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Monthly Archives: November 2011

Lawyer in hot water for calling judge a ‘lying, cheating b- – - -’

Lawyers need to keep their tempers in check no matter how frustrating it can be dealing with judges who tend to move to the beat of their own drummer. That lesson was underscored recently by an Ohio lawyer who nearly found himself out of business after letting his temper get the best of him.

Back in 2010, Edward Michael DiCato, an attorney from Green, Ohio, desperately needed Summit County Common Pleas Judge Mary Margaret Rowlands to get her behind in gear and approve certain fee applications he had before the court.

DiCato called Judge Rowlands’ bailiff about the fee applications and was apparently unhappy with the answers he received concerning when they would be approved. Rather than biting his tongue, DiCato vented his frustration by calling the judge a lying, cheating bitch.

DiCato may have thought he was exercising his First Amendment rights, but the judge didn’t see it that way when she heard about the name-calling.

Judge Rowlands issued an order directing DiCato to appear and show cause why he should not be held in contempt. DiCato appeared at the contempt hearing and pleaded guilty, making the excuse that he had been upset about his pending fee applications and had been taking oxycodone for a chronic back condition.

Despite his apology, the judge found DiCato to be in direct criminal contempt for calling into question the dignity of the court as well as the character and reputation of a sitting judge. He was sentenced to 48 hours in the Summit County Jail, suspended on the condition that he refrain from similar conduct in the future, and ordered to pay a $500 fine.

If DiCato thought that was the end of the matter, he was wrong. The Akron Bar Association filed a disciplinary complaint charging DiCato with misconduct.

The Ohio Supreme Court’s Board of Commissioners on Grievances and Discipline decided that DiCato had engaged in misconduct and recommended that he be suspended for six months. Luckily, the board recommended that the suspension be stayed on condition that DiCato mind his manners.

Earlier this month, the Ohio Supreme Court adopted the board’s recommendation in full.

“We agree that DiCato engaged in undignified and discourteous conduct that was degrading to a tribunal by making a false statement, either intentionally or with reckless disregard for the truth, impugning the integrity of Judge Mary Margaret Rowlands. His conduct adversely reflects on his fitness to practice law and warrants the sanction recommended by the board,” the court said. (Akron Bar Assn. v. DiCato

Members of the bench have a strong instinct to protect the herd, so DiCato should probably count himself lucky that the justices on the state supreme court decided not impose a harsher sanction for his offending Judge Rowlands. We can only hope that the judge has gotten around to approving DiCato’s fee applications. 

– Pat Murphy

patrick.murphy@lawyersusaonline.com

N.Y. probationer can sue drug testing firm for negligence

A New York appeals court decided last week that a man whose probation was jeopardized by an erroneous drug test could pursue a negligence claim against the private firm that performed the test.

“[W]e hold that a drug testing laboratory may be held liable in tort to the subject of a drug test for failing to use reasonable care under the circumstances, notwithstanding the absence of a formal contractual relationship between the drug testing laboratory and the subject of the drug test,” concluded the New York Appellate Division, 2nd Department, in Landon v. Kroll Laboratory Specialists.

The lawsuit was brought by Eric Landon. In 2002, Landon was sentenced to a five-year term of probation after being convicted of forgery in Orange County, New York. As a condition of his sentence, Landon submitted to periodic and random drug testing at the direction of his probation officer. 

The Orange County Probation Department contracted with Kroll Laboratory Specialists, Inc., a Louisiana corporation, to provide drug screening services.  

On Dec. 17, 2007, Landon provided an oral fluid sample for testing. Landon’s probation officer collected the sample using a device provided by Kroll. The oral sample was sent to Kroll for testing. The laboratory later reported that the sample provided by Landon contained amounts of cannabinoids which exceeded the screen test cutoff level of 1.0 ng/mL.

Based on the laboratory report that Landon had tested positive for marijuana, the state commenced proceedings to revoke his probation.

Fortunately for Landon, on the same day that he provided the oral fluid sample for testing by Kroll, he provided a blood sample for drug testing by another company. The independent test revealed that Landon’s blood was negative for illicit or controlled substances on Dec. 17, 2007.

