Monthly Archives: March 2007
It’s funny because it’s about drinking…
(Today’s “Non Sequitur” from GoComics.)
“…that’s just being polite.”
The investigative team of Wilmore and Oliver take their tactics to NYC, to investigate Councilman Leroy Comrie’s attempts to ban the “n” word, and there’s not a better way to spend a couple minutes of this nice Friday afternoon than watching the results:
The Daily Memo - 3/30/07
Two Virginia students are suing a California company (Turnitin) that helps find cheaters who plagiarize papers. (The Legal Reader)
Here are some things to think about when visiting schools you’re considering for your law school career (though it ignores the underlying question of “what are you thinking in the first place?”). (Concurring Opinions)
A stupid Texas reporter is out of jail on a bail bond after being arrested for attempted kidnapping - she was mirroring the actions of a recent kidnapping case as part of an “investigative report” on the hospital’s security. (KCBD)
Former Georgia congressman Bob Barr, who used to be staunchly against medical marijuana, is now a lobbyist for the Marijuana Policy Project. (The Politico)
A Texas college student’s mom has been arrested after going after one of her daughter’s classmates - with an icepick! - to defend her daughter’s honor. (Tyler Paper)
Sometimes it’s just more effective to ask politely, like: “Hey, can I borrow your notes?”
There were several people here whom I tried to be a good friend to….And one deliberately hit me, three times, and broke my nose — in two places. He then apologized thusly: “I’m sorry, I didn’t think it would break.” (Obviously we were both drunk.) He then got on Facebook and mocked me. He said he hit me in the face with a TEC-9. He made a drinking game out of making fun of me. He said he “beat me like your step-daddy.”
He hit her in the face with a TEC-9. That’s a a semi-automatic gun, for Christ’s sake!
You know, there are some days that I actually miss law school. Other days, I’m reminded of how many assholes there are at the typical law school, and I don’t quite miss my time there so much. This would be one of those days.
New York might want to rethink this law
The Brooklyn version of The War of the Roses continues on its weird way. If you haven’t heard of this case, Chana Taub is trying to divorce her husband of over 20 years, Simon Taub. Chana claims that Simon abused her, physically and mentally, throughout their relationship, and she’s had enough. So she filed for divorce, citing “cruel and inhuman treatment” as the grounds. Simon of course denies all of this, and says he treated her like royalty. He claims she’s just trying to squeeze every last dime out of him in light of their increasing financial problems (his company went bankrupt in the late ’90s, and he’s had two heart attacks which have also pinched the couple’s wallets).
This divorce case took a bizarre turn, however, when neither Taub was willing to move out of their house. So the judge overseeing the divorce case ordered the couple to put up a wall in their three-floor home, giving them each their piece of the pie, similar to what Michael Douglas and Kathleen Turner’s characters did in Roses:
[Chana] got the top floor and the kitchen on the second floor; [Simon] got the living room on the first floor and the dining room on the second floor. The door between the dining room and the kitchen was barricaded on both sides.
A large cause of the legal complications here come from the fact that New York has a law which does not allow a couple to get a timely divorce unless there’s solid evidence that one of the spouses is at fault for the marriage’s failure (e.g., one of them was having an affair). Since Taub didn’t have such proof, she was forced to pursue the divorce through a lengthy trial.
But here’s the kicker - a jury has now ruled that the couple cannot get divorced! After the jury issued its ruling, Justice Carolyn Demarest said the case was being dismissed, although Chana can file it again on new grounds if she wants.
This is totally going to end up like a “Law & Order” episode, where one of the Taub’s kills the other, but the criminal murder trial turns into a jury referendum on the NY divorce laws. I can just see the “ripped from the headlines” advertisement now.
These are their stories, but only the ones without presidential candidates…chunk-chunk!
There’s a federal campaign broadcasting regulation referred to as the “equal time” rule which basically says all of the “free” television networks have to give equal time to all political candidates. This doesn’t count for appearances on the news, or in interviews or documentaries. But if I’m NBC and I sell Hillary a 30-second spot, I have to also sell a 30-second spot to Obama and any other political opponents that come a-knocking.
But in an interesting application of this rule, NBC may suddenly find itself putting a big hunk of “Law & Order” reruns on the backburner because of this rule. It’s widely speculated that former Tennessee senator Fred Thompson may take a run at the Republican nomination. If you don’t know his name, he’s the guy here on the right. Anyway, Thompson has a pretty extensive acting resume, and while I’ll always remember him most as the as the head of air traffic control in Die Hard 2, most folks know him from his extensive face-time on the “Law & Order” franchises. Between the original “L&O,” along with “Special Victims Unit” and “Criminal Intent,” Thompson has appeared as District Attorney Arthur Branch in 122 episodes, dating back to 2002, when he started the role on “Law & Order”. And since the “equal time” rule applies to entertainment programs, NBC could find itself owing Republicans a lot of air time if it airs Dalton’s “L&O” episodes:
“As a practical matter, [the television stations] would in all likelihood have to pull all of the Fred Thompson shows for the duration of his candidacy,” said Andrew Jay Schwartzmann, president of the Media Access Project.
However, this rule has never been applied apply to any cable station, so in theory, it shouldn’t effect the bajillion “Law & Order” reruns on TNT. However, a political rival could try to get equal time on TNT:
To do that, the other candidates would have to monitor each of Thompson’s appearances, count the minutes he appeared, and then request equal time within seven days of each episode. Only the actual time that Thompson actually appears in each episode is counted, legal experts said.
Thompson has some solid fans among the more conservative wing of the Republicans, and he’s already posting poll numbers despite not even being in the race. So it shouldn’t come as any surprise if Thompson winds up in the race, forcing NBC to dig into its pre-2002 “L&O” coffers. Of course, that may be for the best, since we all know the show was at its strongest in the mid-90s. More Lenny Briscoe is never a bad thing!
QuizLaw Pop Quiz
All right, this afternoon I have a very simple assignment for you. Simply listen to this snippet, which comes from Sean Hannity’s radio show. A call-in listener asks Republican Presidential Candidate Rudy Giuliani a simple question about gun laws. Listen carefully to his answer, and then answer the question below.
After listening to the segment, can you tell me where Rudy Giuliani received his legal education?
C. New York University School of Law
D. The back of a box of Fruit Loops
Of course, it’s a trick question. While Giuliani attended New York University School of Law in the ‘50s, he obviously received his legal education from Toucan Sam, who never quite had a firm understanding of the Bill of Rights.
(Hat Tip: Bowl of Stupid)
The Ninth Circuit today issued a decision (via Bashman) that offers a mixed bag to child pedophiles. The decision concerns a law enacted in 2003, which made it a crime for tourists to travel outside of the United States to “engage in any illicit sexual behavior with another person.” The bad news for pederasts is that the Ninth Circuit didn’t actually strike down the law (sorry, John Mark Karr).
But, there is a silver lining for pedophiles. Indeed, the Ninth Circuit refused to apply the law to the defendant in the case, Gary Evans Jackson, who relocated temporarily to Cambodia, where he and his partner had sex with at least three boys between the ages of 10 and 15. The Court held that the law did not apply to travelers, like Jackson, who completed their travel before the law was enacted in April 2003.
So, a word of advice to eager child molesters out there: If you can get a hold of some high-grade plutonium, a flux capacitor, and a DeLorean, you can travel back to 2002 and molest all the Thai children you’d like without fear of prosecution under 18 U.S.C. Section 2423(c).
Don’t say QuizLaw never helped out a man in need.
What’s 1/3 of 1,000?
Well this right here is the 1,000th post on the QuizLaw blog!
Those readers who have been with us for a while will recall that we had a little problem with the Department of Homeland Security last spring. While we were able to recover some of our prior posts, a good number were sadly lost for all time. So we don’t really know the anniversary of when we first posted, nor do we have an exact count of the number of posts we’ve actually done. But going by the posts currently on our blog, including the pre-DHS posts we were able to scrounge up, this right here is number 1,000.
Originally, I was going to celebrate the big triple-zero by sharing some wonderfully hilarious/stupid legal story. But then I noticed a comment to one of Tuesday’s entries, and I decided to get serious-like instead.
Wait, wait. You’re telling me you think those lawyers were entitled to a scant 22,333,333.33 each?!
Is there any kind of fund set up where I can donate money to impoverished lawyers?
Well, Ben, here’s the thing. It’s not really a question of whether those lawyers were, or whether any lawyers are, impoverished. Instead, it’s a question of whether they were entitled to $23.3 million each. And before they turned out to be thieving scumbags, I would have said “absolutely.”
As I mentioned in the original post, one-third of any settlement/award is the customary legal fee in contingency cases. And it is deserved. You have to remember that these guys took all the risk in this case. Their clients didn’t have to pay them a dime – the attorneys paid for everything out of their own pocket and, trust me, litigation ain’t cheap. Did they spend $67 million litigating the case? Probably not.
But here, too, you must remember that plaintiffs’ lawyers don’t win every contingency case they take. So if we made their fee some smaller percentage (say 10%), or an “actual cost” type fee, it’s suddenly not worth the risk for plaintiffs’ lawyers to ever take contingency cases.
But lawyers are scum, right, so who cares?
Well most stories we see about plaintiffs lawyers (or even about lawyers in general) tend to be negative - and we here at QuizLaw are perpetrators of this as well (the bad stories are just more fun!). But complain about the system though we all might, lawyers are an important part of the process, and those plaintiffs’ lawyers willing to work on contingency are an integral part of the system.
…this soapbox was built on the 999 preceding QuizLaw entries. Thank you.
The Daily Memo - 3/29/07
Headline: “Judge pulls gun in _____ court.” I’ll give you one guess what state name goes in that blank. (Breitbart.com)
Ouch! ITT Corp. agreed to pay a $100 million fine for illegally exporting classified night-vision goggle technology. (Yahoo! Finance)
San Francisco has banned non-recyclable plastic bags. (LA Times)
Dan Brown’s British copyright ordeal is over, now that the Appeals court rejected his opponents’ appeal. (FindLaw)
An anonymous Wisconsin man just paid off a $1 parking ticket from 1980, along with a $3 late fee. (ABC News)
Linus Torvalds, a name my fellow nerds will know, is “pretty pleased” about the latest draft of the General Public License. (c|net news)
“We want a pitcher, not a belly-itching Senator!”
Major League Baseball, like the NFL before it, has given the finger to many of its fans by taking its Extra Innings package exclusively to DirecTV. However, MLB one-upped the NFL by not only flipping off its fans, but also telling Congress to get bent. Several senators, including John Kerry, had urged the MLB, during a two-hour Commerce Committee hearing, not to take its exclusive game broadcasts to DirecTV:
[D]espite congressional brush-back pitches - warning of legislation and even the oft-repeated threat to review baseball’s anti-trust exemption - MLB President Bob DuPuy didn’t flinch…”We as a business matter view the Baseball Channel as critical to our long-term survival and the interests of our fans who want more baseball,” he said during [a] two-hour hearing.
So for the next seven years, at least, the MLB’s new channel and the ability to watch most regular season games will only be available to DirecTV subscribers (non-DirecTV folks can still get their local games and any nationally broadcast games).
Said Arlen Specter: “When the fans react, Congress may react…You may be well advised to act before we do.”
Now I loathe the fact that I can’t get the NFL package, since I can’t get DirecTV. From August through January of every year, I am in constant pain over this. I’m not nearly as pained by the MLB move, however, since I don’t watch baseball (aside from my eternally pitiful Phillies) with nearly the same level of zeal as with football. But MLB’s decision irks me more. With the NFL, it’s purely a business decision that the Feds really have no business getting involved with.
But the same simply isn’t true for baseball, no matter what the MLB execs say. Congress has given the league an antitrust exemption, and MLB has reaped the benefits of it. In light of the fact that’s it’s been granted this rare exception from laws that otherwise apply to everyone in this country, doesn’t the MLB owe at least a little deference to the public?
Now it may turn out that, in the long run, it was the best decision for everyone for MLB to go with DirecTV over cable and the Dish Network. But in light of the exemption, I think MLB should’ve at least granted the Senatorial request for more discussion about this whole thing. If the MLB is so willing to thumb its nose at Congress, maybe Congress does need to fight back, and look at stripping the exemption and/or other possible legislation.
Of inadequacy and psychic orgasms
Quoc Pham is suing his ex-girlfriend for $1 million, and this story is just comedy. Pham had been dating this gal, Neli Petkova, for an unspecified amount of time. And then, in September 2003, he got her pregnant after she convinced Pham that she wanted to have his kid (so he stopped using protection).
Two months later, at a Thanksgiving dinner, Pham claims that Petkova stood up and announced that she was dumping him because she didn’t trust Pham to be a father and because she needed someone who could afford to buy her a Manhattan apartment. But Pham claims that she really dumped him to pursue a relationship with another guy.
That other guy would be Guy Compton, a dude she met on a 10-day bike trip in Arizona. When she came back from the trip, she allegedly told Pham that “she had met someone else that could make her cervix orgasmic just by thinking and that [Pham] was sexually inadequate.”
Ultimately, Pham says their whole relationship was just a big ruse, and that she fooled him into thinking she was interested in having a long-term relationship with him and having a baby with in. All she really wanted, Pham claims, was his seed. And now, he alleges that she’s told everyone that Pham “abandoned her with the baby, while the truth is that she wanted to get rid of the plaintiff so that she could pursue Mr. Guy Compton.”
So of course he’s now suing her in New York for $1 million, both for defamation and intentional infliction of emotional distress. He’s also planning to file a lawsuit in California as well, where she now lives, going after her for child abduction (she has refused to let him have anything to do with their child).
Further Proof the Legal System Lacks a Sense of Humor
Back in February, after the Super Bowl Champion Indianapolis Colts won the big one (let me just say it again, because I like the sound of it: Super Bowl Champion Indianapolis Colts), Seth reported about a man, Scott Wiese, who lost a bar bet and had agreed to have his name changed to Peyton Manning. The world rejoiced. And snickered a little.
Well, word comes today that a judge has refused to allow Wiese to legally change his name, thereby making the man an involuntary welcher. Judge Katherine “Party Pooping” McCarthy ruled that the name change was too confusing and risked infringing the privacy of the football player.
But, the most amusing part of the story comes here:
Two people overjoyed at Monday’s court outcome were Wiese’s parents, Debbie and Steve. They had filed an official objection to the name change with the court. ”Wiese is our family name, and we’re proud of it,” said Debbie, 54. ”And we just thought that if he was going to change his name, it should be for a better reason than that. I also didn’t want to go through the rest of my life calling my son ‘Peyton Manning.”’
Now, that’s just horseshit. Peyton is now in the top 100 for both boy and girl baby names, and it’s a fine name that anyone should be proud to have. It’s popular. Distinguished. And unheralded in its ability to get men cheerleading tail. And, c’mon: The origin of the name Wiese derives from the German word for “meadow,” while everyone knows that the name “Peyton Manning,” in Gaelic, means “Best NFL Quarterback in all the Land.”
Cat Rape and other Tales from the Seventh Circuit
The Seventh Circuit (my favorite circuit for sheer opinion goodness) delivered a scathing attack against what they termed “second-hand harassment” hostile work environment lawsuits, and I think they hit the nail on the head. The case itself concerns a part-time bus driver who brought a lawsuit complaining that her co-workers were creating a hostile work environment (PDF of the opinion):
She accused one of her coworkers of giving an assistant manager of the facility “red underwear made to look like an elephant’s head, with a sexually-suggestive trunk” at an office party, and accused another—the manager, no less—that among other enormities he had referred to a female bus driver (not the plaintiff) as a “fat ass,” had had an affair with another female driver, sold Avon products at work, told the plaintiff that his teenage daughter had watched him walk from the shower to his bedroom naked, and described an incident in which his male cat “raped” his female cat.
The court, I think rightly, makes a huge distinction between offensive conduct or words aimed directly at the litigant and general foul language or disgusting behavior merely delivered in the presence of the plaintiff. The court seems to feel that, for the latter “second-hand harassment” to rise to the level of a hostile working environment, it need be a lot more harsh than, for instance, overhearing a co-worker describe an incident about his male cat raping his female cat. Moreover, this woman’s manager wasn’t calling her a “fatass,” he was calling another woman by that name in her presence (which might give the other woman a cause of action, but it’s only tangentially related to the litigant here.)
At any rate, I think the Seventh Court closed with an appropriate conclusion, warning – perhaps – that hostile work environment claims are getting a little out of hand:
The American workplace would be a seething cauldron if workers could with impunity pepper their employer and eventually the EEOC and the courts with complaints of being offended by remarks and behaviors unrelated to the complainant except for his having overheard, or heard of, them. The pluralism of our society is mirrored in the workplace, creating endless occasions for offense. Civilized people refrain from words and conduct that offend the people around them, but not all workers are civilized all the time. Title VII is not a code of civility.
The Daily Memo - 3/28/07
Is Monica Goodling standing on valid ground in asserting the Fifth? (Hint: the answer appears to be yes). (Is That Legal?
In Philly (and probably in other places), “smoke-easys” are popping up in defiance of the ban on smoking in bars. (Philly.com)
The biggest problem with the U.S. attorneys debacle might not be the firings themselves as much as all the current lying. (Slate)
A former Iowa inmate is suing the state over an incident from when he was still in the clink - he fell into a gopher hole that was on the prison grounds and fractured his ankle. (The Des Moines Register)
Wesley Autrey Sr., the guy who became famous for saving a teenager from getting run over by a NYC subway, is suing his lawyer for allegedly inducing him to sign “a one-sided agreement.” (WNBC)
Turns out you need to legally attach the gasoline to your old school bus when you’re using that bus as a giant oven for matzo. (WCBS)
“The Florida Supreme Court disbarred an attorney who had continued to practice law while suspended for misconduct.” (Legal Profession Blog)
The Mass Turnpike Authority wants its Big Dig documents, part of the current wrongful death lawsuit against it, sealed. (ABC6)
Common Sense Lesson #137
So a dude walks into a PostNet with a box (PostNet is a shipping company). He pays $106 for the box to be shipped from Portland, Oregon to Maryland and carries on his merry way. The PostNet clerk notices a funky smell coming out of the box, so she opens it after the guy leaves (the business has a sign posted notifying customers that they have the right to open and inspect stuff). Inside the box? Five bags of Lay’s Potato Chips.
She asked herself: “Why would anyone pay $106 to fly potato chips across the country?”
So she opened a bag and then called the cops, since it turns out that the bag contained hallucinogenic mushrooms. The cops then went and got a search warrant to open the other bags (Judge Keith Meisenheimer said, about getting the warrant request, “I was thinking ‘This is wild.’ “). In total, the cops ended up finding five pounds of ‘shrooms.
Ok, so the lesson here might have been “dude, don’t mail your drug shipments.” Or “at least odor proof your mailed drug shipments.” But no, neither of these is our lesson. Here be the lesson:
Do not call the shipping company days later to complain about the fact that your package never hit its destination, and especially don’t leave your name and phone number!
The Portland cops had no idea who the chip/mushroom shipper was until Joshua Michael Sturtevant ignored this common sense lesson and, as a result, he now faces a couple of felony charges.
Climbing our way to the top, bit by itty-bitty bit
My old pal Dave Hoffman has found a supposedly early copy of the new US News & World Report law school rankings, leaked a few days ahead of the “official” release. The top five remain virtually unchanged from last year:
2. Harvard (tie)
2. Stanfard (tie)
The players are the same, and the only difference here is that Harvard crept up from third to a second-place tie, and Columbia dipped to fifth from last year’s tie for fourth.
In fact, the schools in the top twenty remain exactly the same (though shuffled from last year’s position a little) with one exception. George Washington fell down a couple of spots from last year’s three-way tie at 19, landing at 22.
And who crept into the top twenty?
QuizLaw’s very own Boston University, now sitting at a two way twentieth-place tie with the University of Minnesota. Of course, BU’s ranking doesn’t really mean shit to Dustin or I in any real sense, nor did we have anything to do with the small rise in position (unless the US News folks are QuizLaw readers – if so, give us a shout out, yo!). But since it suddenly makes us more credible, we’ll take it.
…still not enough to get into the ATL March Madness though, damn it!
Supreme Court Decision Update - Rockwell Int’l Corp. v. U.S.
Today’s other Supreme decisions is Rockwell Int’l Corp. v. U.S. (PDF of the opinion). This is a case about nuclear waste, and when someone can bring a private lawsuit on behalf of the Government under the False Claims Act.
QuizLaw Analysis: Scalia and his friends says that you can only bring such a lawsuit if you have direct and personal knowledge of the information forming the basis of your claims. But as with today’s other decision, my favorite thing about this decision a word. This time, that word is “pondcrete,” which is a block of cement mixed with toxic pond sludge. How fantastic is that?
Pondcrete? Pondcrete! And old pondcrete, at that, as The Scalia notes in the beginning of his decision: “The mixture of concrete and pond sludge that is the subject of this case has taken nearly two decades to seep, so to speak, into this Court.”
So what of this pondcrete? Rockwell International Corp. had a contract with the Department of Energy to run a nuclear weapons plant in Colorado, the Rocky Flats plant. James Stone was an engineer at that plant from 1980-1986. In 1982, he reviewed a proposal to dispose of toxic pond sludge by mixing it with cement, creating pondcrete blocks which could then easily be stored or disposed of. But he thought this process wouldn’t work - he said there was a problem with the piping system that would be used, which would result in unstable blocks that would leak toxic waste.
Rockwell went ahead with the pondcrete project anyway. After Stone was laid off, in March ‘86, Rockwell eventually learned that there were, in fact, a substantial number of “insolid” pondcrete blocks (that is, leaking blocks). The Department of Energy didn’t learn about this until 1988, however, after media reports. The Feds and EPA agents raided Rockwell in 1989, and in ‘92 Rockwell pled guilty to 10 environmental violations, including allegations about the bad pondcrete blocks, and agreed to pay $18.5 million in fines.
Meanwhile, back in 1989, Stone filed a civil qui tam lawsuit against Rockwell under the federal False Claims Act.
A “qui-what” lawsuit? “Qui tam.” The Scalia explains it for us in a footnote:
Qui tam is short for “qui tam pro domino rege quam pro se ipso in hac parte sequitur,” which means “who pursues this action on our Lord the King’s behalf as well as his own.”
In other words, it’s a lawsuit filed by a private citizen on behalf of both himself and the government.
And what’s the False Claims Act? It “prohibits false or fraudulent claims for payment to the United States,” and authorizes lawsuits over such fraud to be brought by either the Attorney General or a private individual (as a qui tam suit). However, there is a limitation in the Act when the lawsuit is based on “the public disclosure of allegations or transactions…from the news media.” In that situation, the lawsuit can only be brought by the Attorney General or the person who was the “original source of the information” (that is, someone with direct knowledge and who voluntarily gave info to the government before filing the lawsuit).
So Stone filed an action under this Act, alleging that Rockwell broke all sorts of environmental laws and regulations and, in order to get paid, knowingly made false statements to the Government. There were 26 environmental and safety issues identified by Stone, one of which was the pondcrete matter. In 1996, the Government jumped into the lawsuit, and Stone and the Government filed a joint amended complaint. In that complaint, there were allegations about the leaking pondcrete blocks, however, there was no allegation that it was bad piping that caused the problem (you’ll recall that Stone predicted that it would be the piping at the root of the problem). Instead, they claimed the problem was a bad ratio of the cement and sludge mixed together to make the pondcrete.
There was a trial in 1999 and the jury found against Rockwell on the pondcrete allegations for the period of time between April 1987 and September 1988, awarding damages of almost $1.4 million (which the District Court then trippled). Rockwell then tried to have Stone’s original claims tossed out, arguing that Stone’s “claims were based on publicly disclosed allegations that Stone was not an original source.” The Court sided with Stone, however, who argued that he was an original source of the publicly disclosed allegations.
And on appeal? Well the Tenth Circuit affirmed the District Court’s decision, although it remanded so the District Court could figure out if Stone had given his inside information to the Government before filing his lawsuit, as required by the False Claims Act. The District Court found that he had given his 1982 written report to the Feds, but that this didn’t fully establish Stone’s allegations. The Court also found that Stone couldn’t prove that he had orally told the FBI all about his allegations before filing his lawsuit. This went back to the Tenth, which disagreed, and found that the 1982 report did cover everything so Stone was ok.
