On Thursday, the U.S. Surgeon General told us yet again what we already knew: cigarettes are bad. In an attempt to ratchet up the fear factor, last week’s shiny new report told us that the chemicals in cigarette smoke begin to damage the body from the first puff. Ho hum.

But Thursday’s news was not all bad for smokers. Ronna Woods found out that she’ll be getting workers’ compensation for a tumble she took when satisfying her need for a cigarette.

Ronna worked as a nursing assistant for Jonesboro Care & Rehab Center in Arkansas.

Part of her job entailed mandatory attendance at training seminars every other Friday from 10 a.m. until 11 a.m. The seminars were held in the center’s dining hall.

From the employee’s perspective, there were only two good things about having to go to the seminar. First, you got paid for the hour. Best of all, this was the time that pay checks were handed out.

On Friday, October 24, 2008, Ronna dragged herself to the bi-weekly training session, hoping it would be a short one. Fortunately, it was. After 20 minutes or so, the center’s director of nursing wrapped things up and told everybody to queue up for their paychecks.

The line was long because of the 200 employees in attendance. Rather than dealing with the long line, Ronna decided to head outside to the center’s designated smoking area and have a cigarette.

After a few minutes, Ronna had had enough of the cold and decided to go back inside to get her paycheck. As she walked over to a trash can with her lighted cigarette in her hand, Ronna fell on the pavement and broke left arm.

Naturally, Jonesboro Care & Rehab didn’t want to pay Ronna workers’ compensation benefits for the injury, so it argued that her fall did not occur in the course of employment.

The Arkansas Workers’ Compensation Commission ultimately awarded benefits, but that award was overturned by the state court of appeals.

Ronna’s good news on Thursday was that the Arkansas Supreme Court had stepped in and concluded that Ronna’s broken arm was a covered injury.

The court rejected Jonesboro Care & Rehab’s contention that state law mandated the denial of Ronna’s claim because she was hurt while satisfying a personal need rather than while furthering her employer’s interests.

Noting the deference afforded the administrative proceeding below, the state’s high court concluded that “a reasonable person could reach the same decision as the Commission based on the facts in the record and find that [Ronna] was continuing to advance her employer’s interests, at least indirectly, by remaining on the premises until she had received her paycheck, filled out any necessary paperwork, and clocked out.” (Jonesboro Care & Rehab Center v. Woods) 

This decision makes all the sense in the world. On the day of her injury, Ronna clocked in at 9:58 a.m. She was injured before she clocked out.

The center provided employees with paid breaks during the normal work day and the employer facilitated those employees with a smoking habit by providing a designated smoking area outside.

But for her employment obligations, Ronna would not have been injured, so it’s only fair that she be compensated for those injuries.

- Pat Murphy

patrick.murphy@lawyersusaonline.com

Leave it to hypersensitive school officials to spoil the good times of the Christmas season. For a change, it’s nice to see the courts stepping in and telling the zealots that they’ve gone too far.

The message has been driven home in a civil rights lawsuit against two principals of elementary schools in the Plano Independent School District in Texas. Lynn Swanson is the principal at the Thomas Elementary School. Jackie Bomchill is the principal of Rasor Elementary.

Each year, every elementary class in the school district hosts a “winter break” party at which students are allowed to exchange “goodie bags” containing gifts.

For Swanson and Bomchill, evidently it’s not enough that “Christmas” has been cleansed from the name of the parties. No, these principals are alleged true believers, who according to some parents have taken it upon themselves to ensure that not a single religious reference makes it past the classroom door.

For example, at the December 2001 winter break parties at Thomas Elementary, school officials allegedly searched goodie bags for anything with a religious taint.

That’s how Michaela Wade was nabbed. For her classmates, Michaela had brought pencils inscribed with the phrase “Jesus is the Reason for the Season.”

The school’s guardians pulled Michaela’s pencils from her gift bags and Swanson allegedly was soon on the phone telling Michaela’s mother about how unacceptable such gifts are.

In 2003, third-grader Jonathan Morgan was another unfortunate caught in the Thomas Elementary sting operation.

Jonathan had the audacity to bring candy-cane-shaped pens as gifts for his classmates. The problem with Jonathan’s candy-cane pens was that they came with laminated cards attached that told the story of the supposed Christian origin of candy canes.

