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UNITED STATES SUPREME COURT

SCOTUS 2010 News & Views SCOTUS  Spring 2010 Decisions

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March 6 -- March 8, 2010

FEDERAL COURTS

Judge Refuses to Dismiss Suit Against Rumsfeld Over Americans' Alleged Detention in Iraq

Jordan Weissmann, The National Law Journal

03-08-10 -- A federal judge in Illinois has refused to dismiss a lawsuit against former Secretary of Defense Donald Rumsfeld by two Americans (pdf) who claimed they were detained and interrogated in Iraq. . . . David Vance and Nathan Ertel, who traveled to Iraq in 2005 to work for a security firm, filed suit against Rumsfeld and the U.S. government alleging that they were taken into custody and interrogated by the military because of suspicion that their company was providing arms to insurgents. They claim they were placed in cages, strip-searched and questioned using "physically and mentally coercive tactics," before they were finally released weeks later. . . . Rumsfeld filed a motion to dismiss. However, Judge Wayne Anderson of the U.S. District Court for the Northern District of Illinois on Friday allowed one claim against him to go forward, finding the two contractors pleaded enough details to implicate the former secretary.

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Ruling on jail inspection divisive

Friction follows decision to allow county lawyers

By Dan Herbeck, Buffalo News  Staff Reporter

03-08-10 -- When inspectors from the U.S. Justice Department question employees at the Erie County Holding Center later this month, representatives of the county attorney's office will be allowed to accompany them. . . . The county attorney sees that as very good news, but it upset a jail critic who voiced concerns Sunday that Holding Center employees will be less likely to tell the truth with county attorneys watching. . . . In a ruling issued Saturday, U.S. District Judge William M. Skretny said federal inspectors will be allowed to examine the jail and its suicide-prevention procedures. But the judge also ruled that "County lawyers and representatives" can join them when they interview jail employees. . . . Skretny's ruling came three days after the downtown jail reported the third suicide in the facility within four months. The ruling was the latest development in a dispute over jail conditions that has been brewing for years between the county and the Justice Department.

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CALIFORNIA  

Witness Interviews Aren't Privileged Work Product, Says Calif. Court

Mike McKee, The Recorder

03-08-10 -- Witness statements recorded or taken in writing by attorneys or their representatives aren't privileged work product and, therefore, are open to discovery, a divided California appellate court ruled Thursday. . . . Surprisingly, the justices, including the dissenter, took the opportunity to harshly criticize a 14-year-old appellate ruling out of Sacramento that held just the opposite. The majority called it "cursory" and the dissent said the 1996 holding went "too far." . . . That thrilled victorious lawyer Joseph Carcione Jr., who called that old opinion "terrible" and said it has been the bane of plaintiffs lawyers statewide.

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DELAWARE  

Cravath May Represent Air Products in Takeover Bid for Airgas, Delaware Judge Rules

Gina Passarella, The Legal Intelligencer

03-08-10 -- Cravath Swaine & Moore can continue its representation of Air Products & Chemicals in the company's bid to acquire competitor Airgas, despite Airgas' claims of conflict, Delaware Chancery Court Chancellor William B. Chandler III ruled Friday afternoon. . . . Cravath had represented both companies for years and Airgas alleged the firm had confidential information about Airgas that could be used in assisting Air Products in its $5.1 billion takeover bid. . . . The ruling in Air Products v. Airgas comes nearly two weeks after Judge Eduardo C. Robreno of the U.S. District Court for the Eastern District of Pennsylvania said it wasn't appropriate for him to decide whether Cravath could represent Air Products in Delaware litigation, deferring the decision to Chandler. Robreno said he would stay the Pennsylvania action, Airgas v. Cravath Swaine & Moore, until Chandler rules and then revisit Airgas' damages claims against the firm for alleged breach of fiduciary duty.

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DISTRICT OF COLUMBIA  

HIV Misdiagnosis Spurs D.C. Court of Appeals to Reconsider Emotional Damages Rule

Andy Jones, The National Law Journal

03-08-10 -- The D.C. Court of Appeals has granted an en banc hearing in the case of a man who is seeking the right to sue for emotional damages after he was misdiagnosed with HIV. . . . The case could give the court a chance to rethink a long-standing precedent in medical malpractice cases, which holds that courts can only grant damages for emotional distress if the plaintiff had been put in a "zone of physical danger." . . . Terry Hedgepeth spent five years believing he had HIV after he was falsely diagnosed at the Whitman Walker Clinic in Washington. He learned he never had the virus after a new test at a different clinic in 2005. . . . Between the two tests, he said he suffered severe depression which led to problems in his relationship with his daughter, the loss of his job, heavy use of illegal drugs and suicidal thoughts. He was twice committed to psychiatric wards.

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FLORIDA  

Judge: pay fines or find jail

For Fines Ignored, Jail Time?

By Todd Ruger, Sarasota Herald-Tribune

03-08-10 -- A local judge has a message for anyone who owes court fines or fees: Pay up immediately or an officer will track you down and take you to jail. . . . Tired of being ignored by people who owe the court money, County Judge Kimberly Bonner has recruited county law enforcement agencies to actively track down the debtors at home, work or wherever and arrest them. . . . As a result, 150 people in Sarasota County could soon be served with a warrant and taken to jail for owing outstanding fines related to criminal or civil cases. . . . "They're going to be out there looking for you," Bonner said. "I think that we had, over the years, developed a culture of: If it's paid or not, nothing will happen."

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Fla. Insurance Case Could Set Precedent for Hurricane Claims

Jordana Mishory, Daily Business Review

03-08-10 -- The Florida Supreme Court was asked Thursday to decide issues that may dictate the future handling of hurricane claims, insurance payouts and deductibles. . . . The case in dispute involves an $8.1 million federal verdict won by a Boca Raton, Fla., condominium association against Sydney, Australia-based QBE Insurance over its handling of a claim after Hurricane Wilma in 2005. . . . QBE attorney Raoul Cantero III of White & Case in Miami argued that a trial court decision allowing the association to dispute the insurer's response time when it took about 18 months to assess damages "jaundiced the jury's view on the extent of the damages."

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NEVADA  

Want to post bail? Wait until morning

Court ends round-the-clock bail services, which might aggravate overcrowding at county slammer

By Steve Kanigher, Las Vegas Sun

03-08-10 -- The Clark County jail is notoriously slow when it comes to bail, and a recent change could make it even slower, further clogging the criminal justice system. . . . Las Vegas Justice Court this week stopped allowing people to post bail between midnight and 8 a.m. and is no longer letting out people eligible for release without bail between midnight and 4 a.m. The reason: The court’s pretrial services division, which processes bail requests, has been under a hiring freeze since October that has thinned its ranks. . . . “We’re no longer able to spread everything out over 24 hours,” Chief Judge Ann Zimmerman said. . . . Henderson and North Las Vegas justice courts have round-the-clock bail services. So do courts in Salt Lake City, Phoenix, San Diego and Washoe County.

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NEW HAMPSHIRE  

Concord police told to arrest high court

By Karen Langley, Concord Monitor staff   

03-08-10 -- A Plymouth justice of the peace was arrested last week after he asked the Concord police to arrest the five justices of the state Supreme Court, according to the state attorney general's office. . . . Brian Blasi, 49, was trying to retaliate against the justices for dismissing his appeal of a ruling in a domestic violence petition, according to a statement from the attorney general. Blasi sent the Concord police warrants for the arrests of Chief Justice John Broderick, Senior Associate Justice Linda Dalianis, Associate Justice James Duggan, Associate Justice Gary Hicks and Associate Justice Carol Ann Conboy. The warrants had no judicial notice or other sanction.