Are we at the Supreme Court yet? Indeed we are. We’ve got a 6-2 decision here, with the majority opinion penned by The Scalia and joined by Chief Justice Johnny and Justices Kennedy, Souter, Thomas and Alito. Justice Stevens filed a dissent, joined by Justice Ginsburg, and Justice Breyer didn’t do anything with this case.
So what’s The Scalia have to say? He starts by noting that the “original source” issue is jurisdictional. So it wouldn’t matter if Rockwell conceded, as Stone alleged, that Stone was an original source. It has to be independently determined by the court because, otherwise, the court doesn’t have jurisdiction to hear the case in the first place. So Scalia then turns to the question of whether or not Stone was, in fact, an original source.
And? Not so much, says The Scalia. The first requirement for an “original source” is that the person must have “direct and independent knowledge of the information on which the allegations are based.” The information we must look to is the information which forms the basis for the lawsuit’s allegations. The reason this is even a question is because the Act also refers to another type of information, “the information that triggered the public disclosure bar.” The distinction isn’t all that important here - what is important is simply to understand that the individual is required by the Act, as Scalia reads it, to have direct and personal knowledge of the information their lawsuit is based on.
Ok, but what allegations do we look at? That’s the right question, because the original source must have knowledge of the information “on which the allegations are based,” so we need to know which allegations are relevant. For instance, in this lawsuit, Stone’s allegations changed, so the Court needs to know where to look. Because the Act doesn’t offer any limitation or qualifier to the term “allegations,” The Scalia says he won’t infer one - so the Court should look at Stone’s allegations throughout the litigation and he “must satisfy the original-source exception through all stages of the litigation.” From a practical standpoint in future cases, this means that a court must re-evaluate its jurisdiction whenever a plaintiff’s allegations change (such as when an amended complaint is filed), to ensure that the plaintiff still qualifies as an original source (and thus, to ensure that the court itself still has jurisdiction over the case).
Just to hammer the point home, The Scalia adds:
The rule that subject-matter jurisdiction “depends on the state of things at the time of the action brought,” [citation], does not suggest a different interpretation. The state of things and the originally alleged state of things are not synonymous; demonstration that the original allegations were false will defeat jurisdiction. [citations.] So also will the withdrawal of those allegations, unless they are replaced by others that establish jurisdiction.
So we must look to the final statement of Stone’s claims which, in this case, means looking to the final pretrial order, which contains all of Stone’s claims and “superseded all prior pleadings.”
Ok, can we get to Stone’s situation already? Are you calling The Scalia long-winded?
Nah, I’m calling you long-winded! Fair enough. Ok, so Scalia says that Stone doesn’t meet this requirement, as we’ve now defined it. The only claims by Rockwell which the jury ultimately found were false were statements by Rockwell made between April 1987 and September 1988. During this time period, the only relevant environmental or safety problem Stone claimed direct and independent knowledge about was the bad pondcrete. However, he wasn’t employed at the plant by April ‘87, so he didn’t know that any of the pondcrete was insolid, that there were other problems, that there were leaks, etc. And he didn’t even know that Rockwell had made any false statements to the Feds. Instead, Stone has previously predicted that the pondcrete would be insolid. But a predication isn’t “direct and independent knowledge.”
And worse yet, his predication was wrong. He predicted the problem would be with the piping system, but the actual problem with the pondcrete was its mix ration. So even if you said a prediction of a problem should count as direct and independent knowledge, “it assuredly does not when its premise of cause and effect is wrong.”
Stone tried to argue that a separate claim, an allegation relating to a different time period about spray-irrigation, would provide jurisdiction over all his claims. Scalia says no because, even if there is jurisdiction over that single claim, the Act “does not permit jurisdiction in gross just because [an individual] is an original source with respect to some claim.” That’s “claim smuggling,” and Scalia ain’t having it.
We done yet? One more thing from Scalia. Stone tried to argue that the original-source test doesn’t matter because once the Government intervened in the case, there was an independent basis for jurisdiction at that point (because then it was as if the case had been brought by the Attorney General). Scalia says this is wrong because, under the Act, there are two distinct types of actions - those brought by a private individual and those brought by the Attorney General. When the Attorney General joins into a case brought by a private individual, as was the case here, it is only considered an action “brought” by the Attorney General when the private individual is “ousted” - either of their own volition, or upon being dismissed after a finding that the Court lacks original-source jurisdiction over them. But that didn’t happen here and, thus, the Tenth Circuit gets reversed because the District Court never had jurisdiction.
Ok, quick like - what’s in Stevens’ dissent? He doesn’t think the person bringing a qui tam lawsuit needs to have “knowledge of the actual facts underlying the allegations on which he may ultimately prevail” in order to be an original source. Instead, he thinks they simply need direct knowledge of the information underlying the publicly disclosed allegations.
In this case, as the Court points out, the fact that Rockwell was storing thousands of insolid pondcrete blocks at the Rocky Flats facility had been publicly disclosed by the news media before Stone filed this lawsuit. [citation.] In my view, the record establishes that Stone was an original source of the allegations publicly disclosed by the media in June 1989, even though he thought that the deterioration of the pondcrete blocks would be caused by poor engineering rather than a poor formula for the mixture.
Stone gave documents to the FBI and its subsequent raid was based, in part, on that information. And that should be enough.
Now there was an earlier public disclosure as well, but Stevens says the record doesn’t give us enough one way or the other to figure out if Stone was an original source there, although he thinks it is likely. So he’d vacate and remand for a determination, under his analysis, of whether Stone was, in fact, an original source.
Do Not Let Your Soul Be Your Pilot
Here’s a word of warning to all you good Samaritans out there: If you see somebody that’s hurt, leave them be. If she’s crumpled up like a ball after a car wreck, point and laugh, but do not try to help her. You’re just asking for a lawsuit.
At least, that’s the situation out in L.A., where a federal district court ruled that the Good Samaritan law only applies to people who are administering emergency medical care and not to the perceived danger of remaining in a wrecked car.
The case involves a woman, Alexandra Van Horn, who hit a light pole going at about 45 miles an hour. Lisa Torti, who was Van Horn’s friend, was in a car driving behind Van Horn’s, and after she saw the wreck, Torti rushed to Van Horn’s aid, pulling her out of the car like “a rag doll.” Van Horn suffered a lacerated liver and an injury to her vertebrae that rendered her a paraplegic. It is debatable as to whether the wreck or the rescue attempt caused the paralysis.
In either respect, Torti removed Van Horn out of fear that the car would catch on fire, and now Van Horn has sued her friend for trying to help her. And the court sided with Van Horn. As the judge wrote, “Torti’s actions toward Van Horn did not qualify as emergency medical care because any perceived risk Van Horn might have faced from remaining in the car—such as being injured in a fiery explosion—was not ‘medical.’”
Of course, had Torti allowed Van Horn to remain the car, and if the car had exploded, I’m sure Torti would’ve been sued for trying to administer CPR to her charred remains.
(Hat Tip to Overlawyered)
What’s With all the Understatements?
In the state of Washington, a man was arrested and charged yesterday with theft and burglary. And what did Mr. Garth Flaherty steal?
93 pounds of panties.
How many pairs of female underwear is that? About 1500, which he stole from apartment complex laundry rooms. It was enough, in fact, to fill five garbage bags full of underwear.
As one police officer stated, “He said he had a problem.” Yeah. No shit. I’d say stealing 10 pairs of panties might be considered a “problem.” Stealing 1500 pairs is more like full-blown crazy, unless – of course – he was trying to build the first nuclear fall-out shelter made entirely of female underwear.
In an unrelated story, a woman appeared at a frat house in Michigan, lied down on one of the frat couches, took off her underwear, and started masturbating. The members of the frat kindly asked her to leave, but she refused and continued masturbating. For about half an hour. When asked if she was alright, the woman said that she was fine. And then continued to masturbate.
As one fraternity member stated, “Obviously, she was very disturbed. It was not how a normal person would respond to people.” No shit.
The fraternity members said they would throw out the two couches the woman, who was not apprehended, masturbated on. I bet I know a certain guy with a panty-obsession who might appreciate owning those two couches.
The Daily Memo - 3/27/07
The commonwealth of Massachusetts is being sued by Diebold (a manufacturer of electronic voting machines) because the state decided to purchase another company’s machines. (Boston.com)
Sadly, our law school (BU), didn’t make the cut for ATL’s Law School March Madness. (Above the Law)
A stupid Senate aide (for Senator Jim Webb) thought it would be a good idea to bring a gun into a Senate building, and an unregistered gun at that. (MSNBC)
Bruce Lehman, the architect of the DMCA, finally admits what we all knew from day one - that the DMCA is a failure. (Likelihood of Confusion)
County commissioners in a Montana county have told the voters to get bent after they approved a referendum to have marijuana crimes treated as “low-profile.” (Slashdot)
There’s a whole mess of legal trouble lurking below the surface with these new campaigns where companies have their consumers create ads. (Law.com)
“A judge has ordered a man who pled guilty to vehicular homicide to display a large picture of the victim in his home after serving two years in prison…[with] lettering that says: ‘I’m sorry I killed you.’” (SeattlePI)
Supreme Court Decision Update - Limtiaco v. Camacho
The first of today’s two Supreme decisions, Limtiaco v. Camacho (PDF of the opinion), comes from Guam. It’s about how that cute little territory of ours should figure out its debt limitations (that is, the amount of debt it’s allowed to get into by issuing bonds.
QuizLaw Analysis: The boring part of the decision is this - Guam must calculate its debt limits by figuring out the “assessed value” of property, not the “appraised value” of property (which is a much higher value, in general). The cool part of this decision is that this is the first time I’ve ever seen the word “Guamanians” in print, and that’s just a solid word. So thanks for that, Justice Thomas.
Guam? Yes, Guam.
And what of Guam? Well in 2003, Guam found itself in financial trouble, unable to meet its debt obligations. So the Guam Legislature authorized bonds of about $400 million in total value. The Governor signed the law and was ready to issue the bonds, but the Guam attorney general stuck her nose into things. She refused to approve the government contracts necessary for these bonds because she thought the bonds would violate the Guam Organic Act, which limits the amount of debt Guam can get itself into (no more than 10% “of the aggregate tax valuation of the property in Guam”).
So the Governor asked the Guam Supreme Court to say that the bonds wouldn’t actually violate this Act. The Governor argued that “aggregate tax valuation” meant the appraised valuation of property, while the AG argued that it meant the assessed valuation of property (which would be much less than the appraisal value because “Guam assesses property at 35 percent of its appraised value). The Guam Supremes took the Governor’s side, and the AG ran off to appeal to the Ninth Circuit.
Here things get messy from a procedural standpoint. The Guam Organic Act gave the Ninth Circuit jurisdiction over appeals from the Guam Supreme Court. However, while this case was pending before the Ninth Circuit, Congress amended the Act and took that jurisdictional language out. The Ninth Circuit addressed this issue in a 2006 opinion, Santos v. Guam, and said Congress had not just taken away its jurisdiction prospectively, “but also for pending appeals.” So the Guam AG’s appeal was dismissed, because the Ninth said it no longer had jurisdiction. This created a new problem because, under federal law, a petition for certiorari with the Supremes has to be filed within 90 days of when the lower judgment was entered. But since the case was pending with the Ninth for so long, the AG ended up filing her petition well more than 90 after the Guam Supremes entered their judgment.
So, there are actually two issues at play here. There’s the procedural question of whether that 90-day period was put on hold while the appeal was pending with the Ninth, and there’s also the substantive question of how tax valuation should be handled under this Guam debt-limitation requirement.
So who’s on what side here? Well the main opinion was penned by Justice Thomas. One part of his decision, pertaining to the 90-day procedural issue, is unanimous. The rest of his opinion is not, but he’s still got the majority, joined by Chief Justice Johnny, The Scalia and Justices Kennedy and Breyer. Justice Souter filed a second opinion, concurring in part, and dissenting to the rest, and he was joined by Justices Stevens, Ginsburg and Alito.
Let’s get the unanimous bit out of the way - what does everyone think about that 90-day window? It’s pretty simple:
When the Ninth originally took the appeal, there was suddenly a possibility that the Guam Supreme’s decision could be changed or reversed, and that possibility suspended the finality of the Guam judgment. Only once that appeal was dismissed did the Guam judgment really become final, so the 90-day clock started running in March 2006, when the Ninth tossed the case because of Congress’ amendment of the Act.
It’s also worth noting that Thomas goes out of his way to “emphasize that our holding is limited to the unique procedural circumstances presented here. Specifically, our holding does not extend to improperly filed appeals or filings used as delaying tactics.”
And with that out of the way, the Justices divide on the question of how Guam tax valuation works? Correct. Again, the issue is what “tax valuation” means. Thomas says you should use assessed property valuation in calculating the Guam debt limitation, which is the losing argument the AG made to the Guam Supremes. Thomas and company say that “tax valuation” usually means the value which is used for applying the tax rate, and that means “assessed” value, because “assessed valuation” is “consistently defined as a valuation of property for tax purposes.” The Governor and Guam Supremes’ “appraised value” is just the market value, which has nothing to do with taxation. And so that’s that.
Now the Guam Supremes also noted that a similar debt-limitation provision for the Virgin Islands specifically used the language of “assessed valuation,” and since the Guam Act doesn’t use this specific language, the Guam Supremes ruled that Congress meant for Guam to use something other than “assed value.” Thomas says no because “if Congress had meant actual, market, or appraised value, it could have used any one of those terms as well…[o]r it could have left the word ‘valuation’ unmodified.”
Thomas also says that this decision comports with how most States handle the debt limitations they place on municipalities, also tying those limitations to assessed property values.
Finally, the Guam Governor argued that the Supremes should give deference to the Guam Supreme’s interpretation of the Act, but Thomas says that’s bunk: “It may be true that we accord deference to territorial courts over matters of purely local concern. [citation] This case does not fit that mold, however,” because the debt-limitation provision of the Act also protects the U.S., not just Guam, so “this case is not a matter of purely local concern.”
So what’s up Justice Souter’s rump? Well remember, he does concur in part, because he agrees that the writ of certiorari was timely filed. But he thinks Thomas is wrong in saying that “tax valuation” here must mean “assessed value.” He basically says that, yet again, Thomas and The Scalia (and their cohorts) have unnecessarily constrained themselves by looking mainly at statutory language:
If I could not go beyond statutory text and the sources relied upon by the Court, a coin toss would be my only way to judgment. But I look to congressional purpose, which points to appraised value as the meaning of the term, leaving me in respectful dissent.
Basically, Souter and Company think that “tax valuation” can reasonably be interpreted either as “assessed value” or “appraised value.” He thinks it’s silly to look at other territories, because of differences between Guam and those other territories, and that it’s also silly to look at what the states do, because our Congress may not have the same understanding of the term “valuation” as state legislatures. However, Souter says that “the purpose of the legislation” is very insightful on this issue, as it “makes clear that what Congress meant to provide was a practical guarantee against crushing debt on the shoulders of future generations, and insolvency with the inevitable call for a bailout by Congress.”
And Souter thinks the Governor’s approach, using appraised value, fits better with this purpose. Using “assessed value” leaves a “specter of mischief” because “the Guam Legislature could double the debt limitation without increasing taxes by a single penny, simply by doubling the assessment rate and cutting the tax rate by half.” But the market value of property reflects what Guam has the ability to collect in taxes, and it’s a true economic index that can’t be toyed with as in Souter’s “specter of mischief” example.
Maybe she was visualizing that the photographers were Charlie Sheen
So a lawsuit has been filed against Denise Richards and Pamela Anderson by two freelance photographers (a.k.a., paparazzi). Last November, the two “actresses” were at a Canadian resort working on the movie Blonde and Blonder (and with that duo of acting powerhouses, this movie is going to outstanding!). This incident was widely publicized last fall - the two paparazzi started snapping photos of the pair and, according to the lawsuit, Richards went nuts, calling them names and going after them, and ultimately hucking their laptops over a balcony.
The paparazzi allege that “Richards and Anderson [later] ‘made repeated false and defamatory statements to law enforcement and various media outlets which were deliberately calculated to embarrass, humiliate and ridicule plaintiffs.’”
Among other things, the photographers claim that this whole ordeal caused them emotional distress. So wait. Paparazzi have emotions?
It’s scumbags like this that give all us lawyers a bad rap
“Legal experts said the fraud might be one of the biggest and most brazen in legal history.” That’s quite a statement, right? Well check out what happened, and decide for yourself.
In 2001, a big lawsuit was settled with American Home Products Corporation, over its diet drug combination fen-phen. The company had been sued by 440 individuals claiming the drug had caused heart damage. There were three lawyers representing the 440 plaintiffs, and they brokered a total settlement for about $200 million. When the lawyers originally took the case, they took it on a contingent fee basis. As is typical in a situation like this, they agreed that they would only get money if they won the case and, specifically, they would get up to one-third of any money the plaintiffs got through settlement or trial verdict. Again, this is quite typical.
So that means the lawyers should have pocketed about $67 million, leaving $133 million for the clients. Instead, however, these scumbags kept $106 million for themselves, put another $20 million into a shady “charitable fund,” and only gave $74 million to the clients - almost half of what these 440 people were entitled to:
On average, plaintiffs received less than 40 percent of what the settlement agreement specified, instead of the roughly 70 percent to which they were entitled.
The lawyers lost in a civil lawsuit last year, brought by 413 of the 440 original clients, although there still has not been a ruling on just how much money the lawyers will have to hand over. And now there’s a federal grand jury looking into whether criminal charges should be thrown at these guys.
The lawyers, of course, claim that the extra money they took was totally reasonable. And they also claim that this extra amount was approved by the court, but get this - in a 2002 hearing, Judge Joseph F. Bamberger told the lawyers that they deserved greater compensation because the case was such a headache and because they took great risks in taking and fighting the case. But, the judge retired in 2004 and became the director of that new $20 million charity, pulling in a $5K monthly fee. So, you know, nothing fishy there at all (he’s already given back the money, and been reprimanded for these shenanigans). And of course, the lawyers’ “justifications” don’t explain their attempts to keep this all on the DL. For example, one client says that when he went to get his check, he was surprised to see it was for much less than he expected. When he mentioned this to the lawyers, they told him to shut up, and said they’d come after him if he mentioned it to anyone, or if he even mentioned how much his check was for. “You will be fined $100,000, you will go to jail and you will be sued,” he says they said.
I mean, talk about greedy sons of bitches. Three lawyers, $67 million. My math skills may be rusty, but I do believe that’s over $20 million per lawyer. I know that I’d be quite happy to pocket $20 million. In fact, that’s enough money to count as “fuck you” money, allowing me to retire, and live a peaceful life never again having to worry about other scumbag lawyers sullying the reputation of my profession.
It’s Fun to Stay at the … P-O-K-E-Y
There are a few police officers out there these days that are giving the rest of the police community a bad name. Take, for instance, the off-duty Chicago police officer who beat the freakin’ tar out of a female bartender a few months back, the video of which surfaced last week. There was little provocation for the beating, other than the fact that the bartender refused to serve the drunk cop another drink.
Then, just this weekend, allegations of a similar incident surfaced. This time, six off-duty Chicago police officers beat the hell out of four businessmen at a bar playing pool. There is apparently video of this instance as well, but it hasn’t yet been made public.
And then, just when you couldn’t imagine it getting worse for the reputation of police officers around the nation, the goddamn policeman from The Village People was arrested over the weekend. Victor Willis, who was arrested on charges of cocaine possession last year, was picked up again, this time under charges that he choked and threatened his girlfriend with a knife.
Man – it’s been a bad week for the po-po. Somebody best keep an eye on Erik Estrada and Larry Wilcox, the actors from “CHiPs,” because the good reputation of the entirety of America’s police force now rests with them.
Nothing Says I Love You like Decapitation
A man was arrested last week for decapitating his ex-girlfriend’s therapy dog. Anthony Gomez (that beautiful hunk of a man to your left) was charged with felony animal cruelty and torture, after he took 17-year-old Crystal Brown’s four-year-old Australian shepherd out into the woods and filmed video, with his cell phone, of some other men allegedly cutting the dog’s head off with a chainsaw.
The story, however, doesn’t end there. I guess Gomez was jealous because Crystal Brown was dating another man (and honestly, wouldn’t you? Seriously – take a look at that guy; it looks like his chin is about to eat his face off), so – after cutting the dog’s head off – he put it in a box, wrapped it with nice wrapping paper, and stuck the box on her porch. Brown discovered it, opened it up, and I presume she was horrified. (I believe her exact words were: “What’s in the box? What’s in the box?”)
But Gomez did leave some Valentine’s candy inside the box too. Aw, fuck it: All is forgiven, Anthony. There’s nothing sweeter than a decapitated dog head and some pink candy that says, “Be Mine – Or Else, You Dumb Bitch.” It’s spring time, folks – can’t you feel the love in the air?
The Daily Memo - 3/26/07
An Illinois bill which would’ve required online dating websites to disclose if they perform background checks on subscribers was killed in the state house’s Judiciary Committee because it didn’t offer any actual safety, only a feeling of safety. (ars technica)
North Dakota’s highest court has upheld the constitutionality of a local ordinance banning “excessive, continuous or untimely” dog barking. (FindLaw)
A D.C. lawyer has been convicted for misdemeanor sexual abuse for making a too-aggressive pass at a woman on the metro (and the woman just happened to work for the Office of Independent Counsel). (Legal Profession Blog)
A Florida post office employee is suing the Postal Service under the ADA because it’s forcing him to take breaks and he says he’d rather keep moving because of his arthritis. (Local 6)
This is despicable - Georgia’s state house is considering a bill that would allow billboard owners to cut down trees that it thinks are cutting into a perfect view of their roadside ads. (AJC)
Cory Lidle’s widow is suing the insurance company that’s refusing a full payout on Lidle’s life insurance policy, while she’s also being sued by tenants of the building that Lidle’s plane crashed into last fall. (The 700 Level)
The copyright dispute between James Joyce’s estate and an academic writer has been settled, depriving folks from getting an interesting trial on fair use. (The Hollywood Reporter, Esq.)
Vonage has been slapped with a permanent injunction, banning its use of technology in three Verizon patents, and possibly threatening its voice-over-internet services. (Engadget)
Well, you gotta’ give the guy credit for trying
Dale Hausner and Samuel Dieteman are (allegedly) not very good guys. They been accused of going on a random shooting spree over a period of 14 months - Dieteman faces two murder charges (plus a ton of other shooting-related charges) and Hausner faces seven murder charges. The prosecutors say they’re going after the death penalty, which sounds about right.
So Hausner was arrested for this last August, and he’s been in the clink since. And as one might expect, the local newspaper (the East Valley Tribune) wrote quite a few stories about all this. So get this - Hausner picked up the prison phone and placed a collect call to the Tribune as “Dale the Innocent.” He used this call to tell the paper that he thinks he should get a discount subscription, a “sweetheart deal,” since his story generated so many great headlines for the paper. The paper told Dale to get bent.
Why not ask the local news station for a job as “story creator” while you’re at it, Dale the Innocent?
What the hell is the Copyright Royalty Board?
The Copyright Royalty Board is a three-member panel of the US Copyright Office. But a more precise definition might be to say that it’s the government agency trying to kill internet radio.
The Board recently issued new licensing fees which are out of whack with the fees charged to either terrestrial radio stations or satellite radio stations. And because of the low revenue that internet radio stations pull in, these new rates could effectively kill internet radio. As we mentioned in a Daily Memo last week, a petition has been filed with the Board to have a rehearing on the matter. That petition was filed by NPR, one of many groups that object to this new licensing scheme (NPR also has a unique objection, that its own broadcasting should not be treated the same as purely commercial broadcasting).
The Board’s decision is rather appalling and utterly perplexing. And it’s not because the Board wants the internet stations to pay - of course they should pay for the right to broadcast copyright-protected songs. But it’s patently unfair to charge them two license fees that are well beyond the scope of practicability – terrestrial radio only pays one licensing fee and while satellite radio pays two fees, its required payments are significantly less. And it’s not just little internet radio stations (like the wonderful Radio Paradise) which will suffer - this licensing scheme will likely kill the big boys too, like Yahoo’s Launch, because it’s just not an economically feasible system.