After winning his fight with the state to stay out of jail, Landon sued Kroll for negligence. At the heart of his lawsuit was the claim Kroll used an improper screen test cutoff level of 1.0 ng/mL to generate a “failed” test result report.

According to Landon, the manufacturer of the device used by Kroll for the collection of oral fluid samples recommended a screen test cutoff level of at least 3.0 ng/mL. Landon further alleged that the industry-wide standard for forensic drug testing required a cutoff level of 4.0 ng/mL.

In addition, Landon argued that Kroll should have used other scientific methods to confirm its test results before sending a report to the county saying he had tested positive for marijuana.

Kroll responded to the lawsuit by arguing that, because the laboratory’s contract was with the county, it had no duty of care to third parties like Landon and other probationers. A state trial court accepted this argument and dismissed Landon’s lawsuit.

Last week, the state appeals court reversed, deciding to recognize a cause of action for negligent drug testing outside the context of a contractual relationship.

In recognizing a duty of reasonable care when there is no privity of contract, the court rejected the laboratory’s argument that it was exposing drug testing companies to “limitless liability.”

The court explained that the “duty alleged in the complaint relates only to a narrow class of specific and readily identifiable individuals whose biological samples were accepted and tested for the defined contractual purpose. The nexus between the defendant, as the testing party, and the plaintiff, as the subject of the test, was not remote or attenuated, and it existed at the time the alleged negligence occurred.”

The court further found a compelling societal interest in having drug testing companies answer for mistakes that injure third parties.

“The importance attached to the results of drug tests can hardly be overstated,” the court observed. “Indeed, the results of drug tests may form the basis for decisions affecting the very core of people’s lives. A positive test may result in the loss of current employment, the forfeiture of retirement benefits and pension earned throughout the course of a lifetime of service, and the elimination of prospective employment opportunities. Moreover, a positive toxicology result may bear heavily on child custody decisions.”

The court concluded that, “[g]iven the importance drug testing holds in the management of modern affairs and the costs that inaccuracies may exact on society, it is paramount that incentives exist to minimize the risk of erroneous test results.”

– Pat Murphy

patrick.murphy@lawyersusaonline.com

Posner compares plaintiffs’ lawyer to ostrich

Ya gotta love Judge Richard Posner of the 7th Circuit. Apart from having a legal mind that outclasses those of the more recent additions to the Supreme Court, the judge has a playful streak that livens up the dry business of reviewing federal court decisions.

By way of example, there’s an opinion issued the day before Thanksgiving in which Posner compared a plaintiffs’ lawyer who turned a blind eye to controlling precedent to an ostrich that buries its head in the sand. The opinion draws a laugh by actually featuring one photograph of an ostrich, and another of a suit-clad man, presumably a lawyer, with his head in the sand.

“The ostrich is a noble animal, but not a proper model for an appellate advocate,” wrote Posner in Gonzalez-Servin v. Ford Motor Company

The plaintiffs in Gonzalez-Servin are among those who alleged that they suffered injuries as the result of defects in Bridgestone/Firestone tires installed on Ford vehicles in Latin America. The cases were consolidated before a federal judge in Indiana who transferred a number of the lawsuits to the courts of Mexico on the basis of forum non conveniens.

The Gonzalez-Servin plaintiffs appealed the transfer order to the 7th Circuit and their case was consolidated with a similar appeal from a transfer order in multidistrict litigation for HIV-tainted blood products.

However, both appeals were apparently doomed to failure because the transfer orders were entirely consistent with Abad v. Bayer Corp., 563 F.3d 663 (7th Cir. 2009).

Oddly enough, the plaintiffs’ attorney in Gonzalez-Servin, David S. “Mac” McKeand of Houston, Texas, didn’t even mention Abad in his appellate briefs.

Posner didn’t think it was merely an oversight that McKeand made no attempt to distinguish Abad. Noting that it was likely that similar appeals would be generated by the underlying multidistrict litigation, Posner suggested that “maybe appellants think that if they ignore our precedents their appeals will not be assigned to the same panel as decided the cases that established the precedents. Whatever the reason, such advocacy is unacceptable.”