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OHIO  

Opinions fervent on rules for attorney guardians

Franklin County probate judge to use input for standards

By Barbara Carmen, The Columbus Dispatch

03-05-10 -- Judge Eric Brown got an earful - and dozens of e-mails - when he asked the public's opinion on rules to protect the addled, aged and disabled from busy or unscrupulous attorney guardians. . . . Some examples: / • Don't require us to visit each ward personally at least once every three months, some attorneys pleaded with the Franklin County Probate Court judge. Many attorneys have only a handful of wards, but others have a large staff to work with hundreds. . . . That rule stays, Brown said. . . . • Don't require those alleged to be incompetent to open their homes to prospective guardians, who lack legal authority to visit, others said. . . . Got a point, Brown decided. He told guardians to ask to visit. . . . • Put as Rule No. 1: "Take no actions which are not in the best interests of the ward," a Texas judge suggested. . . . Brown agreed that would cover everything. An early paragraph now reads, "In all matters, the guardian shall always consider and act in the best interest of the ward." . . . In December, Brown made national news by asking for comments on standards for attorney guardians. He would be the first local judge in the country to adopt the rules, according to the National Guardianship Association. . . . Other states have embraced guardian guidelines, and Brown hopes his standards will help the Ohio Supreme Court as it works to do the same. . . . "These standards will improve the quality of work by the (attorney) guardians," Brown said. "They're going to be better trained. They're going to be more personally involved. They're going to be held to higher standards with regards to ethics and standards."

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Joe D'Ambrosio, once on death row on murder charge, now free after judge dismisses all charges

By Peter Krouse, The Plain Dealer

03-05-10 -- A judge declared Joe D'Ambrosio a free man Friday afternoon, ending more than 21 years of incarceration -- mostly on death row -- for a crime he has always said he didn't commit. . . . D'Ambrosio, 48, remained subdued as supporters hugged in the courtroom. He marched from the Justice Center to the nearby probation offices to have an electronic bracelet removed from his ankle, the last vestige of his imprisonment. . . . On the way back out, he extended his hand to one of the guards. . . . "Take it easy," D'Ambrosio said. "I'm done." . . . "Enjoy your life," the guard replied. . . . D'Ambrosio's newfound freedom is the culmination of a long struggle to win the release of a man several judges ruled was denied justice by prosecutors. . . . Cuyahoga County Common Pleas Judge Joan Synenberg dismissed all charges against D'Ambrosio and ordered him released without any conditions. The move came two days after U.S. District Judge Kate O'Malley ruled D'Ambrosio cannot be retried for the 1988 killing of Tony Klann.

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PENNSYLVANIA  

Pennsylvania Court Refuses to Unmask News Website Commenters

by Sam Bayard, Citizen Media Law Project

03-08-10 -- Thomas O'Toole at TechLaw points us to an anonymous speech decision issued last week by a federal court in Pennsylvania.  In McVicker v. King, William McVicker subpoenaed Trib Total Media, publisher of the South Hills Record and YourSouthHills.com, for "information that would disclose the true identities" of the users of seven identified screen names. McVicker, the plaintiff in an employment discrimination case, sought the identities of the posters in order to impeach the testimony of city council members who made the decision to fire him.  The United States District Court for the Western District of Pennsylvania denied McVicker's motion to compel the newspaper to turn over identifying information.  . . . The case presents a different posture from most cases dealing with the First Amendment right to anonymous speech because McVicker wanted to unmask the posters in order to make them witnesses in his case, not to make them defendants (e.g.s, the Liskula Cohen saga, Swartz v. Does, Solers, Inc. v. Doe, and Independent Newspapers, Inc. v. Brodie).  Given this posture, the ordinary test for unmasking a commenter—whether the plaintiff has made "a substantial legal and factual showing that the claims have merit"—is not appropriate. 

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TEXAS  

Houston Judge Declares Death Penalty Unconstitutional

Brenda Sapino Jeffreys, Texas Lawyer

03-08-10 -- On Thursday, 177th District Judge Kevin Fine of Houston declared the death penalty unconstitutional. Fine granted a motion filed by defense attorneys in a capital murder case seeking to have the court find that Texas Code of Criminal Procedure Article 37.071 "violates the protections afforded to the Accused by the 8th and 14th Amendments ... and that the option to sentence the Accused to die for a crime that he did not commit should be precluded as a sentencing option." . . . "What he's saying, and what the motion is saying, is that you can't administer the Texas death penalty fairly in Texas," says John P. Keirnan, a lawyer for the defendant. "Kevin Fine has taken a courageous stance, finally. This is the beginning of the end of the death penalty in Texas."

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UTAH  

Lawsuit against judge filed / Allegation: Craig Storey's sexual harassment was 'blatant and aggressive'

By Tim Gurrister, Standard-Examiner staff 

03-07-10 -- A long-anticipated lawsuit alleging sexual harassment by Judge Craig Storey has been filed in federal court. . . . Marcia Eisenhour, Storey's chief administrator in the Weber County Justice Court, accuses the judge of two years of unwanted sexual attention. . . . The key evidence is a mildly erotic 11-page love poem Storey wrote to her. . . . Allegations first came to light in August after a Utah Judicial Conduct Commission closed-door meeting where commissioners opted against any public reprimand of Storey. . . . The complaint against the judge was filed with the commission by the Weber County Attorney's Office. . . . That office now, ironically, will be tasked with defending the latest lawsuit, which names Storey and the county as defendants. . . . After the conduct commission's inaction, an angry Eisenhour and her attorney, Brenda Beaton, went public, detailing their allegations in the media and releasing the poem. . . . The rambling, rhyming poetry is the first among 10 specific incidents of sexual harassment listed in the lawsuit filed Feb. 19 in the U.S. District Court in Salt Lake City.

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WISCONSIN    

Mercedes-Benz Hit With Large 'Lemon Law' Judgment

Ryan J. Foley, The Associated Press, Law.com

03-08-10 -- A judge has ordered Mercedes-Benz USA LLC to pay $482,000 in damages and legal fees to a Wisconsin customer who was sold a defective car and not given a refund on time. . . . Vince Megna, a Milwaukee lawyer who represents the customer, said he believes the judgment is the largest involving a single car under a state "lemon law," which protects consumers who are sold junk cars. The judge was expected to sign the final order as early as Friday. . . . Mercedes-Benz spokeswoman Donna Boland said the company, a unit of the German car maker Daimler AG, is disappointed the judge overturned an earlier verdict in favor of the company and is strongly considering an appeal. The spat over the 2005 Mercedes-Benz E 320 has already dragged on more than four years.

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A Victims-of-Law Associate

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March 4 -- March 5, 2010

"If Congress can do whatever in their discretion can be done by money, and will promote the General Welfare, the Government is no longer a limited one, possessing enumerated powers, but an indefinite one, subject to particular exceptions."
--James Madison, letter to Edmund Pendleton, 1792--

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FEDERAL COURTS

White House Considering Military Trials for 9/11 Suspects

Jennifer Loven, The Associated Press, Law.com

03-05-10 -- In a potential reversal, White House advisers are close to recommending that President Barack Obama opt for military tribunals for self-professed Sept. 11 mastermind Khalid Sheik Mohammed and four of his alleged henchman, senior officials said. . . . The review of where and how to hold a Sept. 11 trial is not over, so no recommendation is yet before the president and Obama has not made a determination of his own, officials said. The review is not likely to be finished this week. . . . Officials spoke Thursday on condition of anonymity because they weren't authorized to discuss private deliberations. . . . Attorney General Eric Holder decided in November to transfer Mohammed and the four other accused terrorists from the prison at the U.S. naval base at Guantanamo Bay, Cuba, to New York City for civilian trials. That was initially supported by city officials, but was later opposed because of costs, security and logistical concerns.