Upon hearing of the insidious candy-cane pens, Swanson allegedly had Jonathan and his father intercepted at the classroom door. There, they were told that Jonathan could leave his goodie bags at the school library or distribute them off school property, but could not bring them into the classroom.

While Swanson was policing the winter celebrations at her school, Bomchill was allegedly taking similar steps over at Rasor Elementary. Student Stephanie Versher claims that Bomchill stopped her from handing out free tickets to a Christian drama.

On another occasion, Bomchill allegedly threatened to have Stephanie kicked out of school for handing out pencils inscribed with the phrase “Jesus loves me this I know for the Bible tells me so.”

The parents of Jonathan Morgan, Stephanie Versher and Michaela Wade eventually grew tired of the secularist crusade in the schools, so they decided to do what good parents do: they sued.

The parents alleged that Swanson and Bomchill had engaged in religious viewpoint discrimination in violation of their children’s First Amendment rights.

Swanson and Bomchill claimed immunity, arguing that the First Amendment does not apply to elementary school students.

Recently, the 5th Circuit disabused Swanson and Bomchill of that notion. (The court withdrew an earlier opinion in the case.)

“In light of the overwhelming precedent and persuasive authority to the contrary, it is unsurprising that [Swanson and Bomchill] can point to no case stating that elementary school students are without protection under the First Amendment from religious-viewpoint discrimination, absent evidence of disruption to the classroom or subversion of educational mission. …

“[The principals] thus had fair warning that the suppression of student-to-student distribution of literature on the basis of religious viewpoint is unlawful under the First Amendment with respect to elementary school students. Therefore, [they] are not entitled to qualified immunity,” the court said. (Morgan v. Swanson)

So Swanson and Bomchill’s last resort is show that the children were disruptive in handing out their religious trinkets. The guess here is that the students’ parents would welcome the attempt, and with the case in this posture, the parties are heading towards a settlement.

- Pat Murphy

patrick.murphy@lawyersusaonline.com

This brave new world of electronic communication has multiplied the avenues for the boorish to harass the innocent. That development is forcing courts to apply local harassment statutes to situations the drafters may not have anticipated.

Take the case of Alex C., a New Hampshire lad who faced harassment charges based on an instant messaging exchange with the mother of a friend.

Alex’s troubles began when his friend Nicci ran away from home. Rachel K., Nicci’s mom, wanted to find her. On the morning of Feb. 28, 2009, Rachel sought to get some information on Nicci’s whereabouts by using her daughter’s AOL Instant Message account.

For those unfamiliar with instant messaging, it is a form of online communication which allows users to send and receive messages in real time.

Rachel, using Nicci’s screen name, sent out some inquiries and Alex responded.

At first, Alex thought he was conversing with Nicci. When he realized he was communicating with Nicci’s mother, instead, he became quite peeved and sent Rachel a series of expletive-laden instant messages beginning around 11:20 am and ending around 12:20 pm.

The gist of these messages was that Rachel needed to lose some weight and that she was otherwise a “stupid f***ing b****.”

Rachel complained to police and a juvenile court judge found Alex delinquent for violating the state’s harassment statute.

The law makes it a misdemeanor for a person to make “repeated communications at extremely inconvenient hours or in offensively coarse language with a purpose to annoy or alarm another.”

The case made its way up to the New Hampshire Supreme Court and the conundrum there was whether Alex had made “repeated communications” within the meaning of the statute.

Alex argued that he hadn’t because all of his messages to Rachel had occurred in a single instant messaging session. In effect, Alex likened his communication with Rachel to a single telephone call.

But late last month the New Hampshire Supremes concluded that the state’s harassment statute was sufficiently clear enough to encompass multiple comments made in the course a single instant messaging conversation.

“[W]e view instant messaging as the direct technological progeny of e-mailing,” the court said. “As such, we consider the process of instant messaging, not necessarily as some monolithic entity — a single conversation, but as a series of discrete electronic messages between two or more individuals.”

The court explained that, as in the case of e-mail, “the sender composes each instant message on a computer keyboard; the sender physically triggers each instant message to be sent by one computer and received by another via the internet; and the recipient may then read each instant message on a computer screen. …

“While sending an instant message may invite a response, and may even initiate an instant messaging conversation, it does not necessarily have to do so. In that sense, we believe that an instant message is similar, not to a telephone conversation, but to a telephone call that reaches an answering machine instead of the ear of the telephone call’s intended recipient. In both cases, a message has been imparted.” (In re Alex C.)