Posner then rolled out the amusing ostrich comparison.

“The ‘ostrich-like tactic of pretending that potentially dispositive authority against a litigant’s contention does not exist is as unprofessional as it is pointless,’” the judge wrote.

– Pat Murphy

patrick.murphy@lawyersusaonline.com

NYC lawyer escapes discipline for ghostwriting

A New York City immigration lawyer found herself before the 2nd Circuit’s attorney discipline committee, facing a plethora of charges for sloppy practice before the court.

Yesterday, the court decided that the lawyer fully deserved to be sanctioned for everything alleged, with the exception of a charge that she violated a duty of candor by ghostwriting for pro se plaintiffs.

“In light of this court’s lack of any rule or precedent governing attorney ghostwriting, and the various authorities that permit that practice, we conclude that Liu could not have been aware of any general obligation to disclose her participation to this court,” the 2nd Circuit said in In re Liu

The decision addressed Feng Liu’s misguided attempts to handle a heavy load of immigration cases from her New York City law office. Apparently, her caseload had become too heavy back in 2009. The 2nd Circuit referred Liu to the court’s Committee on Attorney Admissions and Grievances to investigate whether she was mishandling her clients’ cases.

The committee concluded that Liu had indeed engaged in “conduct unbecoming a member of the bar,” specifically finding that she had: (1) negligently defaulted on a number of cases in the 2nd Circuit, causing their dismissal; (2) failed to keep her clients apprised of the status of their cases; (3) failed to properly terminate her representation in a number of cases; (4) failed to exhaust administrative remedies for claims later presented to the court; (5) failed to properly supervise less experienced associates; and (6) improperly filed petitions for review knowing that the court was an incorrect venue.

As if that wasn’t enough, the committee determined that Liu violated her duty of candor by helping pro se parties draft and file petitions for review in the 2nd Circuit, without disclosing her involvement to the court.

For all that, the committee recommended that Liu be publicly reprimanded, which seems like a slap on the risk in light of its findings. The 2nd Circuit had no trouble in agreeing that Liu should be disciplined for her sloppy practice and yesterday upheld the public reprimand regarding those matters.

However, the ghostwriting finding gave the court pause because it had never addressed the issue before.

Attorney ghostwriting is problematic because it affords a plaintiff the benefit of the liberal construction rule for pro se pleadings, while shielding the attorney from accountability for his actions. In addition, it would seem to conflict with the requirement of Federal Rule of Civil Procedure 11(a) that all pleadings, motions and papers be signed by the party’s attorney.

The 10th Circuit has admonished an attorney for ghostwriting with those concerns in mind, and a number of district courts have disapproved of the practice.

But the 2nd Circuit acknowledged that the trend is to turn a blind eye, noting that the ABA’s Standing Committee on Ethics and Professional Responsibility concluded in a 2007 ethics opinion that “[a] lawyer may provide legal assistance to litigants appearing before tribunals ‘pro se’ and help them prepare written submissions without disclosing or ensuring the disclosure of the nature or extent of such assistance.”

The ABA committee reasoned that providing undisclosed legal assistance to pro se litigants constituted a form of limited representation permitted under the ABA Model Rules of Professional Conduct.

Just last year, the New York County Lawyers Association Committee on Professional Ethics concluded that that a lawyer may ethically play a limited role in representing a client and ghostwrite documents for court proceedings.

In yesterday’s per curiam opinion, the 2nd Circuit followed the trend, deciding that Liu’s ghostwriting did not warrant discipline.

The court noted that “there is no evidence suggesting that Liu knew, or should have known, that she was withholding material information from the court or that she otherwise acted in bad faith. The petitions for review now at issue were fairly simple and unlikely to have caused any confusion or prejudice.”

The 2nd Circuit panel added that “there is no indication that Liu sought, or was aware that she might obtain, any unfair advantage through her ghostwriting. Finally, Liu’s motive in preparing the petitions – to preserve the petitioners’ right of review by satisfying the thirty-day jurisdictional deadline – demonstrated concern for her clients rather than a desire to mislead this court or opposing parties.”