The following interview with the founder of Pandora sheds some light on this whole situation, and also explains one of the reasons internet radio is important for music loving folks (aside from the obvious fact that it helps make the day go by faster for many cubicle jockeys). The one thing not clearly explained in the video is how the new royalty works - the per-song rate is charged on a per-song/per-listener basis. In other words, let’s say I run an internet station and have 100 listeners at the moment. For every song I stream, I pay 100 times the rate - that is, one for each listener. And that’s the real killer for these stations. And this video explains all the rest of it:
Well, I guess if you’re gonna’ do one, why not do fifty-six?
As you know, it’s tax time. We here at QuizLaw highly recommend that you get your return out by April 17. We also highly recommend that you are truthful in your return. As such, we here at QuizLaw do not recommend that you file a false return. And we especially don’t recommend that you file fifty-six false returns. That’s what Michael Edward Adams of Denver did, filing those returns over the course of a year and a half and pulling in over $75,000 in refunds. He filed these various returns electronically under a whole bunch of different names and social security numbers.
“But Seth,” you might say, “I’d like $75,000 in returns.” No doubt you would. But I don’t think you’d like to be in Adams’ position now - he’s been indicted by a state grand jury and now faces a whole slew of charges, including theft, computer crime, forgery, burglary and filing false tax returns.
Lose Yourself … in a Court Motion
Man. Kim Mathers, twice-divorced wife of the Real Slim Shady (that’s Eminem – real name Marshall Mathers — for those not hip to the hip hop), does not like her ex-husband. And she can’t shut up about it. Take, for instance, what she told a Michigan morning radio show the other day.
“I can’t stand him. He’s an absolutely horrible person, and he gets worse every day. I vomit in my mouth whenever I’m around him or I hear his name. There’s nothing left in me for him. Nothing at all … He’s not very well-endowed. If you’re going to have sex with Marshall, make sure you have a little blue pill, because otherwise it does not work … Since he left the house in February (2006), I don’t know what he’s doing. His visits are few and far between, and when he does come around it’s nothing positive.
Eminem, however, would rather Mathers not discuss his penis size in public, so he’s going to court on Monday to seek an order to shut her up. Why? Because, Eminem says, Kim’s words are harming their 11-year-old daughter, Hailie.
The motion seeks to prohibit Kim Mathers from making “derogatory, disparaging, inflammatory and otherwise negative comments” about him in public, because, the motion claims, her comments would harm Hailie.
Hmmm. You have to wonder about the hypocrisy, here. Granted, Eminem is a helluva talented fella, but which is more harmful to a child: Hearing that your Daddy’s penis is small, or hearing your Daddy sing about slitting your mother’s throat, raping your grandmother, and throwing your Mom’s body parts in a lake?
If Emimen really wants to keep “derogatory, disparaging, inflammatory and otherwise negative comments” about a parent away from his child, he may want to start with his lyric sheets first.
A Friday Afternoon Play
Cast: RKJ (Ryan Keith Johnson, a department store loss prevention officer), GIRL (a 16-year-old-girl) and COP (a cop).
March 7, 2007. Scene opens on a Kohl’s department store in Texas. RKJ approaches GIRL.
RKJ: Well howdy, lil’ girl. I see you are shoplifting.
RKJ: I’m afraid so, lil’ girl. I see all the things you have. Why, there’s enough there to charge you with a felony.
GIRL: I said nuh…uh!
RKJ: But it’s ok, lil’ girl. Because here’s the thing. If you have sex with me right now, your record will be clean.
GIRL: Oh, I can like totally do that…[gobble, gobble, swallow].
RKJ: Thanks, lil’ girl. Now git!
GIRL exits. Lights change, indicating time moving forward. COP enters.
RKJ: Well howdy, lil’ copper.
COP: Good day sir. Witnesses say you blackmailed a girl and extorted sex from her. ‘Round these parts, we call that indecency with a child.
RKJ: Indee-who with the what now?
COP: That’s a second-degree felony. Come with me sir.
The Daily Memo - 3/23/07
Harvard LLMs are a catty bunch. (Above the Law)
Author Terry McMillan wants her groove, and $40 million, back from her ex-husband. (CNN)
A New York bill working its way through the state senate would allow cameras into criminal and civil courtrooms. (Law.com)
Is our government acting a bit too much like a nanny? (Newsday.com)
When good lawyers use shady tactics. (CNN)
XM’s being sued for copyright infringement by several music publishers. (The Hollywood Reporter, Esq.)
Didn’t Batman Lock the Lipstick Bandit up in Arkham Asylum in the Late 80s?
Three female NYC welfare office employees have filed a lawsuit against the city over alleged sexual harassment by their office manager, Serena Reaves-Cain:
The lawsuit, filed Tuesday, claims co-workers gave Reaves-Cain the nickname “Lipstick Bandit” because she allegedly “kissed them on the cheeks, foreheads, and necks, and sometimes left red lipstick marks on them.”
The plaintiffs…claimed Reaves-Cain “hugged the plaintiffs and pushed her breasts up against their breats, and used the palm of her hand to spank them on the buttocks.”
The women also claim Reaves-Cain referred to the spankings as “pow-pows,” and sometimes told them “come to momma” before hugging, touching or spanking them.
Pow-pows? Come to momma? …I don’t even know what else to say about this.
The Darwin Award that Wasn’t
Gregory Dean Renfroe tried, he really did. When the 44-year-old learned that his power had been cut off because he was two months behind on his bill payments, he did what any red-blooded Floridian would do - he climbed the pole to his power lines and tried to reconnect things on his own. A neighbor happened to spot Renfroe and flagged down a deputy, who says that Renfroe was “standing on the power lines tearing industrial electrical tape from power units and pulling power lines from their original positions.”
A Florida Power and Light representative said this could’ve been “near fatal” for Renfroe if he had actually managed to make a wire connection. But instead of being “near dead,” he’s just facing a misdemeanor charge of criminal mischief.
(For those not in the know, the wonderful Darwin Awards are annual awards “honoring those who improve the species…by accidentally removing themselves from it!”)
So, Does This Mean He Doesn’t Have to Pay Child Support?
In Manhattan this week, a judge allowed a lawsuit to go forward against a fertility clinic, a lawsuit filed by some parents who concluded that there was something amiss with their child. The baby’s skin, it seems, was a little too dark for the parents to believe it was their child. And, indeed, after a few DNA tests, the couple discovered that the clinic botched the artificial insemination, using someone other than the father’s semen to inseminate the egg.
Thomas and Nancy Andrews are suing the New York Medical Services for Reproductive Medicine, accusing the clinic of medical malpractice. The couple is upset that they have been raising a child that is not the same race, nationality, or ethnicity as the parents. According to the article:
They say that “while we love Baby Jessica as our own, we are reminded of this terrible mistake each and every time we look at her; it is simply impossible to ignore,” the judge’s decision said.
Sure, it’s a bummer. And, sure, the doctors screwed up. But, we are talking about a child here. When “Baby Jessica” starts reading about this lawsuit twenty years from now, I’m not so sure how she’ll feel about learning that her parents were constantly reminded of “this terrible mistake each and every time” they looked at her.
Of course, my parents feel the same way every time they see the back of a Volkswagen bus. As my father used to say, “Dusty: I sure wish that just that once, when folks saw that damn bus a rockin’, they would’ve ignored the sign and came a knockin’ anyway. It sure would’ve saved us a lot of grief.”
Kids Love the Porn
Out in Philly, a federal court has struck down a law, the Child Online Protection Act, that would’ve made it illegal for online commercial proprietors of porn to allow children to access it.
The law would have criminalized Web sites that allow children to access material deemed “harmful to minors” by “contemporary community standards.” The sites would have been expected to require a credit card number or other proof of age. Penalties included a $50,000 fine and up to six months in prison.
The ACLU and Salon.com, among others, challenged the law, and the Supreme Court suspended it in 2004, pending further review, on the grounds that it would have likely been overturned.
The Daily Memo - 3/22/07
Hopefully something good comes of this - the Copyright Royalty Board has agreed to listen to the objections to its new royalty rate for internet radio stations, a royalty scheme which would likely kill many stations. (The Hollywood Reporter, Esq.)
Above the Law is getting timely with its next hotties contest, taking on the U.S. Attorneys. (Above the Law)
Slate’s Dahlia Lithwick asks a very amusing question in light of the Attorney General scandal: “What if Alberto Gonzales and Harriet Miers had been confirmed to the Supreme Court?” (Slate)
“Viacom’s hypocrisy could defuse YouTube lawsuit.” (Gizmodo)
XM and Sirius are both being sued for patent infringement. (Engadget)
KinderStart’s lawsuit against Google has been given the ol’ heave-ho. (43(B)log)
A Los Angeles judge has ruled that “Oscar” (as in the movie award) may be a generic term in Italian. (The Hollywood Reporter, Esq.)
The murder trial of a Georgia man over a courthouse shooting has been suspended because the state can’t afford to pay for the man’s defense. (CNN)
Tennessee Republicans Just Don’t Get It!
So Tennessee state senator Ophelia Ford recently introduced a resolution to honor Justin Timberlake, a Tennessee native, for “his highly successful music career and for his meritorious service to the State of Tennessee.” But that resolution has now been removed from a list or resolutions which folks expect to get quick unanimous approval.
Because state Senator Raymond Finney says “it’s not something I want my name on.”
Seems that Senator Finney and other state Republicans don’t like references in the resolution to the name of Timberlake’s (“FutureSex/LoveSounds”) or the names of certain songs, such as “Rock Your Body.” Which is just ridiculous. I mean, he brought the sexy back for Christ’s sake.
But the Tennessee legislature clearly has its priorities all out of whack because the state Senate also deferred addressing pending legislation that would make it a felony to have sex with an animal.
So honoring Justin Timberlake? No. Bestiality? Sure.
Dude - ninja attacks are supposed to be subtle!
Last Saturday, Pete Bo Sizelove (what a name!) got himself into a bit of legal hot water. The 30-year-old had gone to his local car dealership up in Sacramento, Cali, hoping to trade in his beat up old Honda for a nice new car. He found a $20,000 Chrysler that he really liked, and he started negotiating with a sales manager.
Sizelove proposed trading-in his Honda for a $7,000 value, and giving the dealership a $13,000 IOU for the rest of the Chrysler’s value. The sales manager politely declined this offer.
So Sizemore walked over to his car and took out some things. He came back to the Chrysler and tried to break into it with a crowbar. When that didn’t work, he then hopped onto the car’s roof with - get this - a sledge hammer and a Samurai sword!
Needless to say, the cops were called, Sizelove was arrested, and he now faces charges of attempted vehicle theft and vandalism.
New Zealand should use this to attract tourism, as it’s much more enticing than sheep
Man, I need to go be a lawyer in New Zealand. Last week, there was a trial going on where a guy who gives massages as part of alternative health treatments was accused of assaulting three women. He allegedly touched the women’s boobs while giving them their treatment (and even went after one of the women’s va-jay-jay). This sounds like a typical “could easily happen here” kind of a story, right?
Well, Janet Robertshawe changed all that. The 36-year-old (who’s a lawyer, just for the record), is a former patient of this guy, and she agreed to come in to allow the accused to show the jury what his massage treatment looks like:
Mrs Robertshawe entered the courtroom in a white robe, was sworn in by the court crier, disrobed then lay face down on a massage table dressed only in her bra and underwear…. The accused then began the treatment, undoing Mrs Robershawe’s bra early in the procedure.
She was moved onto her left side, facing the jury, as the accused continued the vigorous deep tissue massage treatment. The movement exerted on Ms Robershawe’s body shook her bra free and a towel covering her frequently fell down, exposing her breasts to the court.
This titty-exposure went on for over 10 minutes and, one might assume, the male members of the jury are now firm believers in alternative health therapy.
Robertshawe gave testimony later in the day, once clothes reappeared, and at the end, the judge told her “you probably made history today as a barrister and solicitor of the court, so thank you.”
Winnie the Pooh Wreaks Mayhem and Carnage
A 14-year-old seventh grader out in California has enrolled the ACLU’s help in a potential lawsuit against her school. Toni Kay Scott is suing because she was sent to in-school suspension for Students with Attitude Problems, after she was punished for wearing Winnie the Pooh socks to class.
Can you believe that? What’s next? Kids will start wearing “Looney Tunes,” T-shirts? Bringing Teenage Mutant Ninja Turtles lunch boxes to school? Or strapping on “Dora the Explorer” wrist bands? Honestly, it’s a good thing that the Napa, California school nipped this one in the bud, before shit got out of hand. It’s a slippery slope, here. You let one 7th grader wear socks with Tigger on them, and the next thing you know, those goddamn middle-schoolers will be singing broadway songs from Annie and flinging feces at one another during class. This bullshit has got to stop. Tigger?! Clearly, he’s just a mascot for one of the middle-school gangs; soon enough, the Poohs will be bringing guns to classes and mowing down Tiggers in the hallways.
The school, understandably, has a very strict dress code:
The school’s policy requires students to wear clothes with solid colors in blue, white, green, yellow, khaki, gray, brown and black. Permitted fabrics are cotton twill, corduroy and chino. No denim is allowed.
And you know why denim isn’t allowed, right? Because it encourages denim fucking in the back of the class. You start wearing Tigger socks and denim skirts, and the next thing you know, you’ve got a middle-school pregnancy epidemic on your hands. And we’ve got to put a stop to this. Otherwise, the next thing you know, eight-graders will be pissing in their teacher’s coffee pots.
Parent’s Just Don’t Understand
Every kid’s worst nightmare has to be the perpetual fear that he or she might walk in on their parents fornicating. It’s happened to the best of us; certain among us may never erase the image of one’s father’s incisor hooked into one’s mother’s nose, while sliding around as if on a 5’4 Slip n’ Slide that grunts like a hyena having its head banged against a wall. (Thank God, my mother doesn’t read QuizLaw).
Of course, inadvertently walking in one one’s parents getting busy on the waterbed probably isn’t nearly as bad as a sex-ed class taught by your mother and her boyfriend. Unfortunately, that’s what happened to the nine-year-old daughter of Rebecca Arnold, in Woonsocket, R.I. Arnold taught her daughter about the birds and the bees the hard way – with in-person demonstrations:
During an investigation by the state child welfare authorities, [David] Prata, 33, said he and Arnold, 36, had sex “all the time” in front of the child and that “we don’t believe in hiding anything.” He told an investigator that they did not force the girl to watch.
Well, at least they didn’t force the girl to watch; presumably, they just bumped uglies in front of the TV and told the daughter, “You can look away if you’d like. But, you’ll be missing quite the show, little lady.”
It could’ve been worse, I suppose; the daughter could have been witness to the husband who tore out his wife’s eyes when she refused to have sex with him.
The Daily Memo - 3/21/07
A BC law student caused quite the kerfuffle last week when she decided to appear on the cover of a local sports mag showing lots of skin. (Bostonist)
“Pickup owner in underwear chases thief.” (Fesno Bee)
New Congress, same shit - the next war bill is chock-full of pork for House Democrats’ little “pet projects.” (Washington Post)
A six-year-old girl snitched about her mother’s drug dealing racket to the cops after the mom hit the girl in a face with a curling iron. (CBS News)
Procter and Gamble just won $19.25 million from a jury, in its lawsuit against former Amway distributors that spread rumors that P&G’s logo was a Satanism symbol. (FindLaw)
Pennsylvania’s Supreme Court has ruled that trial courts can divide cremated remains between different loved ones when a dispute arises over how to dispose of the remains. (Law.com)
Putting the “high” in the High Court. (WSJ Law Blog)
A Tennessee state Senator was involved in a drunk driving accident in February and it turns out his blood-alcohol level was over twice the legal limit. (Tennessean)
In Pennsylvania, the battle over whether beer should be sold in grocery stores is being hashed out by state legislators. (WGAL)
At least one Irishman has a lot more in common with Texans than just being a drunk
Yesterday, we told you about the cussin’ Canadian judge. Well, the Canuck judges aren’t the only ones issuing apologies. Last week an Irish judge had to issue his own little apology as well. Judge Sean McBride was overseeing a criminal trial of his own, this time for robbery. While he was sentencing the man, he said that he, personally, would “blow the head off” anyone who broke into his home.
This got some folks worked up, including the Irish Council for Civil Liberties, which called the comment “outrageous.” So Judge McBride apologized for the words he used, but explained what his underlying point was:
“I was trying to emphasise my revulsion at the violation of the safety of peoples homes - of the sanctuary of their private space,” Judge McBride said.
“I regret my choice of language and want to make it clear that I am totally opposed to the use of guns and against all violence.”
Now Seth, you might be saying, if he’s actually “opposed to the use of guns,” the title of this entry doesn’t make much sense. Well maybe it’s just me, but I’m guessing that this part of his statement was a throwaway crowd-pleaser and that the real truth is that he thinks folks should protect “the sanctuary of their private space” however possible. Of course, he may have been drunk when issuing the statement, in which case all bets are off as to what he truly meant.
Complaints about the unnecessary stereotypes blazing through this entry can be sent to -@[SYSTEM ERROR….POST UNFINISHED]$%
Common Sense Lesson #136
Ok, so last week we talked about leaving your cell phone at home when you decide to commit a robbery. Well, here’s a related follow-up that we shouldn’t have to elucidate, but since this is a common sense lesson and all…
Like, when you’re going out to rob some shit and stuff, dude - you should like totally leave the digital camera at home. Cause, you know, you might could forget it and leave it behind at the house you’re robbing, especially when you’re focusing on the $800 bottles of wine and fancy-schmancy scotch, you know? And like, then, when the cops find the camera and look at the pictures, they totally have your picture and can show it to people and go, like, “he’s the suspect, do you know who he is and where we can find him and stuff?” And then if you get arrested, that’s totally gonna’ ruin the bitchin’ buzz you had going from all the expensive booze you just stole. Know what I’m saying?
Erin Go Bra-less
I was down in Savannah, Georgia this weekend and, before I get to the legal story, let me just say this. I guess there’s been some dispute over whether Savannah is truly the second biggest St. Patty’s Day party in this country (second only to NYC). For the record, there’s no question. That place was absolutely nuts. I live in Boston, so I’ve seen my share of massive St. Patty’s festivities, but Savannah is something else entirely, largely due to the fact that 90% of the party is compressed onto one riverfront street less than a mile long. Just insanity down there.
In any event, during commercials while watching all the college basketball this weekend, I learned that the biggest story on the local news was about a controversial new abortion proposal. Under the bill, doctors would be required “to offer to show patients requesting an abortion an ultrasound image of the fetus if an image was made.” And I bring this up because the Georgia House approved the measure on Monday, by a vote of 116-54, which means it now goes to the Senate.
Although I’m pro-choice, I don’t really have a problem with the substance of this bill. It’s not forcing doctors to shove the ultrasound in front of the mothers, it’s simply saying they have to offer the choice to see it, if there’s an ultrasound. I think folks on both side of the debate can agree that whether to have an abortion is a pretty big deal, and I don’t see anything wrong with helping to make what is a terribly difficult decision in as much of an informed way as possible. The only criticism I can see as to the substance of this bill is that seeing a fetus image in the ultrasound is highly persuasive. Well, I think that’s kind of the point. I’m not sure there’s anything wrong with allowing women to see at least a little evidence of the reality of what they’re thinking about here.
One Representative, Stephanie Stuckey Benfield, said she questioned whether this would really prevent abortions. And I don’t think it will, which is why I’m ok with it. Meanwhile, I think it’s preposterous when Representative David Lucas says it’l “force kids in the back alley.” This isn’t the same thing as requiring counseling or parental consent or anything like that, which arguably could actively dissaude women from going to a doctor.
Now some other critics said that this shouldn’t pass simply because the state legislature should keep itself out of the abortion debate. I can understand that criticism a bit more, although I’m not sure I agree with it either. Pro-choicers don’t want the state getting involved because that’s almost always going to lead to restrictions, and pro-lifers do want the state to get involved for precisely the same reason. But should you argue for the state to stay out of what is a highly controversial issue just because the state is likely to go against your personal viewpoint? I think the stronger position is to try to get representatives who share your viewpoint, no?
…wow, this post started off talking about St. Patty’s Day fun and debauchery, and really got serious fast with all the abortion talk. Sorry about that. Let’s end on a positive note. Here’s a picture my buddy took of a very drunk young lady wearing a classy “Erin Go Bra-Less” shirt and holding up the evidence that she was, in fact, bra-less:
Mother fucking Bush
Here’s the leed on a story from Yahoo News last night:
A defiant President Bush warned Democrats Tuesday to accept his offer to have top aides testify about the firings of federal prosecutors only privately and not under oath or risk a constitutional showdown from which he would not back down.
Are you F’ing kidding me? This administration has been caught with its hand in the kitty, so to speak, time and again. And Bush wants us to let these folks testify without being sworn in and, more importantly, without transcripts of that testimony, so that there’s absolutely no accountability or a pretense of truth to their statements? (Although, as Scotter Libby taught us, being sworn in certainly doesn’t mean this administration won’t lie anyway.)
Well at least the Dems are showing some balls on this one, saying they’ll start throwing subpoenas at folks as soon as possible because “[t]estimony should be on the record and under oath. That’s the formula for true accountability.”
Bush also said: “There is no indication that anybody did anything improper.” Which, I guess, verifies his statement years ago that he doesn’t read the newspapers.
Inauguration Day 2009 seriously cannot get here soon enough.
If at First You Don’t Succeed, Sue!
I’m one of the many who took the LSAT twice to see if I could improve upon my score. The first time I took it, I had an all-too infectious Elvis Costello song in my head when the test started, and of course, the first section was reading comprehension. It’s almost impossible to read coherently when you have “Watching the Detectives” jangling around in your brain. The second time I took it, I listened to classical music beforehand – and I scored 12 points higher on the exam. (Note to future law students out there: Leave the iPod at home.)
Of course, I didn’t sue the folks over at LSAC when the results of my first exam didn’t come back the way I’d have liked. Jonathon Love, however, felt that he was smarter than the 150 he got the first time, so he sued LSAC, claiming he had a learning disability that necessitated that he get 50 percent more time to take the exam.
Unfortunately for Love, a federal judge ruled against him, concluding that his mild form of Attention Deficit Disorder didn’t merit extra time. In fact, part of the ruling was based on Love’s IQ (110), which fell in line with his 150 LSAT score.
LSAC, however, does grant extra time to around 75 percent of applicants who ask for it in order to accommodate their learning disabilities. However, in this situation, LSAC felt that Love was simply trying to take advantage of the system. I was actually surprised by the 75 percent number, though; I wonder, in fact, if you can get extra time if you can prove that your brain is particularly receptive to pop music. I really could’ve used another 15 minutes during the games section.
Of course, if Love really wanted a higher score, he should’ve read The Secret.
Hey! in Florida, a prison guard was arrested yesterday for having sex with one of the female prisoners in his keep. And so Gustavo Coronado now faces a third-degree felony charge of sexual misconduct.
But, it wasn’t his fault, of course. Coronado didn’t actually want to have sex with the inmate. It’s just that, you know, he got so tired of her asking all the time. It was always, like: “C’mon Gustavo. Take me for a spin,” or “Gustavo, are you ever going to do me on my prison bed?” or “Mr. Prison Guard Man – Is that a half-roll of dimes in your pocket, or are you just happy to see me?” Finally, Coronado just got fed up with it and had sex with the inmate, as he said, “so she would leave me alone.”
And, indeed, the female inmate did admit that she flirted with Gustavo; she wanted to have sex with him to get him busted for bad behavior. So, one afternoon, she took his pen and put it in her locker. Then, after all the other inmates left, Coronado demanded to see what was in the inmate’s locker. And from there, the sexual rendezvous occurred — which lasted somewhere between 30 seconds and a minute.