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Judge Dismisses Charity's Suit Over Money Seized in FBI Corruption Sting

Mary Pat Gallagher, New Jersey Law Journal

03-05-10 -- A Hasidic charity whose bank account was seized as part of last summer's mass public corruption sting in New Jersey and New York can't sue civilly to get its money back, a federal judge ruled on Wednesday. . . . U.S. Magistrate Judge Mark Falk held that Gmach Shefa Chaim had an adequate remedy in a criminal case in which the government is seeking forfeiture of the $508,925 in the account. . . . Falk called his ruling in Gmach Shefa Chaim v. U.S., 09-cv-5426, one of first impression in the 3rd Circuit. . . . The Gmach has not been indicted or accused of a crime but the government alleges the account was used by Moshe Altman, a Hudson County, N.J., real estate developer, to launder money.

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TiVo Prevails in Patent Rights Case Against Dish Network

Dish to seek full Federal Circuit review of three-judge panel's decision

Deborah Yao, The Associated Press, Law.com

03-05-10 -- TiVo Inc. prevailed yet again in a long-running dispute with Dish Network Corp. over patents for digital video recorders, as a federal appeals court cleared the way Thursday for TiVo to collect hundreds of millions of dollars. TiVo shares jumped more than 50 percent. . . .  espite repeatedly losing, however, Dish said it will seek a review of the three-judge panel's decision by the full U.S. Court of Appeals for the Federal Circuit. . . . TiVo said the decision, if it stands, would let it collect at least $300 million from Dish -- about $100 million in damages and interest, and the rest in contempt sanctions that TiVo already has been awarded. That would be on top of about $100 million in damages that Dish had already paid TiVo in earlier litigation.

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3rd Circuit: IRS and H&R Block Cannot Be Sued
Over E-Filing Fees

Shannon P. Duffy, The Legal Intelligencer

03-05-10 -- The fees charged by H&R Block and other tax preparers for electronic filing of federal tax returns are not illegal and the IRS's agreement with the preparers didn't violate antitrust laws, the 3rd U.S. Circuit Court of Appeals has ruled. . . . In its 27-page opinion in Byers v. Intuit Inc., a unanimous three-judge panel refused to revive a proposed nationwide class action against H&R Block, Intuit Inc. and the Internal Revenue Service brought by taxpayers who claim the IRS effectively "outsourced" its statutory responsibility for accepting and processing electronically filed tax returns to private companies.

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RealNetworks Deal to Discontinue DVD-Copying Software Includes $4.5 Million for Studios' Legal Tab

Zusha Elinson, The Recorder

03-04-10 -- Good luck trying to burn a copy of your favorite DVD now. . . . RealNetworks agreed to kill DVD-copying software that raised the hackles of movie studios in Hollywood. The company will also pay $4.5 million to cover the studios' legal fees and costs for the copyright fight that ensued in the Northern District of California. The concessions came in a Monday settlement agreement and a consent judgment, approved by Judge Marilyn Hall Patel on Wednesday. . . . RealNetworks threw in the towel after Patel repeatedly sided with the major movie studios and the DVD Copy Control Association. The judge granted a preliminary injunction against RealNetworks' software, RealDVD, in August. Patel concluded that it violated the Digital Millennium Copyright Act by circumventing copy control locks on DVDs. She gave little credence to Real's defense that DVD owners have a fair use right to copy their own movies.

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No Class Action Treatment for Suits Over Purloined Body Parts

Henry Gottlieb, New Jersey Law Journal

03-04-10 -- A federal judge has denied class action status to families seeking damages from funeral homes in three states for the ghoulish, unauthorized harvesting of their loved ones' body tissue for transplants. . . . U.S. District Judge William Martini in Newark, N.J., ruled Monday that the proliferation of factual differences in the cases make a class action unworkable. . . . And there are too many potential conflicts between the interests of the 13 named plaintiffs and unnamed potential class members numbering in the hundreds, Martini ruled in Kennedy-McInnis v. Biomedical Tissue Services Ltd. . . . The plaintiffs' lawyers greeted the decision with a shrug. Van White, a Rochester, N.Y., solo who filed the putative class action in 2006, says Martini telegraphed his inclination to deny the request months ago. . . . White says the decision actually clears the way for the main effort: individual suits against individual funeral homes by family members. . . . And the Fort Lee, N.J., dentist who masterminded the illegal operation, Michael Mastromarino, is cooperating from his cell in a New York prison, other attorneys in the case say. . . . Mastromarino was sentenced to 18 to 54 years in 2008 after he pleaded guilty to being the ringleader of the operation in which tissue from as many as 1,000 bodies was taken without permission and used in medical procedures for up to 13,000 patients around the country. . . . Seven funeral directors or employees have been found guilty in the scandal, which came to light in 2006.

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'Hurt Locker' Suit Seeks Profits From Fiction Based on Fact

Tresa Baldas, The National Law Journal

03-04-10 -- Talk about an Oscar buzz kill. Just four days before the Academy Awards, the Oscar-nominated movie "The Hurt Locker" has been sued by an Army sergeant who claims the film's main character is based on him, but he hasn't been offered a dime for his exploits. . . . In a multimillion-dollar lawsuit filed March 3 in federal court in New Jersey, Master Sgt. Jeffrey Sarver alleges that Hollywood producers cheated him out of a share of the profits, even though the film is, in large part, about him. He is suing for a cut of the film's profits and his name added to the credits. . . . Geoffrey Fieger, one-time lawyer to Dr. Jack Kevorkian, is representing Sarver. "The movie disingenuously claims that it's a fictional account, which is absurd….The only fiction here is that they claim that it's fiction," said Fieger of Southfield, Mich.'s Fieger, Fieger, Kenney, Johnson & Giroux.

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Scott Matheson named to 10th Circuit appellate court

Utahn is praised for legal and academic credentials.

By Thomas Burr, The Salt Lake Tribune    

03-04-10 -- President Barack Obama on Wednesday named Utahn Scott Matheson Jr. to the U.S. Court of Appeals for the 10th Circuit, elevating the former law school dean and son of a two-term governor to the appeals court covering Utah and five other states. . . . If confirmed by the Senate, Matheson, 56, a former U.S. attorney for Utah, would take the seat vacated by another Utahn, Michael McConnell, who resigned to teach at Stanford University. . . . In announcing the nomination, Obama said Matheson was a perfect fit. . . . "Scott Matheson is a distinguished candidate for the 10th Circuit court," Obama said. "Both his legal and academic credentials are impressive and his commitment to judicial integrity is unwavering. I am honored to nominate this lifelong Utahn to the federal bench." . . . Matheson, a Democrat and former dean of the University of Utah School of Law, is known for his expertise in constitutional and evidentiary law. News of the nomination drew applause from both sides of the political aisle.

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A Victims-of-Law Associate

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CALIFORNIA  

Court Tosses $5 Million Fee Award, Saying Trustee Overpaid for 'Rolls Royce' Defense

Leigh Jones, The National Law Journal

03-04-10 -- A California appeals court has snatched away $5 million in fees from attorneys at three top firms in a dispute over the riches of a deceased shopping mall magnate. . . . The state's 4th District Court of Appeal ruled that the trial court erroneously "rubber stamped" requests for attorney fees by Loeb & Loeb, Jones Day and Greenberg Traurig. The law firms represented the former trustee of Daniel W. Donahue's estate. Donahue, who died in 2002, was chairman of Donahue Schriber Realty Group Inc., a Costa Mesa, Calif., real estate firm that owned numerous shopping centers in California and other western states. . . . Reversing the fee award on Feb. 24, the three-judge panel said that the firms' client, Patrick Donahue, had embarked on a "spare no expense strategy" by hiring the three firms at once. The panel, in remanding the case, ruled that although the client's strategy may have benefited him, it was questionable whether it benefited the Donahue trust.

