Archive for the ‘Law’ Category

Earlier this year, an Akron Ohio Mom (Kelly William-Bolar) was ordered to jail for allegedly “falsifying documents” that permitted her daughters to attend a school in the next district over. Not fined, jailed! She used her father’s address for residency purposes because she did not want her daughters attending a presumably dangerous school which, according to a CNN report, had “only met 4 of the 26 standards of the Ohio Department of Education Report Card.” She wanted her daughters to receive a quality education in a safe environment, and knew that would not happen in the school located closest to her home.

There are so many thing wrong with this decision, I don’t know where to begin.

1. According to the school’s superintendent, Brain Poe, “If you’re paying taxes on a home here… those dollars need to stay home with our students.” What if you are not paying taxes on a home, what if you live in an apartment in his district? Does that mean apartment dwellers are ineligible to attend his schools? Does it mean that if you do not have school-age children you do not have to pay the portion fo the property taxes attributable to the schools in your district? Seriously Poe?

2. The Mom was alleged to have “defrauded” the school district out of $30,000. If the schools are equal throughout the state, why would this one cost $30,000 more than the one that her daughters were to attend by law? This doesn’t make any sense.

3. Why are school districts who claim to be so desperate for money hiring private investigators to torment private citizens? Is there no right of privacy left in the United States? This school, a governmental agency, was spying on a private citizen. Didn’t the Judge in this case even remember that this Mom has a Constitutional right to privacy and certainly not to be spied on by the government. Doesn’t the School District have liability here for a warrantless search and privacy violations?  

4. The Supreme Court of Ohio has declared the way public schools there are financed is unconstitutional FOUR times. Does this case not prove that schools in poor neighborhoods are NOT equal to those in wealthier districts? How is this equal treatment under the law?

5. Finally, I can’t believe how obtuse this Judge was. First the Honorable Patricia Cosgrove indicates that SHE must follow the law as written and send this woman to jail for violating the law and then sends a letter to the State Department of Education indicating that William-Bolar’s teaching certificate should not be pulled. In other words, don’t uphold the law like I did. She actually has the nerve to tell another branch of government to break the law because of extenuating circumstances. If Cosgrove had been thinking when she handed down the sentence, she would have followed the intent of the law and taking into consideration the equities of the case.

Did she not see the irony of sending that letter? Worse yet, did she forget the Constitutional rights of this Mom?


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The District Court in Florida recently declared the new Health Care Law unconstitutional. Of course, this decision will still need to be appealed to the Court of Appeals and the Supreme Court, but the Judge carefully outlined the reasons for his declaration in the written opinion. Although I would have listed a few more reasons, I was impressed with some of the rationales he listed. I especially liked the fact that he went back to the actual language in the Constitution as it was intended when written. I know that is not the popular way to interpret the Constitution, but it does make sense. To summarize: Interstate commerce means interstate trade. Trade means the movement of goods in exchange for money. Insurance does in no way fall within this category. Insurance is a service, not a physical product which can travel in a truck on I-35 between Texas and Illinois. Basically, despite all of the reasons you may have heard about why this law is unconstitutional, the best one is the simplest one: it is not authorized under Section 1 Article 8 – the section which grants Congress the power to pass laws. The powers in this Article were enumerated in order to LIMIT federal government. As you can imagine this was a huge concern to our founding fathers.
There has been some talk of repealing the Health Care Act, but I hope this doesn’t happen. I would like to see the Supreme Court rule on this issue. If they do interpret the Constitution the way it was intended, they will find that Congress did not have the authority to pass this Act and it would open the door for States to bring other lawsuits concerning federal laws outside the purview of Article 1, Section 8, of the Constitution. I can envision California taking on the establishment of the DEA, for example, or the passing of laws that criminalized the possession of marijuana and made it a federal offense under the Commerce Clause. (Remember, police power is reserved to the States so the only way these laws could be passed and these agencies established was through a tenuous connection to interstate commerce. Of course, the commerce clause wasn’t intended to criminalize trade. Well, at least the sale of marijuana would fall under the definition of trade. The problem is that on the one hand Congress wants to force citizens to buy the services of for-profit corporations and on the other wants to prevent citizens from purchasing a plant. Neither type of law is authorized in the Constitution. Of course, our founding fathers were not averse to marijuana – it is believed that George Washington grew hemp on his farm.)
The bottom line is that the federal government has gotten out of control of the people. It is no longer acting as a government for the people, but rather as a government for more government. Congress is passing laws in areas beyond what the Constitution permits. This is not a right v. left issue or a liberal v. conservative issue. It is simply a matter of whether or not the States are going to permit the Federal government to continue down this road. It is up to us as citizens to elect state officials who will stand up to federal encroachment. The best way to get our country back and our economy out of the gutter is to vote. Vote in your state elections – they really matter.