So the delinquency finding against Alex stands, and he and others like him in New Hampshire will have to be more mindful of their Ps and Qs when communicating over the Internet.

- Pat Murphy

patrick.murphy@lawyersusaonline.com

There once was a happy bear who lived in a faraway place called the Massachusetts Wood.

His name was Winston “Pooh” McGhee. The jolly old bear made sure everyone knew his name by having “Pooh” tattooed on his arm.

Winston Pooh and his friends loved a magic powder that made them happy. Being a friendly bear, Winston Pooh made sure all his friends had as much magic powder as they wanted. And they wanted a lot of magic powder.

Busy Winston Pooh!

But the Great Owls of the Massachusetts Wood proclaimed that no one should have magic powder.

To make sure they were obeyed, the Great Owls sent forth Constables McSweeney and Stone to catch anyone who had magic powder. Constables McSweeney and Stone took anyone they caught to a dark, dank cave where they were never heard from again.

Scared Winston Pooh!

Winston Pooh did not want to go to the dark, dank cave. So he thought and thought, and thought some more, until he came up with a grand idea to hide his magic powder. Winston Pooh stuck his packets of magic powder in the cleft of his nether region.

Constables McSweeney and Stone would never think of searching his stinky nether region. Who would? Ha, ha!

Clever Winston Pooh!

But one bright sunny day in the Massachusetts Wood, a bear who was no friend told Constables McSweeney and Stone that Winston Pooh had magic powder.

Constables McSweeney and Stone looked for Winston Pooh and found him in his room at a local inn. They searched the room and Winston Pooh’s pockets, but could find no magic powder.

Stumped, Constable Stone thought and thought, and thought some more, until he came up with a grand idea. Constable Stone ordered Winston Pooh to drop his trousers and shorts so he could take a look at Winston Pooh’s nether region.

Winston Pooh protested, saying he didn’t want Constable Stone to “stick a finger up [his] ass.”

Constable Stone assured Winston Pooh that he had no such plan, he only wanted a look.

Sure enough, when Winston Pooh dropped his trousers and shorts, Constables McSweeney and Stone saw packets of magic powder sticking out of Winston Pooh’s nether region.

Trapped Winston Pooh!

Winston Pooh pleaded to the Lord High Magistrates of the Massachusetts Wood that he not be sent to the dark, dank cave. Winston Pooh said it was unfair of Constables McSweeney and Stone to have him drop his trousers and shorts when they had no reason.

But the Lord High Magistrates of the Massachusetts Wood said Constables McSweeney and Stone had good reason because they had identified Winston Pooh by his tattoo. And besides, Winston Pooh was a naughty bear. (U.S. v. McGhee)

So Constables McSweeney and Stone took Winston Pooh to the dark, dank cave, where he was never heard from again.

Sad Winston Pooh!

- Pat Murphy

patrick.murphy@lawyersusaonline.com

Who can predict affairs of the heart?

Certainly it never occurred to one Los Angeles deputy sheriff that he was looking at his future wife when he spotted a prostitute standing on a street corner back in August 2002.

At the time, Emir Bautista was a six-year veteran of the Los Angeles County Sheriff’s Department. According to court records, Bautista was on duty when he crossed paths with Shawn Crook. Bautista did not know Crook, but correctly surmised that she was a prostitute.

Bautista stopped to have a chat. He wasn’t going to arrest Crook. No, Bautista wanted to get to know and understand her, and with that insight perhaps help her onto the path of reform.

An unlikely friendship developed from that first conversation between the cop and the prostitute. Bautista later gave Crook his home telephone number. Crook didn’t have a car, so Bautista would give her a lift to methadone clinic where she was receiving treatment for a heroin addiction. Concerned for her safety, Bautista also gave Crook rides home after she finished working the streets at night.

Their friendship eventually blossomed into a romance.

But the love affair was a definite problem for Bautista because the sheriff’s department has a policy which prohibits deputies from engaging in personal relationships with known criminals.

Fellow officers who learned of what was going on warned Bautista that it was not a “smart idea” for him to continue his association with Crook, but Bautista wouldn’t listen.

In August 2003, Bautista and Crook moved in together.

Of course, Bautista was not going to be able to hide his relationship with Crook forever, and sure enough someone tipped off the higher ups at the sheriff’s department. An investigation ensued which laid bare the Bautista/Crook romance.