30 seconds to a minute? Maybe Coronado’s charge ought to be lowered to a misdemeanor — a 30-second sexual “rendezvous” should hardly count as felony sexual misconduct. Maybe he should just be charged with one count of prematurely discharging a loaded weapon and fined for the dry cleaning bill.
Indeed, asked for comment, the female inmate remarked, “Rendezvous?! That wasn’t no rendezvous. It was more like an unannounced drive-by, where he threw his semen out the window and kept on driving. Hell, I’ve taken leaks that were longer and more satisfying.”
The Daily Memo - 3/20/07
Michael Strahan, of the New York Giants, has been scolded by a judge for not paying the $6.5 million he owes his ex-wife and, as an Eagles fan, I love seeing judges acknowledge that Giants players act in “bad faith.” (SI)
This headline speaks for itself: “Men sentenced for running castration ‘dungeon.’” (CNN)
Lawrence Lessig had a great op-ed piece in Sunday’s NY Times, talking about the copyright muck-a-muck that’s at play in Viacom’s $1 billion lawsuit against YouTube. (NY Times)
Meanwhile, Viacom itself is now being sued by folks who were threatened over content they allegedly posted on YouTube, as they claim Viacom was asserting ownership rights in things it didn’t even own. (Download Squad)
A Michigan man may not be able to achieve his goal of riding his lawnmower across the country for charity because a Vermont police officer said he can’t have it on the road unless it has a license plate and is registered with the DMV. (LSJ.com)
Microsoft’s patent for the File Allocation Table (us nerds out there know what this is) has been declared invalid. (Heise)
The former owner of the Denver Broncos has, once again, seen a court stifle his attempts to get the current owner to resell a portion of the team back to him. (SI)
“Why are judges citing fewer law review articles?” (Concurring Opinions)
Supreme Court Decision Update - Travelers Casualty and Surety Co. of America v. Pacific Gas and Electric Co.
Today’s sole Supreme decision comes in Travelers Casualty and Surety Co. of America v. Pacific Gas and Electric Co. (PDF of the opinion). In a unanimous opinion, the Court says that nothing in federal bankruptcy law prevents an unsecured creditor from getting attorney’s fees pursuant to a contract between the creditor and the debtor.
QuizLaw Analysis: Oh, yes, we’re talking bankruptcy and contract law, folks. It doesn’t get any better than this. And by the by, this is yet another case that comes from the Ninth Circuit and where the Ninth finds itself reversed. Maybe we should just get rid of the Ninth Circuit entirely and have cases go right to the Supremes. Save everyone some time and money, you know? ‘Cause this is just getting kind of ridiculous.
…bankruptcy? Really? Yup. Sorry.
Ok, who went broke? Back in 2001, Pacific Gas and Electric Company (who we’ll call PG&E) filed for Chapter 11 bankruptcy. Travelers Casualty & Surety Company (let’s call them Travelers) had previously issued a $100 million surety bond on behalf of PG&E to guarantee PG&E’s continued payment of state workers’ comp benefits. At that time, PG&E and Travelers entered into several agreement which included provisions that PG&E would have to cover any loss Travelers suffered in connection with these bonds, and that would include any attorney’s fees which Travelers might have to spend in litigating anything related to the bonds.
Anyway, when PG&E filed for bankruptcy Travelers filed a claim as an unsecured creditor so that it would be protected if PG&E ended up defaulting on its workers’ comp benefits. When PG&E put a reorganization plan together, it included a statement to protect Travelers’ rights, per a negotiation between them both. But Travelers said that PG&E changed the agreed language in a way that offered it less protection, and a lawsuit followed. They resolved their dispute and in the subsequent agreement they both agreed that Travelers could, as an unsecured creditor, seek any attorneys’ fees pursuant to its original agreements.
Travelers then tried to get attorney’s fees for the money it spent in all this bankruptcy mess, and PG&E tried to fight it. The Bankruptcy Court took PG&E’s side, and denied Travelers’ claim for fees, so Travelers went to the District Court. The District Court affirmed as well, as did the Ninth Circuit.
How come Travelers got dinged? The District Court and the Ninth Circuit both relied on a 1991 opinion from the Ninth Circuit, In re Fobian. In Fobian, the Ninth said that “where the litigated issues involve not basic contract enforcement questions, but issues peculiar to federal bankruptcy law, attorney’s fees will not be awarded absent bad faith or harassment by the losing party.” And since there wasn’t any apparent bad faith or harassment by PG&E, Travelers couldn’t get its fees, since those fees came from a bankruptcy matter rather than a dispute over the original contracts.
So what’s Alito have to say about it? Again, since this is the Ninth Circuit, it should come as no surprise that his unanimous opinion says the Ninth got things wrong yet again. He begins by acknowledging that in general, the winner in a lawsuit isn’t entitled to attorneys’ fees. However, this default rule can be trumped by a statute or a contract between the parties. Now, as far as bankruptcy law goes, fees pursuant to a contract are allowed unless the Bankruptcy Code specifically says otherwise. So the question here is “whether the Bankruptcy Code disallows contract-based claims for attorney’s fees based solely on the fact that the fees at issue were incurred litigating issues of bankruptcy laws.”
And what’s the Bankruptcy Code have to say about attorney’s fees? Well in general, it says that all claims under a certain provision (section 501, which is what Travelers was filing its claim under) are allowed unless one of nine explicit exceptions applies. Those exceptions come from section 502(b) of the Bankruptcy Code.
What are the nine exceptions? Well, a claim can be disallowed where:
1. The claim is unenforceable because of an agreement or relevant law.
2. The claim is for an interest that hasn’t matured yet (i.e., the creditor is too early).
3. The claim is for a property tax that’s for more than the value of the related property.
4. The claim “is for services of an insider or attorney of the debtor” and is in excess of the reasonable value of those services.
5. The claim is for alimony or child support obligations which aren’t mature yet (i.e., not due).
6. The claim is for damages that came from the termination of a lease.
7. The claim is for damages that came from the termination of a lease or employment contract.
8. The claim “results from a reduction, due to late payment, in the amount of…credit available to the debtor in connection with an employment tax on wages, salaries, or commissions earned from the debtor.”
9. The claim was filed in an untimely fashion.
And none of these exceptions apply to Travelers’ claim? Nope. The only one Alito says even has a shot is the first one, that a claim is “unenforceable against the debtor and property of the debtor, under any agreement or applicable law for a reason other than because such claim is contingent or unmatured.” Alito says this means that “any defense to a claim that is available outside of the bankruptcy context is also available in bankruptcy.” Alito says that this is a basic principle that is consistent with the language of the Bankruptcy Code, as well as settled law. The word “claim” is well understood to mean any payment right recognized by state law, so unless federal law trumps state law, “there is no reason why such interests should be analyzed differently simply because an interest party is involved in a bankruptcy proceeding.”
When the Ninth told Travelers to get lost, it didn’t determine that Travelers’ claim was unenforceable under bankruptcy law. In fact, it acknowledged that some winning parties in a bankruptcy action are entitled to fees. Instead, it relied on the Fobian rule, which was “a rule of that court’s own creation.” And that rule, says Alito, is bunk.
There’s no support for such a rule in the Bankruptcy Code and, in fact, the Fobian court didn’t point to the Bankruptcy Code for any such support. And so it boils down to this: “The absence of textual support is fatal for the Fobian rule.” In fact, remember exception 4 from above? That said that attorneys’ fees in excess of reasonable value for the service were to be excluded. Well that “suggests that, in [the absence of such excess], a claim for such fees would be allowed in bankruptcy to the extent enforceable under state law.”
Now if Congress wants a rule like the Fobian rule, it can certainly amend the Bankruptcy Code. But it hasn’t done so, and this isn’t up to the Ninth Circuit to do on its own. And that’s that.
Ok, but I’m following along in the opinion, and there’s still another two-and-a-half pages. What’s dat? Well PG&E tried to argue that another section of the Bankruptcy Code, not these nine exceptions, is what disallows Travelers’ claim. Section 506(b) says:
To the extent that an allowed secured claim is secured by property the value of which…is greater than the amount of such claim, there shall be allowed to the holder of such claim, interest on such claim, and any reasonable fees, costs, or charges provided for under the agreement or State statute under which such claim arose.
PG&E tried to argue that this allows attorney’s fees for claims that are oversecured, but not for claims that are unsecured (which is what Travelers’ claim is). Trouble is, PG&E didn’t make this argument in the lower courts, and the Supremes only granted cert on the Fobian rule issue, so Alito says “tough titties.”
The Battle over Superheroes
Two superhero-related lawsuits crept up last week. First, NBC has been sued over its new hit show “Heroes.” For those not familiar with the show, one part focuses on a painter named Isaac who can paint visions of the future. The story arc of the whole season focuses largely on his paintings of New York City getting jacked-up in a nuclear explosion. Well, there are two NY artists who claim that they came up with this idea a couple years ago. In an April 2005 exhibit, they claim that their work portrayed a story about an artist who sees and paints the future, and who painted two NYC landmark buildings being destroyed. And so NBC has done nothing but ripped off their brilliance.
Meanwhile, Marvel Entertainment has been sued for a whopping $5 billion by Stan Lee Media. The company, which is not owned by Stan “The Man” anymore, claims that it co-owns various marvel superheroes, including Spiderman and The X-Men. So it thinks that it’s entitled to a big hunk-a-chunk of the movie money that Marvel has been raking in off of its characters. The CEO and president of the company says that Stan Lee signed an agreement in 1998 giving the company a co-interest in all of these characters and that even though Lee isn’t with the company, that contract and the company’s interest in the characters is still valid.
I hope these stories play out in typical comic book fashion, with some secret origin stories tying everyone together in one neat little story. Maybe involving some radiation or aliens or Atlantis. I’d like to see the news get bit more comic book like (and the White House shenanigans don’t count).
Carol Burnett is suing Fox over “Family Guy.” But not, as I assumed when I first saw the headline, because the show isn’t nearly as entertaining as it was when it first ran, before being cancelled and then brought back to life. No, turns out that Burnett is suing Fox for copyright infringement, and she’d like a nice little $2 million check from the network.
In an episode from last April, the show featured a clip of a cleaning woman character referred to as “Carol Burnett” and made to look like Burnett’s character, Charwoman:
In the episode, the Charwoman is the maid in a pornography shop. The segment also incorporated an “altered version” of Burnett’s theme music, and the characters in the show perform Burnett’s signature ear tug, her suit states.
And since they didn’t get her permission, she says her publicity rights have been violated. Moreover, she claims this was a revenge tactic because she declined a request to allow the show to use the official theme song to “The Carol Burnett Show.”
In any event, age clearly hasn’t treated Ms. Burnett’s sense of humor very well. Although, again, if she were suing because the bit wasn’t funny, that’d be another matter entirely. You can judge the quality of the bit’s humor yourself over at The Smoking Gun.
Common Sense Lesson #135
Think about a good false name ahead of time, and do a little research on it - hell, they got websites that’ll give you a nice false name lickety-split. And if you heed this lesson, you won’t end up like Vincent Lloyd Massey. See, Mr. Massey got pulled over in the wee hours of the morning. Actually, he was the passenger and it was his buddy who was pulled over. And because his buddy was driving on a suspended license, Massey was left to drive the car home.
Before the Maryland cops let him go, however, they asked to see his license. But Massey decided not to give them his license - he told them he forget it and, instead, threw out a fake name which he claimed as his own.
Unfortunately for Mr. Massey, that name belonged to a felon currently wanted by the U.S. Marshal’s service! So the cops got an arrest warrant and arrested our poor Mr. Massey. He then fessed up that he wasn’t this felon, but was actually just plain old Vincent Massey. Of course, the cops kept him under arrest even after confirming this, since they could now charge him with giving a false statement to the cops.
Research, people, research.
So last week, a judge up in Vancouver had to issue a public apology. He had been presiding over a criminal trial and was questioning the prosecutor during closing arguments. During this time, he uttered “oh shit,” at one point, “goddamned” at another point, and he dropped two F bombs:
At one point, he observed that the accused, whom he eventually acquitted, would “have had to have been out of his fuckin’ mind to store it in his own locker,” referring to cocaine.
Later, musing about the thoughts of another individual already convicted in the case, Judge Leasek said: “…he can minimize his risk of detection and apprehension by just aborting the whole fucking thing, right?”
Some folks weren’t pleased with this, particularly thanks to the fact that there were some young students in the courtroom at the time. So Judge Leak offered a public apology, and expressed his regrets to pretty much everyone in the whole country. Folks seemed placated by the apology and were very understanding of it all, although some folks, including the lawyers involved in the drug case, said they didn’t think any apology was necessary:
“Really, at the end of the day, I’m embarrassed,” defence lawyer Neil Cobb said. “As someone who’s spent 45 years defending the poor and the downtrodden, he didn’t deserve this maelstrom…. I felt terrible hearing him say that he was sorry.”
Asked whether it was appropriate for schoolchildren to hear such language in court, Mr. Cobb replied: “My son is 13 years old, and he’s got more offensive language than that on half the songs on his iPod.”
Common Sense Lesson #134
This one is very simple people - do not take your marijuana to the courthouse with you. That’s a valuable lesson that Ronald E. Hall, Jr. could’ve used last week when he rolled up to a Virginia courthouse with a half-ounce still in his pocket. When he emptied his pockets for a security guard, the guard looked at his weed and his cell phone and told him: “You can’t bring that crap in here.”
So Hall stepped outside of the courthouse and did what many folks apparently do with their cell phones, which aren’t allowed in the court building - he stashed it in some bushes. And, since his weed couldn’t go in either, he put the baggie there too. After he re-entered the courthouse and went about his business, the security guard called a cop, who was of course waiting for Hall when he came back.
Had he been asked for a comment, I imagine Hall would have said that the whole thing had “like totally harshed my mellow.”
Orwell Would’ve Voted for Kucinich
There are a couple of political attack ads, borrowing heavily from Ridley Scott’s 1984-themed commercial for Apple, making the rounds on the Internet right now. The first one, a pro-Barack Obama spot, was not apparently produced or endorsed or by Senator Obama himself. It looks to be the more popular one at the moment, enough to generate quite a bit of press. The second one is a similar video, only the Hillary Clinton footage has been replaced with Obama footage. Both, so far as I know, are anonymous. But each is amusing and effective in its own way. Although, personally, I liked it better when the Democrats beat up on the Republicans instead of each other.
Check them out:
The Xs and Os Aren’t All Adding Up
Though the AutoAdmit carnage has now been discussed ad nauseam by QuizLaw, WaPo, Althouse, the WSJ, and the eloquent, articulate Above the Law Commenters, there is one facet of the story that hasn’t been given its due yet: The guy behind AutoAdmit, Jarret Cohen. Sure, he was quoted in WaPo, but – as those with an agenda are inclined to do – the paper (allegedly) took those quotes out of context.
Mr. Cohen believes that the firestorm was started by a coordinated effort by the Big-Brother sounding Reputation Defender, a web service that seeks to “destroy, at your command, all inaccurate, inappropriate, hurtful, and slanderous information about you and/or your child using our proprietary in-house methodology.” According to Cohen, the company — which advertises such testimonials as: “sir u guys r great I have told everyone about u” — approached law school deans and the mass media without approaching AutoAdmit first, in the hopes that it might embarrass AutoAdmit and provoke a backlash.
According to an email Cohen sent to us, one of posters on AutoAdmit dug up personal information on a female (as discussed) and then emailed the entire Yale faculty in an attempt to embarrass the woman. Then, argues Cohen:
Reputation Defender brought a private issue of one of its clients to the attention of the national media, likely in part to score free publicity for their start-up company, and ended up causing this person more irreparable harm to her reputation than there ever was in the first place. In a twisted way, it’s almost as if they threw their client under the bus in order to promote themselves.
Mr. Cohen, who “doesn’t condone the crap” of many of the posters, but – presumably – recognizes their freedom to write whatever the hell they want, posted a timeline of events as evidence that Reputation Defender was “more interested in defending their own reputation than those of their (mostly pro-bono) clients.” He states that it took over a month for Reputation Defender to contact him about the matter and that it only did so after reaping the benefits of the above-mentioned media attention.
Reputation Defender then asked Cohen to take down the threads, but due to alleged privacy concerns, RD refused to tell Cohen which threads to remove. Cohen nevertheless agreed to take down the offending posts and to even acknowledge that AutoAdmit made some mistakes, but only if Reputation Defender also acknowledged its role and mistakes in the matter. Reputation Defender, however, refused to take any responsibility, though if Cohen’s allegations are true, RD certainly had a large role in helping to invade their own client’s privacy on a national level.
In either respect, Cohen acknowledges that he has taken down posts in the past, when personal requests have been made. He has meant for AutoAdmit to be a community where members had the “freedom to discuss controversial topics, but it was clearly not an endorsement of intrusion into people’s private lives.”
Mr. Cohen, in his web post, continues to maintain that he is willing to remove the offending posts, but only if Reputation Defender acknowledges its complicity. However, it is clear from the tone of the post that Mr. Cohen has been stung by the controversy and, especially, efforts to escalate the matter to the courts.
Personally, I think there is a lot of stubborn pride behind both sides of the issue. And, unfortunately, it looks like Brittan Heller and a couple of other women are suffering the most for it. Of course, none of this would’ve mattered at all if the scumbag law students had a modicum of decency. I’d love nothing more than to see the names of the original posters leaked, and then to see a little Heathers-style vigilante justice involving the shaving of pubic areas and Polaroid pictures posted onto AutoAdmit. Petty? Yeah. But, I’d love to see the tables turned on a few of these douchebags.
The Daily Memo - 3/19/07
Professor Bainbridge calls out the Bluebook’s stupid rule for how one should cite to a blog entry. (Professor Bainbridge)
Speaking of which, Professor Bainbridge found 38 cites to his blog in the Westlaw JLR database - where are the QuizLaw citations, people? Seriously, get on that!
Blawg Review #100 is up, and it’s really, really looooong. (Blawg Review)
Troubled director Peter Bogdanovich has been sued for allegedly shaking down a man trying to get his son into the film industry. (Yahoo!)
Eastern Michigan University attempts to cover-up a dorm-room murder. (The Llama Butchers)
A German woman is suing her plastic surgeon for accidentally removing her right buttock. (Junkiness)
Supermodel Naomi Campbell reports for floor-cleaning duty. (Newsday)
Thank God the First Amendment isn’t on Prozac
A couple of weeks after The Washington Post sunk its teeth into the growing AutoAdmit “scandal,” which could only be called as much if you are a law student and your life is empty enough that petty trash talk dominates your existence, the Wall Street Journal jumped into the fray today, with its own op-ed written by current Yale Law Student Elizabeth Wurtzel (pictured), the author of Prozac Nation. Wurtzel rightfully denounces the shenanigans on AutoAdmit, then writes, “In such a world, what to do about AutoAdmit? To start with, pray for mercy, because based on the content of its postings, the future of jurisprudence does not look good,” which is probably the most apt line I’ve read about the scandal. Wurtzel then pleads for civility and asks for sensitivity, which is unlikely given the type of law student who leaves the offensive posts on the message boards.
Wurtzel also suggests that the offending posts should be removed, but reckons that it won’t happen:
Not because it shouldn’t — of course it should. But because once again, for about the 80th time in my memory and for at least the 80,000th time in the life of this country, here is an issue in which the right to free speech — as opposed to the need for everyone to just shut up — is going to overwhelm us all.
I actually found that bit somewhat disconcerting — the idea that we could be overwhelmed by the right to free speech. She continues in this vein, too, seemingly taking issue with the notion that “the firstness of the First Amendment trumps everything that competes with it.”
Actually, I kind of prefer it that way. And in an era in which our administration is slowly stripping away other rights guaranteed by the Bill of Rights, it’s nice to know that we can still say what we want to say (unless we’re Muslim), even if the White House is recording, reading, and monitoring it all.
After all, we have sacrificed six of the Ten Amendments in service of this war. Just ask Bill Maher:
Monday Morning Diversion
Walter Olson over at Overlawyered has dug up a never-before-seen-by-my-eyes gem, an animated Weird Al Yankovic music video for a song entitled, “I’ll Sue Ya!”
Sample lyrics include:
“I sued Petco / Cause I Ate a Bag of Kitty Litter / And Now I Have Bad Breath. I Sued Coca-Cola, Yo. Cause I Put My Finger Down in a Bottle / And It Got Stuck!” And later, “I Sued Ben Affleck … Ahhh, Do I even Need a Reason?”
Check it out; it pretty much encapsulates popular thinking on American lawyers. It’s got a nice guitar riff, to boot.
I dunno whose side you take here.
Prince Frederic von Anhalt, Zsa Zsa Gabor’s husband, is suing Papa Bear Bill O’Reilly. You may recall that, amidst all the Anna Nicole Smith “who’s the baby daddy” drama, Prince Freddy came forward to say that he, too, could be the man of the hour. “For you see,” he said, “Ms. Smith and I knew each other carnally for nigh unto a decade!” (WordsNotActuallySaidByPrinceFreddy.)
After he came forward, Papa Bear had some words to say about the claim on the February 22 episode of “The O’Reilly Factor:”
“Look, this guy’s a fraud,” O’Reilly said, according to a transcript of the show posted on the network’s Web site. “We know he’s a fraud. But let’s - what I want to talk about is - he’s done. His credibility - is finished.”
And so, of course, Prince Freddy now wants $10 million for O’Reilly’s alleged defamation. The prince claims that since this show, he gets dirty looks and embarrassing e-mails from people who have not-nice things to say about him, etc.
As I say in the post title, I just don’t know who to root for here. On the one hand, you’ve got Prince Freddy, who is clearly a (allegedly!) money grubbing old coot. But on the other side, it’s Papa Bear. I can’t actually be on O’Reilly’s side on something, can I?
I think I’ll settle this with a coin toss. Heads - Papa Bear. Tails - Prince Freddy.
…huh. It got embedded in the ceiling panel. That’s it, I’m going to a bar.
It’s all about balance, people
Stupid people abound! But of course, I’m not telling you anything you don’t already know. However, instead of just telling the tale of another idiot, let’s balance things out with a good story as well.
But first, idiocy. Joseph Eric Renno, come on down! This pride of Central Pennsylvania is currently facing charges of open lewdness because, get this: he went into a local Wal-Mart, took magazines and clothes (including panties and a bra) into a dressing room, masturbated, and then carried on his way. The cops were called and Renno was easy to catch because, of course, he’s a frequent visitor of the store. Lucky for him, he’ll have lots of time to, uhm, practice while he’s in the clink.
And now we’ll stay in Pennsylvania and go visit La Tina Osborne, a 32-year-old pediatric nurse. She’s currently being sued by her landlord, 77-year-old Genevieve Zumuda. During the trial, Zumuda had some problems and, as Osborne explained it, “she just started shaking and her eyes rolled back in her head.” So being a nurse, Osborne went over to Zumuda and gave her CPR, helping to keep her going until the paramedics showed up and used the defibrillator to get her heartbeat back It would not have surprised me at all if this story ended with Osborne saying, “eh, screw the bitch – she was suing me, I ain’t saving her life.” Nice to see that folks can still sometimes do the right thing.
The Daily Memo - 3/16/07
A Rhode Island state representative wants to repeal the state’s “harsh” fire code because bands are having trouble complying when they play in bars and, you know, there haven’t been any band/bar/fire incidents in Rhode Island or anything (Great White - your lesson has been stricken from the record). (The Guardian)
A West Virginia high school student has sued her teacher and the school board because she didn’t get a super-sweet grade in biology, which will hurt her ripe 4.5 GPA. (Overlawyered)
Lawyers are taking over Hollywood. (WSJ Law Blog)
A Florida cop (where else) stole a gun from the property room and then shot himself with the gun, initially blaming the shooting on a 6 foot tall suspect in a “dark hoodie.” (Dayton Daily News)
A Georgia legislator would like to de-name a street that was named after Representative Cynthia McKinney. (Jacksonville.com)
Don’t mess with the bull young man, you’ll get the horns.
Ok, I need to give a hearty shout-out to reader Richard Rebel for pointing out the following hilarious story (and to Legal Juice for posting it in the first place).