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If any of you have ever watched Damages on TV you probably wonder where they come up with their plot lines. (If you haven’t seen it, you should – but watch it from the beginning.)  I often tell people they wouldn’t believe half of the insane stuff that goes on in lawsuits. Anyway, in a suit against Chevron concerning their alleged polluting of an Ecuadorean rain forest, it was discovered that one of the expert witnesses had filed fraudulent reports with the court. The expert was hired by the plaintiffs to oversee water and soil tests, but had to return to the US before the reports were prepared. In a multi-BILLION dollar suit, the expert witness essentially signed a blank report that he allegedly believed would be filled in with the actual results. Imagine his surprise when although he recalled finding no significant contamination, the reports with his signature on them indicated that the sites were significantly impacted and required remediation. The “mistake” was discovered when the expert’s name was misspelled on his own correspondence with the court. This apparently alerted Chevron’s attorneys that something was not quite right with this expert’s reports. Can you believe that some guy was actually paid to oversee reports in a case of this magnitude and doesn’t even bother to make sure he signs the actual results?  Now that I think of it, this sounds more like an episode of the Simpsons.

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New technology has made its way into campaign ads. A group that wants to “counter-balance” Meg Whitmans’ financial advantage in the California Governor race has come out with an advertisement using a computer-generated avatar for Meg named “Meg-a-tar.” Meg is the former CEO of Ebay. Although the avatar is not flattering and speaks poorly about Meg Whitman, I’m not sure if it will hurt her campaign or bring about more interest in her campaign among younger voters.  On the other hand, this creation may breach Meg’s right of publicity.  Every person has the right to control the use of his or her own likeness, especially for commercial purposes. These cases usually arise in product endorsement situations, but one could make the argument that only Meg Whitman has the right to create and publish a Meg-a-tar to endorse her own candidacy and that it is actually a breach of this right to use a Meg-a-tar without her consent. I don’t think I would want a Kim-a-tar out there espousing rhetoric that I did not approve. Let me know if you’ve seen the clip, and if so, how do you think Meg should respond?

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Disney acquired Marvel Entertainment last year for quite a chunk of change. One of the most important assets of Marvel is its superhero collection, many of which were developed by Jack Kirby who has since passed away. The heirs of Kirby sent out a notice of copyright termination under Section 304(c) of the Copyright Act to both Marvel and Disney to have the copyrights in their father’s work revert to them. The Copyright Act permits the heirs to terminate the copyrights effective 56 years after the establishment of the copyright – which apparently occurred between 1958 and 1963 when the comics were originally published. On the west coast, Kirby’s children have asked the court for a declaratory judgment acknowledging the validity of the termination notices, spelling out the profit sharing going forward on any co-owned works, the return of their father’s original artwork, and to give their father credit for the movies based on his creations (The Incredible Hulk and X-Men Origins) in the case of Kirby v. Marvel, et. al. SACV10-00289 CJC (C.D. Cal. 2010). On the east coast, in the case of Marvel v. Kirby, 2010-cv-141, (S.D. NY 2010), Marvel is suing the heirs to have the notices declared invalid. Although Marvel claims that its relationship with Jack Kirby was a “work-for-hire,” the heirs allege that Kirby worked out of his home without a written agreement. If this is true, the relationship was most definitely not a work for hire situation. A work-for-hire requires either an actual employment relationship or a written agreement transferring the ownership in works created by an independent contractor. Since Marvel could have easily disposed of both cases by presenting a copy of such a written agreement or proof of employment, one can assume that they are unable to document their position. Since I can’t imagine that Disney was unaware of the ability of Kirby’s heirs to terminate the copyright, my guess is that as a part of the $4.3 billion dollar transaction, Marvel agreed to indemnify Disney for these claims by Kirby’s heirs. (To indemnify means that Marvel will defend Disney at Marvel’s cost and be responsible for any damage award against Disney). This is why Marvel filed the suit instead of Disney. Regardless, the Kirby children have requested a jury trial. When the jury hears how much Marvel made off of Kirby’s work, someone will need to get their checkbook out. Something tells me it won’t be Disney.

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In FTC v. Trudeau No. 10-1383 (7th Cir. order Feb. 19, 2010)., Judge Gettleman held Trudeau (a writer and infomercial fixture) in contempt and tried to sentence him to 90 days in jail because . . . wait for it . . . the Judge received emails supporting Trudeau. The Judge held Trudeau in CRIMINAL contempt, which is a serious matter, because Trudeau’s business website posted the Judge’s email address and urged customers to tell the Judge how Trudeau’s weight loss book had improved their lives. (This is the same Judge that entered a $37.6 million dollar fine against Trudeau and barred him from making infomercials for 3 years in 2007. Needless to say, that judgment was thrown out by the Court of Appeals.) Part of the Judge’s rational for criminal instead of civil contempt was that the barrage of emails interfered with his Blackberry. He also felt that Trudeau was trying to get around his order preventing the introduction of additional evidence by having people email their satisfaction with Trudeau’s books to the Judge. I guess positive customer testimonials are a security issue for the Judge. Maybe he was concerned that a bunch of satisfied customers would storm the courthouse looking for more information.