– Pat Murphy

patrick.murphy@lawyersusaonline.com

Edith’s back! (and gone, again)

Edith Milestone is sorta like that great white shark in Jaws. Just when you think it’s safe to get back in the water …

Last time we saw Edith, the somewhere-around-80-year-old spitfire had been kicked out of the Monroe Senior Center for allegedly threatening the center’s director, Tammy Derrickson.

On Oct. 23, 2008, Edith had gone to the senior center in Monroe, Wis., with euchre on her mind. She was a regular at the center’s “500 Table.”

Other seniors sometimes had a problem with Edith’s company. Apart from Edith’s hair-trigger temper, there was a suspicion that she used a deck of marked cards. Other seniors also didn’t like the fact that Edith was always threatening to sue them for some slight, real or imagined.

On the date of her expulsion, Tammy had approached the euchre table to settle down Edith, who was complaining over her score. There was already bad blood between Edith and Tammy, including the infamous “Thanksgiving Dinner Incident,” which to this day sends shivers down the spines of those who were there (and is simply too horrible to recount here).

Tammy’s attempt to calm down the euchre scoring dispute escalated into a full-blown confrontation. Although accounts differ, Tammy claims that Edith became downright nasty and told her to take the day’s $1 euchre prize and shove it in a place that is generally not mentioned in polite company.

Edith already had numerous “incident reports” filed against her, so the senior center decided that it was high time to ban the disagreeable senior forever.

True to form, Edith sued the city of Monroe under §1983, alleging that her First Amendment rights had been violated by her expulsion from the city’s senior center.

In January 2010, Edith lost her case in the U.S. District Court for the Western District of Wisconsin when Magistrate Judge Stephen Crocker granted the city’s motion for summary judgment.

Given the trivial nature of the case, it was probably a good bet that the federal courts had seen the last of Edith Milestone. But Edith wasn’t about to be discouraged by some measly U.S. magistrate.

Nope, Edith appealed to the 7th Circuit to have her case heard by Judges Diane S. Sykes, Daniel A. Manion and David F. Hamilton.

Yesterday, those judges decided that Magistrate Crocker had it right when he decided that Edith could not maintain a Monell claim for municipal liability. Judge Sykes, who authored the court’s opinion, explained that the problem was that Edith failed to administratively appeal her expulsion to city officials.

“We agree that the Senior Center director and the Senior Citizens Board were not the City’s final policymakers for purposes of enforcing the [senior center's] Code of Conduct. Under state and local law, Milestone had the right to ask the Monroe Common Council to overturn the expulsion order, and her failure to do so precludes municipal liability under Monell to the extent that the claimed constitutional violations stem from the imposition of the ban,” Sykes wrote.

The judge also kicked aside Edith’s facial challenge to the senior center’s code of conduct.

Sykes observed that the code’s “stated purpose is to establish a ‘home away from home’ for visitors to the Senior Center, an environment that is ‘positive,’ ‘dynamic,’ and ‘pleasant and upbeat.’ Considering the specific clientele the Senior Center serves, we think this qualifies as a significant governmental interest.”

Sykes noted that, in a previous case, the 7th Circuit had upheld an amplified sound restriction on a mall adjacent to a library, recognizing a municipal interest in maintaining a quiet library environment.

“Similarly here, the City’s interest in protecting the patrons of the Senior Center from vulgar, abusive language and disrespectful or demeaning treatment by other patrons justifies these provisions,” Sykes said. (Milestone v. City of Monroe

So this will be the end of it, right? If you think that, you don’t know Edith Milestone. I would bet that, in Edith’s mind, the judges on the 7th Circuit are mere pikers. No, she’s probably thinking that justice will be served only when she gets her case before some real judges. 

I’m sure Chief Justice Roberts and his colleagues on the Supreme Court can hardly wait.

– Pat Murphy

patrick.murphy@lawyersusaonline.com

Not gay enough: Bisexual softball players strike out

Ah, sweet irony. From the West Coast comes the story of an organization that exists to fight intolerance imposing its own form of purity test. And don’t cha know, but a federal judge has stepped right up to the plate to rule that switch hitters can be banned from gay softball.