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Suit Filed in Crash That Prompted First Toyota Recall

Amanda Bronstad, The National Law Journal

03-04-10 -- The family of the man whose Aug. 28 death spurred the first recall of Toyota vehicles for unintended acceleration has filed a products liability and negligence lawsuit against the Japanese automaker. . . . Mark Saylor, 45, a California Highway Patrol Officer, was killed along with his wife, their daughter and his wife's brother after the 2009 Lexus he was driving suddenly accelerated out of control while on Interstate 125 near San Diego, according to the complaint, which was filed on Tuesday in San Diego County Superior Court. . . . In a 911 call, Saylor's brother-in-law, Christopher Lastrella, told the dispatcher: "We're on North 125 and our accelerator is stuck," according to the complaint. "We're in trouble. We can't.there is no brakes. End freeway half mile." . . . Just before the crash, Lastrella repeated to the dispatcher: "We're approaching the intersection. We're approaching the intersection. We're approaching the intersection," as others can be heard on the call saying "hold on" and "pray."

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CONNECTICUT  

Conn. Justices: State Not Required to Bring In Substitute After Prosecutor Hospitalized

Embezzlement case involving sale of $6.5 million Ferrari is infamous among car buffs

Christian Nolan, The Connecticut Law Tribune

03-05-10 -- Perhaps the most common reason for a mistrial is a hung jury. And from time to time a judge might cite improper evidence or misconduct by an attorney or juror. . . . But even veteran trial lawyers couldn't recall the last time a mistrial was declared due to the prolonged illness and absence of one of the lawyers. . . . That's exactly why a criminal trial was interrupted in the summer of 2007, in a case that raised questions of double jeopardy and was recently considered by a divided Connecticut Supreme Court. The majority of justices recently voted to allow the state to have another crack at an embezzlement prosecution.

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U.S. Supreme Court Upholds Order to Remove Religious Materials From Manchester Post Office Counter

By Edmund H. Mahony, The Hartford Courant

03-04-10 -- The U.S. Supreme Court has let stand an appellate ruling last summer that settled a dispute in Manchester involving government and religion. . . . The U.S. 2nd Circuit Court of Appeals had ordered a small, church-operated post office in Manchester to clear its postal counter of religious materials such as prayer cards and a collection box supporting an outreach mission among the poor. . . . The ruling was limited to the small, storefront post office on Main Street operated, under contract with the United States Postal Service, by the Full Gospel Interdenominational Church. . . . In 2003, Bertram Cooper, a postal patron and Manchester resident who is Jewish, sued the postal service, saying that the display of religious materials offended him and violated the establishment clause of the First Amendment, which prohibits government from giving preference to one religion over another.

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FLORIDA  

After misconduct allegations, Broward judge stays away from courthouse

Florida Bar will again investigate former state prosecutor

By Tonya Alanez, Sun Sentinel

03-05-10 -- Circuit Judge Ana Gardiner stayed away from the Broward courthouse Thursday, one day after a state judicial watchdog agency accused her of improperly exchanging phone calls and text messages by the hundreds with a prosecutor as both of them worked on a death-penalty case. . . . It was the second day in a row that Gardiner failed to report to work. A sign taped to the door of Gardiner's chambers on the 10th floor of Broward's main courthouse instructed attorneys that another judge would handle Gardiner's hearings. . . . In other developments Thursday, The Florida Bar announced it would revive its investigation of Howard Scheinberg, the former state prosecutor who exchanged so many calls and messages with the judge. . . . Because of the allegations of an improper relationship between the two, a convicted murderer sentenced to death has been granted a new trial.

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MARYLAND   

Ex-Justice O'Connor favors end to electing judges

Support voiced for Gansler proposal to appoint members of Circuit Court

By Annie Linskey | Baltimore Sun 

03-04-10 -- Former Supreme Court Justice Sandra Day O'Connor says she is "all for" a proposal that would end competitive elections for Maryland's Circuit Court judges, championing a concept that is attracting new attention in Annapolis this year because of loosening campaign finance rules and increasing concerns about money flowing into judicial races. . . . "The independence of the judiciary is something that we all ought to care about," O'Connor said at a hearing in Annapolis on Wednesday afternoon. "And we will protect it most by having a merit system." . . . O'Connor was among a panel of judges invited by Maryland Attorney General Douglas F. Gansler to express support for his judicial reforms. His proposed legislation would give the governor the power to appoint Circuit Court judges to 10-year terms. Marylanders could vote to retain the judges after that - but any judge tossed out would be replaced by a gubernatorial appointee.

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Shockingly NEW!!! Attorneys & Judges Involved in Sexual Misconduct

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MINNESOTA   

At the Capitol / Chief justice warns: 'Storm is coming' in electing state judges

'Retention elections' would thwart influence of special interests

By Bill Salisbury, pioneerpress.com

03-04-10 -- If Minnesotans want to prevent special interests from buying seats on the state's courts, they must overhaul the way they select judges, Chief Justice Eric Magnuson of the Minnesota Supreme Court told a legislative committee Thursday. . . . Interest groups are spending millions to influence the outcomes of judicial elections in other states, Magnuson said, and unless Minnesota changes its system, it's only a matter of time before big-buck, partisan court campaigns pop up here. . . . "The storm is coming," he warned. . . . Magnuson testified at a House governmental operations committee hearing in support of a state constitutional amendment that would create "retention elections" for judges.

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MISSISSIPPI  

Ex-judge booted for good

7-2 ruling ousts DeLaughter

Jimmie E. Gates • clarionledger.com

03-05-10 -- The Mississippi Supreme Court has permanently removed former Hinds County Circuit Judge Bobby DeLaughter, ensuring he can never again seek judicial office in Mississippi. . . . In July, DeLaughter pleaded guilty in federal court to obstruction of justice for lying to an FBI agent investigating disbarred attorney Dickie Scruggs. He then resigned his judgeship. . . . But before he pleaded guilty, DeLaughter was placed on interim suspension by the Commission on Judicial Performance because of two complaints filed against him. . . . Thursday's 7-2 ruling is the result of the commission's attempt to remove the suspension following DeLaughter's plea. It had agreed to do so in exchange for DeLaughter's guilty plea. . . . "This court cannot allow the dismissal of formal complaints in two separate cases pursuant to DeLaughter's resignation or any mere agreement not to seek judicial office in the future," Justice James Graves wrote in the nine-page opinion.

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NEW HAMPSHIRE  

Courts committee critical of Superior Court justice

By Nancy West, New Hampshire Sunday News

03-04-10 -- The committee that disciplines judges has criticized Superior Court Chief Justice Robert Lynn for his courtroom demeanor in a child-custody case, though it dismissed the underlying grievances filed by the mother and her attorney. . . . Erica Tapply of Merrimack and her attorney claimed Judge Lynn was biased against her when she was seeking to maintain limits on visitation with her young son by his father, a convicted rapist. . . . The Judicial Conduct Committee voted to dismiss the grievances alleging bias and discrimination filed by Tapply and her attorney, Katherine Stearns of New London, but cautioned Lynn about his tone on the bench. Lynn disagreed with the committee regarding his courtroom temperament. . . . In letters sent to Lynn and obtained by the New Hampshire Sunday News, the Judicial Conduct Committee said of Lynn’s conduct in the Sept. 29, 2009, hearing: “... the Committee expressed its concern with the rather strident tone taken by the Court in questioning Ms. Tapply and in issuing its final conclusions, as well as entering into a debate with Attorney Stearns after the conclusion of the hearing."