So back in 1990, a Maryland man, Mr. Johnson (not sure what his first name was), was convicted of malicious destruction of personal property. But luckily, Mr. Johnson received a 3-year suspended sentence and got probation - so if he behaved, all would be well in the world. But wouldn’t you know, in 1991 he got busted for burglary, which got him a 10-year vacation in the clink. And since this was also a probation violation, he eventually had a court hearing about whether those other three years would get tacked on to his current 10-year sentence. And during the hearing, the Judge decided to give him those additional three years.
Needless to say, Johnson was pissed, and the following long exchange took place:
THE COURT: Call the next case please.
PROSECUTOR: State calls Eugene Wright …
JOHNSON: — at the same time. Don’t make no motherfucking sense.
THE COURT: Bring him back. Take him back.
JOHNSON: No motherfucking sense.
THE COURT: Pull him back.
JOHNSON: Yo, man, stop yanking on my motherfucking arms. Motherfucking —
THE COURT: Sit him back over there in front of the table. [Uh-oh]
THE CLERK: Give me the file back. He might be under contempt of court.
THE COURT: Now, stand up there. Come back to that table there. Step on up now. What’s wrong with you?
JOHNSON: What the fuck you think wrong with me, man? Goddamn, I’m trying to tell you I ain’t have no motherfucking option in this shit, man.
THE COURT: All right.
JOHNSON: What the fuck? You think everybody just want to go sit in prison for the rest of their life because you ain’t got nothing better to do than to sit up there and crack jokes. This ain’t no motherfucking joke, man. This is about my goddamn life.
THE COURT: That cost you five months and twenty-nine days in addition to the three years I’ve just given you.[#1]
JOHNSON: Fuck this shit, man.
THE COURT: All right. That’s five months and twenty-nine more in addition to the five months and twenty-nine I’ve given you. [#2]
JOHNSON: Fuck you, bitch.
THE COURT: That’s five months and twenty-nine days. That’s three years. That’s five months and twenty-nine days. Now, wait a minute. That’s consecutive to the three years that you’re now doing. Each one of those. Separate and independent. [#3]
JOHNSON: If I had a gun, your motherfucking head would be splattered all over the back of the goddamn wall for –
THE COURT: And you’d better shoot straight when you try. When you get out, come on. Five months and twenty-nine more for that. That’s consecutive to the three others and consecutive to the one that you’re doing now. [#4]
JOHNSON: Whatever man. You’re tired of giving it out? Did you finish or what?
THE COURT: Well, we can see. That’s five months and twenty-nine more. [#5]
JOHNSON: Kiss my ass again.
THE COURT: Five months and twenty-nine more. [#6]
JOHNSON: Kiss my ass until you’re tired of giving me another.
THE COURT: That’s six of them.
JOHNSON: Kiss my ass again.
THE COURT: Seven. Five months and twenty-nine days. [#7]
JOHNSON: Fuck you. Kiss my ass again.
THE COURT: Five months and twenty-nine days. [#8]
JOHNSON: All right.
THE COURT: Consecutive.
THE CLERK: Silence.
JOHNSON: So you finished giving out time?
THE COURT: I guess. Until you cuss again.
JOHNSON: Suck my dick. [Very tricky, because “dick” isn’t a cuss word.]
THE COURT: Five months and twenty-nine days consecutive. [#9] [Damn!]
THE BAILIFF: Quiet in the Court.
JOHNSON: You finished?
THE COURT: I suppose.
JOHNSON: Well, what the fuck are you holding me for then?
THE COURT: Five months and twenty-nine more days. Consecutive. [#10]
JOHNSON: Get the fuck off me, man.
THE COURT: Call the next one.
Each one of those bracketed numbers is a different contempt charge thrown on Johnson. So he got 10 separate contempts, each for one day shy of six months, meaning that his total time in the clink would now be the 10 years for burglary, plus 3 more for the probation violation, plus almost 5 more for contempt (each contempt sentence was just shy of six months because the law says that folks aren’t entitled to a jury trial for contempt punishments of less than 6 months, so the judge was giving Johnson 5 months and 29 days to avoid sending Johnson to a jury).
Johnson appealed and in 1994 a Maryland appellate court overturned the contempt convictions, finding that the judge provoked Johnson, and ruling that the whole ordeal should only count as a single contempt.
Now I couldn’t help, while reading this transcript, but to think of a scene from the classic The Breakfast Club:
VERNON: You’re not fooling anyone, Bender. The next screw that falls out is going to be you.
BENDER: Eat my shorts.
VERNON: What was that?
BENDER: Eat. My. Shorts.
VERNON: You just bought yourself another Saturday.
BENDER: Ugh, I’m crushed.
VERNON: You just bought one more right there.
BENDER: Well, I’m free the Saturday after that. Beyond that, I’m gonna have to check my calendar.
VERNON: Good. Because it’s going to be filled. We’ll keep going. Want another one? Say the word. Just say the word. Instead of going to prison you’ll come here. Are you through?
VERNON: I’m doing society a favor.
VERNON: That’s another one right now. I’ve got you the rest of your natural born life if you don’t watch your step! You want another one?
VERNON: You got it! Right there, that’s another one pal.
CLAIRE: Cut it out!
VERNON: You through?
BENDER: Not even close, bud.
VERNON: Good. You got one more, right there.
BENDER: You really think I give a shit?
VERNON: Another. You through?
BENDER: How many is that?
BRIAN: That’s seven including when you asked Mr. Vernon here if Barry Manilow knew that he raided his closet.
VERNON: Now it’s eight. You stay out of this.
BRIAN: Excuse me, sir, it’s seven.
VERNON: Shut up, Peewee. You’re mine, Bender. For two months, I’ve gotcha.
BENDER: What can I say? I’m thrilled.
Eerily similar, right? Except that Bender only got hit eight times, while Johnson got ten. So a “good on you” to Johnson for stepping things up a notch.
Ahead of May 25th’s release of the Ashley Judd thriller, Bug, about a couple of motel patrons who get infected with some seriously vicious bed bugs, it seems that lawyers are also catching bug fever. In Arkansas, for instance, a woman is claiming that she was infested by hundreds of bed bugs during her stay at a cheap motel while she was recuperating from breast cancer.
Rose M. Pagley-Brown is suing the Stone Motel, in Siloam Springs, Arkansas, alleging that a bed-bug infestation caused her a lot of “pain and mental anguish, embarrassment and humiliation, medical bills and expenses.” She said she woke up one morning with pain and itching and “saw and felt countless bugs on her body and in her bed.” She said she captured three of the bugs in a plastic bag.
The motel owner, Bruce Stone, denies the allegations, stating that the motel had been inspected twice for bed begs and cleared. Meanwhile, Pagley-Brown now says that she’s haunted by nightmares involving bugs feeding off her body.
Strangely, Pagley-Brown’s bed bug lawsuit comes just when a rash of similar lawsuits are making their way to the courts. In Chicago, for instance, three tenants in an apartment complex are suing for injuries allegedly sustained by bed bugs; another woman is also suing a New York hotel for $20 million, after allegedly suffering more than 500 bed bug bites. And, as we wrote in January, an opera singer is suing the Hilton Corporation for $6 million, alleging over 150 bites.
One has to wonder, though, if the rash of lawsuits has more to do with (*throat clear*) opportunistic lawyers, or if bed-bug bites are actually worth the millions of dollars these plaintiff’s claim. If it’s anything like the Ashley Judd movie, though, I’d probably argue that $20 million is a steal.
Check it out:
Stupid Is as This Woman Does
Sometimes, I get the idea that our faithful readers (all 12 of you) have a hard time believing the often incredible legal stories we run here on QuizLaw. The truth is, people are a lot more stupid that most of us give them credit for.
Today, we have videotaped evidence to that effect. Indeed, Brenda Hughes – a Georgia woman – was arrested recently for throwing acid on her neighbors in what police call a hate crime (her neighbors are black). She’s been charged with two counts of battery and disorderly conduct.
But Hughes’ account differs. In fact, she’s so adamant that she didn’t throw acid at her neighbors that she’s actually willing to taste the so-called substance and then, as if to emphasize the point, run it through her hair.
“What’s the worse that can happen,” she says. “I’ll get sick.”
Here’s hoping that she does. And, for your viewing enjoyment, the videotape evidence:
The Daily Memo - 3/15/07
Pacman Jones, cornerback for the Titans, got a court appearance postponed for two months so his lawyers can figure out what the NFL will do if he enters into a plea (he’s facing a felony charge of obstruction). (ESPN)
A father and son got arrested on the same day - the son for drug possession and, get this, the father for trying to hire a hitman to kill his son! (Northwest Herald)
Uhm - what? “South Carolina lawyers have come up with the oh-so-brilliant proposal of allowing for an inmate’s sentence to be reduced for 180 days should the inmate donate an organ.” (Sui Generis
Minnesota and other states are considering legislation to regulate college textbooks, in an attempt to deal with ever-escalating prices. (CNN)
Washington legislators are considering a bill to ban “driving while texting,” which would mean no more using the Blackberry when you’re behind the wheel. (WSJ
Microsoft has decided to unhatch some lawsuits against various cybersquatters. (Download Squad)
Texas’ legislature wants to protect chastity at all costs, so it’s looking to block the governor’s order that all sixth-grade girls get the HPV vaccine, cancer risks be damned! (Yahoo! News)
Common Sense Lesson #133
Yesterday’s lesson was not to use Google for “how to commit murder” just before actually, you know, committing murder. Today’s lesson is bit more complicated, insofar as it has two parts. First, when you’re going out to commit robbery, unless you absolutely need it, leave your cell phone at home kids. Second, if you take your cell phone anyway and happen to leave it at the place you robbed, don’t go back for it.
That’s the lesson 18-year-old Garrett Nichols learned on Tuesday morning. Seems he robbed a house and somehow left his cell behind. Unbeknownst to him, the cops had already been called about the robbery and found his cell phone. And they just so happened to be there about a half-hour later when Nichols showed up for his cell. So things didn’t turn out so well for the young man.
And get this - mastermind criminal Garrett Nichols was already on the cops “to do” list as he was suspected of another burglary. He’s since confessed to robbing four homes.
A QuizLaw Story Update - “Arkansas’s” is almost official!
At the beginning of the month, we told you about the silly little resolution introduced by state Representative Steve Harrelson, seeking to declare the state name’s possessive form, in an attempt to settle the debate once and for all. That entry even got a comment from Representative Harrelson himself, noting that while he acknowledged the silliness of the resolution, it’s no more out there than any of the other stupid things that get stuffed into the end of the voting calendar (“we recognize local tennis stars and commend couples for managing to stay married for an extended period”). And for the record, I totally know that an insane number of “stupid” bills and resolutions get submitted, so I don’t think this was any sort of lunatic abuse of the system (no more so than all of the stupid legislation is an abuse of the system).
In any event, congrats to Representative Harrelson and his historian family friend - on Tuesday, the state Senate approved the resolution, which the House had approved the week before. So it’ll now go before Governor Beebe, and if he signs off on it, this grisly ordeal will be over and we can finally put this incident behind us and never speak of it again.*
*Credit to this turn of phrase must, of course, be given to Papa Bear O’Reilly, as these are the words he used in ushering in an era of silence with regards to the whole loofah sex harassment thing.
The Ninth Circuit says “don’t smoke ‘em if you got ‘em, even if it’s keeping you alive”
Well this ruling really isn’t very surprising. Angel Raich is a woman living in Oakland suffering from a bunch of ailments - scoliosis, a brain tumor and chronic nausea. Raich has tried various conventional drugs, and they haven’t been able to help relieve her pain or give her an appetite. So on her doctor’s advice she turned to medical marijuana, which the State of California has legalized.
But this raises a now-familiar problem out in Cali - while the state has legalized medical marijuana, federal drug laws still ban it, even if state law legalizes it. Over the years, there have been plenty of stories of FDA agents busting up Cali places selling medical marijuana because, apparently, that’s the biggest drug problem facing our country (forget about that crystal meth stuff, which is most assuredly destroying large parts of the south).
Anyway, Raich got involved in a case which went up to the California Supreme Court. The Cali Supremes said what we already know, “that medical marijuana users and their suppliers could be prosecuted for breaching federal drug laws even if they lived in a state such as California where medical pot is legal.”
So Raich appealed, and her argument to the Ninth Circuit was that she should be allowed to use medical marijuana, regardless of the federal laws, because it’s the only viable way for her to stay alive. The Ninth said “tough shit,” and upheld the Cali Supreme’s decision.
Now I don’t think the Ninth really got this wrong, under the letter of the law. The problem here is the federal/state battle over the issue. I’ve never seen a viable argument that has persuaded me that legalized medical weed in California, or any other state, poses a serious problem to other states that continue to ban it. And without any such interstate conflict, I’m not sure this is any of the Fed’s business, and they should keep out of the states’ decision to legalize medical marijuana.
Where Would the Legal System be Without Stupid People?
So, this lady out in Illinois is leaving a Pizza Hut, right? And being the chivalrous feminist that she is, she decides to open the door for another customer, Clarence Jackson. And I guess that Jackson got a little hasty with the door; he grabbed it in “such a fashion that it caused the door to suddenly and sharply move,” which — from my understanding — is what a door should do.
But the poor woman, Amanda Verett, claims that the sudden movement of the door caused her injury. And then, a few weeks later, on account of the injury she sustained in the Pizza Hut incident, she couldn’t avoid a fall, which caused all sorts of tendon damages and disfigurement.
So, what does she do? She sues Pizza Hut, of course. And the gentleman who grabbed the door. For $150,000.
She claims Jackson violated his duty to use ordinary care for the safety of others when he operated the Pizza Hut door which caused her to sustain an acromion process impingement in her right shoulder …
Verett claims Pizza Hut was negligent by maintaining a door for ingress and egress which was not reasonably safe and was likely to injure people when being held open and grabbed by another.
Clearly, there was an obvious failure to warn issue here. There is no doubt, at least in my mind, that Pizza Hut had a duty to post signs near that murderous door, reading in bold type on a bright yellow background: Beware of Door! Open Door at Own Risk. Do Not, Under Any Circumstances, Open Door for Someone Else. It May Lead to Serious Injury.
Cities and counties should also be forced to post signs henceforth as well, reading: Do Not Walk in Rain – May Lead to Wetness.
Unsurprisingly, the plaintiff in this case is a lawyer. (Hat Tip to Overlawyered)
It’s a Good Time for the Great Taste of … Whatever
You know, I’m a relatively lackadaisical fella. Take, for instance, this example: I went to a McDonalds a while back, ordered myself a chicken sandwich (thinking it must have been the safest thing on the menu) and asked them to hold everything, thinking that condiments would only dilute the fine, fine taste of chemically enhanced, pre-cooked, microwave chicken breasts. But, bastards that they were, I got the works. So, I sent it back. Call me asshole, but if I pay $2.49, I like to get what I ask for. Of course, the second sandwich was no better; they’d just rearranged the condiments, it seemed. And, after I sent that back and tried a third time, I got mustard and a pubic hair to go. You know, whatever – I could’ve done without the mustard, but we all know how tasty pubic hairs can be. So, I tossed the sandwich in the garbage and moved along to the next rest stop, which had Cinnabons — and no matter how hard you try, you can’t screw up a Cinnabon.
Anyhoo, I mention this in light of what happened at a McDonalds in New Hampshire the other day. Guy walks in, orders a couple of double cheeseburgers, plunks down his $2.16, and returns to his table to dig into the fine, fine meal he’d been served. Unfortunately, Thomas Lee Reagan (those wack-job New Hampshirites always have three names, don’t they) wasn’t crazy about his burgers. So, he took it back, arguing that it was greasy. I mean: C’mon. If the worst thing you can say about a McDonald’s hamburger was that it was greasy, you might want to stop and consider the extra calories your $2 just paid for. There is no better bargain.
So, Thomas Lee Reagan returned to the register and suggested that the burgers were not up to his standards (I guess he wanted Angus). The manager of the McDonald’s, in turn, was nice enough, I suppose. He gave Thomas Lee Reagan his money back. But Thomas Lee Reagan wasn’t done – no sir. He started screaming obscenities, enough in fact to force a group of customers with small children to leave.
And then that son of a bitch walked behind the counter and took issue with the cook. The cook, people. At McD’s. It’s like this fella thought he’d just paid $27 for a freakin’ steak. He ordered double cheeseburgers, off the $.99 menu!
Anyway, Thomas Lee Reagan continued to hurl obscenities, yell at the cook, and, finally, throw his food to the ground (I’m sure the employees just picked it up and resold it, but whatever). And then the police showed up.
The officers wound up charging him with disorderly conduct and resisting arrest, at which time, he got in a fight with the officers; threw a punch at one of the officers. They went to the ground, and a second officer at the scene actually used a Taser [gun] on [Reagan].
Both police officers suffered minor injuries. Reagan had a cut on his head that needed nine stitches to close.
You know what, Thomas Lee Reagan? I find that the grease helps to wash down the public hairs. You oughtn’t punch a gift horse in the chops.
The Daily Memo - 3/14/07
Massachusetts lawmakers are looking at changing the name of the state’s Department of Mental Retardation. (The Boston Globe)
Six imams have sued US Airways over an incident from last November, when they were kicked off a flight and then refused to be sold tickets for a new flight once they were released, without any charges. (CNN)
Montana’s Supreme Court has held up a big punitive damage award against the firm of Gibson, Dunn, issuing a mammoth 105-page opinion and saying the firm used “legal thuggery.” (WSJ Law Blog)
A man has been arrested for robbing a Subway restaurant, a place where he started working eight months after the robbery. (Billings Gazette)
Alberto Gonzales says “mistakes were made.” You think? (Fox News)
“Nanny nanny boo boo”
Alexander Craig is a special kind of stupid.
Around 8:30 p.m. last Thursday he called 911. Apparently he told the operator, “I’m hammered…come get me.” Over the next two-and-a-half hours, he made about nine more calls to 911, continuing to taunt the cops for failing to catch him. In these later calls he gave them clues about where they could find, described his car, and even gave them his name.
“He said we need to try harder to find him. He said he couldn’t believe he hasn’t been caught yet,” [Sgt. Rob] Kelley said.
Craig eventually got fed up with what he perceived as the cops’ idiocy, so he made it even easier for them, pulling up in front of several squad cars, and then zipping off again. This turned into a healthy car chase, which only ended when his car broke down after it started leaking fluid.
Craig is now facing charges of DUI, vehicular eluding and resisting arrest. Sergeant Kelley added: “For somebody to call us - that’s a first in 20 years I’m aware of.”
Common Sense Lesson #132
Let’s say that, hypothetically, you were thinking abut killing your husband. Do not, I repeat, do not start doing internet searches for things like local gun laws, “instant poisons,” “undetectable poisons,” “fatal digoxin doses” and, especially, “how to commit murder.” That could become evidence which might just come back to bite you in the ass.
That’s what 34-year-old Melanie McGuire has learned in her current trial. She’s facing murder charges for allegedly shooting her husband several days after these internet searches were made. McGuire also got a prescription for the “date rape” drug, and the prescription was written by a doctor with whom, according to e-mails also found on the computer, she was having an affair.
And if you simply must use the internet to hatch your murder plans (or crime sprees of any sort, for that matter), might I suggest that thoroughly erase the hard drive. Maybe burn it and toss the remains into the river.
Or, you know, just get a divorce from your husband, like normal people.
When it rains, it poors
Ahhhhhh. It feels good. With the recent whack-job stories coming out of Wisconsin, I was a little worried about our old stand-by, Florida. But a Fort Lauderdale inmate has laid those worries to rest.
Seems that this particular prisoner was pissed off about something. Rather than trying to take up his grievances with the local prison staff, or with a judge, he went for the more rewarding route of trying to flood a courthouse!
The prisoner was in the Broward County Courthouse and started futzing with a sprinkler. Apparently, he was able to fiddle with it enough that it broke, and the building’s whole north wing ended up flooding. Of course, he’s now expected to face some new charges, and one wonders what he’ll do to take his frustrations out over this. Cherry bomb the toilets, maybe? Or how about toilet papering the judge chambers? Nothing gets out the frustrations like Charmin!
Take a Load Off, Fanny
This story may not mean much to most of you, but there are people in this world — people that I know personally — who were flabbergasted, heartbroken, and left melancholy for weeks the first time they heard the Cingular commercial featuring The Band’s “The Weight.” It wasn’t bad enough that Dylan had sold his soul to Victoria’s Secret a few years back, but for the remaining middle-agers who spent the 1960s and early 70s living off the fat of the land and listening to The Band while bathing in the stream behind the outhouse, it was crushing to hear that the last remaining vestige of that era had given in to the corporate whores that they had eschewed for so long.
As it turns out though, it wasn’t The Band’s fault. Or at least, not drummer Levon Helm’s fault. Levon is suing BBDO, the Manhattan advertising firm behind the commercial, for its use of the The Band’s biggest hit.
As Helm, who now lives in Woodstock, NY, said, “It was just a complete, damn sellout of The Band — its reputation, its music; just as much disrespect as you could pour on Richard [Manuel] and Rick [Danko’s] tombstones.”
The one disappointing facet of the lawsuit, however, is that Helm is not suing the firm for unauthorized use of the song; rather, he’s suing because he feels he wasn’t adequately compensated for the song’s use. But then again, from what I know from one of “those people” who recently visited Helm at his Woodstock home, the man is getting on up there in years and looks a little on the frail side. Maybe dude needs to spend his golden years in front of a flat-screen television re-watching DVDs of himself during the glory years. Hang in there, Levon.
Former American Idol Singer Attempted to Get
Some Head Ahead
If you’re like many of us, and you watch “American Idol” just so you have something to talk about around the metaphorical water cooler the next day (knowing, as you do, that no one read that piece in the goddamn New Yorker; we are not, after all, a literate society), you may remember fourth-season contestant Mario Vasquez. That good-looking metrosexual fella there to the left. Remember? He was the only finalist in “American Idol” history to drop out, though his reasons were mighty suspicious (us water cooler folks speculated that he was trying to secure a record deal outside of the notorious “AI” restrictions … and he dropped out just in time to avoid any obligation toward the ridiculous “AI” summer tour).
Anyway, two years later, we are just now learning what was the likely reason that Mario Vasquez left, and it wasn’t because he was unnaturally talented. It was because Vasquez was allegedly embroiled in a real-live “American Idol” sexual harassment scandal. And, unbelievably, it had nothing to do with Paula Abdul.
In fact, an assistant production accountant to the show, Magdaleno Olmos, is suing the show and its corporate owners for wrongful termination, accusing “American Idol” executives of firing him for reporting an incident of sexual harassment with Vasquez. Olmos alleges that Vasquez approached him in a bathroom, knocked on his stall door, and sexually propositioned him.
Vasquez, however, had a funny way of proposing; when Olmos opened the door, the “AI” singer was standing there with his pants down masturbating (allegedly). He then pushed Olmos backed into the stall and tried to unzip his pantaloons and give him head (allegedly). Olmos was somehow able to break free.
Olmos claims that, later, he went to a supervisor who said that nothing could be done about the incident, that he would probably be fired for forcing the issue, and “that he was crazy, was imagining this and should keep this information to himself because no one would believe his account.”
The weird inconsistency to Olmos’ account, however, was that he wasn’t fired until several months later, after the showed had wrapped up its season — long after Vasquez had left the show for “personal reasons.”
Editor’s Note: Well why is that so weird? Seems to me that this is simply the “AI” producers playing a little game of CYA. “What? Oh no, we fired him months later. It had nothing to do with that whole Mario Vasquez grabby-grabby thing. If it did, we would’ve fired him then. But we didn’t fire him until months later, you see. Totally not connected.”
The Daily Memo - 3/13/07
Blawg Review #99 has been let loose into the world. (Begging to Differ)
Beau Monde Programs, a Newport Beach rehab spa, is cordially asking Courtney Love for about $180,000 she owes. (Defamer)
A Michigan legislator wants March Madness pools to be legalized. (Fox News)
“Woman holds door open for man at Pizza Hut…then sues both.” (Overlawyered)
A stenographer has been tossed in the clink for failing to finish and hand in a courtroom transcript. (The Legal Reader)
First, a new report says that most federal government agencies fail to comply with many of the requirements for making information available under the Freedom of Information Act. My question is, how much did the National Security Archive spend on compiling this report’s data? Because, I could have told them this for free.
