.
Five judges? What the Christ?
Melnitzy is basically like a warped version of Dr. Sam Beckett from “Quantum Leap,” saying that he’s simply trying to right the wrongs that these folks have done to him.
The question is: Is Mr. Melnitzky’s record of litigation a test of a flawed system [he claims that the system is “intolerant of pro se litigants”], or obsessive abuse of the courts. “I used to be an art restorer,” he says. “Now I’m a litigator. If you’re going to attack me or assault me on a legal front, and I don’t hit back, I would feel dishonerable with myself.”
I don’t doubt that the system is harder for pro se litigants (the one time I was involved in a case against a pro se litigant, the poor bastard hit hurdles and screwed things up every step of the way), but in this instance, I’m going to say it’s obsessive abuse. I mean, he sued five judges!
(Hat tip to Overlawyered)
The Daily Memo - 2/23/07
Cisco and Apple have settled their little trademark dispute over the “iPhone” mark, agreeing to share the name. (FindLaw)
An attorney arguing before the Supremes probably doesn’t want to hear a justice tell him “I don’t see how to decide for you.” (WSJ Law Blog)
An Arizona man has been arrested for getting some of the road-rage and ramming a pickup truck across the road all because the truck’s driver was on a cell phone. (AZ Central)
Terrence McGee, a cornerback for the Buffalo Bills, is suing an ex-financial advisor who allegedly stole $1 million from him. (SI
Ooofta - Microfot has been hit with a fine of $1.5 billion in a patent lawsuit. (Download Squad)
The doughboy must be rolling in his grave
Pillsbury Winthrop Shaw Pitman is going after some former partners, having asked at least 8 partners who left the firm last year to pay some money back to the firm in the next 30 days. The partners were sent demand letters saying they’d received overpayments between $30,000 and $100,000 due to their profit distributions being allegedly larger than their actual profit share.
Reactions from ex-partners who received the letters ranged from “insulted” to “furious.” Many questioned the firm’s accounting, the fairness and enforceability of the demands, and why they are being singled out, since not all partners who left last year got a letter.
Pillsbury’s general counsel claims this situation is quite common. But “[i]ndustry insiders and law firm leaders” say that this actually is rather unusual and at least some of the partners say they’ll take the matter to court if they have to:
“It’s something that we’re going to fight and not take lying down,” said one former Pillsbury partner who spoke on the condition of anonymity.
Former partners said that if the firm sues, they’ll band together in court. Some said they are looking to hire lawyers in the matter.
When lawyers fight among themselves, the only ones who win are their lawyers. …or something like that.
At least the news is talking about him
I had no idea who the hell Fuzzy Zoeller was until today. Apparently, he’s a professional golfer who won the Master’s back in 1979. But apparenently someone knew who Zoeller was before today, because last year it seems that there were some defamatory statements posted about him on Wikipedia. Originally put up in August, they were removed and then repeatedly added back, with the most recent addition coming last December. Zoeller claims that these defamatory statements could hurt his endorsements, so he’s suing.
Now his attorney rightly counseled that he shouldn’t bother suing Wikipedia, because federal law is pretty clear that websites are protected from lawsuits based on the content of user comments. But, bizarrely, his lawyer didn’t have Zoeller sue the person who posted the comments. Instead, the lawsuit has been filed against Josef Silny & Associates, a Miami education consulting firm. The December reposting has been tracked to a computer at Silny’s office, so the lawyers decided to sue the firm. However, Josef Silny is flabbergasted by the suit, saying “I think it’s the most bizarre thing that’s ever happened in my life” (he’s led a pretty uneventful life, no?). In any event, I’m not exactly sure why he’s suing the company itself - even if he doesn’t know the identity of the commenter, Zoeller could sue them as a John Doe.
And Zoeller’s attorney clearly understands the idea of using a John Doe because, get this - the lawsuit was originally filed anonymously, listing the plaintiff as a John Doe, instead of under Zoeller’s name. Why? Because they were worried that the lawsuit could impact Zoeller’s privacy and lead to further insult. But the Maimi Herald figured things out pretty quickly, so that idea kind of went out the window. This attorney’s doing a bang-up job.
And in case you were curious (and it’s ok to admit you were), the alleged defamatory statements went thusly:
Later Zoeller went public with his alcoholism and prescription drug addiction, explaining that at the time he made those statements, he was “in the process of polishing off a fifth of Jack (Daniels) after popping a handful of vicodin pills”. He further detailed the violent nature of his disease, recalling how he’d viciously beat his wife Dianne and their four children while under the influence of drugs and/or alcohol. He also admitted feigning a ruptured spinal disc in 1985 so as to be prescribed a multitude of prescription medication.
(Oh, and the Fozzy picture has nothing to do with Zoeller, but I figured a picture of Fozzy was much more entertaining than a picture of Fuzzy.)
Oh, whatever …
Well, now that Britney’s most recent shenanigans have reached family court, I suppose she’s fair game for us, even if the whole debacle makes me a little ill. I’m of two minds on the girl: 1) Get some help, sweetheart, before you find yourself and your bald head face down in a puddle of your own stubble-flecked vomit; or 2) keep this bullshit up long enough and maybe the mainstream and tabloid medias will just get tired of you and move on to something more newsworthy, like the public meltdown and self-ulgification of John “Walnuts” McCain. I’m not optimistic.
Either way, the events of the last two weeks have miraculously created a sympathetic character in Britney’s soon-to-be-ex, Kevin Federline, who is scheduled to appear in an L.A. family court today for an emergency hearing deciding the custody of the couple’s two children. Currently, the two have joint custody, but it is expected that Federline will seek sole custody, at least until Britney cleans up her shit — and given the fact that she enters rehab with her car running and the keys still in the ignition, I can’t imagine that’s going to come anytime soon.