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NEW JERSEY  

Judge in Doghouse for Using Own Experience to Decide Bite Case

Appeals court finds that N.J. judge failed to buttress his conclusion 'with anything other than subjective opinion, bereft of factual support'

Charles Toutant, New Jersey Law Journal

03-05-10 -- A New Jersey appeals court on Wednesday reversed a trial judge who relied on his personal experience with canines in ruling that a dog that bit two people did not fall under the state Dangerous Dog Statute. . . . Camden County Superior Court Judge John McNeill failed to buttress his conclusion "with anything other than subjective opinion, bereft of factual support in the record," the court held in State v. Taffet, A-3305-08. . . . The appeals court reinstated a municipal judge's imposition of safety measures: that the animal's owner erect a six-foot fence around his property, put a tether and muzzle on the dog whenever he is removed from its enclosure and obtain $1 million in liability coverage. . . . Robert Taffet of Haddonfield, an orthopedic surgeon who breeds and shows dogs, was charged under the statute, N.J.S.A. 4:19-23 et seq., in connection with two attacks by one of his Rhodesian Ridgebacks, called "Rocky."

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NEW YORK  

N.Y. High Court Judge Takes Colleagues to Task Over Constitutional Issue in Gun Case

Joel Stashenko,New York Law Journal

03-05-10 -- In a rare written dissent, Judge Robert S. Smith has taken his six colleagues on the New York Court of Appeals to task for not finding the "substantial constitutional question" that would allow them to review a judge's denial of a pistol permit to a Westchester County, N.Y., attorney. . . . Smith said the refusal of the court to hear an appeal in Kachalsky v. Cacace (pdf), SSD4, highlights the "amorphous definition" that the judges have come to attach to "substantial" and how it is at odds with provisions in Article 6, §3(b)(1), of the state Constitution and provisions of CPLR 5601 and 5602 governing when the court recognizes a right to appeal in civil cases. . . . Most such appeals are dismissed unanimously in batches, with the court merely noting that "no substantial constitutional question is directly involved." . . . One court observer said he could recall only a few dissents in the last decade to denials of leaves to appeal. . . . Here, however, Smith protested that the majority had used a standard with no basis in state law to deny a hearing in a case that raised a serious constitutional issue.

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Crowded, but Few Major Problems for Those Displaced by Downtown Courthouse Fire

By Noeleen G. Walder | The National Law Journal | New York Lawyer

03-05-10 -- The week will end today with the Criminal Court building at 100 Centre St., the largest courthouse in the state, still cordoned off and shuttered in the wake of a two-alarm fire that broke out in its basement Tuesday morning. . . . Since then, arraignments, ongoing trials and principal court parts have been operating from the Civil Courthouse across the street at 111 Centre St. Hundreds of court staff have set up temporary shop there or at the Criminal Court building at 346 Broadway. . . . Lawyers at the Civil Courthouse yesterday reported crowded conditions and some confusion, but said there have been few significant problems. . . . Criminal defense attorney Sol E. Schwartzberg said things were surprisingly calm, even more so than the "usual madhouse" at 100 Centre. . . . "A lot of people expected total chaos," Mr. Schwartzberg said, as he sat on a bench on the seventh floor where defendants were waiting to be arraigned. . . . "Look at all these people. They're sitting here quietly. Everybody is very orderly, even the lawyers. It's shocking," Mr. Schwartzberg quipped.

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Suspicious white powder sent to B'klyn judge forces evacuation

By Scott Shifrel, Daily News Staff Writer

03-04-10 -- A suspicious white powder sent to a Brooklyn judge Thursday forced the evacuation of the 24th floor of the Supreme Court building. . . . The powder, which is still being tested, was sent to Justice Abraham Gerges, the judge who last week signed off on the controversial Atlantic Yards redevelopment project.

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OHIO  

Ohio District Court Judge the Front-Runner for Federal Circuit Seat, Say Sources

There has been a movement in the patent bar to nominate a down-in-the-trenches district court judge to the Federal Circuit, which has suffered from an Ivory Tower reputation

Zusha Elinson, The Recorder

03-05-10 -- The U.S. Court of Appeals for the Federal Circuit will likely be getting its first district court judge -- but it won't be San Jose, Calif.'s Jeremy Fogel. . . . The Obama administration is zeroing in on Kathleen O'Malley, a judge from the Northern District of Ohio, for a spot on the court that hears all appeals in patent cases, according to three people familiar with the situation. The American Bar Association has been vetting O'Malley, these people said, speaking on the condition of anonymity because the process isn't public. . . . The ABA only vets judges that the White House wants to nominate, said a lawyer familiar with the vetting process.

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OKLAHOMA  

Top Oklahoma court rejects abortion bill

Julie Bisbee, Capitol Bureau The Oklahoman

03-04-10 -- Legislation that seeks to limit a woman’s access to abortions was declared unconstitutional by the state Supreme Court. . . . In an opinion handed down Tuesday, the court said the legislation, which contains several provisions including requiring ultrasounds for women seeking abortions and limiting a woman’s access to pregnancy-ending drugs, violated the state’s constitution that says legislation is limited to one subject. . . . The state’s high court upheld a decision Oklahoma County District Judge Vicki Robertson, who said the bill was unconstitutional because it contained provisions with several different subjects.

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TEXAS  

Judge declares death penalty unconstitutional

© 2010 The Associated Press, Houston Chronicle 

03-04-10 -- A state district judge in Houston has granted a pretrial motion declaring the death penalty unconstitutional, a decision that the Texas attorney general called "an act of unabashed judicial activism." . . . The motion was one of many submitted by defense attorneys Bob Loper and Casey Keirnan arguing Texas' death penalty is unconstitutional for their client, John Edward Green Jr., the Houston Chronicle reported Thursday. . . . State District Judge Kevin Fine said in his ruling that it is safe to assume innocent people have been executed. . . . "Are you willing to have your brother, your father, your mother be the sacrificial lamb, to be the innocent person executed so that we can have a death penalty so that we can execute those who are deserving of the death penalty?" he said. "I don't think society's mindset is that way now."

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WASHINGTON   

Amendment deal reached to allow judges to deny bail

State lawmakers reached agreement Thursday on an amendment to the state Constitution granting judges the authority to deny bail to criminal defendants who pose a serious threat of violence.

By Jim Brunner, Seattle Times political reporter  

03-04-10 -- State lawmakers reached agreement Thursday on an amendment to the state constitution granting judges the authority to deny bail to criminal defendants who pose a serious threat of violence.. . .  The state Senate voted 48-0 for the measure after a nudge from Gov. Chris Gregoire, who personally intervened in recent days to strike a compromise acceptable to law-enforcement groups and civil libertarians in the Legislature.. . .  The state House is expected to concur as early as Friday, sending the measure to the November ballot for voter approval. . . . The effort to amend the constitution was spurred by the Nov. 29 slayings of four Lakewood police officers. They were shot to death in a coffee shop by Maurice Clemmons, an Arkansas parolee who had been released from jail six days earlier on $190,000 bail.

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March 2 -- March 3, 2010

FEDERAL COURTS

Editorial: A constitutional right to welfare?

Obama nominates another judicial radical, in Liu of common sense

By The Washington Times 

03-03-10 -- Another day, another radical judicial nominee. President Obama once again has nominated for a federal judgeship a lawyer whose own words demonstrate unfitness for the position. In the case of Goodwin H. Liu, nominated on Feb. 24 for the 9th U.S. Circuit Court of Appeals, the substance behind the words is even worse than the verbiage. . . . .Mr. Liu is an assistant dean at the University of California Berkeley law school who once clerked for Supreme Court Justice Ruth Bader Ginsburg, so he probably boasts some intellectual firepower. Yet it's the sort of firepower that fits better within the walls of academe, marked by its uniquely indecipherable mumbo-jumbo, than on a bench where clarity is essential. . . . .Ed Whelan of the Ethics and Public Policy Center dug up an example of Mr. Liu's written reason so outlandish as to be unacceptable on its face, no matter what the substance of the legal theory being promoted. In a 2008 Stanford Law Review article, Mr. Liu wrote that judges should engage in "socially situated modes of reasoning that appeal ... to the culturally and historically contingent meanings of particular social goods in our own society" and to "determine, at the moment of decision, whether our collective values on a given issue have converged to a degree that they can be persuasively crystallized and credibly absorbed into legal doctrine." . . . To which most rational people would ask: Huh?