Meanwhile, yet another person trying to contact their drug dealer accidentally called the cops instead. This time, the brilliant person was a 42-year-old Oklahoma woman who found the cop’s number on her son’s cell phone. “Her son had told her that if she ever needed help with anything to give me a call. I think she misunderstood.”
And finally, out in Hazelton, Pennsylvania a court battle is now under way to over the little town’s right to enact harsh anti-illegal immigration laws. Because when Mexicans cross the Texas border, they’re all saying, “only 2,000 more miles until we finally get Hazelton, where we’ll live the sweet sweet life!”
Who lives in a pineapple under the sea?
Troy Walker is a Northern California cartoonist. Back in 1991 he created a strip about an anthropomorphic sponge. He also made “dolls” of the character, Bob Spongee, each of which was a sponge with a face drawn on it.
And then, in 2002, he discovered “SpongeBob SquarePants” and, apparently, his blood boiled over as he realized he’d been ripped off.
“They took all of it,” Walker said this week. “I dold the Bob Spongees all throughout Northern California. It obviously fell into the hands of one of the producers of the show. It’s a clear pattern of duplication.”
So of course he’s suing everyone - Nickelodeon, Viacom, Paramount Studios and SpongeBog SquarePants’ creater - and seeking $1.6 billion (!!) in damages. “It is more than ironic that two working class sponges are named Bob,” he says.
Because Bob is such an uncommon name?
A judge has denied X17’s request to enjoin Perez Hilton from continuing to use its photos on his website without the company’s permission. And this pisses me off, not just because the QuizLaw clan is less-than-enthusiastic about Perez, but also because it sounds like this was mainly an issue of X17’s lawyer’s screwing the pooch.
We originally told you about this story last October, but the nutshell version is that the photo agency asked Perez, along with several other gossip blogs, to kindly stop the unauthorized use of its copyright-protected photos. Perez, in that way that only he can, obnoxiously told them that they were scumbags who had, by sending this message, some how fucked themselves over.
Anyway, in an order last week, the District Court ruled that X17 had not met its legal burden to obtain a preliminary injunction. Specifically, the Court said X17 failed to present enough evidence to show both that it had a likelihood of success and that it was suffering irreparable injury. The Court went on to explain that the central problem was that X17 failed to properly authenticate some of the evidence it had submitted - for example, while it submitted copyright registrations, it didn’t provide information about who actually prepared or filed them (or even evidence, apparently, that the registrations were actually filed).
This sounds like a pretty big screwup by the lawyer, if you ask me. When you’re submitting evidence like this, it’s pretty standard to include a detailed declaration from someone at the company, often the so-called “custodian of records,” who can provide statements as to the documents’ authenticity (that is, how they were created/obtained, etc.) I also question this statement by the X17 lawyer: “We feel we presented proper evidence, especially under the lax standards for a preliminary injunction.” Uhm, really? I’ve never considered the standards for a preliminary injunction “lax.” In fact, I have obtained both preliminary injunctions and temporary restraining orders (which are even harder to get) in the very same Los Angeles federal court, and we had to go out of our way to provide very detailed information authenticating and establishing every piece of submitted evidence.
In any event, X17’s attorneys say they will try again: “we’re happy to come back and provide the court with the evidence it needs.” Here’s hoping the lawyers get it right on their second go-round.
He Really Just Didn’t Care for that Lap Dance
Nothing beats a good strip club story, and here’s a decent one. Out in New Mexico, 37-year-old Jerome Charley was at a strip club called Tom Katz. A little before 1 a.m., Charley received several lap dances but refused to pay for them. Apparently, that wasn’t embarrassing enough for Charley, so he got belligerent with the bouncers when they ultimately had to do what they do best: Toss him out on his ass (though not before collecting payment for services rendered).
Fair enough. But, Charley wasn’t done:
“Witnesses heard a loud noise, looked over and the doors were almost pushed open and there was a lot of light coming through,” Truby said. “That’s when (Charley) backed up his van and started driving at the building again.”
One bouncer was forced to jump inside an office near the front doors when Charley rammed the entrance. The van eventually came to a stop nearly three feet inside the strip club.
Police found Charley driving while intoxicated near the local elementary school, where he was picked up and charged with several counts of assault and a DUI. He faces up to eight and a half years in prison.
Asked for a statement, Charley only offered: “It wasn’t my fault, dudes. It was my erection; it totally steered me into the club. Stupid boner.”
Feds Gag Prostitute with Probe
I find this story a bit on the curious side. In D.C. last week, madam Deborah Palfrey (“madam” being a euphemism for female pimp) was indicted on racketeering and money laundering charges, stemming from her operation of an adult escort service (“escort” being a euphemism for a high-class hooker).
No big deal, right?
Not exactly. The feds have gotten involved and, rather than insist that Palfrey (that Nora Dunn looking lady to your left) list her clientele, as you might expect, they are actually seeking a court order to gag the release of the names of her former clients. Why, you ask? Because government lawyers feel that the list of Palfrey’s clients is considered “personal information” that is “sensitive.” Yeah — I would imagine so, since it’s assumed that many of her former johns are D.C. politicians. And because Palfrey suggests that she’s got a client list that’s 46 pounds heavy and contains about 15,000 names, which is about 5 percent of the male D.C. population.
So, why in God’s name would the feds want a protective order to suppress those names? Why, especially, when most newspapers routinely identify men and women who are busted for purchasing the services of a prostitute? Indeed, why cover-up the identity of known solicitors of sex, especially if they are politicians who serve at the whim of the taxpayer, who is presumably now paying the hooker bills? It’s a mind fuck, right?
Maybe I’m wrong, though. Maybe there is some sensitive information involved. Hell, maybe some White House official liked to scream out the name of Vice President Cheney’s secret bunker during lovemaking. Or thought that spilling state secrets was a form of dirty talk. Or maybe that the client list could potentially bring down half of D.C. is, itself, a matter of national security. I dunno, but it’s hard to reckon that it’s designed to do anything other than protect the identities of high-profile D.C. officials.
Anyway, she has at least named Dick Morris as one of her clients. You’ll recall that he was once a Republican consultant to President Clinton, who resigned after it was revealed that he was having an extramarital affair with a prostitute. He works for Fox News now, naturally.
The Daily Memo - 3/12/07
“Here I come to save the day….Attorney Man!” …Attorney Man? (Law.com)
A federal court has overturned D.C.’s handgun ban, ruling that the Second Amendment doesn’t just apply to militias. (FindLaw)
Some Tennessee Republicans would like actor/former-Senator Fred Thompson to throw his hat into the ring and run for the GOP presidential nomination. (Law.com)
The Bush administration is peddling backwards as the attention on the U.S. attorneys debacle grows brighter - they now say that Bush won’t try to block a bill mandating Senate approval of all appointees, and Gonzales aids will be allowed to testify without the need for subpoenas. (CNN)
A North Carolina mother has filed a product liability lawsuit after the heel fell off of a shoe that lights up and she found a button battery in her 2-year-old daughter’s nose. (HamptonRoads.com)
A Maine legislator has introduced a bill that would require students to submit at least one college application before being able to get a high school diploma. (BangorDailyNews.com)
The Bears may not have won the Super Bowl, but they can now be proud that they at least won a trademark opposition. (The TTABlog)
You mean a Bush lackey lied? I don’t believe it!
Salon’s Joe Conason has published a great little editorial entitled “Alberto Gonzales must go.” It’s a damning call to arms against the attorney general, detailing some of the bold-faced lies and misrepresentations he made during his nomination hearings and since. It also explains why he’s a lap-dog who never should’ve been confirmed in the firstplace:
Yet none of this is truly surprising from Gonzales, who can always be counted upon by the White House to do whatever George W. Bush, Dick Cheney and Karl Rove want done. His willingness to serve as the ultimate yes man is exactly what made him suited to serve this president in the first place. And it is why he never should have been confirmed as attorney general, a position that requires independence and integrity more than mere loyalty to the boss.
It’s a good read, worth five minutes of your time.
Outside a Tampa courtroom, a new Lady Justice statue has been erected. One which cost the local taxpayers a little under half-a-million dollars. And now that the new Lady Justice is out and about…well, reviews are mixed. While the County Administrator calls it magnificent:
Passers-by had other words Thursday. The lady looked like a mermaid, they said. Or a gaudy Gasparilla float. A fairy with dreadlocks. A comic book character. Something out of SpongeBob SquarePants.
“At first glance she looks a little bit like an exotic Mesopotamian dance, said Duane Damon, who works for the Clerk of the Circuit Court. “But when you get closer, it’s really not as sensual as that.”
The artist says that she wanted something a little less traditional - so instead of Lady Justice holdings scales, “[t]he figure herself is the scales of justice.” And while Lady J has a blindfold, there are slits for her eyes, “[s]o she’s blind but she can see.” And she’s green because bronzed copper just eventually turns green anyway (like the Statue of Liberty). And the gold locks? I’m guessing it’s just cause blondes have more fun.
“I think she’s saying, ‘What the (heck) am I doing here? I’ve got no sword and I’ve got no scales,’ ” attorney Theordore Rechel said.
The attorney then handed the statue a card and said he’d be willing to represent Lady J if she decided to sue the artist to seek the return of her sword and scales.
Jerry! Jerry! Jerry!
Up in Wisconsin, Mario Sims is a 21-year-old accused child molester who had been under house arrest, awaiting his trial on charges of child enticement and sexual assault of a child. After three weeks under his house arrest, Sims ended up cutting off the monitoring bracelet. Not to make any great escape, but to go be on the “Jerry Spring Show.”
A website teaser for the episode he was on said:
“Outrageous nuptials! Returning guest Mario is a proud father and ready to marry his baby’s mother - who’s also his half-sister.”
Last Friday, a court set new bail for Sims at $50,000, saying that a “significant bond is legally necessary given the fact that he absconded, admittedly for one of the more unique reasons I’ve heard in my time on the bench.”
What’s interesting to me, beyond the lunacy of the situation itself, is that this took place last September, yet the bail hearing was only this past Friday, six months later. Nobody can accuse our justice system of moving too fast.
‘Scuse me, while I kiss this guy
Vodka and rock and roll are old friends, going way back. Only this time, not so much. Jimi Hendrix’s family has filed a lawsuit against Craig Dieffenbach over his use of Jimi’s name and likeness to market and sell Hendrix Electric Vodka. The Hendrix family is perturbed not just because of the unauthorized use of Jimi’s identity, but because they see it as a “sick joke,” since Jimi’s death was tied, at least in part, to booze.
“We are greatly concerned that there may be a perception that Experience Hendrix [the Hendrix family’s company] has, in some way, authorized the sale of vodka…As a matter of strict policy, we have never promoted an alcoholic beverage.”
Dieffenbach hasn’t offered a statement trying to defend what is certainly seems like some pretty scummy marketing. Instead, he argues, via a press release, that Experience Hendrix doesn’t actually have legal standing to sue because it only owns the rights to Jimi’s music, not his name and image. “[T]he only sick joke in all of this is Janie’s [Jimi’s adopted sister and head of Experience Hendrix] belief that she can remake Jimi into something he wasn’t and that she can continue to mislead the public.” Right, because using Jimi’s likeness and name on your vodka, which his estate has no connection to and has affirmatively disavowed, isn’t misleading at all?
Ah-oooooo, werewolves of
London Fond du Lac
What the hell is it about Wisconsin? I feel like there have been a lot of ridiculous stories coming out of that state lately, trumping the king state of ridiculousness (Florida). I ask this because it seems that the state may have a heretofore undisclosed werewolf problem.
Last Thursday, the cops received a call around 3 in the morning from a woman who said that a man had busted the deadbolt on her door and came into her apartment. That man was Robert Marsh, and for the past few days the woman had actually been letting Marsh stay with her, because he was a recently released convict who was homeless. So I guess she was doing him some charity.
Anyway, two other men pulled her free from Marsh, who she says was drunk and talking about how he was a werewolf and into some pagan witch-type shit. The cops eventually showed up and arrested Marsh, and he again told the cops that he was a werewolf and capable of changing his form. Which is obvious - the whole point of being a werewolf is being able to change one’s form.
The 39-year-old is now facing a slew of charges - criminal trespass, criminal damage to property, disorderly conduct and possession of pot - and his next court hearing is set for next Wednesday. Luckily, the last full moon was on March 3, so everyone should be relatively safe when Marsh shows up in the courtroom.
The Daily Memo - 3/9/07
This story about an attorney not getting her work done because of “inebriation constituting excusable neglect” has turned into quite an entertaining little mini-circus. (Above the Law)
A man just got a $320K pay-day for appearing in an episode of “Curb Your Enthusiasm.” (LawInfo)
Jury members keeping blogs? Just another thing to complicate the legal process. (The Legal Reader)
Eleventh graders shouldn’t even know what a vagina is, let alone say the word aloud on school grounds! (Concurring Opinions)
C-SPAN has decided to lighten its copyright protection, saying that its videos of Congress and any federal agency may be freely copied and distributed for non-commercial use. (Download Squad)
Updating an earlier story, the Kentucky math/science teacher bills had the proposed pay incentives removed. (Kentucky.com)
Another sports mascot lawsuit. (ESPN)
The ACLU is suing a Jersey school for holding its graduation in a church, allegedly violating a Muslim student’s rights. (KSAT)
Well, at least he gets points for creativity
Oji Ngozi is currently facing armed robbery charges. The prosecutors allege that in October 2003, Ngozi and another man broke into the home of Rebecca Lee and robbed her. A few days after the robbery, Lee looked at a photo lineup and identified Ngozi as one of the two men.
Earlier this week there was a hearing in the case to decide whether that photographic evidence should be suppressed. Ngozi’s lawyer was worried that Lee, who was going to be present at the hearing, would see Ngozi and that it could taint the case or unfairly prejudice his client. So when Ngozi showed up to court, he wore a bag over his head, with two small eye-holes cut out!
The judge allowed him to stay in the courtroom with the bag over his head, even though there’s a sign banning hats or other head covering. However, Judge Blackett says: “I did note for the record that he has a bag on his head.”
This is fucking brilliant
A British man wanted to avoid seeking permission to build a new home on his farmland, so he built it in secrecy over six years. And he came up with a design that he thought would keep it hidden for a long time. His plan failed, and he’s been ordered to tear it down.
The plan? He built the home within a covered barn, and hid it from the side with bales of straw. You can read more about it over at The Daily Mail, but check out this great picture (minus the bales of hay):
But wouldn’t this mean she would have to prove that INXS is well known? I’m not sure that’s so true anymore…
Mark Burnett is one of the reality TV uber-producers. He’s sorta’ the granddaddy of competitive reality TV, as he brought “Survivor” to us back in the summer of 2000. He’s also responsible for “The Apprentice” and “The Contender.” But what’s important for the purpose of this story is that he was the exec-producer of both versions of CBS’ “Rockstar” - first it was “Rock Star: INXS,” which was actually fairly entertaining, and then “Rock Star: Supernova,” which wasn’t quite so good.
Anyway, Burnett and CBS have been sued over “Rock Star: INXS” by Sharlene Sullivan, who says they stole her idea. Sullivan claims that she actually came up with the idea for a show called “Rock Star,” and registered a synopsis with the Writers Guild of America. The idea of her show was that “lead vocalists for rock bands would compete and would be judged by well known musicians/rock stars.”
In the lawsuit, Sullivan claims she shared the idea with several industry people connected with both Mark Burnett and the rock band INXS. After receiving initial interest from those parties, Sullivan claims she was told to “abandon the project” and “write an unrelated treatment regarding transvestites.”
She contends that when Mark Burnett came out with “Rock Star: INXS” he knew about her show, so she wants him and the network to pay up, to the tune of $2 million.
Putting aside the fact that this lawsuit is dubious, at best, let’s back up for a second. “An unrelated treatment regarding transvestites.” So does that mean she’s going to be suing the CW next over “Pussycat Dolls Present: The Search for the Next Doll,” its latest reality show?
…huh? The Pusscat Doll’s aren’t trannies? Really? I beg to differ:
Law Students Suck
Back when Seth and I entered law school (which wasn’t too long ago), there weren’t a lot of outlets to discuss our prospects, the law school atmosphere, rankings, etc. I recall that, at the time, we were relegated to the relatively benign and largely useless Princeton Review message boards.
Since then, however, a message board entitled AutoAdmit has sprung up on the web; it’s a heavily trafficked board where law students and prospective law students discuss, well, law schools. In fact, when my wife applied to law school two years ago, she followed the AutoAdmit threads semi-religiously, spending several hours a week checking in. I even visited the boards myself occasionally, just to keep up with rankings, what the folks in law school were discussing, etc. And while a lot of the conversation on AutoAdmit is fun, for gossip’s sake, it also gets pretty vile at times. I recall that there was a lot of outright racism, sexism, homophobia, and anti-Semitism, discussed with the sort of colorful language you’d expect from a backwoods Alabaman who’d never managed to complete the third grade. It was, at times, hard to fathom — not that there were people like this in the world, but that there were so many of them who attended law school.
At any rate, the vile nature of many of these posts has now entered the mainstream, after The Washington Post noticed it this week. The story discusses how one female law student at Yale believes that the discussion boards actually cost her a job offer, which is debatable (I’m not sure how many hiring partners troll the law school message boards), but what isn’t debatable is the level of hate that flows so freely on these boards. A cursory inspection reveals thread subjects such as: “I stick my huge Asian dick inside White Pussy at Georgetown Law,” “Dear Nigger Phelps, please die,” and as WaPo pointed out, a sexual joke about a female Holocaust victim.
And you know…so what? There are shitty people — even law students — that write shitty things. Even here at QuizLaw, most of our posts are in relatively bad taste, and yeah: Many of our entries discuss the more prurient legal-related shenanigans.
But these people are now posting photos of particular law students and speculating on whether or not they would, for instance, “hate fuck” a particular female law student. And they are having the sort of Hotties contest that would make our pal, David Lat, blush. And, I guess, it’s gotten to the point where some female law students can’t even bring themselves to class, for fear that everyone in the classroom is gossiping/ogling/hating her, which — yeah, that kind of sucks.
There’s obviously not a lot that can be done about it – the administrators of AutoAdmit don’t want to moderate the threads (and, arguably, it’s not their responsibility to do so), but I guess I just thought I’d bring the matter to our readers’ attention and point you to a more lucid discussion of the matter by one of the female students being targeted by the boards. You know, in celebration of Blog Against Sexism Day. We’re doing our part here at QuizLaw.
What a Fucking Jackass
Out in Wisconsin, where their winters are so long and cold that apparently they have nothing better to do than light one another on fire, a couple of dumbasses attempted to replicate a stunt from the film Jackass and one man found himself in the hospital.
Jared Anderson suffered serious burns to his hands and genitals when his “pal,” Randall Peterson sprayed lighter fluid on his junk and lit him on fire. Anderson, who was drunk (no shit?) volunteered for the stunt after watching the movie. And now, Peterson has been charged with felony battery and first-degree reckless endangerment.
After Peterson lit his friend on fire, Anderson ran to the bathroom and jumped in the bathtub to put the flames out. But this is the question I have: What the fuck did these guys expect to happen? You douse your testicles in a flammable liquid and light them on fire, caveman physics might suggest that you’re going to be singing Great Balls of Fire within a matter of seconds. Where, exactly, is the humor inherent to the idea? I mean, unless they videotaped it, put it up on YouTube, and let the rest of us laugh at Anderson’s wicked dumbassery. OK – yeah. I can see where that might be funny.
You know what else is funny? Driving a six-inch nail through your temple. Go ahead – try it. It’s hilarious.
The Daily Memo - 3/8/07
“Courtroom accident leads to wrongful-death lawsuit.” (WSJ Law Blog)
Another walk down memory lane with a highly litigious pro se man, this time an inmate, who was, among other things, “quite literally” seeking his just desserts. (Sui Generis)
Over 30 Vermont towns have passed resolutions calling for Bush to be impeached. (WETM)
A senate panel “denounced the [credit card] industry for confusing billing practices and shifting interest rates.” (AP)
The law firm of Pillsbury Winthrop has gotten itself into some potentially hot water, this time to the possible tune of over $4 million. (Law.com)
This case has disaster written all over it
In March of 2004, then 43-year-old Jennifer Raper found out she was pregnant. For money reasons, she decided to have an abortion, so she went over to Planned Parenthood, and in April ‘04, a Planned Parenthood doctor performed the abortion.
Fast forward to September ‘04, and Raper was in an ER complaining about pelvic pains. That day she learned that - whoops - she was still pregnant. Apparently, the abortion had not been “done properly, causing the plaintiff to remain pregnant,” as the complaint she filed last week alleges.
Not done properly - you think?
So she sued Planned Parenthood and that doctor, plus a second doctor (seems she went to see a doctor in July ‘04, and although she was 20
months weeks pregnant at the time, that doctor didn’t detect it and/or tell her about it). Raper is seeking the costs of raising her now 2-year-old girl, who was born in December ‘04.
According to Fox News, a 1990 Massachusetts ruling held that doctors could be sued for child-rearing expenses, but only when the kids require extra expenses due to medical issues. However, her complaint doesn’t include any allegations of the girl having medical problems. Which is good for the daughter, no doubt, but just means this case is going to be extra messy.
Yeah, but dude, seriously, I paid for those bagels
Well since this story is about my own law school, I can’t not comment on it. Over at Above the Law, David Lat (whose writing I enjoy despite his insufferable use of the royal “we”) has introduced the world to Bagelgate. See, Boston University’s Law School has a bunch of different law journals in addition to the capital-L capital-R Law Review. And while the Law Review gets its own special little realm of offices separate from the law school’s main building (a big-ass, ugly-as-sin 17 story tower), the other journals are relegated to smaller offices in the tower itself.
One such journal is the Journal of Science and Technology Law. And because their office is in the tower, it’s easily accessible to all of the other law students. Law students who, it turns out, also happen to be bagel-grubbing thieves. See, members of the Journal get free bagels and morning refreshments paid for out of their journal dues, and non-journal law students (the aforementioned bagel-grubbing thieves) are wandering into the journal office and snatching up some free grub.
It apparently got bad enough that an e-mail was sent out to all law students, telling them to keep their bagel-grubbing hands off the journal food. The e-mail was careful to avoid flat-out accusing the bagel-grubbing thieves of theft, instead saying that this all might just “reflect a misunderstanding on non-journal members’ parts, in that students might think the school is paying for the refreshments.” Which is obvious bullshit and clear “1984”-style doublespeak.
Of course, this letter doesn’t say that the free grub is hands-off for alumni, so I may just have to hop on the T tomorrow morning and take a short ride down to the tower. Get myself some free bagel!
Artificial intelligence programs must sit for the bar like everyone else!
A recent Ninth Circuit decision upheld a ruling that a man was practicing law without a license by maintaining websites which used software to automatically help folks fill out bankruptcy forms. Henry Ihejirika ran two websites which provided this bankruptcy service, and as one website explained:
Ziinet [the bankruptcy software] is an expert system and knows the law. Unlike most bankruptcy programs which are little more than customized word processors the Ziinet engine is an expert system. It knows bankruptcy laws right down to those applicable to the state in which you live. Now you no longer need to spend weeks studying bankruptcy laws.
Wow - Ihejirika clearly didn’t consult a lawyer before publishing that claim or he would’ve known what a world of hurt he was opening himself up to.
Anyway, Jayson Reynoso decided to use the service, paying over $200 for use of the Ziinet bankruptcy engine. Reynoso entered his basic information on the website through simple dialog boxes, and “the program generated a complete set of bankruptcy forms, including an affidavit for Reynoso to sign claiming he’d done all the legal research on his own.” Things went south when the bankruptcy trustee saw some errors on the form. This ultimately led to a bankruptcy judge slamming Ihejirika, who had been pulled into the case. He was found to have committed fraudulent, unfair or deceptive acts through the websites and the use of his program, as well as the unauthorized practice of law.
And as noted up top, the Ninth Circuit recently upheld this ruling because the software wasn’t simply clerical in nature, but provided “personalized guidance [which] has been held to constitute the practice of law,” and this was all made worse by the fact that the site “projected an aura of expertise concerning bankruptcy petitions.”