There are a number of interesting issues that the Judge’s actions in this hearing bring up. First, the Judge indicates on record that his email address was private and implies that Trudeau’s ability to obtain it was due to some illicit activity, however, his email address is listed right on the court’s website at http://www.ilnd.uscourts.gov/judge/GETTLEMAN/rwgpage.htm. Second, he goes on about how the problem with the emails was that they did not relate to the Weight Loss Cures book at issue in this case but the Natural Cures book. (Wow – how terrifying – the customers got their books mixed up.) Third, he characterized Trudeau’s actions as “attacking me as I sit here.” (Receiving emails containing positive comments about a book is somehow threatening to the Judge? Maybe if he put his Blackberry away while he was in court, he’d feel safer.) Fourth, the Judge’s office informed Trudeau’s attorney at 4:00 PM the day before the hearing that he needed to be in the Court at 10:00 AM the following morning but refused to tell him why. (This sounds even more juvenile than the previous statements).

At the morning hearing the Judge demanded that Trudeau apologize, retract his request, label it a “mistake,” and that if Trudeau did not show up at 1:00 PM that he would send the Marshalls out to get him. At the 1:00 PM hearing, Trudeau’s attorney, with Trudeau present, informed the Judge that he had Trudeau do everything that the Judge requested at the 10:00 AM hearing. Despite complying with the Judge’s demands, Gettleman requires Trudeau to surrender his passport, post a $50,000 bond, and stay within the court’s jurisdiction. The Judge also repeatedly states throughout both the morning and afternoon hearings that he believes jail time is appropriate. The Judge then seems to try to egg the FTC on to prosecute Trudeau for contempt as well, but the FTC attorney present politely informs the Judge that he does not have the authority to criminally prosecute a contempt proceeding. Despite that, the Judge orders the FTC to file a response. (Does the Judge really think this is the FTC’s role here?) If you want to read the transcript, see http://www.citmedialaw.org/sites/citmedialaw.org/files/trudeaucontempttranscript.pdf.

I am concerned about this type of seemingly retaliatory action by a Judge. It seems to me that the proper course of action would be for Gettleman to recuse himself and allow someone who is less emotionally invested in the case to take over. I will be following this case to see what the Court of Appeals has to say about this criminal contempt order. To read the brief written for the Court of Appeals go to http://media.ktradionetwork.com/media/Brief_and_short_appendix.pdf.

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In what seems to be a disturbing trend, yet another high school student was punished by school officials for comments made on the internet about the school officials. In Doninger v. Niehoff, the 2nd District Court of Appeals held that the school officials were within their rights to discipline a student for comments made on her blog about the school officials by prohibiting her from running for student council in the next election (she was already an officer). The rational was the “disruption” the comments could cause at the school. The comments at issue were (1) calling the school officials “douchebags,” and (2) encouraging students to email the officials to protest the school’s cancelling of an annual event which she worked very hard to organize. This hardly seems like she was attempting to incite a riot or promote criminal activity. What it sounds like to me is ineffective school officials flaunting their authority and striking out at a high school student – for the simple reason that they could. The discipline was not an attempt to prevent a disruption, that was caused when the school officials cancelled the event, the  so-called discipline was simply an act of revenge.

What is most troubling in this case is that the three-judge panel (which incidentally included Sotomayor) actually stated: “vulgar or offensive speech — speech that an adult making a political point might have a constitutional right to employ — may legitimately give rise to disciplinary action by a school.” Clearly, the judges are aware of the First Amendment. Unfortunately, the judges believe that minors who attend public school have no rights under it.  Why would minors be treated any differently than adults in this type of situation? It is the speech, not the speaker that should be the focus of the inquiry.

What is the real lesson here? In this case, what the school officials have taught these students is that the government (school officials and the court system) can arbitrarily ignore the rights granted to individuals in the Constitution and that the best way to handle disagreements is to get revenge. The students here are learning that there is no right of free speech for them. They are learning that there really is a big brother. I’m ashamed of the school officials and disappointed in the judges. This girl should be given an award for caring so much about school events and school government that she was willing to speak out passionately and seek redress for what she viewed as an unfair act by the officials. After what she’s been through, I doubt she’ll believe she can make a difference. (Either that, or she’ll wind up going to law school.) I think the irony that the punishment was to prevent her from participating in school government is lost on the school officials and judges in this case. Maybe they should take a remedial class in Government 101.