But doesn’t it just make you want to shave your own goddamn head to see that the freakin’ Washington Post finds this newsworthy enough to run a story that quotes the motherfucking “Insider,” which is euphemistically referred to as a “TV news magazine.” Don’t kid yourself — the AP story is quoting trashy, tabloid television detritus. And suddenly, it’s the level to which we’ve all stooped.
Updated: Britney is now back in rehab, and K-Fed has called off the custody hearing for the time being, or so says the Associated Press, which sources those respectable bastions of intelligence: TMZ.com, “The Insider,” and “Extra.”
The Church/State Dilemma Gets Ridiculous
Here’s an interesting legal story about an issue that seems all too pervasive in our school systems today: The church/state quandary. The parents of a 10-year year old kid out in Philly are suing their school district because he wasn’t allowed to wear a Jesus costume on Halloween. The suit was filed by a Christian legal group, the Alliance Defense Fund, alleging the boy’s free speech and religious rights were violated.
Personally, I think it’s a bit presumptuous for a 10-year-old to dress as the Son of God in order to collect candy (isn’t that, itself, blasphemous?), but I’m not so sure the school has a clear understanding of the establishment clause here. What about the numbers of children who dress as a little Devil, a nun, or a priest? How different is that situation? If a kid wants to dress as Jesus — unless he’s handing out Gideon Bibles — he’s not really promoting religion any more than the child dressing as King Burger is promoting the idea that Burger King’s Whoppers are delicious. We allow “In God We Trust,” to exist on our currency and we force our children to Pledge Allegiance to a nation under God, so I’m not sure how much more offensive this is. What’s more, by forcing a lawsuit here, the school is basically giving Christians a platform upon which to publicize their cause.
How bad would it have been, really, to allow the little guy to adorn a crown of thorns and traipse around the school’s hallways for a day, begging for Snickers? At most, he’s an embarrassment to himself and, perhaps, his own religion; but unless the Jewish kid in class is suddenly inspired by Mel Gibon’s The Passion of Christ and attempts to crucify him, it seems otherwise harmless, which is more than I can say for the school’s actions.
The Daily Memo - 2/22/07
We’re a bit late in pointing it out, but Blawg Review #96 is out and about. (South Carolina Appellate Law Blog)
I could’ve told you this - “US copyright lobby out-of-touch.” (BBC News)
One of my Philly Eagles, Correll Buckhalter, is going to the Nebraska Supreme Court to fight his alleged paternity of a 7-year-old autistic boy. (SI)
Welcome to the OC bitch - a former Orange County judge keeled over in court on Tueday when he found out he was getting 27 months in the clink because he had kiddie porn on his home computer. (The Legal Reader)
The feds are being sued by some California medical-marijuana fans who claim the FDA’s position on medical pot is wrong. (Yahoo! News)
XM and Sirius may have some FCC hoops to jump through in order to pull off their planned merger. (FindLaw)
A fourth-year associate at Orrick made a little boo-boo by accidentally disclosing a sensitive document that the firm spent five months trying to keep under wraps. (Law.com)
The temporary restraining order against the world of crap that is Paris Hilton Exposed has been extended by a federal judge in LA who suggests that he’s leaning towards issuing a full-blown preliminary injunction. (Hollywood Reporter, Esq.)
Well now this is going too far
Earlier this week, we told you about a failed attempt in Arizona to ban certain mudflaps. Seemed like a good idea to us. But you’ve got to draw the line somewhere, and a Maryland state legislator has now stepped right over the line.
Delegate LeReoy E. Myers, Jr. has filed a bill to ban folks from hanging fake bull genitals off of their pickup truck hitches. In fact, he wants to ban any “model, sign, sticker or other item” showing naked human or animal genitals from all vehicle. Oh, and no human ass or boobs either.
“We’re there to clean up the air…,” he said, referring to major bills proposed this season. “What about our minds and eyes of our young people?”
Hey man, they gotta’ learn about bull testicles somewhere. That’s what I say.
Hahahahaha….Perez Hilton sucks!
Douchebag blogger Perez Hilton is in legal hot water again. There’s been a photo floating around the internets lately that was allegedly an unaired screen capture from The Break-Up showing Jennifer Aniston’s ta-ta’s. Well it’s not alleged anymore, as there’s a lawsuit over the image.
Universal City Studios Productions claims that the photo was stolen while the film was being made, and that it was then illegally reproduced. They’re now suing Perez (real name: Mario Lavandeira) and his piece of shit website for copyright infringement because he posted the stolen image on his piece of shit website. Universal is seeking an injunction to prevent Hilton from doing anything else with the image, and they’re also requesting that a U.S. Marshal seize the copyrighted image.
While they’re at it, can the marshal seize everything from Perez, and just shut his piece of shit site down? Is that too much to ask?
The AP story on FindLaw says that there “was no response to an e-mail message to Lavandeira seeking comment on the suit.” However, the Smoking got a response:
In an e-mail, Lavandeira wrote that he had not yet seen the Aniston complaint, and would “be in a better position to comment” once his lawyers reviewed the lawsuit.”
Which is obviously a lawyer’s response, spoon-fed to Perez by his attorneys. A response actually coming from Perez would read something like: “I’m so great and Universal can go SCREW itself and I’ll post pictures of Maniston if I want and there’s nothing those fags at Universal can do about because I’m so great!!! Tweee….”
Where’s Jack Bauer When We Need Him?