Back in August 2008, San Francisco D2 had the champagne on ice. The amateur softball team had advanced to the final round of the Gay Softball World Series held that year in Seattle, Washington. Steven Apilado, LaRon Charles, and Jon Russ were gearing up with their teammates to bring home the championship trophy.

D2 had beaten the Atlanta Mudcats in the semi-final round. Only the Los Angeles Vipers stood between D2 and glory.

But the D2 juggernaut was about to be derailed.

The Gay Softball World Series is operated by the North American Gay Amateur Athletic Alliance (NAGAAA). In what would appear to be a less than sportsmanlike move, the commissioner of the league’s Atlanta affiliate filed a protest under Rule 7.05 of the NAGAAA Softball Code against six players of the D2 team, including Apilado, Charles and Russ.

Rule 7.05 states that a “maximum of two heterosexual players are permitted” on a world series roster. Such a rule would seem to directly contradict the NAGAAA’s avowed purpose of promoting amateur sports competition “for all persons regardless of age, sexual orientation or preference,” but the contradiction evidently escapes those who run the NAGAAA.

The organization also seems oblivious to the fact that the rule seems to make a back-handed, irrational slap at the ability of gay men to play softball.

Whatever the case, the rule was problematic for Apilado, Charles and Russ based on their alleged bisexuality.

Perhaps the protest was only an underhanded attempt to throw D2 off its game. In any event, with the protest hanging over their heads, D2 proceeded to lose the championship game against the Vipers.

But that wasn’t the end of the matter.

The protest triggered a truly Orwellian proceeding. Apilado, Charles and Russ were called before a protest committee. One by one, the three men were brought into a conference room and subjected to a series of highly personal questions to determine their “predominate” sexual interest.

This was important because  “gay” and “heterosexual” are the only classifications that matter under the NAGAAA’s binary system for defining sexuality.

After suffering the embarassment of being grilled in front of over 25 people (evidently, the NAGAAA was selling tickets to the hearing), the protest committee decided that the men were “non-gay” and, therefore, that D2 was not eligible to compete in the gay world series.

The committee disqualified D2 from the tournament, declared its victories and second-place finish in the tournament forfeited, and recommended that the three men be suspended from NAGAAA softball play for one year.

Apilado, Charles and Russ were not about to stand for it and in April 2010 sued the NAGAAA for sexual orientation discrimination under Washington’s public accommodations laws.

The case landed in the lap of U.S. District Judge John C. Coughenour of the Western District of Washington.

Last May, Coughenour issued a partial order deciding the NAGAAA is an “expressive association” protected under the First Amendment.

In reaching this conclusion, the judge noted that, apart from the NAGAAA’s mission statement, a “brochure distributed in 2008 states that NAGAAA is ‘committed to helping our community,’ ‘Promotes the idea of athletic competition and good physical health in support of the gay lifestyle,’ and ‘Strives for high standards of sportsmanship and conduct to attain fair play on and off the field.’ These goals and activities are similar in many respects to the very goals and activities specifically endorsed by the Supreme Court. NAGAAA is an expressive association.”

On Nov. 10, Coughenour put an end to the plaintiffs’ civil rights claims by deciding that the NAGAAA’s “two heterosexual” rule had an expressive purpose protected by the First Amendment.

This conclusion was helped along by the NAGGAA’s amending its mission statement to specifically distinguish “openly” gay, lesbian, and bisexual individuals from those still in the closet.

“While the precise nature of sexual identity is a subject on which this Court declines to opine, it is safe to say that sexual orientation, unlike race or sex, is generally identifiable by private conduct or public expression,” the judge wrote.

“To determine a prospective member’s sexual orientation, NAGAAA could look at their private conduct or their public expression,” he wrote. “Given that it was NAGAAA’s alleged examination of Plaintiffs’ private conduct that led to claims for invasion of privacy in this case, it is reasonable that an organization seeking to limit participation to gay athletes would require members to express whether or not they are gay athletes.” (Apilado v. North American Gay Amateur Athletic Alliance)

The only good bit of news for Apilado, Charles and Russ is that the NAGAAA will still have to face trial on their claims for breach of contract, emotional distress and invasion of privacy.