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In the case of Stone v. Paddock Publications, 09 L 5636 (Cook County, IL 2009), an Illinois court issued a subpoena to obtain the identity of an anonymous poster, but then indicated that the poster would be kept anonymous, for a while anyway. This case involves false and offensive postings made to and about a 15 year old boy on the internet. The mother on behalf of the boy filed the suit to obtain the identity of the poster. During arguments, the anonymous poster (hipcheck16) argued through his attorney that his identity should be protected as anonymous political speech under either the Illinois Anti-SLAPP statute or the First Amendment.  

The Illinois court, in citing the case of two Yale law students who were defamed on a website and were able to obtain the identity of the posters – Doe I v. Individuals, 561 F. Supp. 249 (D Conn. 2008) – ruled that the First Amendment does not protect posters’ identities from being discovered when they have engaged in speech which is not protected. The Judge in Stone adopted the 6-part test in Doe: 1. The defendant must be given notice of the subpoena and an opportunity to object, 2. The plaintiff must identify the offending post, 3. The plaintiff must have no other way to discover the identity of the defendant, 4. The subpoenaed information must be necessary to the case, 5. The poster must not have a right to anonymity, and 6. The plaintiff must make an adequate showing that the case has merit.

The Illinois court found that although the first five elements had been met, it could not go so far as to say that the plaintiff had made an adequate showing that the case had merit, because the case against the posted had not yet been filled. The court took the unusual route of obtaining hipcheck16’s identity, but ordering that it not be revealed except to the plaintiff, her attorney, and the process server until such time as the trail court could rule on the sixth element.

There have been an increasing number of lawsuits being brought against anonymous posters of comments on the internet. Although the courts throughout the states have varied widely in their reasoning for issuing or denying subpoenas, this Judge seems to be trying to balance the rights of the poster with the right of the plaintiff to bring an action for defamation. While some critics of these types of rulings have indicated that the plaintiff should not have to prove her case prior to discovering the identity of the defendant, others have argued that it is necessary to protect the right of free speech. Regardless, the First Amendment  does not give anyone the right to defame another.

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This past weekend I went to the LBJ Library & Museum on the University of Texas campus to view one of 25 copies of the “Broadside” Declaration of Independence. Because it was on a journey to only six cities, I was excited that Austin was one of them. According to the information provided by the Library, on July 4, 1776, the official printer of Congress, John Dunlap, printed 200 copies of the Declaration to be distributed throughout the colonies.

In doing a little research into repositories of copies of the Declaration and Constitution, I discovered a blog post by Zach Lowe on the Am Law Daily. A hand-written copy of a draft of the Constitution was recently uncovered by Lorianne Updike Toler who is one of the founders of the Constitutional Sources Project. This organization’s purpose is to make the documents relating to our country’s origin available online.

Toler came across this draft while perusing some of the 21 million documents in the Historical Society of Pennsylvania’s collection of documents. This version, previously unacknowledged, was handwritten by James Wilson, one of the drafters of the Constitution. (He was also a signer of the Declaration). It was found on several pieces of paper which had become separated entitled “The Continuation of a Scheme.”

All of these documents are so important to understanding, not just U.S. history, but how momentous in the world’s history this series of event was. It angers me when people say we can only fix our government by fixing the Constitution. There is nothing wrong with the Constitution. We don’t need to fix it; we need to enforce it.




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First let me say that I love those FreeCreditReport.com commercials. I sincerely hope they do not take them off the air. The problem is that the commercial itself does seem to imply that if you go to this website, you will receive a free copy of your credit report. The commercial does not make it clear that when you go to the website and enter your information, you are also agreeing to a monthly charge of $14.95 for a credit monitoring service.

One of the users of the website has now brought a class action suit in a California federal court against Experian, the website owner, claiming false advertising. As my clients and students are well aware, these are the exact types of lawsuits I have been warning website owners about for years.

This may be a hard case to prove because once you are on the FreeCreditReport.com website, the terms seem pretty clear. The website indicates on the landing page that this credit report is provided free to those who agree to try the credit report monitoring program, which program can be cancelled within 9 days. It is not hidden on a separate page, and even includes a statement that this is not the free credit report required by federal law. In addition, although many people are aware of this requirement that credit bureaus must provide a free copy of your credit report on an annual basis, I doubt people are mistaking the catchy commercial for the actual site (www.annualcreditreport.com).

The real problem is that now Experian will have to defend itself in federal court. As with most class actions, Experian will probably have to settle it. I’d really like to see them fight it. Regardless of how it turns out, I hope those commercials continue. http://www.youtube.com/watch?v=7dFbNw3bpKE

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