Thanks to Fox News’ “Hannity and Colmes,” we now know the real danger to American society. And, it’s not Al Qaeda. It’s something much, much more dangerous, capable of “destroying an entire generation in America.” Al Qaeda could bring in a nuke and “kill 100,000 people,” but the teachers are capable of much, much more. Like, inflicting the word “scrotum” on our children. Or worse, foisting that pinko Judy Blume onto all of our fourth graders.
Check this transcript from a recent episode:
SEAN HANNITY: Alright, let me ask you. Because, you — when you said about the Department of Education — you want to abolish it — when you said that the teachers unions is more dangerous to this country in the long term –NEAL BOORTZ: In the long term, yeah.
HANNITY: Than al Qaeda.
BOORTZ: Right. Look, Al Qaeda, they could bring in a nuke into this country and kill 100,000 people with a well-placed nuke somewhere. Ok. We would recover from that. It would be a terrible tragedy, but the teachers unions in this country can destroy a generation.
HANNITY: They are.
BOORTZ: Well, they are destroying a generation.
HANNITY: They are ruining our school system.
BOORTZ: They’re much more dangerous. We worry about al Qaeda and we should. But at the same time let’s not let the teachers union skate.
HANNITY: They destroyed our school system, and we don’t do anything. The parents — why there aren’t people rising up against it is unbelievable.
As a soon-to-be parent myself, I couldn’t agree more. In fact, my wife and I have already started stockpiling the munitions. We’ve got a few missile launchers in our basement. And the day that the fucking government forces our child to attend kindergarten is the day we throw caution to the wind, put on our camouflage, smear some black anti-glare makeup below our eyes, and destroy the elementary school down the street. Blow that son of a bitch sky high. Ain’t no goddamn terrorist gonna’ teach reading, writing and arithmetic to my little ones. Fucking teachers.
(Hat Tip to Think Progress, who has the video)
The Misguided Efforts of Vigilante Justice
Oh, man: Folks really need to check the volume on their televisions before they pop in their DVD copies of Oklohomo or Pump Friction, especially if neighbors are close by.
So, get this: A dude out in Wisconsin was in his own home, watching porn, and taking care of his business. Suddenly, his door busts open and a man comes in with a three-foot long sword. That’s gotta do wonders for a guy’s erection, eh?
As it turned out, Bret Stieghorst’s neighbor, James Van Iveren, mistook that porn for a woman being raped. And being the good neighbor he is, instead of calling the cops, he decided he’d take care of the situation himself. You know, ninja style.
He’s been charged with criminal damage to property and trespassing. Stieghorst, meanwhile, has been charged with failing to discharge a loaded weapon.
The Daily Memo - 2/21/07
Is The Scalia set to take charge of the Supreme Court “as a leader of a new conservative majority?” (LA Times)
Anna Nicole Smith’s will actually raises some interesting T&E issues. Well, as interesting as trusts and estates can get. (Concurring Opinions)
Do juries like attorneys with facial hair? (WSJ Law Blog)
A federal appellate court has ruled that Gitmo prisoners can’t challenge their imprisonment in US courts. (Salon War Room)
A Cali judge ruled that the Goldman family must be given any O.J. Simpson royalties, not just from his piece-of-shit cancelled book, but from any prior TV, movie and commercial work. (CNN)
The San Diego Diocese may soon be bankrupt because of over 140+ pending sex abuse lawsuits. (Time)
Supreme Court Decision Update - Wallace v. Kato
Today’s second Supreme decision is Wallace v. Kato (PDF of the opinion). It’s about when you have to file a lawsuit claiming your civil rights were violated by being falsely arrested.
QuizLaw Analysis: The conservative side of the Court today rules that the clock for when you must file such a lawsuit starts ticking at the time of your arrest, not at the time you’re proven innocent, or your conviction is overturned, or any such situation. So you can’t wait until your innocence is proven or established as it may be too late. And, of course, if your innocence hasn’t been proven or established, good luck with your claim of false arrest (although, to be fair, everyone recognizes that once filed, your case should maybe be put on hold until the criminal side of things is taken care of).
So who got arrested? Back in 1994, Andrew Wallace (who was 15 at the time) was brought in for questioning by Chicago police in connection with a shooting murder. After long interrogations, Wallace agreed to confess to the murder, and signed a prepared statement. During his trial, Wallace tried to have the confession suppressed, arguing that it was the product of an unlawful arrest. That argument failed, and Wallace was ultimately convicted of first-degree murder and given 26 years in the clink.
Wallace appealed his case and the Appellate Court of Illinois ruled that Wallace was arrested without probable cause. While he may have gone voluntarily to the police station, “his presence there ‘escalated to an involuntary seizure prior to his formal arrest.’” More appeals followed, and in August 2001, a new trial was ordered. On April 10, 2002, the prosecutors ended up dropping their charges against Wallace.
A little less than one year later, on April 2, 2003, Wallace filed a lawsuit against Chicago and several Chicago cops. His lawsuit was under section 1983, a federal law which gives folks the right to seek redress for civil rights violations. Wallace claimed that the false arrest violated his Fourth Amendment rights, and he wanted some money damages.
So how did we get before the Supremes? Rather easily. The District Court dismissed the case by granting summary judgment, and the Seventh Circuit affirmed the dismissal. The basis for this was that both courts agreed that Wallace had filed his case too late. The statute of limitations (that is, when the clock started ticking for his claim) began to run at the time of his arrest, they said, not when his conviction was eventually set aside.
And what do the Supremes have to say about this? They basically agree with the lower courts (they agree that the lawsuit was filed too late, but they seem to say that the clock started a little later than when the actual arrest took place). The Scalia wrote the majority opinion, joined by Chief Justice Johnny and Justices Kennedy, Thomas and Alito (and Justices Stevens and Souter concurred in the judgment). Wallace brought his claim under § 1983, which is federal law. However, you have to look at state law to figure out what the statute of limitations is.