– Pat Murphy

patrick.murphy@lawyersusaonline.com

Teacher canned for ‘bonus point abuse’

Principal Jamie Preston couldn’t figure out what the deal was when a new DVD player was delivered to her middle school in Garland County, Arkansas.

When Preston learned that one of her teachers had ordered it, and that it was only the first installment of an order that included two 27-inch TVs and a microwave, the alarm bells started ringing.

The end of Fan Timpani’s employment with the Lakeside School District began on Dec. 4, 2007. It was on that day that a DVD player that she had ordered under the Scholastic Book Club bonus point program was delivered to the district’s middle school.

Timpani, a sixth-grade teacher with 20 years in the district, had an account with the book club through which she ordered books and supplies for her classroom. With each purchase, Timpani accrued bonus points which she could redeem to receive items from the club’s “Classroom Bonus Catalog.”

Ostensibly, the items from the catalog are intended help create a “state-of-the-art learning environment” in the teacher’s classroom. But the crafty marketers at the Scholastic Book Club, in addition to allowing the redemption of bonus points for instructional aids like flip cards and letter vests, also offer items that might entice a teacher on a more personal level.

For example, a teacher can snag a new iPad for 36,000 bonus points. For a mere 14,100 bonus points, a teacher can get a Toshiba camcorder.

Timpani was all in on getting nifty stuff for herself under the bonus point program. According to court records, she had previously purchased two cameras, one for her daughter. And a fax confirmation relating to the DVD player delivered to the Lakeside Middle School on Dec. 4, 2007, informed Principal Preston that Timpani had two TVs and a microwave also on the way.

Timpani was more than happy to see her new DVD player arrive. When Preston brought the item to Timpani’s classroom, the teacher was actually thankful, saying matter-of-factly, “Oh, you brought my stuff down.”

But Preston wasn’t there to make a delivery. The principal wanted to know what the “instructional purpose” was for the items that Timpani had ordered.

According to Preston, Timpani freely admitted that the TVs and DVD player were for personal use and that they were purchased using Timpani’s bonus points from the Scholastic Book Club. Timpani was unapologetic and saw no problem with what she had done.

Of course, there was one BIG problem with Timpani’s use of bonus points to acquire goodies for herself. While Timpani used some of her own money in purchasing books from the Scholastic Book Club, the bulk of the money came from students, the school district and the state. So the bonus points rightly should have been redeemed for classroom aids.

When Preston pointed this out, Timpani allegedly blew a gasket, saying that school officials were “full of crap” for trying to tell her what she could do with her bonus points. In defending her bonus point rights, Timpani offered the rather compelling argument that “this school sucks.”

While such a response wouldn’t have raised an eyebrow had it come from one of Timpani’s sixth graders, it didn’t sit well when coming from a teacher. When Timpani refused to cancel her order for electronic toys, the school district proceeded to set in motion the process for terminating her for violating rules prohibiting the use of school resources for personal gain.

Of course, the self-righteous Timpani challenged her termination in court.

This month, the Arkansas Court of Appeals placed its stamp of approval on Timpani’s firing, rejecting her feeble argument that there was no rule specifically addressing a district employee’s misuse of bonus points.

The court said that Timpani’s contention that the school district was required to include a written policy about such a “minor” topic as bonus points was “not persuasive.”

The court explained that it is “not feasible to include a rule for every issue that might present itself during a teacher’s term of employment. [The school district] presented evidence that the other teachers understood that school policy prohibited the use of bonus points (which they could spend like real money with the book club) for the teachers’ personal use.” (Timpani v. Lakeside School District

Besides, the court found other grounds for Timpani’s termination, noting that the district’s superintendant “also determined that she had argued with the principal when instructed about the bonus-points policy; used loud, intemperate language to the principal in the presence of others; was untruthful about what had happened; accused the principal of lying; and was rude, disrespectful, and argumentative in the meeting with him and the principal.”