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Senate Confirms Obama Nominee for 4th Circuit

David Ingram, The National Law Journal

03-03-10 -- The U.S. Senate on Tuesday unanimously confirmed Barbara Keenan to the 4th U.S. Circuit Court of Appeals, making her the second Obama appointee on the Richmond, Va.-based court. . . . Keenan, previously a justice on the Virginia Supreme Court, joins the appeals court four months after the Senate confirmed Judge Andre Davis. The National Law Journal reported in November that President Barack Obama had prioritized nominations to the 4th Circuit, which is home to many cases related to national security and civil rights, and two other nominees for the court are pending.

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'Enough Cryin,' Says U.S. Judge to Defendants in
Mary J. Blige Song Suit

Mary Pat Gallagher, New Jersey Law Journal

03-03-10 -- Defendants who cried foul over late service of process in a copyright suit over a song by R&B singer Mary J. Blige will have to face the music anyway. . . . A federal judge in New Jersey, though agreeing there was no good cause for the delay, extended the time for service as a matter of discretion, because the defendants had notice of the suit and so were not prejudiced by the delay, and that the statute of limitations had run. . . . In Jumpp v. Jerkins, 08-cv-6268, plaintiffs Jermaine Jumpp of Willingboro, N.J., and Michael Adams Jr. of Union, N.J., claim that "Enough Cryin," from Blige's multi-platinum 2005 album, "The Breakthrough," infringes their copyright in a song called "On My Grind."

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1st Circuit Considers Challenge to Board of Ed's Removal of Materials Disputing Armenian Genocide

Sheri Qualters, The National Law Journal

03-03-10 -- A panel of the 1st U.S. Circuit Court of Appeals grilled a lawyer about his clients' standing to bring First Amendment claims against Massachusetts state educational agencies and officials for removing from a teacher curriculum guide Web sites that dispute the existence of an Armenian genocide. . . . Harvey Silverglate, of counsel to Boston's Zalkind Rodriguez Lunt & Duncan, represented a group of Massachusetts students and teachers and the nonprofit Assembly of Turkish American Associations on the plaintiffs' side of Griswold v. Driscoll at the hearing on Tuesday. . . . The plaintiffs claim the state board of education's 1999 decision to remove materials disputing the Armenian genocide from a curriculum guide violated the First Amendment's free speech clause.

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6th Circuit: Whistleblower Not a 'Crime Victim'
Even if He's Been Blackballed

Fired executive argued that he was harmed by an antitrust scheme that he exposed

Tresa Baldas, The National Law Journal

03-03-10 -- He argued he was harmed by an antitrust scheme that he exposed. But a federal appeals court said he wasn't a victim. . . . On Monday, the 6th U.S. Circuit Court of Appeals said no to a Michigan executive who was allegedly fired for refusing to participate in a market allocation conspiracy by the packaged-ice industry. He blew the whistle on the conspiracy several years ago and has since allegedly been blackballed by the ice industry. The court ruled that, despite the man's employment troubles -- he doesn't have a job -- he does not qualify as a victim under the Crime Victims' Rights Act. . . . Martin McNulty had sued, alleging that he was harmed by a conspiracy to divvy up ice customers and territory by his employer, Arctic Glacier Inc. of Winnipeg, Manitoba; Home City Ice Co. of Cincinnati; and Reddy Ice Holdings Inc. of Dallas.

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7th Circuit Judges Testify in Trial Over Blogger's Web Threats

Chief Judge Frank Easterbrook's cross-examination featured several defense stumbles

Mark Fass, New York Law Journal

03-03-10 -- Three judges from the 7th U.S. Circuit Court of Appeals -- Chief Judge Frank Easterbrook and Judges Richard Posner and William Bauer -- took the witness stand Tuesday in the Brooklyn trial of Harold Turner, the New Jersey blogger charged with encouraging his readers to murder the three judges as retribution for their decision upholding a Chicago handgun ban. . . . Easterbrook told the jury that upon reading Turner's posts his "principal concern was that somebody would try to come kill me or shoot me or blow me up." . . . "The world contains an unknown number of people who are willing to do violence that don't know who might be a target until some rabble rouser rouses them," Easterbrook said.

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3rd Circuit Won't Hear Arguments on Du Pont Millionaire's Last Round of Appeals in Murder Case

Case will be submitted on the briefs alone -- a bad sign for the defense, say attorneys who regularly practice before the 3rd Circuit

Shannon P. Duffy, The Legal Intelligencer

03-03-10 -- Lawyers for millionaire murderer John E. du Pont are urging a federal appeals court to order hearings on the issue of whether the defense lawyers in his 1997 trial effectively botched the defense by failing to focus on du Pont's use of a Bulgarian prescription drug that may have exacerbated his mental illness. . . . Du Pont received a setback last week when a three-judge panel of the 3rd U.S. Circuit Court of Appeals announced that it will not hear oral arguments in the case. . . . The court's calendar shows that du Pont's case is on the argument list for March 8 before Judges Theodore A. McKee, Maryanne Trump Barry and Morton I. Greenberg, but that du Pont's case is one that will be "submitted" on the briefs alone.

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Federal Judge OKs FMLA Claims Against Individuals

Pa. federal judge refused to follow decisions from federal courts in Utah, Minnesota and Kansas that said FMLA's individual liability provisions apply only to corporate officers

Shannon P. Duffy, The Legal Intelligencer

03-02-10 -- In a ruling that defines the scope of individual liability under the Family and Medical Leave Act, a federal judge has refused to dismiss claims against a trio of human resources executives and a manager who allegedly set out to find a reason to fire a worker soon after learning that he needed to schedule a leave for a surgery. . . . In the suit, plaintiff Dmitry Narodetsky, an industrial designer, claims that just a few days after he informed his bosses at Cardone Industries of his need for surgery, he was called in to a meeting and confronted with a pornographic e-mail found on his work computer. . . . Narodetsky responded by filing a suit that named not only the company, but also the company president and four other individuals who, he claims, each played a role in orchestrating and carrying out a plan to violate his rights under the FMLA and the Employee Retirement Income Security Act. Defense lawyers filed a formal answer to the suit for Cardone Industries that denied the allegations, but argued in a separate motion that the individual defendants should be dismissed from the case.

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Teacher Punished for Distributing Jack London Essay
on 'Scabs' Can Sue

Henry Gottlieb, New Jersey Law Journal

03-02-10 -- Novels by Jack London, like "The Call of The Wild," have long been staples of American curricula, but a New Jersey teacher used a nonfiction work attributed to the author to give a lesson, and a federal judge got it. . . . U.S. District Judge Peter Sheridan in Trenton ruled last week that history teacher Robert Cowan can pursue a claim that his constitutional rights were violated when he was suspended for placing copies of "The Scab," a pro-union essay attributed to London, in three colleagues' mailboxes at Carteret High School in 2008. . . . Cowan, the president of the Carteret Education Association, targeted the three teachers because they had crossed a picket line during a job action. But the school board found that he had violated a policy banning labor activity on school property in the presence of students. . . . He was suspended with pay for a week and warned that more dire consequences could follow, like loss of pay.