So here, we look to Illinois law. And Illinois law says you have two years to file a a personal-injury tort claim. Everyone agrees on that point. The issue is when that two year clock started to tick for Wallace.
The Scalia begins by making it clear that, while he’s looking to state law to figure out what the statute of limitations is, this is still a question of federal law that’s resolved without referring to state law, because we’re talking about a federal cause of action. And federal law is pretty clear that the clock starts ticking “when the plaintiff has ‘a complete and present cause of action.’”
So when did Wallace have a complete and present cause of action? Well the Scalia notes that Wallace could’ve brought a lawsuit right after the arrest occurred, so “the statute of limitations would normally commence to run from that date.” But, the Scalia says, this needs to be refined a little because the common law treats false arrest and false imprisonment a little differently, and these are the closest causes of action to this case’s claim - in fact, the Scalia is going to refer to this case’s claim as false imprisonment because that refers to “detention without legal process” and that’s really what Wallace’s claim is about, because they detained him without legal process (because they didn’t have an arrest warrant).
Now, the statute of limitations for false imprisonment runs a little differently than for other torts, “dictated, perhaps, by the reality that the victim may not be able to sue while he is still imprisoned.” So the statute of limitations for false imprisonment begins to run whenever the alleged false imprisonment ended. So the question here is…
When did Wallace’s false imprisonment end? Well generally, says the Scalia, false imprisonment ends when the person is being held pursuant to a legal process - “when, for example, he is bound over by a magistrate or arraigned on charges.” Because at that point, any continued unlawful detention is part of a claim of malicious prosecution, distinct from a claim of false imprisonment or false arrest. So the Scalia says that Wallace’s false imprisonment did not end when he was released from the state’s custody after the charges were dropped in 2002. Instead, it ended way back “when legal process was initiated against him, and the statute would have begun to run from that date, but for its tolling by reason of petitioner’s minority.”
So his statute of limitations began “to run when he appeared before the examining magistrate and was bound over for trial.” And that was back in the ’90s, well more than two years before he field his lawsuit. So Wallace’s claim was time barred, and this is true even if you don’t count the years he was still a minor (since he turned 18 around 1997, six years before filing this lawsuit).
So is that it? Not yet. Wallace tried to rely on a 1994 case, Heck v. Humphrey, to support his position, and the Scalia needs to deal with that.
And what was Heck v. Humphrey about? That was also a lawsuit under § 1983. Specifically, a state prisoner had raised claims which, if true, would’ve proven that his outstanding conviction was invalid. The Court said his case was similar to one of malicious prosecution. And an element of a claim of malicious prosecution is that there was a “favorable termination of criminal proceedings.” That is, a plaintiff won’t win on a claim of malicious prosecution if they did not manage to have their conviction or sentence overturned, expunged or invalidated. As such, the cause of action for malicious prosecution doesn’t accrue until that overturning, expunging of invalidating takes place.
But false imprisonment is different, because there is not necessarily an initial conviction (i.e., you can be falsely imprisoned yet never be charged or convicted of anything). So the Scalia says that Wallace is basically asking the Court to adopt a much wider principle than what Heck was about - Wallace would have the Court rule that any lawsuit “which would impugn an anticipated future conviction cannot be brought until that conviction occurs and is set aside” (Scalia’s emphasis, not mine). And that’s obviously impractical - in a false arrest situation, the plaintiff would have “to speculate about whether a prosecution will be brought, whether it will result in conviction, and whether the pending civil action will impugn that verdict” without even knowing what evidence the prosecution has. And what happens if they guess wrong and there is no prosecution - how would we know when to start the clock?
So Scalia says balls to all that. Besides, if Wallace had filed his lawsuit when he should have, he might have been able to then have the civil case stayed until all the state criminal proceedings were done.
But, there’s one more complication. Actions under § 1983, “unlike the tort of malicious prosecution which Heck took as its model, [citation], sometimes accrue before the setting aside of - indeed, even before the existence of - the related criminal conviction.” That is, a malicious prosecution claim can never accrue before a conviction and subsequent setting aside of the conviction, but a § 1983 claim can. So the question becomes, when there is a conviction in a § 1983, does this toll the statute of limitations (i.e., put the clock on hold), only letting it run again when the conviction is overturned (as in Heck)?
Why is that important here? Because if you stop the clock when Wallace was convicted, in 1996, and then start it again when his conviction was overturned and the charges were finally dropped, his case would fall within the statute of limitations.
And is that the case? Of course not. The Scalia says that we should look to state law to figure out when and if the statute of limitations is tolled. And Wallace hasn’t shown any Illinois law “in even remotely comparable circumstances.” And the Scalia is not “inclined to adopt a federal tolling rule to this effect.”
Ok, and what about the concurrence? Well Justice Stevens wrote a concurring opinion, joined by Justice Souter, because he agrees with Scalia’s conclusion, but he would get there “by a more direct route.” He doesn’t think you need to make analogies to common-law torts, like the Scalia did:
Instead, I would begin where all nine Justices began in Heck. That case, we unanimously agreed, required the Court to reconcile § 1983 with the federal habeas corpus statute…[and] we found that the writ of habeas corpus, and not § 1983, affords the “‘appropriate remedy for state prisoners attacking the validity of the fact or length of their confinement.’”
But Wallace wouldn’t be able to seek a writ of habeas corpus here, which means that Heck just doesn’t apply and can’t act to postpone the accrual of his claims. Maybe, says Stevens (agreeing with Scalia), a civil trial brought at the proper time could have been stayed until the state criminal proceedings were over, but that doesn’t support a decision that the claims hadn’t accrued.