As a teacher, Timpani should know all about lessons. And this was a hard one.

But perhaps her students are better off. It speaks volumes about a teacher’s moral compass when a work rule is required for her to understand that it is wrong to reap a personal benefit from funds provided by her students, let alone funds provided by the taxpayer.

– Pat Murphy

patrick.murphy@lawyersusaonline.com

‘Peel out’ doesn’t justify traffic stop

It seems rather odd that a police officer would not have justification to stop a driver after watching him “peel out” in an intersection, but the Alaska Court of Appeals has made a plausible argument as to why such a stop violates the Fourth Amendment.

Those of us who have left our teen years behind, both literally and figuratively, understand that flooring the gas to accelerate from a complete stop is a reckless act. That’s certainly what Alaska State Trooper Lucas Altepeter thought when he observed a truck “peel out” from a stop-sign-controlled intersection in Bethel at around 12:30 a.m. on Sept. 20, 2009.

As Altepeter watched the accelerating truck spin its tires through the beginning of a left-hand turn, it occurred to the state trooper that perhaps the driver had overindulged in adult beverages. So the trooper initiated a traffic stop.

Altepeter knew he had struck pay dirt when he observed that the driver of the truck, Vernon Burnett, had bloodshot, watery eyes, and stumbled a bit when he walked. Further, the trooper’s nose detected the strong odor of alcohol.

Burnett proceeded to flunk field sobriety tests and a portable breath test, so Altepeter placed him under arrest for driving under the influence. A breath test performed at the trooper post showed that Burnett had a blood alcohol content of .162 percent, about twice the state’s legal limit.

So it looked like the state had an open-and-shut case for driving under the influence and Trooper Altepeter could be commended for getting another drunk driver off the road.

Sure, Burnett would argue that the trooper lacked reasonable suspicion to initiate a traffic stop. But the driver had been observed peeling out from an intersection, so he must have been in violation of some state or local law against negligent or reckless driving, right?

Well, the Alaska Court of Appeals had a chance to review Burnett’s drunk-driving conviction. Last Thursday, the court decided that the traffic stop violated the Fourth Amendment. In looking at the issue of whether Trooper Altepeter had reasonable suspicion to initiate the stop, the court first explained that the mere act of peeling out on a public roadway does not violate Alaska law prohibiting negligent driving.

The court noted that the state negligent driving law requires proof that the alleged dangerous conduct actually endangers persons or property. In Burnett’s case, there was no such proof.

“Trooper Altepeter testified that when Burnett accelerated and turned left at the intersection, Burnett’s tires spun one-third to one-half of the way across the intersection. However, the trooper stated that he did not see Burnett engage in any other improper driving. Altepeter did not assert that Burnett’s driving endangered Burnett or anyone else, or that Burnett’s driving put property at risk,” the court said.

But if Burnett did not commit a traffic offense in the presence of a police officer, could the state argue that the mere act of peeling out provided Trooper Altepeter with reasonable suspicion that Burnett was intoxicated?

The court answered this question in the negative, observing that Altepeter “testified that, based on his training and experience, the fact that Burnett spun his tires for that distance caused Altepeter to suspect that Burnett was under the influence. However, Altepeter did not explain what aspect of his training and experience led him to this conclusion, other than the fact that Burnett’s behavior was unusual.”

The court concluded that “that Burnett’s act of unnecessarily spinning his tires, without more, is not a sufficient indication of intoxication to justify a traffic stop for driving under the influence.” (Burnett v. Alaska

Of course, since the evidence of Burnett’s impairment was deemed the fruit of an unlawful traffic stop, Burnett’s conviction for driving under the influence could not stand. So he’s free to peel out on Alaska’s roadways to his heart’s desire, whether intoxicated or not. 

– Pat Murphy

patrick.murphy@lawyersusaonline.com

Sentimental damages recoverable for loss of ‘man’s best friend’

Americans love their dogs. Despite that truism, the general rule has always been that sentimental value is not recoverable in a negligence case involving the loss of a pet.