In August 2004, the L.A. Sheriff’s Department terminated Bautista for engaging in a personal relationship with a known prostitute and heroin addict in violation of the department’s prohibited-association policy.

Undaunted, Bautista eventually married Crook. He also tried to get his job back.

After losing his administrative appeals, Bautista filed a civil rights suit alleging that the department’s prohibited-association policy violated his right to freedom of association under the First and Fourteenth Amendments to the U.S. Constitution.

To date, Bautista has lost his legal battle for reinstatement. In the latest development, the California Court of Appeal last month affirmed a summary judgment for the sheriff’s department.

The court recognized that the department “has a legitimate interest in regulating the behavior of its sworn officers to minimize conflicts of interests and protect the credibility and integrity of the Department. Accordingly, anti-fraternization rules prohibiting police officers from socializing with those who they know are engaging in criminal activity have routinely been upheld against constitutional challenges such as Bautista’s.”

Bautista argued that the sheriff’s department could not show that his relationship with Crook actually interfered with the department legitimate interest in preserving its integrity and credibility, and minimizing conflicts of interest.

To the contrary, Bautista asserted that his involvement with Crook had led to her abandoning prostitution and recovering from heroin addiction.

But the department countered with testimony by Chief Richard Martinez to the effect that Bautista’s relationship with Crook had undermined the department’s credibility and standing in the community.

“While we have some doubt whether evidence of actual harm to the Department was even necessary in this case,” the court concluded, “Chief Martinez’s testimony is sufficient evidence that Bautista’s conduct harmed the Department. (Bautista v. Los Angeles County) 

So, it looks as though Bautista won’t be getting his job back as a deputy sheriff. He seems like a genuinely good guy, so let’s wish Emir and Shawn a long and happy life together.

- Pat Murphy

patrick.murphy@lawyersusaonline.com

A state supreme court ruled last week that an employee engaged in protected activity when she copied her employer’s confidential documents and handed them over to a lawyer she hired to pursue discrimination claims .

“[W]e are reluctant to embrace a rule that permits the employer clever enough to include the word ‘theft’ in a termination letter to thereby insulate itself from an entirely legitimate claim that the termination nonetheless has been an act of discrimination,” said the New Jersey Supreme Court on Thursday.

The decision addressed a retaliation lawsuit filed by Joyce Quinlan against Curtiss-Wright Corporation. Quinlan was an executive in the company’s human resources department. In 2003, Quinlan sued Curtiss-Wright for gender discrimination after she was passed over for a promotion.

In pursuing her discrimination claim, Quinlan took it upon herself to review the company’s employment records to uncover documents which might show that Curtiss-Wright engaged in a pattern of widespread gender discrimination.

Quinlan ultimately compiled more than 1800 pages of documents. Some of the documents included the confidential salary information and Social Security numbers of other employees.

Quinlan gave copies of the documents to her attorneys. When Quinlan later came across a negative job appraisal of the guy who got the job Quinlan had wanted, she turned that appraisal over to her attorneys, too, figuring that showed that Curtiss-Wright saw his gender as more important than his qualifications.

Curtiss-Wright fired Quinlan after it discovered that Quinlan had taken her rival’s job appraisal. Curtiss-Wright claimed it fired her because she violated employment rules by using the company’s confidential information for private purposes.

Quinlan in response added a claim for retaliation in violation of the New Jersey Law Against Discrimination. She alleged that the real reason for her termination was her sex discrimination lawsuit.

A state jury awarded Quinlan $4.1 million in compensatories and $4.6 million in punitives on her retaliation claim. 

A state appeals court overturned that award, placing squarely before the New Jersey Supreme Court the issue of whether Quinlan engaged in protected activity when she copied Curtiss-Wright’s confidential documents.

The court was faced with balancing the right of employers to protect confidential information from disclosure against the right of discrimination plaintiffs to have access to evidence that might prove their case.

The court tried to split the baby on this one, adopting a multi-factor test balancing such factors as the strength of the employer’s confidentiality policy and the manner in which the employer obtained the information in her case.

The guess here is that plaintiffs’ attorneys will be mighty pleased with the application of the test in practice.

The court protested that its decision would not open the “floodgates” to the taking of confidential information, cautioning that “employees may still be disciplined for that behavior and even under the best of circumstances, run the significant risk that the conduct in which they engage will not be found by a court to fall within the protection our test creates.”