So that’s why he agrees with the judgment. He then goes on to slap the Scalia around a little, saying: “The Court regrettably lets the perfect become the enemy of the good,” because the Scalia says there may sometimes be cases where someone in Wallace’s shoes could actually bring a habeas petition. But Stevens says: “It is always possible to find aberrant examples in the law, but we should not craft rules for the needled rather than the haystack in an area like this.”
Uhm, ok. And the dissent? Well that would be Justice Breyer, joined by Justice Ginsburg. Breyer agrees that Heck wouldn’t bar the accrual of the § 1983 claim here, and he also agrees with everyone that, had Wallace filed his lawsuit in time, “the Federal District Court might have found it appropriate to stay the trial of his claims until the completion of state proceedings.” But he doesn’t like the notion of always requiring the early filing of a § 1983 lawsuit, “followed by an uncertain system of stays, dismissals, and possible refiling.” Breyer feels that you can instead say that the claim has been “equitably” tolled because of “disabling circumstances.”
In particular, equitable tolling could apply where a § 1983 plaintiff reasonably claims that the unlawful behavior of which he complains was, or will be, necessary to a criminal conviction.
This approach, says Breyer, is just much more practical than the majority’s approach of always requiring early filing. But the Scalia says this whole equitable tolling business is nonsense.
Supreme Court Decision Update - Marrama v. Citizens Bank of Massachusetts
Marrama v. Citizens Bank of Massachusetts (PDF of the opinion) is the first of today’s new Supreme decisions, and it’s about the wonderful world of bankruptcy.
QuizLaw Analysis: More specifically, this case is about abuse of the bankruptcy system by scum-bum no moneys trying to skirt their debts. The Supremes rule here that you forfeit what is generally an absolute right to convert a Chapter 7 bankruptcy into a Chapter 13 bankruptcy where you act in bad faith, and the bankruptcy courts have the right to call you out on your bad faith shenanigans (as they can also dismiss an original Chapter 13 bankruptcy for bad faith shenanigans).
So who got themselves in some debt trouble? That would be Robert Marrama who, in 2003, filed for Chapter 7 bankruptcy. His biggest debtor was Citizens Bank of Massachusetts (let’s just call them the Bank). Marrama’s biggest asset was some land up in Maine and, early during the bankruptcy process, he made some misleading and inaccurate statements about the land. For example, he claimed it had zero value, and he also denied that he had transferred any property in the year before he filed for bankruptcy, except in the ordinary course of business. These were both lies: “the Maine property had substantial value, and Marrama had transferred it into [a] newly created trust for no consideration seven months prior to filing his Chapter 13 petition.”
Wait - what’s with the Chapter 13 petition? I thought he filed for Chapter 7? Well he did, originally. However, during the Chapter 7 process, the bankruptcy trustee said he was planning to go after the Maine property to make in an asset of the bankruptcy estate. Marrama then filed to have his bankruptcy converted to Chapter 13. The bankruptcy trustee and the Bank both objected, relying largely on the attempt to hide the Maine property and arguing that this conversion request was being made in bad faith and was an attempt to abuse the bankruptcy process.
Why did he want to convert the bankruptcy? He wanted to convert it because under Chapter 7 bankruptcy the trustee control all the assets. But under Chapter 13 bankruptcy, the debtor (e.g., Marrama) keep control of the assets. So he would keep control of the Maine land under Chapter 13 and could, presumably, work to keep it out of the bankruptcy estate, and out of the grubby hands of the Bank.
So was the bankruptcy converted? No. Marrama tried to claim that he meant to file for Chapter 13 but filed for Chapter 7 because of a “scrivener’s error.” But the Bankruptcy Judge said “that there is no ‘Oops’ defense to the concealment of assets and that the facts established a ‘bad faith’ case.” So Marrama appealed to the First Circuit’s Bankruptcy Appellate Panel, which also rejected his attempt to convert.
On appeal, Marrama’s main argument was to rely on some language in the Bankruptcy Code. In section 706(a), the Code says that a debtor “may convert a case under this chapter to a case under chapter 11, 12, or 13 of this title at any time [and]…[a]ny waiver of the right to convert a case under this subsection is unenforceable.” Marrama said this gave him an absolute right to convert his case. The panel said “nuh-uh.” Their take was that, when you read this with other Bankruptcy Code provisions and rules, there is a right to convert which “is absolute only in the absence of extreme circumstances.” And here, the panel felt that the Maine shenanigans were such extreme shenanigans.
Marrama appealed to the First Circuit which also told him to shove off. First, section 706(a) says “may,” not “shall,” so it’s not really absolute. Second, the First Circuit reminded everyone that bankruptcy courts have total authority to throw out a chapter 13 case (that is, a bankruptcy initially filed as chapter 13) when there’s bad faith. And there’s no reason that rule should be different for an initial chapter 13 petition and a motion to convert a chapter 7 to a chapter 13.
And now we’re at the Supremes? We sure are. This was a 5-4 decision, with the majority opinion penned by Justice Stevens and joined by Justices Kennedy, Souter, Ginsburg and Breyer. Stevens beings by reminding us what section 706(a) says, and also points out the language of 706(d) which says: “Notwithstanding any other provision in this section, a case may not be converted to a case under another chapter of this title unless the debtor may be a debtor under such chapter.”
This 706(d) is the key here. It’s an express limitation to the otherwise “absolute” right to convert a bankruptcy. In other words, Marrama isn’t allowed to convert his bankruptcy if he wouldn’t be allowed to be a Chapter 13 debtor. And Stevens says Marrama wouldn’t be allowed to be a Chapter 13 debtor. If he had initially filed for Chapter 13, his case would’ve been dismissed “for cause,” because of the bad-faith conduct (as bankruptcy courts “routinely treat dismissal for prepetition bad-faith conduct as implicitly authorized by the words ‘for cause’”).