The way I see it, it’s only a matter of time before some crafty Silicon Valley nerd creates an uber-law program and petitions the state to allow the program to take the bar exam. That certified software could then be loaded into a robot, and we’d have our first robot lawyer. And this would be a dream come true for the BigLaw firms, as they’d now have lawyers they could literally work around the clock, watching the billable hours simply flow in. Partners nationwide are already drooling.
(On a serious note, one wonders if sites like the ones that let folks submit their tax info and get filled out tax forms will start putting up big, shiny red disclaimers all over the place, making it clear that they’re not offering “guidance” and are just placing the input information onto the tax forms.)
Batter Up, Asshole
Chytoria Graham, a 27-year-old mother, pled guilty to aggravated assault and endangering the welfare of a child yesterday. She faces a minimum five-year prison term for taking a swing at her boyfriend … with her baby.
She swung her four-week-old son like a bat smack into her boyfriend, fracturing the infant’s skull.
At Graham’s preliminary hearing in December, paramedic Betty Schau, who treated the baby, recalled that Graham was crying and disheveled when medical crews arrived. She testified that Graham told her, ‘I swung him. I swung him like a bat.’
The baby, fortunately, made a full recovery. I understand he wants to be a Louisville Slugger when he grows up.
Honk If You Hate Humanity
In Mississippi yesterday, a man got mad at his wife. Really mad. I mean, seriously mad. She went into a store, came out, and five minutes later, Henry Watson was stabbing her. Not once. Not twice. Not even three times.
“He was just standing over her hacking away,” said Dolly Baker, a witness to the scene.
“It wasn’t five minutes from when she had left my line when I heard a scream outside,” said Theresa Stuckey, a cashier at the Family Dollar at 516 Nakoma Drive in Jackson. “I looked out, and (the attacker) was on top of her stabbing her, and stabbing her and stabbing her.
“She was screaming, ‘Help, he’s trying to kill me!’ She was rolling on the ground, trying to get out of the way, but he kept stabbing her. He stabbed her about 20 times in the neck, back and arms.”
Though the police didn’t find out why Watson was stabbing his wife, I’m guessing that he was dissatisfied with her purchases. “It’s Family Dollar store, damnit! Why did the toilet paper cost $2.25?”
At any rate, while passers-by stood and watched in horror, and cars passed by in broad daylight and honked their horns (that’ll put the fear of God in him — if our military vehicles were equipped with better horns, there’d be no violence in Iraq), Watson poured gasoline all over his wife and attempted to strike a match.
Finally, however, somebody with a bit of sense — and a gun — arrived to the scene, pointed his pistol at Watson, and told him that he’d shoot if Watson moved. The guy with the gun eventually held Watson at bay long enough for the cops to arrive, before disappearing Batman-like into the ether. I’m guessing his gun wasn’t registered.
In any event, the victim — Gracie Watson — is at the hospital and in good condition, which is miraculous considering the number of stab wounds her husband inflicted. And, as it turns out, the scores of passersby weren’t honking at Watson, they were honking because they’d seen a sign that read, “Honk, if you’re a spineless coward.”
The Daily Memo - 3/7/06
A federal judge is threatening to find the U.S. Virgin Islands in contempt of court. (FindLaw)
New York’s senate has passed a bill which allows “for the civil commitment of violent sexual offenders upon the expiration of their prison sentences.” (Sui Generis)
The Creative Commons has released an updated version 3.0 of their licensing suite. (Download Squad)
A Kansas man has been arrested for trying to steal 35 pounds of candy (!) on his way out of a movie theater. (KCTV5)
A man gets busted for drug possession because his pants were undone. (Yahoo! News)
If you have 43 pounds of pot in your trunk, you might not want to crash into a state trooper’s car. (MyrtleBeachOnline)
“Uhm, actually, can I just get the peanuts?”
This is just nasty - an off-duty Northwest Airlines employee, Samuel Gonzalez, has been arrested and is awaiting criminal assault charges for ejaculating on a passenger. The affidavit attached to the criminal complaint comes from an FBI agent assigned to the International Terrorism Squad, Michael N. Cannizzaro, Jr. He was on a Northwest flight and, as he states in his affidavit:
5. During the latter stages of the flight, and while the Victim [an unidentified adult female passenger] was trying to sleep in her assigned aisle seat, an adult male, later identified as Samuel Oscar Gonzalez, sat down in the middle seat next to the Victim. Gonzalez was assigned to a seat in another area of the aircraft and was not assigned a seat next to the victim.
6. Gonzalez began touching the Victim, which she described as spooning. The Victim then felt her shirt move up her back and her side. The Victim felt additional touching by Gonzalez, who then got up from the middle seat and walked towards the forward part of the aircraft.
7. When the Victim reached to adjust her shirt, she felt what she described as a warm fluid on her back and on her side. The Victim also saw fluid on her clothing and a seat. The Victim described the fluid as “semen,” and told investigating Agents and Officers that Gonzalez had ejaculated on her.
What the hell?
A Northwest spokesman allegedly responded to this matter by saying that, in light of the airline cutting back on the in-flight food options, Northwest figured this was a reasonable alternative to give the customers some protein.
Microsoft says that Google says “copyright, schmopyright”
Microsoft has unleashed an attack against the great Google machine, the company whom many see as Redmond’s biggest competitor these days. Microsoft, through its associate general counsel, Thomas Rubin, contends that Google is playing fast and loose with copyright laws, as reported by the NY Times:
“Companies that create no content of their own, and make money solely on the backs of other people’s content, are raking in billions through advertising revenue and I.P.O.s….Google takes the position that everything may be freely copied unless the copyright owner notifies Google and tells it to stop,” Mr. Rubin said. Microsoft, he said, asks the copyright’s owner for permissions first.
Rubin goes on to suggest that, in connection with its YouTube acquisition, Google is playing a game of wink-and-nod: “In essence, Google is saying to you and to other copyright owners: ‘Trust us - you’re protected. We’ll keep the digital copies secure, we’ll only show snippets, we won’t harm you, we’ll promote you.’”
Scooter Libby one step closer to his own personal prison drama
You’ve no doubt heard by now what has been today’s big legal news, that Cheney’s former chief of staff has been convicted in the CIA leak case. There were five charges against him, and the only one he got a “not guilty” on was the charge of making false statements. The four charges he was convicted of were two separate counts of perjury, one count of obstruction of justice and one count of lying to FBI agents. While it’ll be a while before Libby gets his sentence, he’s facing up to 25 years in the clink, plus up to $1 million in fines. Of course, his attorney says that he’ll ask for a new trial and, if that request is rejected, appeals will be filed.
While Cheney issued a statement that he was “very disappointed” with his boy getting all those guilties, the lead prosecutor in the case, Patrick Fitzgerald, offered a much more meaningful quote, putting things into the larger perspective: “The results are actually sad. It’s sad that we had a situation where a high-level official - a person who worked in the office of the vice president - obstructed justice and lied under oath.” Fitzgerald also said that there are no plans to charge anyone else with anything in connection with this case, which apparently makes the jury in this case think the Bush Administration is getting off very light, considering one of the jury members said that the jurors “believed that the Bush administration sacrificed Libby to take heat off other officials.”
Meanwhile, the WSJ Law Blog addresses the question of whether Libby will get disbarred (he’s currently a member of the D.C. Bar). You can check out their full answer to this question, provided by a GWU law professor, but the short answer is almost definitely, but not until all the appeals are wrapped up (but he’ll be suspended in the meantime).
A Total Dick Move
Barack Obama — liberal wet dream, America’s salvation, and Nicotine-loving all-around good guy (dude’s got my vote, anyway) — is threatening legal action against one monster of a douchebag who posted photo’s of Obama’s two daughters, ages 5 and 8, on a pedophilia website that handicaps the 2008 Presidential campaign based on the “cuteness” of the candidate’s children.
Someone from Obam’s campaign sent a letter to the website’s owner, whose Latin nickname translates into “lover of little girls,” demanding that the photos be removed, as well as the link to Obama’s website. The owner of the site, which is registered to a Lindsay Ashford, took down the photos but kept the link intact, noting that his comments were “laudatory” and not “defamatory.”
The letter, sent by Robert Bauer (general counsel for Obama for America), says:
Your actions are particularly objectionable – if not outright dangerous – because you have included a picture of Senator Obama’s young daughters on a site advocating pedophilia with young girls, heightening the risk they face. This is not simply defamatory, but is a criminal act.
Also criminal: Posting photos of Bruce Willis’ daughter, but for different reasons entirely.
Motion to Kiss My Ass
Granted, this case is a decade old, and yes — most of the other legal blogs covered it years ago. But, I just discovered it myself, and since QuizLaw wasn’t around at the turn of the century, I feel it is our duty to add this to our archives for posterity’s sake. It’s just too good not to.
The case concerns a man by the name of Matthew Washington, a prison inmate and frequent pro se litigator. In 1996, a district court judge in Georgia, William T. Moore, ordered that Washington post a $1500 bond before he was allowed to file any more lawsuits or motions. Why?
Because in connection with a civil rights lawsuit that Washington brought against various judges, Washington filed a “Motion to Kiss My Ass” asking “all Americans at large and one corrupt Judge Smith to kiss my got damn ass sorry mother fucker you.”
The “Motion to Kiss My Ass,” was not, however, the first colorful pleading he tried to push through. Apparently, at one point, he was filing motions on a weekly basis and had filed up to 75 of them in one relatively simple civil rights lawsuit. Included among those motions were: “Motion to Behoove an Inquisition,” “Motion for Judex Delegatus,” “Motion for Restoration of Sanity,” and “Motion for Deinstitutionalization.”
From Judge Moore’s opinion:
The motions ranged from the mundane, such as “Motion for Change of Venue”, to the arcane, such as “Motion for Cesset pro Cessus” and “Motion for Judex Delegatus”, to the curious, such as “Motion for Nunc pro Tunc” and “Motion for Psychoanalysis”, to the outlandish, such as “Motion to Impeach Judge Alaimo” and “Motion to Renounce Citizenship” and “Motion to Exhume Body of Alex Hodgson”.
Recently, he filed a “Motion for Catered Food Services” in which he complained about the prison food and moved for a court order allowing him to “receive catered food from some credible responsible business establishment preferred and paid for by Plaintiff.”
I love pro se litigants.
Extra special hat tip to The Llama Butchers for brining this to my attention.
The Daily Memo - 3/6/07
The FCC hasn’t done enough damage to television yet, so it wants to ask Congress for “a broad expansion of its authority to regulate the content of television programming,” including control of cable programming. (The Hollywood Reporter, Esq.)
A man is suing a tattoo parlor because his “CHI-TOWN” tattoo actually reads “CHI-TONW.” (Overlawyered)
Blawg Review #98 covers the usual range of legal posts, although the author’s “favorite posts are those about grammar, punctuation, and word usage.” …to each his/her own, I suppose. (Research and Writing Law Blog)
“U.S. Attorney Scandal Update: Who’s to blame for those alarming Patriot Act revisions?” (Slate)
Good news - you’re acquitted of felony drug possession charges. Bad news - you’re still going to spend a hefty 33 months in the clink for contempt after repeatedly calling your judge a “son of a bitch.” (The Legal Reader)
GM is being sued over faulty speedometers. (The Seattle Times)
Sigh…”Calif. teens arrested for enforcing law.” (UPI)
Indiana property owners have no duty to clear ice and snow from their sidewalks, so even if local ordinances say they can be hit with a fine, folks who slip and fall can’t successfully sue them for damages. (IndyStar.com)
We sometimes give credit where credit is due
Last week I posted an entry about the silly little Arkansas non-binding resolution that had been introduced by Representative Steve Harrelson in an attempt to settle the punctuation issue plaguing the state’s name. Representative Harrelson actually posted a comment in response to the post, taking responsibility for criticism being tossed his way and noting that he thought the bill would sail through along with the other ticky-tack bills that are always littering state (and the federal) legislatures. It’s worth a quick read, but the real point of this entry is to applaud another state legislature which is trying to get some meaningful work done.
In particular, Kentucky is trying to address the serious shortage of math and science teachers. As a former science wonk, this is a pet area for me, and during a brief stint working for a state legislator here in Massachusetts, I even drafted a bill that would’ve created incentives for professionals to start teaching math and science (a bill which, unfortunately, I don’t think even made it onto the floor).
Anyway, Kentucky is currently considering two different pieces of legislation, which the state senate majority leader calls companion bills. One of the bills would provide grants to help schools set up new advanced-placement classes, and also provide financial incentives to students who score high on AP exams. The other bill would give raises to teachers who score highly on math, chemistry and physics teacher-certification exams. Both bills have been approved by the state Senate and are on their way to House committees.
The first bill won’t really help with getting more math and science teachers in the schools now, obviously, as it’s geared more towards getting students into the higher math and science classes (which could potentially help prepare a future generation of teachers). And the second bill may be problematic in that its incentives may not be enough to get folks to give up the more profitable “professional” route. But anything is a good start at this point - and if Kentucky is looking for suggestions, the bill I drafted relied heavily on loan forgiveness for math and science teachers, which seemed like a nice option which can be a meaningful amount to those professionals you’re trying to get, all without affirmatively taking a huge chunk of money out of the state’s pocket.
My porn is for my eyes only!
Michael Crooker was arrested in 2004 for illegally selling an air rifle with a silencer. During the arrest, the ATF snatched his computer, but found themselves confounded when couldn’t access Crooker’s files. So they turned the computer over to the FBI, and the FBI’s crack team of hackers managed to get into Crooker’s goods. And they found some stuff that Crooker now wishes had remained hidden:
Among the files, [the FBI agents] found a video showing Crooker and his girlfriend having sex, his medical records, family photographs, and correspondence between Crooker and his attorneys. They also found Internet history files that showed Crooker’s fondness for pornographic Web sites.
So Crooker was a bit tweaked by all this. But he decided not to sue the ATF or the FBI for accessing files that fell outside the scope of their investigation and any warrant they may have had (a lawsuit which he would likely lose anyway, aside from getting a ruling that the Feds can’t use any information contained in the correspondence with his attorneys, as that would be covered by attorney-client privilege - a ruling which he can get in his criminal trial anyway, if he needs it). Instead, he’s suing Microsoft. Crooker claims that he’s “suffered great embarrassment” as a result of all this this, and wants $200K in damages.
See, back in 2002, Crooker purchased an Compaq computer from a Circuit City story. He claims that this computer, and the Microsoft software, was advertised as having all types of great security features, and he believes that should have kept the FBI snoops out. But since it didn’t, he wants money. According to his lawsuit, he’s already settled claims with Hewlett-Packard (which now owns Compaq) and Circuit City.
Unless Microsoft chooses to settle this out, I don’t see Crooker getting any cash out of the case. I mean, Microsoft doesn’t really advertise its software security as “FBI Proof,” and the gist of Crooker’s claim is a stretch, at best:
Crooker says he had set Internet Explorer to delete his Internet history every five days. “Any day beyond those parameters is supposed to be permanently deleted and is not supposed to be recoverable,” Crooker says in the lawsuit.
While general Joe User may think that simply deleting a file means it is permanently deleted, folks with a little know-how know that this simply isn’t true, and that you can recover deleted files for quite some time. If he was really concerned about covering his porn tracks, he probably should’ve spent a little less time on the porn sites and a little more time on the sites that explain how you can truly secure your data.
On “Vivid Video Day,” they plan to shroud the city in a giant condom
San Francisco’s Mayor, Gavin Newsom, has learned a valuable lesson - you really should do your job, or at least have someone in your office doing your job. Many of our readers probably think this is common sense. But remember, we’re talking about politicians here, and the only things politicians generally hate more than doing their job is exercising common sense. Turns out that Newsom wasn’t paying attention to the meaningless laudatory proclamations that get issued by his office, so he was a bit surprised to learn that February 23 was declared “Colt Studio Day.” Especially since Colt Studio is a 40-year-old local porn studio specializing in, according to their website, “the hottest man-on-man action.”
Newsom’s office issues nearly 2,000 proclamations a year, most covering such innocuous topics as Australian Heritage Day and Graffiti Watch Day. They are typically issued by the Neighborhood Services Office without the mayor or his top aides reviewing their content, which was the case with the document honoring the gay porn studio, Newsom’s spokesman said Friday.
But in the wake of attacks by conservative media figures such as talk show host Bill O’Reilly — who said the proclamation reinforced San Francisco’s reputation as the nation’s “Sodom and Gomorrah” — Newsom has decided to change the policy and have any potentially controversial proclamation cleared by either his chief of staff or director of government affairs.
A state assemblyman tried to turn the issue back against Bill O’Reilly:
“The owners of the studio are taxpaying, law-abiding San Francisco employers who promote safe sex,” Leno said. “With a war out of control and the planet’s temperature rising, I would have hoped Bill O’Reilly had more pressing issues to discuss. Clearly, with his viewership currently plummeting, he thinks denigrating gay male entertainment will be his lifeline.”
Obviously the assemblyman is not familiar with O’Reilly’s work, or he would know for a fact that Papa Bear loves denigrating everything gay, not just gay male entertainment.
The Most Expensive Stock Photo Ever
I can see where this scenario might be weird, but $20 million worth of weird?!
So, this Ohio woman, Shannon Stovall, signed up for Yahoo’s web mail last October (first of all — what’s wrong with you? Gmail is infinitely superior). Anyway, after she signed up, she got the requisite confirmation email, with the subject: “Hooray! Your first email.”
What she didn’t expect, however, was that the email would actually come from her — indeed, inside the email was an image of Stovall, which was apparently attached to millions of these confirmation emails.
So, Stovall — doing what any red-blooded American with the opportunity to make some quick cash would do — filed suit against Yahoo, asking for $20 million; $10 million for the profits it made off her image and $10 million for attorneys’ fees.
That grainy photo above in the only image I’ve been able to find of Stovall, but my God — she’s got to be one helluva good looking lady to warrant $10 million for what is, essentially, a stock photo. Besides, for someone who has modeled before, Stovall oughtn’t be suing for violating her publicity rights, she should be thanking Yahoo for giving her free publicity.
From Ocean’s 12 to 12 Angry Men
Last week, I was fortunate enough — when called to jury duty — to have my jury pool dismissed before we’d even arrived to the courthouse. Whatever case we’d been assigned to had settled a couple of days before.
Hollywood big-shot and kick-ass director, Steven Soderbergh, wasn’t as lucky. Soderbergh was called to jury duty last week in New York City, and just to show how decent a guy he is, he didn’t phone ahead with excuses to get out of duty. Instead, he arrived and gave his excuses in person.
The trial was of Lina Sinha, a female director and teacher of a Montessori school on the Upper East Side. Sinha was accused of the statutory rape and sodomy of two teenaged boys. Sinha allegedly began an affair with a 13-year-old that led well into the boy’s college years; she’d even rid him of his pesky virginity on his 15th birthday. She also had an affair with another kid, as well, seducing him when he was 12 because she missed the other victim after he broke up with her.
Soderbergh answered voir dire questions seriously.
When the prosecutor suggested that some jurors might be thinking, “Where was that teacher when I was around?” several of the would-be jurors, women included, could not help giggling or smiling, but not Mr. Soderbergh.
Mr. Shargel asked the jurors if they were the type to make snap decisions — say, in “three seconds, five seconds” — rather than listen to the whole case.
“Mr. Soderbergh?” Mr. Shargel asked.
“Not in a trial,” Mr. Soderbergh replied, deadpan.
The judge overseeing the case eventually dismissed Soderbergh, over the defense attorney’s objections. The judge allowed Soderbergh to skip out because he was too busy filming Guerilla, a film about Che Guevera.
Damn. He took my excuse.
Supreme Court Decision Update - Sinochem International Co. Ltd. v. Malaysia International Shipping Corp.
Today’s other Supreme decision is Sinochem International Co. Ltd. v. Malaysia International Shipping Corp. (PDF of the opinion). It’s a unanimous opinion penned by Justice Ginsburg and, like today’s first opinion, it’s about procedure. Here, the Supremes are looking at what’s know as forum non conveniens.
QuizLaw Analysis: We’ll get into it in detail below, but forum non conveniens is basically where a party says there’s a different court which is the more appropriate forum for a lawsuit to be heard, and so that party is asking this court to use its discretion to refuse to hear the case. And in today’s decision, the Supremes say that a federal court can exercise its discretion to respond to such an argument at any time, and need not first look at whether it even has jurisdiction over the case. Fun stuff, this civil procedure!
Run this forum non conveniens by me once more, will you? As Justice Ginsburg explains it in the first sentence of her opinion:
This case concerns the doctrine of forum non conveniens, under which a federal district court may dismiss an action on the ground that a court abroad is the more appropriate and convenient forum for adjudicating the controversy.
With respect to federal courts, this doctrine only applies when the other forum is abroad (as opposed to state law, when the doctrine may apply as to a court that’s merely in another state). Anyway, the question today is whether the court has to first decide it has jurisdiction over the case before tossing a case based on forum non conveniens?
And how did this case get here? To understand this, we have to head out to China. In 2003, a Chinese importer, Sinochem International Co. Ltd., entered into a contract with Triorient Trading, Inc., a US corporation, for the sale and purchase of steel coils. Triorient charted a ship owned by the other party in this case, Malaysia International Shipping Corporation. In 2003, a bill of lading was generated for steel coils which were loaded onto the ship at the Port of Philadelphia. This led to various legal action before Chinese admiralty courts, initiated by Sinochem, which claimed that Malaysia International had backdated the bill of lading. The ship was arrested and detained, and Malaysia International fought the lawsuit by arguing that the Chinese admiralty court didn’t have jurisdiction over the matter - this argument was rejected by the Chinese court and was also rejected on appeal.
Meanwhile, Malaysia International sued Sinochem here in the states, filing a federal action in Pennsylvania, arguing that the petition which Sinochem first filed in China contained negligent misrepresentations and so Malaysia International wanted compensation for the harm it suffered from the ship being wrongfully detained. Sinochem fought this lawsuit on several grounds, including that there was no subject-matter jurisdiction, no personal jurisdiction, and with a forum non conveniens argument.
So what happened in District Court? The court heard Sinochem’s motion to dismiss and determined that it did have subject matter jurisdiction (because this was a maritime case) but that it did not have personal jurisdiction over Sinochem, a Chinese company. However, the court felt that discovery might show that it did have such personal jurisdiction over Sinochem (for the real legal wonks out there, it basically thought discovery could show sufficient national contacts). But the court declined to allow such discovery, granting Sinochem’s request for a forum non conveniens dismissal on the grounds that “the case could be adjudicated adequately and more conveniently in the Chinese courts.” The District Court based this decision on the fact that there were not any significant US interests in the case and that “the nub of the controversy was entirely foreign: The dispute centered on the arrest of a foreign ship in foreign waters pursuant to the order of a foreign court.” Plus, there were already proceedings taking place in China, and the District Court had no reason to second guess what was going on there.
And on appeal? The Third Circuit agreed that there was subject matter jurisdiction, but it went a step further on the personal jurisdiction question, saying that there couldn’t be a decision on whether there was personal jurisdiction until there was some discovery. And the Third Circuit ruled that the District Court couldn’t dismiss the case under forum non conveniens “unless and until it determined definitively that it had both subject-matter jurisdiction over the cause and personal jurisdiction over the defendant.” So the Third was saying that the District Court had to allow that discovery and resolve the personal jurisdiction issue before it throw the case out for forums non conveniens.
And since there’s a Circuit-split on this issue of whether you have to decide jurisdictional matters first, the Supremes decided to step in and resolve things once and for all.
So what does Justice Ginsburg have to say for herself? As mentioned, she authored a unanimous opinion and she begins by explaining a little about the dismissal of a case on forum non conveniens grounds. Specifically, she notes that a federal court can do so at its discretion when some other forum has jurisdiction to hear the case and where the court thinks that would be more convenient. The court can look at a “range of considerations” here, including convenience to the parties and practical matters about the different locations. And while a defendant trying to dismiss a case for forum non conveniens has a pretty high burden (because of the idea that plaintiffs have a right to have the case heard in the forum of their choosing), that burden is a bit less when the plaintiff hasn’t filed suit in its own home forum (as was the case here).