But it seems that a jury’s sympathies will generally favor the employee in this regard, as it did in Quinlan’s case.

Yes, Quinlan certainly couldn’t be happier because the court’s application of its new balancing test resulted in the reinstatement of the $8.7 million verdict in her favor.

“[W]e find ourselves in agreement with the distinction that the trial court drew,” the court said. “The trial court correctly told the jury that [Quinlan's] act of taking the documents, including [her rival's] appraisal, was not protected and that the employer was free to terminate her for doing so. …

“In its charge, the trial court asked the jury to decide whether the employer fired her for taking the documents or for pursuing her claim that the failure to promote her wasdiscriminatory. Our application of our balancing test compels us to conclude that the trial court’s approach was the correct one. When presented with that question, the jury found for plaintiff, concluding that she was the victim of retaliatory discharge. We find no warrant to interfere with that finding.” (Quinlan v. Curtiss-Wright Corporation) 

- Pat Murphy

patrick.murphy@lawyersusaonline.com

What a great way to make money! Buy an old house, fix it up, and then resell it for a tidy profit. Let the good times roll!

Of course, the A&E reality show “Flip This House” well documents how painful the process can be.

As a homeowner myself, the wallet trembles at the thought of home improvement. In fact, the whole idea conjures up images of Tom Hanks’ misadventures in “The Money Pit.“

Sure, there are professional house flippers who are good at what they do and who can count on making a handsome living from their dealings.  

But given the speculative nature of the real estate market, it still comes as something of a surprise that a California jury would award $600,000 in lost profits to an experienced house flipper who was snubbed in his efforts to purchase a decrepit San Francisco home.

The case had its genesis in the salad days, before the U.S. housing bubble burst.

In 2002, Dennis Wong and Yui Hei Chan came across a juicy property on Greenwich Street in San Francisco. The house was a ripe plum, very old, damaged, and unoccupied.

Wong and Chan had experience as partners in house flipping. Wong and his wife, Donna, were in the business of purchasing investment properties. Chan was a licensed general contractor who had been involved in remodeling and building houses.

During the course of their informal partnership, Wong would buy a property, Chan would fix it up, and the two would split the profits on resale.

With the Greenwich Street property in their sights Chan and Wong came to an oral agreement that Wong would buy the property and Chan would remodel or rebuild it. Under the deal, Chan was to receive 20 percent of the profit when the home was resold.

Wong purchased the property for $711,000 and Chan started making design plans and lining up permits for the project.

Unfortunately, Wong died unexpectedly on December 27, 2002, three months after purchasing the Greenwich Street home.

Chan wanted to proceed with the project and created Greenwich S.F., LLC for the purpose of purchasing the Greenwich Street home from Donna, Wong’s wife. Donna initially agreed to sell but later backed out of the deal, apparently thinking that Chan was trying to cheat her.

Chan sued Donna for breach of the real property sales agreement and came out smelling like a rose: a jury awarded him $600,000 in lost profits, among other damages.

Yesterday, the California Court of Appeal rained on Chan’s parade by overturning the award for lost profits.

No, the court did not decide that lost profits are never recoverable for breach of a real property sales agreement. To the contrary, the court took the step of expressly recognizing that state law allows an award of lost profits in these circumstances.

“[T]he generally accepted inclusion of lost profits as a component of consequential or special damages in other breach of contract contexts and by other states in the context of breach of contracts to convey real property, taken together, persuade us that lost profits may be awarded as part of consequential damages under [state law] upon a proper showing,” the court said.

Unfortunately for Chan, the court went on to conclude that he had failed to make his case for lost profits.

The court explained that the “lost profits claim was based on the assumption that Greenwich S.F. would have constructed the residence according to the plans and specifications without changes and that the venture would have been profitable. These assumptions were inherently uncertain, contingent, unforeseeable and speculative. …

“The proposed real estate development project here involved numerous variables that made any calculation of lost profits inherently uncertain. We conclude the evidence was insufficient to show lost profits with reasonable certainty.” (Greenwich S.F., LLC v. Wong)

 - Pat Murphy

patrick.murphy@lawyersusaonline.com

A federal judge in Virginia has dismissed a constitutional challenge to the new healthcare reform law passed by the Obama administration.