So here’s the key:
In practical effect, a ruling that an individual’s Chapter 13 case should be dismissed or converted to Chapter 7 because of prepetition bad-faith conduct, including fraudulent acts committed in an earlier Chapter 7 proceeding, is tantamount to a ruling that the individual does not qualify as a debtor under Chapter 13. That individual, in other words, is not a member of the class of “‘honest but unfortunate debtor[s]’” that the bankruptcy laws were enacted to protect.
So the court retains the authority to protect creditors from “the atypical litigant who has demonstrated that he is not entitled to the relief available to the typical debtor” because he acted fraudulently. In other words, the bankruptcy court needs to ensure that there’s no “abuse of process,” which, according to Stevens is ample reason for the “immediate denial of a motion to convert filed under § 706.”
And what doesn’t the dissent like about this? Well Justice Alito filed the dissent, joined by Chief Justice Johnny, the Scalia and Justice Thomas. Alito and company agree with Marrama that the right to convert is absolute:
The Court, however, holds that a debtor’s conversion right is conditioned upon a bankruptcy judge’s finding of “good faith.” Because the imposition of this condition is inconsistent with the Bankruptcy Code, I respectfully dissent.
Alito thinks the Bankruptcy Code is unambiguous in allowing absolute conversion, with “two - and only two” restrictions. Those restrictions are that you can only convert once, and that you must meet the conditions of a debtor in the chapter you’re trying to convert to. And nothing says the court has the right to deny a conversion request when there’s “bad faith.” So the majority is simply disregarding what Congress wanted.
My that’s a mighty gavel you have there
Today’s Non Sequitur, from GoComics:
What’s fat and forced to start over?
If you said “Charlie Weis,” you’d be correct. Notre Dame’s football coach has been involved in a trial over his allegedly botched gastric bypass surgery. He had the surgery back in 2002, and as you can see, it didn’t exactly work. So he filed a medical malpractice action against two of his doctors, claiming they screwed the pooch by failing to deal with internal bleeding and infection that took place after the surgery.
Well yesterday, on the eve of the case being handed over to the jury, the judge declared a mistrial in his lawsuit. An expert was giving testimony when a juror began moaning and then collapsed. Several doctors in the courtroom came to his aid, including both of the doctors being sued. The other jurors were quickly kicked out of the courtroom, but some still saw the defendant doctors rush over to help the collapsed juror.
Weis’ attorney then asked for a mistrial because the jury might see the doctors as, I dunno, doing what doctors are supposed to do! As their attorney put it:
“They responded the way they were trained to do. They simply stood up and tried to help.”
The doctors’ lawyer also said a mistrial would be unfair because they already had to juggle their schedules so the trial could take place during the offseason. But the judge was unmoved: “The integrity of the court is more important than schedules.”
The mistrial means that Weis will have to start the trial all over again. But this shouldn’t be a big deal because something tells me he’s used to going back for seconds!
Wacko gets Jacko’d
This just proves that when you’re a famous celebrity with deep pockets, you can be sued for almost anything. And that’s what’s happening to Michael Jackson: The family of a Manuela Gomez Ruiz is suing both Jackson and the Marian Medical Center, claiming that the hospital’s VIP treatment of the pop star two years ago resulted in the death of Ruiz, a 73-year-old woman under the hospital’s care.
The complaint blames Jackson and the hospital for the “outrageous, circus-like atmosphere they orchestrated during the last hours of Manuela Ruiz’s life and its obvious emotional and mental lasting effects upon the plaintiffs.” They allege “intentional infliction of emotional distress, negligent infliction of emotional distress, elder abuse, false imprisonment and conspiracy.”
The events took place two years ago, during Jackson’s trial for child molestation charges. At one point, as you may recall, Jackson was admitted into the hospital for flu-like symptoms. According to the plaintiffs, Jackson falsely exhibited flu-like symptoms to avoid court that day and, ultimately, “hijack” the services of the hospital. As a result, Ruiz — who was admitted for a heart attack earlier in the day and was already in critical condition and on life support — was hastily removed from life support and switched into another hospital room, to accommodate Jackson’s need for a private one.
Ruiz apparently also had another heart attack later in the day, but they claim that the crowds delayed her arrival at the critical care unit. Ruiz died later that day. The attorney for the family is claiming that they waited two years to file suit because they didn’t want to jump on the “Michael-Jackson bashing boat.”
Now, c’mon: Really?! This woman was 73-years-old, suffered two heart attacks, and was on life support. Did Michael Jackson’s presence really hasten her death? The woman was on her last legs, and the plaintiffs aren’t even alleging wrongful death. They are claiming that Jackson’s presence caused them severe emotional distress. Well, you know what: Having a mother die probably caused that emotional distress. And I’m assuming that the two-year wait had less to do with not wanting to jump on the “Michael Jackson bashing-boat,” and more to do with an ambulance chasing attorney coming out of the woodworks, seeing an opportunity to cash in.
Supreme Court Decision Update - Lawrence v. Florida
Lawrence v. Florida (PDF of the Opinion) is a tedious case about the statute of limitations under the Antiterrorism and Effective Death Penalty Act. Or rather, it’s about whether the statute of limitations is tolled (put on hold) during the pendency of a petition for a writ of certiorari following the denial of a state court post-conviction. The Court’s majority concluded that the statute is not tolled, regardless of whether the petitioner had a petition for a writ of certiorari pending with the Supreme Court. In other words, the Supreme Court has essentially told Lawrence that he’s S.O.L., and death is imminent.