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Work key to long life for 102-year-old judge

By Ron Sylvester, The Wichita Eagle 

 03-01-10 -- Judge Wesley Brown began working at about age 10, after his father fell ill and he had to help support his family. That was about 1917, and the federal judge in Wichita said that beginning work at a young age is one reason he's still showing up to the courthouse every day at 102. . . . "I've worked all my life," Brown said recently in an interview. "I wouldn't know what else to do." . . . His long career could be one of the reasons Brown has exceeded the average life expectancy by more than two decades. . . . A report by the Harvard Medical School said the number of people living to 100 and beyond doubled in the past two decades. Brown is one of about 70,000 Americans 100 or more years old. . . . Brown has been an avid golfer and until recently took the stairs every day to his fourth-floor office — the top floor at the federal courthouse. . . . "People who live to 100 and beyond exercise their brains, too, by reading, painting, and playing musical instruments," said the Harvard paper, "Living to 100: What's the Secret." "Some continue to work, an indication that our love affair with retirement may be a mixed blessing." . . . Brown's job as a judge certainly challenges his intellect, dealing with complicated issues of law over time.

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CALIFORNIA   

Teacher wins major victory for God in school

Judge scolds district for trying to scrub America's Christian heritage

By Drew Zahn, © 2010 WorldNetDaily

03-01-10 -- A federal judge in California has handed down a scathing ruling against a school that required one of its teachers to remove signs celebrating the role of God in American history from his classroom walls. . . . As WND reported, math teacher Bradley Johnson had banners hanging in his classroom at Westview High School in San Diego, Calif., for more than 17 years with phrases like "In God We Trust" and "All Men Are Created Equal, They Are Endowed by Their Creator," only to have the principal order them torn down during the 2007 school year. . . . But Johnson filed a lawsuit alleging the order a violation of his constitutional rights, and the teacher has now been rewarded with a court victory and a powerfully-worded ruling. . . . "May a school district censor a high school teacher's expression because it refers to Judeo-Christian views, while allowing other teachers to express views on a number of controversial subjects, including religion and anti-religion?" posited U.S. District Court Judge Roger T. Benitez in his judgment. "On undisputed evidence, this court holds that it may not." . . . He continued, "That God places prominently in our nation's history does not create an Establishment Clause violation requiring curettage and disinfectant for Johnson's public high school classroom walls. It is a matter of historical fact that our institutions and government actors have in past and present times given place to a supreme God." . . . The judge further reprimanded the school, stating that while teachers at the district "encourage students to celebrate diversity and value thinking for one's self, [they] apparently fear their students are incapable of dealing with diverse viewpoints that include God's place in American history and culture."

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DISTRICT OF COLUMBIA  

D.C. same-sex marriages allowed

Licenses available Wednesday

Lyle Denniston, Scotus Blog

03-02-10 -- Chief Justice John G. Roberts, Jr., refused on Tuesday to block a District of Columbia court’s order that cleared the way for same-sex couples to get marriage licenses and wed in the capital city, beginning on Wednesday.  The Chief Justice, in denying an emergency stay filed by opponents of gay marriage, issued a three-page opinion, found here, explaining his action.   He acted in his role as Circuit Justice for the D.C. area; the issue was not referred to the full Court.  (The stay application, 09A807, is here; the opposition to it is here, and the reply is here.) . . . Even while saying a delay was not now legally justified, Roberts noted that the challengers may still try to undo the new D.C. marriage provision by attempting to put it on the ballot asking local voters to repeal the law.  That separate maneuver is now under review in the D.C. Court of Appeals, Washington’s highest local court.

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FLORIDA  

Florida's Court System: More Cases Take Time

The Ledger Editorial 

03-03-10 -- With all the Florida politicians being indicted these days, we can understand the state Legislature's reluctance to beef up the judiciary. . . . Nonetheless, no new judgeships have been approved in three years, and the judicial branch has lost 300 support staff because of budget cuts. . . . Meanwhile, foreclosure filings alone have increased by 396 percent in Florida since 2008, and civil cases of all kinds by 85 percent. And that's not even taking criminal cases into consideration. . . . What that means is that there are fewer and fewer judges, clerks, bailiffs and other court personnel to handle more and more cases. Justice delayed isn't only justice denied.

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Judge in Hot Water Over Warm Relationship
With Death Case Prosecutor

By Jordana Mishory | Daily Business Review | New York Lawyer

03-03-10 -- The state judicial watchdog agency charged Broward Circuit Judge Ana Gardiner with ethics violations today for allegedly starting a “close personal relationship” with a prosecutor during a murder case that produced a death penalty and failing to disclose the relationship to the defense. . . . The judge and prosecutor Howard Scheinberg communicated 1,450 times by phone and by text message in about five months between the time the relationship began during trial and the sentencing of Omar Loureiro in 2007, according to the seven-page notice of charges from the state Judicial Qualifications Commission.

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ILLINOIS  

Judge bars alcohol level from upcoming Hall trial

Testing at police lab violated state law

By Beth Kramer, Waukegan News Sun

03-03-10 -- Evidence of Judge David Hall's blood alcohol level has been barred from his upcoming trial, a Kane County judge ruled Tuesday. . . . Hall was arrested and charged with DUI and resisting arrest in April 2008. . . . Kane County Circuit Judge Keith Brown is presiding over the case at the Lake County Courthouse. . . . Tuesday's ruling came at the conclusion of a two-day hearing determining whether Hall's blood-alcohol content would be allowed at the trial. An expert offered testimony that the blood sample taken at Advocate Condell Medical Center in Libertyville was likely contaminated. . . . Defense attorneys Douglas Zeit and Jason Mercure have maintained Hall's BAC is invalid because it was stored for days without preservatives.

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A Victims-of-Law Associate

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KENTUCKY  

Wal-Mart Settles Ky. Sex Discrimination Suit for $12 Million

Tresa Baldas, The National Law Journal

03-03-10 -- The nation's top employment cops have Wal-Mart Stores Inc. digging deeply into its pockets again, this time to settle allegations of sex discrimination. . . . The U.S. Equal Employment Opportunity Commission announced late Monday that the retail giant will pay more than $12 million to resolve claims that for years it denied jobs to female applicants at a distribution center in London, Ky. . . . According to the EEOC, from 1998 to 2005, the Wal-Mart distribution center regularly hired male applicants for certain warehouse positions, but excluded female applicants who were equally or better qualified.

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MICHIGAN  

Judge's move to jail juror is criticized by state court

Mom had to weigh day care, civic duty

By L.L. Brasier, Detriot Free Press Staff Writer

03-03-10 -- Carmela Khury, a stay-at-home mom in Rochester Hills, was juggling child care and a jury summons. . . . When she was late the second day of jury selection because her mother was undergoing oral surgery, a backup nanny fell through and her husband was already at work, she called Oakland County Circuit Court. Told the judge would arrest her if she didn't show up, she arrived at court late along with her 8-month-old and 3-year-old. . . . Circuit Judge Leo Bowman found her in contempt, ordered her to sit as a spectator for the expected two-week-long murder trial and sentenced her to 24 hours in the county jail, to be served after the trial. . . . Khury was told to take her kids home Thursday, then sat in court Friday and Monday morning while her on-the-mend mother watched the children. . . . "It was very upsetting," Khury, 37, said Tuesday. . . . Bowman's actions came under fire from the State Court Administrative Office, an arm of the Michigan Supreme Court.

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MISSOURI  

Public Comments Sought About Missouri Judges

The Associated Press, Law.com

03-02-10 -- Missourians now have a chance to rate their judges.

The Missouri Bar says it's taking public comments on the performance of the 62 judges who will be up for retention votes this fall. The comment period will run through April 15. . . . The comment forms apply only to judges appointed under the nonpartisan court plan, not to judges chosen in partisan elections. . . . The public comments will be shared with special judicial performance evaluation committees, which also are surveying lawyers, jurors and judges.

The Bar has created a Web site -- http://www.mobar.org/comment-on-judges -- where comments can be entered.