Justice Ginsburg next notes that federal courts generally have to settle jurisdictional questions before getting to the merits of a case. However, the court can decide these jurisdictional questions (that is, non-merit matters), in any order that is appropriate. And the key here is that:
A forum non conveniens dismissal “den[ies] audience to a case on the merits,” [citation]; it is a determination that the merits should be adjudicated elsewhere.
In fact, the Third Circuit even recognized that such a dismissal “is a non-merits” dismissal.
All of which means that the court can throw a case out for forum non conveniens before getting to any jurisdictional questions, either subject-matter or personal. Justice Ginsburg acknowledges that there may be overlap between a forum non conveniens dismissal and merit-based decisions, particularly because the court has to consider what evidence will be necessary to prosecute or defend the claims of the lawsuit. But this is merely a “brush with ‘factual and legal issues of the underlying dispute.’” And there are other non-merit decisions which may also have such a brush - for example, a personal jurisdiction analysis may require the court to look at what actions a party has had in particular location - yet we allow the court to still consider these non-merit decisions separate and apart from any merit-based considerations:
The critical point here, rendering a forum non conveniens determination a threshold, nonmerits issue in the relevant context, is simply this: Resolving a forum non conveniens motion does not entail any assumption by the court of substantive “law-declaring power.”
So that’s it, right? Essentially, yes. But Justice Ginsburg goes on to clarify why the Third Circuit messed up. It relied on a 1947 Supreme decision which said that “the doctrine of forum non conveniens can never apply if there is absence of jurisdictions” and that when the doctrine comes into play, “it presupposed at least two forums in which the defendant is amenable to process.” But Ginsburg says that this language was not well-crafted, and if you look at the actual context of the case, it’s clear that there’s no conflict here. For example, it’s totally true that the doctrine can’t apply if there’s no jurisdiction - if the court decides it lacks jurisdiction, then at that point the case is gone, so of course the court can’t turn around and dismiss under forum non conveniens, because it lacks jurisdiction.
So that’s it, right? Again, yes, but not quite. Justice Ginsburg would like to explain that “[t]his is a textbook case for immediate forum non conveniens dismissal.” She offers such an explanation, concluding that the District Court made a good decision and that the Third Circuit therefore needs to be reversed.
The Daily Memo - 3/5/07
A Florida state legislator wants the term “illegal alien” removed from all official documents, because the term “alien” is offensive: “An alien to me is someone from outer space.” (The News-Press)
The dude who sued Google because his ads were rejected has watched his lawsuit fade away for being “specious” and “frivolous.” (Technology & Marketing Law Blog)
A Tennessee state senator has introduced a resolution to get the Department of Education to file a report on whether or not the universe was created by a “Supreme Being” because, to his ridiculous mind, “[t]here has never been any proof offered that Darwin’s theory of evolution is correct.” (KnoxNews)
Our favorite crazy astronaut has been charged with attempted kidnapping, but not with attempted murder. (LawInfo)
California doesn’t think that UC Irvine should get a new law school, at least in part because there are already too many damned lawyers in California. (ProfessorBainbridge.com)
Former Justices Blackmun and Burger are heading to Broadway. (Washington Post)
The case of a German man who claims he was tortured by the CIA has been thrown out by a federal court for national security reasons. (Yahoo! News)
Supreme Court Decision Update - Lance v. Coffman
The first of today’s new Supreme decisions comes in Lance v. Coffman (PDF of the opinion), a short little decision about when folks have standing to bring a lawsuit against their state legislature when the state politicos allegedly fail to abide by the Constitution.
QuizLaw Analysis: This is a per curiam decision, meaning its unanimous and unsigned. In the short little 6-pager, the Court basically reaffirms older case law by saying that a private citizen has no right to sue state legislators for failing to follow the law. The law in question here was the Elections Clause, and a state legislature’s failure to follow does not injure private citizens in a way which gives them a “case and controversy.” Or so say the Supremes. So private citizens can’t sue on behalf of themselves for their state legislature’s failure to abide. Which just means we need to vote The Dude into office because then this wouldn’t be an issue - as everyone knows, “The Dude abides.”
What is the Election Clause? Well, it comes from Article 1, Section 4 of the Constitution, and reads as follows:
The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations, except as to the Places of chusing Senators.
Ok, and what’s the story here? After the 2000 census, Colorado legislators wanted to redraw congressional districts to make room for a new Representative, but they weren’t able to to get it done so the process eventually wound up in court and “a state court did it for them” in 2002. Then in 2003, a redistricting law was finally passed, and it was signed into law by Colorado’s Governor. This led to a lawsuit by the state Attorney General, who didn’t want this new plan to take effect, because the Colorado Constitution says there can only be one redistricting per census. This went up to the Colorado Supremes, who sided with the Attorney General, finding that a district created by a judge is the same as one created by the Legislature, so the 2002 redistricting used up the state’s once-per-census chit. And the court also said there was no problem with regard to the Elections Clause.
Right after this ruling, four private citizens from Colorado filed a federal action arguing that their rights under the Elections Clause were violated. They were not involved in the state lawsuit, but their argument was that the first redistricting was not valid because the Elections Clause says that only the Legislature can prescribe such things, not the court. The District Court first said that it didn’t have jurisdiction to hear this case, but last year the Supremes vacated that decision and told the District Court it did.
So on a second go-round, the District Court took a closer look at things and found that the citizens did have standing to bring their claims. However, the court said the lawsuit was barred by issue preclusion.
Issue what-now? Issue preclusion. Essentially, the District Court said that this issue was already decided in the state lawsuit, with the Colorado Supremes rejected the argument that the Elections Clause was violated. Thus:
[T]he plaintiffs “stand in privity with the Secretary of State and the General Assembly,” who were on the losing side in the [Colorado] litigation.
So what do the Supremes have to say? Most of the decision is a history lesson. The Court begins by reminding us that plaintiffs must have standing to bring a lawsuit, as this is one of the required components of the requirement that there be a “case or controversy.” Standing “requires a plaintiff to demonstrate the now-familiar elements of injury in fact, causation, and redressability.” The Court then goes on to discuss several prior decisions:
“We have consistently held that a plaintiff raising only a generally available grievance about government - claiming only harm to his and every citizen’s interest in proper application of the Constitution and laws, and seeking relief that no more directly and tangibly benefits him than it does the public at large - does not state an Article III case or controversy.
For example, in 1992, the Supremes rejected a case where a citizen tried to challenge the procedure used in ratifying the Nineteenth Amendment. Similarly, the Court has dismissed citizen lawsuits: (i) challenging judicial appointments allegedly made in violation of the Constitution; (ii) claiming that the Feds violated the Constitution by failing to disclose CIA expenditures; and (iii) arguing that Congressmen who were also in the military Reserves were violating the Constitution.
The Supremes say that the current case is just like all of these, because the plaintiff citizens don’t have any specific or personal injury, and their only alleged injury is that the Elections Clause has not been filed:
This injury is precisely the kind of undifferentiated, generalized grievance about the conduct of government that we have refused to countenance in the past. It is quite different from the sorts of injuries alleged by plaintiffs in voting rights cases where we have found standing.
In other words, “get outta’ my court!”
“As a landlord, can I install secret cameras to watch my tenants have sex?”
No sir, it turns out you cannot, as one central New York man has now learned. The 49-year-old Patrick Kaiser was renting out the upstairs apartment in a building he owned in Oneida, NY. Last December he was convicted of unlawful surveillance after it was learned that he had installed three little secret cameras in that rental unit - one in a bedroom clock, as well as ones in the bathroom and the living room. And Kaiser could watch a live feed from any of these cameras on a TV in his apartment, right downstairs.
Kaiser apologized during last week’s sentencing hearing:
What I did was stupid. I didn’t think about all the people I hurt. I didn’t mean to hurt them, and I’m sorry for doing that.
But the empty apology didn’t do him any good, and he was given a shiny new two-to-six year sentence in the clink. So I hope he got to watch lots of great nooky on his little spy cams, because he’s going to need lots of fantasy material to help occupy those cold lonely nights.
And the lesson for the rest of you is this - when you’re planning to install spy cams in your rental units, try to turn it into a positive. Hell, include it right in the rental advertisement:
Apartment lease includes live short-circuit sex feed, at no extra cost to you!
Snell & Wilmer LLP - Keeping up the Stereotype of Lawyers as Cheating Scum Since 1938
Attorneys in the Salt Lake City office of Snell & Wilmer LLP have been busted for trying to game the court. Seems that they were going to the courthouse to have the cover page of litigation documents time-stamped as being filed on the day these documents were due, and then actually slipping the documents into the court’s drop box sometime later. So last week, the District Court judge issued an order calling the lawyers out for their shenanigans:
This deceitful conduct will not be tolerated. The conduct is particularly egregious when counsel has been previously notified that the court is liberal in granting extensions of time when additional time is needed. Moreover, counsel in this case have been admonished before about the gamesmanship that has been taking place in this lawsuit.
Interestingly, however, the judge stopped short of actually hitting the lawyers with any sanctions or meaningful punishment, aside from the public humiliation. Instead, the court just put everyone on notice that documents which are toyed with in such a manner will be stricken and ignored. Seems a little light to me, and I’d says these lawyers got off damn easy.
Some important Monday morning reading
Yesterday’s editorial in the New York Times delivered a call to the new Democrat-led Congress to state steps in undoing the “Bush administration’s assault on some of the founding principles of American democracy.” The editorial included a laundry “list - which, sadly, is hardly exhaustive - of things that need to be done to reverse the unwise and lawless policies of President Bush and Vice President Dick Cheney.” It notes that many of these items relate to the Military Commissions Act of 2006, “an atrocious measure pushed through Congress” last year, and something which I ranted about at the time.
First, they call for three fundamental tasks to be done: “restore habeas corpus…stop illegal spying…[and] ban torture, really.” The article goes on to on to address the shady CIA prisons, and the mess associated with the definition of “illegal enemy combatants,” military prisons and the administrations continued efforts to ignore the Geneva Convention. This Must-Do List is an important reminder of just a few of the atrocities the Bush Administration has been responsible, and is something which everyone should read (even folks who don’t agree with it, because you can’t have honest discourse with reading opinions on both side of the fence).
Why are we still listening to an adam’s apple in a dress?
I seriously don’t get it. We let this “woman” continue to spew her idiocy and hatred in connection with the public discourse about our government and policies, despite her comments generally having no merit or basis in truth or rational thought. I’m sure you heard about her latest affront, but if not, you can see the video over at Think Progress:
Speaking [Friday] at the Conservative Political Action Conference, right-wing pundit Ann coulter said: ” was going to have a few comments on the other Democratic presidential candidate John Edwards, but it turns out you have to go into rehab if you use the word ‘faggot,’ so I - so kind of an impasse, can’t really talk about Edwards.” Audience members said “ohhh” and then cheered.
This would be ugly if Edwards actually were gay, but that he’s not (I assume) makes its vitriol all the more vile because it’s just the latest in an increasingly long line of examples of how Coulter equates being “gay” with everything supposedly wrong with our country. When the truth of it is, it’s actually Mann Coulter
himherself that exemplifies everything wrong with our country.
I’m all for the freedom of speech, and not suggesting that someone affirmatively shut her up (although I wouldn’t shed any tears were she to actually be muzzled, and that would make for a great photo), but I still don’t understand why places like the Conservative Political Action Conference continue to give her a public outlet. Particularly when, in my opinion, the CPAC audience actually comes off just as bad, if not worse, for laughing and apparently enjoying Coulter’s “witty” quip.
I wonder - since she has an adam’s apple and enjoys going down on men, wouldn’t that make her a faggot too?
What an unbelievable prick
A New Jersey doctor is suing his 15-year-old neighbor because he’s a prick. And an idiot. See, back in 2003, when the girl was just 11 years old, she was roller-blading down the street. The good doctor, Alexander Dlugi, was on the same street riding his bike. He was coming up from behind her, and rang his bell and yelled “watch out!” He alleges that the girl (who was, let me remind you, eleven) reacted “unreasonably” and caused a collision between them. So he sued her for negligence, to get money for his pain and suffering, and the case is currently at trial.
When I read this account, the first thing I thought was, “well the prick was behind her, why didn’t he just fucking go around?” And I’m not the only one - on Wednesday an accident reconstruction specialist testified that the
prick sorry, Doctor Prick, could’ve avoided the accident by just riding around her.
I mean, this guy sounds like a friggin’ retard. Your options are: (a) quietly ride around the girl in front of you; or (b) start making noise and yelling out, sure to startle an 11-year-old, while holding steadfast to your straight-ahead path. And he goes with option B?
The scariest thing of all is that Doctor Prick is a fertility doctor. He helps folks bring new children into the world, and one wonders what kind of terrible decisions he makes doing that.
But at least I understand why he’s a fertility doctor – so he can help create additional people to sue!
As Mel does, so does every Scottish male?
Ok, this is a story from Scotland, but it’s too amusing to not share (particularly because it’s about the type of stupidity us Americans like to keep all to ourselves).
On January 30, 32-year-old Richard Power was stopped by cops at a drunk-driving checkpoint. It was about 3 a.m., and the cops found that his blood-alcohol limit was about double the legal limit.
He apparently went home, slept it off, and then went out to booze some more because he was busted for a DUI again that same night. At 8 p.m., Power was stopped again. On the exact same road. With a blood-alcohol level tripple the legal limit.
He was in court on Wednesday and got a verbal lashing from the Sheriff (who appears to be the sentence issuer in Scotland).
And get this: Power lives in a caravan park. It’s totally the Scottish version of middle-America white trash. Fantastic.
The Daily Memo - 3/2/07
Jeff Goldblum won a permanent restraining order against a whack-job who has apparently been stalking him for years. (Now it’s the male Law Librarian Hotties’ turn. (Above the Law)
A committee for Oklahoma’s House of Representatives has approved what is being called “the toughest in the United States on illegal immigrants” because, I guess, a lot of illegals are flooding Oklahoma? (FindLaw)
California is considering a bill which would give every kid born in the state after January 1, 2007 a $500 savings account. (Fox News)
“Are fast food lawsuits likely to be the next ‘Big Tobacco’?” (Law.com)
The Tax Court has ruled, in an opinion which cited Wikipedia 8 times, that a guy who plays over 1,000 hours a year of video poker isn’t a professional gambler. (TaxProf Blog)
This story is just comedy
Seriously, this story is great. I mean, just look at the headline from Yahoo! News: “Dog with college degree called to court.”
So there’s this dude in Ohio who’s facing a criminal drug charge. His attorney is diligently trying to get the charge dismissed and has decided that the best attack is to argue that the police chief, John McGuire, is a scumbum. Specifically, the lawyer is arguing that the police chief lied on his department application and that he therefore had no legal authority as an officer of the law.
A special prosecutor’s trial is now set to start this month against Chief McGuire, because of his alleged falsification of and tampering with records. “A special prosecutor said McGuire lied on his application and resume about his rank, position, duties, responsibilities and salary in three of his previous jobs.”
In addition, McGuire is a graduate of Concordia College and University, which is where the dog comes in. The police dog, Rocko, is also a graduate of this Virgin Islands school, with a diploma listing him as John I. Rocko.
The best line of the article has got to be:
The court filing did not say how the attorney knows that diploma is for the dog or how Rocko allegedly managed to enroll in the college.
He probably pulled it off the same way that the dog in “The Simpsons,” Santa’s Little Helper, got a credit card as Santos L. Halper. Bart did it!
…well, at least it wasn’t a principal this time
Earlier this week, I told you about two different middle-school principals, one busted for buying crack and the other for dealing crystal meth. Well there’s been another middle school arrest this week, this time in Kentucky. But as this entry’s headline says, at least it wasn’t a principal.
This time, the Educator of the Year was simply a middle-school teacher who’s been arrested for trying to buy pot. But I will give Ann Greenfield, the 34-year-old teacher, this - she got busted in a much more entertaining way than the stings that brought down the two principals. She was, instead, a victim of her own pure stupidity.
A Kentucky state trooper was having dinner with his wife and parents when his phone started getting text messages. Those messages expressed an interest in purchasing some weed. The trooper, Trevor Pervine, thought it was some guys busting his balls, but when some calls shut down that possibility, Pervine responded to one of the messages and set up a meeting. Greenfield (the teacher) showed up for the meet and found some cops waiting to bust her ass. And it sounds like they gave her an extra fuck-you by setting the meet up near her school - so in addition to charges of possession (of both weed and drug paraphernalia), she’s also been charged with “conspiracy to traffic in controlled substances within 1,000 feet of a school.”
Said the Kentucky State Police spokesman: “She learned her lesson. Program your dealers into your phone.” I’m guessing that wasn’t in the lesson plan.
Welcome to the OC, (expletive)!
A Riverside, California woman has filed a lawsuit against Orange County, as well as the county sheriff and two two sheriff’s deputies. She’s claiming that her free speech rights have been violated, and is seeking to have a county law ruled unconstitutional.
Last August, Elizabeth Venable was at the OC airport (the wonderfully named John Wayne Airport which is, in comparison to its LAX big brother up north, a relative pleasure of an airport). The UC-Riverside grad student was chatting with a friend and apparently uttered some profanities while near some kids. Deputies told her to keep quiet, to which she responded by asking: “Is it against the (expletive) law to say (expletive)?”
(It’s like a MadLib! I’m going with “horny” and “rectum booger.” Is it against the horny law to say rectum booger? Tee-hee.)
Anyway, the deputies responded by saying something along the lines of “why yes, it just does happen to be against the expletive law.” She’s since been charged with a misdemeanor count of disorderly conduct under a law banning “disorderly, obnoxious and indecent act[s].” The matter is set for arraignment later this month.
A local con-law professor says that her federal case may be a sinker because “[f]reedom of speech does not cover obscenities.” Well I say that’s bullshit!
Incest is So Confusing
Back in my home state of Arkansas, where Arkansas’s reputation for incest is infamous, there’s now a new concern for stepparents. Up in Ohio, the state supreme court (in a case that looks to be headed to the Supremes) ruled in a 6-1 decision that anti-incest laws also apply to stepparents, even if both the stepparent and the stepchild are of the age of majority and consent to the sex.
The case itself involves a local 44-year-old sheriff who had consensual sex with his 22-year-old stepdaughter, after which he was convicted of incest and sentenced to 120 days in prison and designated a sexual offender.
The sheriff appealed, arguing that the state could not bar consenting, non-blood related adults from having sex, further asserting that the law was only designed to protect minor children from abusive parents. The Ohio supreme court disagreed, however, concluding that the law was more than just a means to protect minor children — it also had a moral component, designed to “protect the family unit more broadly.”
The case does beg the question: Is it okay for consenting, adult step-siblings to have sexual intercourse? I wonder this not just because of Flowers in the Attic, but because of a family film I reviewed a month or so ago, called Because I Said So, which I found deeply unsettling, if only because the two principals, (Mandy Moore and Gabriel Macht) hook up and start a relationship. Later, their single parents also get married, making Mandy and Gabriel step-siblings who — presumably — still live happily ever after. The issue of step-incest, however, was never raised. Are step-siblings allowed to marry? I would imagine there are no laws prohibiting a guys’ father and mother-in-law from marrying, but if they do so after the son and his wife are already married, does that retroactively convert the married couple into incestual step-siblings? Or am I just reading too much into a bad Diane Keaton flick?
Man. Somebody Really Needs to Quit Smoking
In Johnson City, Tennessee — hotbed for old-time music — the prison inmates are serious about their nicotine habits. How serious, you ask? Two inmates in a smoke-free prison (both of whom were serving murder sentences) attacked a guard and took him hostage.
The stand-off lasted about six hours, up and until negotiators finally met their demands.
As the night progressed they started saying, ‘Look, we’ll give up if you let us have some tobacco. If you do that, we’ll go back to our cell,”’ [the prison warden] said. “They got them some cigarettes, they smoked them and went back to their cell and locked themselves back in.”
The lesson here, of course is: Don’t screw with a murderer’s cigarettes. The two of them are probably serving life sentences; I’d argue that it’s cruel and unusual not to let them at least attempt to shorten those sentences by hastening death.
The Daily Memo - 3/1/07
New York’s city council has passed a non-binding resolution requesting that folks top using the “n” word. (7Online.com)
In Philly, a new monument for George Washington’s presidential mansion will include information about GW’s slaves. (USA Today)
Above the Law has posted their female nominees for the Law Librarian Hotties Contest, and we’d be remiss in not throwing a link at it. (Above the Law)
The Director of the PTO, who also happens to be the Under Secretary of Commerce for Intellectual Property, has laid out his vision for reform of the US patent system. (Between the Lines)
A 96-year-old reputed mobster accused with a slew of racketeering charges in Florida pled guilty to racketeering conspiracy tampering with a witness; and because he’s so old, they say that Albert “The Old Man” Facchiano probably won’t even have to serve time in the clink (just house arrest). (CNN)
The Supremes have declined to hear an appeal of a sentence of 200 years (!) in the clink for possession of kiddie porn. (BBC News)
The always insightful and entertaining Dahlia Lithwick provides her latest take on oral arguments at the Supreme Court. (Slate.com)
Sorry, this school doesn’t have a civics class!
So back in 2002, Rebeka Rice was a high school freshman. One day at school, some of her classmates were giving her some shit about the fact that she was raised a Mormon, and were asking her all sorts of questions. When one classmate asked if she had ten moms, she responded with: “That’s so gay.”
Five years later, there’s currently a non-jury trial taking place over this statement. See, Rice was sent to the principal’s office for making that statement, and a note was placed in her file. Her parents eventually decided to sue the school, arguing that their daughter’s First Amendment rights were violated because she was punished for simply making a statement “which enjoys widespread currency in youth culture.”
Rice, now 18-years-old, backed this argument up when testifying last week, saying that she wasn’t referring to sexual orientation. But the school says it has taken a hard-line stance against the word “gay” ever since there was a gay-based hate crime back in 2001.
Final arguments are set to be submitted in April, and a verdict should follow shortly thereafter. One expects a one-sentence verdict of either “the school is so gay” or “that girl and her family are so gay.”
Arkansas’ Arkansas’s That state where Clinton’s from? At least one legislator is paid too much money!
On Tuesday Representative Steve Harrelson filed a resolution trying to settle the “debate” over the possessive form of the state’s name. He would like it declared as “Arkansas’s,” abolishing any use of the obviously uncouth Arkansas’. It’s not a binding resolution, mind you, so even if it passes, folks can still use whatever they want.
So why is Representative Harrelson wasting the state’s time with a meaningless resolution (which would, let’s be honest, be meaningless even if it was binding)? Seems he’s got a family friend who wants this stupid resolution, so “[t]his is merely a favor.”
The friend, Parker Westbrook, “describes himself as a ‘longtime practical Arkansas historian,’” and he’s been bugging Representative Harrelson for this resolution for years. The 81-year-old further acknowledged that “[i]t’s an esoteric subject, yes, but it is amazing how many people don’t understand the possessive case.”
I think it’s amazing that the
taxpayer’s taxpayers’ money is being utterly squandered on such nonsense.
Why does everyone have to play a game of one-up?
Yesterday, Dustin told you about the Michigan man accused of scrumping a dead dog, a week post-mortem, perhaps in an attempt to one-up the Wisconsin man from last November who was caught piddling a dead deer. Well that game of one-upmanship is nothing!
In Monday’s Daily Memo I mentioned a Florida middle-school principal who got busted for buying crack from an undercover cop in his office. Well now it’s the same story out of Bethlehem, Pennsylvania - another middle-school principal busted on drug charges. The only differences are that it wasn’t crack - it was crystal meth - and he wasn’t busted for buying drugs, he was busted for dealing!
Seems that the local cops got a call from a tipster earlier this month that the principal, 50-year-old John Acerra, was using and dealing drugs. On Tuesday, the cops sent the tipster/informant in to buy some meth from Acerra, and then the cops came in and busted the principal, with the meth still sitting out on his desk.
Ladies and gentlemen, I give you John Acerra - your middle-school principal of the year!