QuizLaw Analysis The conservative majority basically went with the strictest reading of the statute, holding that 28 USC § 2244(d)(2)’s one-year statute of limitations continues to run even if a writ of cert is pending.
What happened to Lawrence? Lawrence had been convicted of murder and sentenced to death. He appealed his conviction, alleging 13 counts of ineffective assistance of council, and eventually lost those appeals, meaning the conviction was now final. Which means he had 365 days to file a habeas petition under the Antiterrorism and Effective Death Penalty Act. 364 days later, one day before his time would be up, he filed a different appeal in state court, seeking post-conviction relief. Relief was denied, and he eventually sought cert from the Supremes, but this too was denied.
While his petition for certiorari with the Supremes was pending, he filed his federal habeas application. This was 113 days after the state Supreme Court had denied his post-conviction appeals.
And what’s the issue here? Well the problem works like this. He had 365 days to file his habeas petition. He let 364 days go by. But then he filed state appeals, and that tolled the statute of limitations, meaning that “1 day left” was put on hold.” So the question posed to the Supreme Court was: Did the statute of limitations toll while his writ for certiorari was pending?
And did it? The majority of the court concluded that it did not. This opinoin was penned by Justice Thomas, and joined by Chief Justice Johnny, The Scalia, and Justices Kennedy and Alito. Thomas says that the limitations period had tolled while he was seeking relief from the state of Florida, but — since he had only one day remaining on the year term — he should’ve applied for federal habeas relief the day after his state appeals ran out, not 113 days later (that is, he was 112 days too late).
The pertinent section of 28 USC § 2244(d)(2) notes: “The time during which a properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim is pending shall not be counted toward any period of limitation under this subsection.” Thomas and the majority reasoned that a writ for certiorari from the Supreme Court does not count as “application for State post-conviction or other collateral review,” because it is pending before a federal court.
Thomas offers all sorts of reasons behind the Court’s ruling, but it mostly comes down to this: It’s what the statute says explicitly, so that’s what we’re going to go with, awkwardness and fairness be damned.
And what’s the dissent have to say? Justice Ginsburg, joined by Justices Stevens, Souter, and Breyer, disagreed. Ginsburg noted (I think logically) that writs for certiorari arise from “actions instituted in lower state courts.” Therefore, the dissent argued, a petition for certiorari is part of the state appeals process and the tolling period should continue until the “Court has had an opportunity to consider an application for state postconviction relief.”
Supreme Court Decision Update - Weyerhaeuser Co. v. Ross-Simmons Hardwood Lumber Company, Inc.
Today’s only unanimous opinion comes in the form of the long-titled Weyerhaeuser Co. v. Ross-Simmons Hardwood Lumber Company, Inc. (PDF of the opinions). It’s a case about the exciting world of antitrust laws and monopolies, specifically as to what the test is for when there’s predatory bidding. And it’s also yet another bitch-slap to the Ninth Circuit.
QuizLaw Analysis: Sadly, predatory bidding has nothing to do with velocaraptors (see what I did there, with the “predatory”…that’s what this case has sunk me to). Instead, the Supremes unanimously hold that the same test that’s been applied to predatory pricing for over a decade is also the one that should be used with predatory bidding.
Predatory bidding, predatory pricing…what’re we talking about? Well, let’s get the background of the case first, before we get into the fun antitrust mumbo-jumbo, ok?
Ok, so what’s the background? In the Northwest, timber is a big industry, and red alder sawlogs are one of the types of logs processed up there. Sawmills can get these logs in three ways - by harvesting timberlands that they own, through long- or short-term agreements with the owners of timberlands, or by purchasing them on an open bidding market. Ross-Simmons is one such sawmill, which has been around since 1962. In 1980, Weyerhaeuser joined the market (and from now on, I’m calling Weyerhaeuser “Big W,” because I just can’t keep typing that name). Anyway, while Big W did well over the next 20 years, Ross-Simmons did not. The price of alder sawlogs (which are up to 75% of a sawmill’s costs) went up, while lumber prices fell. And Ross-Simmons got hit hard, eventually shutting its doors in May ‘01.
Ross-Simmons then sued Big W, claiming that Big W drove it out of business by bidding up the cost of the sawlogs to the point that Ross-Simmons couldn’t keep a profit. This was an antitrust suit under the Sherman Act, claiming monopolization and attempted monopolization based on Big W allegedly overpaying for these sawlogs to cause the prices to artificially raise.
This, Ross-Simmons argued, was illegal predatory bidding.
The trial court continually rejected Big W’s attempts to kill the predatory-bidding theory. At one time, Big W argued that Ross-Simmons had to meet the standards of a Supreme case from 1993, Brooke Group Ltd. v. Brown & Williamson Tobacco Corp. which was not about predatory bidding, but predatory pricing. The District Court denied this motion, and also rejected jury instructions which also relied on Brooke Group. Instead, the jury was told that Big W has committed antitrust violations if the jury decides that it tried to prevent Ross-Simmons from getting logs by buying more logs than necessary or paying a higher price than necessary. The jury ruled against Big W to the tune of $26 million.
Big W appealed to the Ninth Circuit, which affirmed the verdict. It ruled that predatory bidding and predatory pricing are similar, but that there are differences, and that “the concerns that led the Brooke Group Court to establish a high standard of liability in the predatory-pricing context do not carry over to this predatory bidding context with the same force.”
I’m lost. Can we talk about this predatory pricing business? Yeah, now would be the time. So predatory pricing is where someone lowers the price of their own product with the hope that competitors can’t afford to match the low prices, thus driving those competitors out of business. Then, the “predator” can jack the price way up. The Supremes looked at this practice in Brooke Group and set a high standard for a plaintiff to win on a claim of predatory-pricing. This is because “[t]he mechanism by which a firm engages in predatory pricing - lowering prices - is the same mechanism by which a firm stimulates competition,” and the court doesn’t want to “chill the very conduct [which] the antitrust laws are designed to protect.”