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Supreme Court tosses red-light camera violation, says city ordinance violates state law

City suspends system, will dismiss pending tickets in wake of Supreme Court red light camera decision

Amos Bridges • News-Leader

03-02-10 -- The city has shut down its red light traffic cameras and plans to dismiss any outstanding tickets in the wake of a Missouri Supreme Court decision that declared the city’s red light ordinance to be in conflict with state law. . . . The court today voided a former state trooper Adolph Belt, Jr.,’s $100 ticket, saying Springfield’s use of administrative hearings to adjudicate the tickets is not allowed. . . . In a unanimous opinion, justices said the city cannot use administrative hearings to handle red-light tickets but must instead funnel such cases through the traditional criminal court system — where a higher standard of proof and additional avenues for appeal apply. . . . The city in response has suspended use of the cameras, City Attorney Dan Wichmer said, and will drop all pending cases.

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NEW JERSEY  

Phillipsburg judge files reply to alleged ethical violations

By Tom Quigley, Lehigh Valley Live

03-02-10 -- Phillipsburg Municipal Court Judge Dennis Baptista never sought special police assistance in his quest for information about a vandal who damaged his son’s car near the Phillipsburg High School in 2008, according to the judge’s official response to ethical allegations brought last year by the Superior Court of New Jersey Advisory Committee on Judicial Conduct. . . . He went to police to obtain a report from the police records clerk only after Phillipsburg High School officials refused to give him information about the Oct. 29, 2008, vandalism incident, the response obtained today reads. . . . The judicial conduct committee asserts some information the judge sought from police (a phone number for the suspected vandal’s mother) was easily accessible in the local phone book.

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NEW YORK  

Judge: Defendant Cannot Suppress Statements Made During OCD 'Brain Freeze'

Vesselin Mitev, New York Law Journal

03-02-10 -- A defendant who says he is afflicted with obsessive-compulsive disorder cannot suppress statements he made in the throes of a purported "brain freeze" triggered by his arrest that stripped him of his ability to waive his Miranda rights, a New York state judge has held. . . . "[T]he evidence fails to disclose that the Defendant's OCD affected him to such a degree" as to render him incapable of understanding the "nature and consequences of his statement," District Court Judge Andrew M. Engel in Nassau County wrote in People v. Martz, Docket No. 2008 NA 006851. . . . In March 2008, David Martz, a teacher at the Oyster Bay Boys and Girls Club, was arrested for allegedly exposing himself and masturbating in front of a 13-year-old boy in the restroom of the Roosevelt Field Mall in Garden City. . . . Martz was charged with two counts of endangering the welfare of a child and two counts of public lewdness, all misdemeanors. . . . He challenged the admissibility of a signed statement that he gave after a nearly two-hour interrogation, arguing that his OCD was "so exacerbated" by the circumstances of his arrest, that he was unable to process any information. . . . At a hearing, Martz testified that shortly after exiting the restroom he was stopped by mall security. He said he was immediately flanked by two police officers who arrested him but did not inform him of the charges. . . . The officers then led Martz, who was "very upset and nervous," to a police substation in the mall's lower level, where he was handcuffed to a bench. His cell phone rang several times, but he was not allowed to answer it. Finally, an officer shut it off, he said.

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OKLAHOMA  

Ten Commandments monument to come down soon

This follows news that the U.S. Supreme Court won't hear the case.

By Rhett Morgan, World Staff Writer

03-02-10 -- A Ten Commandments monument erected on Haskell County courthouse grounds in 2004 could be removed within the week, an attorney representing the county said. . . . The news comes after the U.S. Supreme Court on Monday refused to hear a dispute over the religious marker. . . . The justices let stand a lower court decision that the monument must go. A federal appeals court ruled last year that it amounts to an unconstitutional endorsement of religion by the county commission. . . . U.S. District Judge Ronald White of the Eastern District of Oklahoma had ordered the monument removed from the property in a document dated in August. White originally had ruled the monument constitutional, but his ruling was overturned by the appeals court. . . . "Obviously, it's got to come down," said Kevin Theriot of the Alliance Defense Fund, which is representing the Haskell County commissioners. "The commissioners have already taken steps to comply with that."

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PENNSYLVANIA  

Rehkamp attorney: Prosecutors targeted judge

By Michael Sisak, Citizens Voice Staff Writer

03-02-10 -- An attorney for suspended Senior Judge C. Joseph Rehkamp is accusing prosecutors of selectively targeting his client for prosecution in an alleged alcohol-fueled attack on his wife. . . . The Luzerne County District Attorney's office refiled charges against Rehkamp last week after his wife declined to testify at a preliminary hearing and a district magistrate dismissed the original case. . . . Attorney William Costopoulos said the District Attorney's office was targeting Rehkamp because he is a judge and that domestic violence cases are normally left closed after a spouse refuses to comply with prosecutors.

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SOUTH CAROLINA   

Supreme Court hears judicial independence case

By John Monk - The State

03-03-10 -- The South Carolina Supreme Court on Tuesday heard arguments over whether a legislative screening committee acted constitutionally last year when it found a family court judge unqualified to seek re-election. . . . That was the narrow issue in the case of Family Court Judge Frances "Charlie" Segars-Andrews of Charleston. She was petitioning the high court to vacate the commission's finding. . . . The broader issue - and the reason for which the court's tiny courtroom was packed for two hours - was whether General Assembly politicians can find an otherwise qualified judge "unqualified," forcing him or her from the bench, thus intimidating other judges. . . . "Aren't judges sidestepping questions now that may be political hot potatoes?" mused Justice Kaye Hearn at one point.

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WASHINGTON   

Controversial Judge Sanders wants reelection

Posted by Joel Connelly Seattle Post Intelligencer (blog) 

03-01-10 -- Washington State Supreme Court Justice Richard Sanders has courted controversy during 15 years on the bench, and will now court voters in seeking another term on the state's high court. . . . "I believe in protecting our individual rights as guaranteed in the state and U.S. Constitutions," Sanders said in a news release Monday. "The court should decide cases not to arrive at a predetermined outcome, but to uphold the principles we believe in." . . . Charlie Wiggins, a prominent Bainbridge-based attorney and specialist in judicial ethics, has already announced a challenge to Sanders. He charges that the incumbent has favored positions held by a major contributor -- the Building Industry Association of Washington -- in 25 of 28 cases in which the BIAW filed friend of the court of briefs.

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Specials / Evidence Of Misconduct By David Boeri, A WBUR Series 02-19-10 -- When Assistant U.S. Attorney Jeffrey Auerhahn joined Boston’s war on organized crime, he turned his focus to an up-and-coming mobster named Vincent Ferrara. The operation was called “Tunnel Vision,” fitting for a case in which prosecutors were willing to break the rules to bring down their target. Auerhahn thought he had a smoking gun in a witness who testified that Ferrara ordered a hit. Problem is, the witness lied. Worse, a judge ruled Auerhahn knew he lied — and covered it up. . . . The case raises troubling questions from critics — including judges — who worry that withholding evidence has become a tactic of some federal prosecutors. Those critics question whether Justice can police itself. In three parts, WBUR’s David Boeri examines the case, the actions of the Boston prosecutor and how it was handled by the Department of Justice. Part I: A Prosecutor, Mobster, A Witness Who Lied In 2003, a judge found that a federal prosecutor for the U.S. attorney’s office in Boston, Jeffrey Auerhahn, intentionally withheld evidence that could have cleared two men charged in a murder case. In the first report, we consider the crucial evidence that Auerhahn never turned over. Full story » Part II: ‘The Smokingest Gun’ The Department of Justice has never taken public action to discipline Auerhahn. Now the chief federal judge here has set local proceedings in motion to do what Justice hasn’t: publicly punish him. In the second report, we dive into the misconduct case against Auerhahn. Full story » Part III: The Judges’ Rebellion In the third report, we consider how the Department of Justice dealt with Auerhahn, and how it’s come to the point that federal judges in Boston could suspend or even disbar him. Full story »

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