“I hold that there is a rational basis for Congress to conclude that individuals’ decisions about how and when to pay for health care are activities that in the aggregate substantially affect the interstate health care market,” wrote U.S. District Judge Norman K. Moon in upholding one of the law’s most controversial provisions — the individual mandate.

Liberty University filed the lawsuit on March 23, 2010 — the day that President Obama signed into law the Patient Protection and Affordable Care Act of 2009.

The statute includes an individual mandate that imposes a penalty — collected by the Internal Revenue Service — on those who fail to maintain a minimum level of health insurance beginning in 2014.

In a 54-page decision issued Tuesday, Moon rejected Liberty University’s Commerce Clause challenges to both the individual and employer mandates in the Act, as well as religious-based claims brought by the Christian school. (Liberty University v. Geithner)

A spokesman for the university told The Associated Press that the school plans to immediately appeal Moon’s ruling. 

Liberty University’s lawsuit is one of a number of similar suits that have been filed across the country.

In October, a federal judge in Michigan turned away an attempt to enjoin implementation of the Act, finding the individual mandate constitutional. 

Later that month, however, a federal judge in Florida denied the government’s motion to dismiss a lawsuit alleging that the individual mandate and penalty exceed Congress’s authority under the Commerce Clause.  

- Pat Murphy

patrick.murphy@lawyersusaonline.com

Can anyone really be blamed when a bear drags off and kills a child during a family camping trip? Isn’t it just one of those tragic twists of fate?

The parents of eleven-year-old Samuel Ives believe that Utah officials are ultimately responsible for the bear attack that killed their son. Thanks to a decision by the state supreme court last week, the mom and dad will have a chance to prove their case at trial.

Samuel was killed during a camping trip in American Fork Canyon, Utah. The canyon is located in Uinta National Forest, which is owned by the federal government and run by the U.S. Forest Service.

In the early evening of June 17, 2007 — Father’s Day — the Ives family decided to camp at an unimproved campsite a mile above the Timpanooke Recreation Area. Samuel bedded down for the night in a multi-room tent with his mother, Rebecca Ives, his stepfather, Tim Mulvey, and his six-year-old brother, Jack 

Sometime between 9:00 and midnight, a black bear ripped a hole in the tent, grabbed Samuel’s sleeping bag, and dragged the boy away. Samuel’s body was found about 300 yards from the campsite two hours later.

Bear hunters the next day tracked the animal down and killed it.

What initially appeared to be an unfortunate twist of fate began to seem more like an avoidable accident when Samuel’s parents learned that the there had been a bear attack at the same campsite earlier that day.

Around 5:30 that morning, a black bear entered the campsite and raided the coolers of Jake Francom. The bear then bumped the still-sleeping Francom when he was in his tent and ripped the tent open. The startled camper and his friends managed to scare the bear away.

Francom immediately reported the attack to the Utah Division of Wildlife Resources. The department declared the bear a “Level III nuisance” and sent agents to track down and destroy the animal. The agents failed to find the bear and suspended the hunt for the day — just before the Ives family arrived at the campsite.

Even though the bear in the Francom attack was still at large, state agents failed to post notices warning of the threat and failed to request that the U.S. Forest Service close the campsite.

These failures by state agents led Rebecca Ives and Samuel’s biological father, Kevan Francis, to conclude that the state of Utah was liable for the death of their son.

In responding to the negligence lawsuit filed by Samuel’s parents, the state contended it was immune under the “permit” exception to Utah’s governmental immunity statute. 

The permit exception preserves the state’s immunity if the injury results from the failure of state agents to issue, deny, suspend or revoke a permit, license, or similar authorization.

The state argued that the permit exception applied in Samuel Ives’ case because his death arose out of, or in connection with the state’s alleged negligence in failing to request the U.S. Forest Service to issue an order closing the campsite where the bear attack occurred.

A week ago, the Utah Supreme Court rejected this argument and overturned the dismissal of the wrongful death suit brought by Samuel’s parents.

The court reached this conclusion based on the simple fact that the bear attack occurred on land controlled by the federal government rather than the state of Utah.

The court explained that it is “undisputed that the federal government was the only entity that had the authority to issue, deny, suspend, or revoke any permit, license, certificate, approval, order, or similar authorization related to the campground at issue and was the only entity that could order the closure of the campground, even temporarily. Thus, the State did not perform any act that falls within the scope of the permit exception.” (Francis v. Utah)

- Pat Murphy

patrick.murphy@lawyersusaonline.com