So a predatory pricing plaintiff must prove two things to win. They have to be able to show that the prices in question were below cost - the idea being that price cutting benefits consumers, so it should only be punished where it hurts competition, namely, when it’s below cost (because then there’s a loss on the sale, not a profit). The plaintiff must also, according to the Brooke Group Court, prove that the “bad guy company” was likely to make back its “investment in below-cost pricing” down the road, by jacking prices up after the competition is gone. This requirement is because “without a dangerous probability of recoupment of losses…it is highly unlikely that a firm would engage in predatory pricing” in the first place.
Ok, and what, exactly, is predatory bidding? Well that’s what Ross-Simmons claims Big W was doing. So predatory bidding is where a company uses their strong market power to bid up the price of supplies so that competitors can’t afford to buy them and stay in business. This results in a monopsony (whereas a monopoly is control of the sales side of the market, monopsony is control on the buying side of the market “and is sometimes colloquially called a ‘buyer’s monopoly’”). And once the competitors are gone, the “bad guy company” can try to bid the supply prices back down, and pull in nice fat profits which make up for the losses it took while the prices were high.
Boring, but makes sense. You ain’t whistling Dixie.
So where are we going with all this? Well, in a unanimous opinion, Thomas tells us that those two Brooke Group standards apply to predatory bidding, just like they apply to predatory pricing, because the underlying claims in each type of case are similar - there is a “close theoretical connection between monopoly and monopsony.” Two sides of the same coin, if you will:
Both claims involve the deliberate use of unilateral pricing measures for anticompetitive purposes. And both claims logically require firms to incur short-term losses on the chance that they might reap supracompetitive profits in the future.
And more importantly, they are both similar with respect to what the Brooke Groupe Court thought was significant. A rational business would rarely be willing to suffer short term losses in the hopes of getting bigger profits down the road, using either predatory scheme. And similarly, the actions underlying both predatory bidding and predatory pricing “are often ‘the very essence of competition,’” that is, “sellers use output prices to compete for purchasers [and] buyers use bid prices to compete for scarce inputs.” There are plenty of legit reasons why such pricing or bidding could take place, so Thomas says we should only approve claims of predatory bidding, as with predatory pricing, where it’s clear that anticompetitive shenanigans are going on.
Plus, it turns out that predatory bidding isn’t even as much a threat to consumers as predatory pricing, because, while predatory pricing only succeeds when a higher prices is charged to consumers, “a predatory bidding scheme could succeed with little or no effect on consumer prices because a predatory bidder does not necessarily rely on raising prices in the output market to recoup its loses.” That’s because the bad guy can just bid the buying prices way down later, and still sell to the consumer for the same price, all while reaping fat profits.
All of which is a long way of saying what? That the same test applies to both - the “two-pronged Brooke Group test should apply to predatory-bidding claims.” So the plaintiff in a predatory bidding case must first show “that the alleged predatory bidding led to below-cost pricing on the predator’s outputs.” That is, that the predator was taking a loss on its sales, because it was selling at below cost. As with predatory pricing, if the predator is still selling above-cost, it’s a potentially reasonable business decision which should be beyond the court’s reach, lest the court chill legitimate competitive conduct.
And second, a predatory-bidding plaintiff must also “prove that the defendant has a dangerous probability of recouping the losses incurred in bidding up input prices through the exercise of monopsony power.” Because, without such a likelihood, there’s no economic sense to the practice of predatory bidding.
Thus, the Ninth Circuit got it wrong, and the Supremes vacate the case and remand it.
Liberal Commie Bastards Reject all the Good Laws
I don’t get it. What’s wrong with this country? Arizona state house Democrat Ed Ableser was just looking out for our children (they are the future, after all). So, he proposed a law that would ban mudflaps with racist terms or silhouettes of women. But it was rejected by the state house. What’s wrong with the proposal? We don’t need to see racist terms or naked women on our roadways, do we?
Just the other day, in fact, I was driving down the freeway and saw this mudflap and had to avert my eyes. I nearly ran off the road and killed myself. What if I’d had a child in my car? We can’t have that kind of hate-fueled content on our nation’s highways. Sexual predators with decorative mud flaps have to be stopped; we can’t have that sort of thing inflicted on today’s youth. Do you have any idea how prurient Betty Boop is?
I agree, wholeheartedly, with Democratic Rep. Theresa Ulmer:
“I personally am tired of explaining to my 11-year-old son why they (women) are depicted on mudflaps , but not all women are 36Ds. He’s very confused by that. But seriously, this is about family values — what are we going to send out as a message to our children.”
Indeed! We have to teach our children that the First Amendment is meant to be violated. That’s what it’s there for, after all. Also, that state congressmen and women should spend more time on things that matter, like this law, rather than fritter it away funding schools or repairing the roads. And no parent should ever be asked to discuss breasts with their children. Kids should be kept ignorant. So that they might grow up some day and propose excellent laws like this one. And I just can’t believe it was rejected. Ridiculous!
Supreme Court Decision Update - Philip Morris USA v. Williams
Of the three Supreme decisions to come down today, Philip Morris USA v. Williams (PDF of the opinions), is the furthest of the bunch from a unanimous one, coming in as a 5-4 decision. The decision is about whether large punitive damage awards comport with the Constitutional requirement for due process, and the majority says “nuh-uh.”
QuizLaw Analysis: This thing boils down real simple-like. Smoking is bad for you. Cigarettes are bad for you. But excessive pun