But if a Texas court decision earlier this month is any indication, perhaps we are about to witness a change to a rule on damages that has been drummed into our heads since law school.

The Texas case involved Kathryn and Jeremy Medlen, who live in Tarrant County. The Medlens loved their dog, Avery, an eight-year-old Labrador mix. On June 2, 2009, Avery escaped from the Medlens’ backyard and was picked up by animal control.

Jeremy learned that Avery was at the animal shelter. He went to the shelter to get Avery, but didn’t have the money to pay the shelter’s fees. According to Jeremy, a shelter employee told him he could return for Avery on June 10 when he had the money. In the meantime, a “hold for owner” tag was placed on Avery’s cage, notifying shelter employees that the dog was not to be euthanized.

Unfortunately, Avery was euthanized on June 7. According to a lawsuit later filed by the Medlens, shelter employee Carla Strickland negligently placed Avery on the list of animals to be euthanized, contrary to the “hold for owner” tag.

In their negligence lawsuit against Strickland, the Medlens sought damages for Avery’s sentimental value because, while being irreplaceable in their hearts, he had no market value.

Strickland answered and got a Texas judge to agree with her that the Medlens’ lawsuit was barred by the generally accepted rule that sentimental value damages are not recoverable for the death of a dog.

But earlier this month, the Texas Court of Appeals changed the course of state law by extending Texas Supreme Court decisions on personal property to the Medlens’ case.

The Texas Supreme Court has held that, where personal property has little or no market value, damages can be awarded based on the intrinsic or sentimental value of the personal property. The Medlens made the compelling argument that, since dogs are personal property under state law, they were entitled to recover the sentimental value of Avery.

In a Nov. 3 decision, the Texas Court of Appeals accepted this rationale and overturned the dismissal of the Medlens’ lawsuit.

“Because of the special position pets hold in their family, we see no reason why existing law should not be interpreted to allow recovery in the loss of a pet at least to the same extent as any other personal property. …

“Dogs are unconditionally devoted to their owners. Today, we interpret timeworn supreme court law in light of subsequent supreme court law to acknowledge that the special value of ‘man‘s best friend’ should be protected,” the court said. (Medlen v. Strickland

As the owner of a chocolate Lab myself, I applaud the decision. I don’t know what I’d do if the same thing happened to my Hedy. On the other hand, I have to admit that getting cash for her loss would be a hollow victory and, quite frankly, probably not even worth the effort.

– Pat Murphy

patrick.murphy@lawyersusaonline.com

Driver must pay ticket for cell phone use at red light

While Narcissistic Wall Street Protester Dude is giving him a run for his money, Incessant Cell Phone Talker Guy remains firmly atop the list of the most annoying people walking the planet. 

So it is with quiet satisfaction that we receive the news this morning that a $103 traffic ticket will stand against a driver who just couldn’t resist the urge to pick up his cell phone while waiting at a red light.

California Vehicle Code §23123(a) prohibits a person from using a wireless telephone “while driving” unless the phone is configured for hands-free listening and talking.

Carl Nelson had the misfortune of being cited under the law. According to the police officer who wrote him a ticket,  Nelson pulled out his cell phone to take a call while waiting at a stop light in Richmond, California, on the morning of Dec. 28, 2009.

Nelson argued that, because he was stopped at the time, he was not “driving” within the meaning of the state law prohibiting cell phone use.

In making this argument, Nelson cited case law addressing drunk drivers caught sleeping behind the wheel of parked cars. Nelson in particular relied on the California Supreme Court’s decision in Mercer v. Department of Motor Vehicles that there must be some proof of “volitional movement” for a drunk driving conviction to stand under those circumstances.

Yesterday, in what most certainly is a dispensation of cosmic justice, the California Court of Appeal rejected Nelson’s arguments and upheld his $103 fine. The court held that the state’s distracted driving law encompassed a “fleeting pause” at a traffic light.

“Our conclusion is consistent with Mercer because there was proof of volitional movement of [Nelson’s] motor vehicle, since [he] moved it immediately before and after his fleeting pause at the red traffic light. Therefore, we conclude [Nelson] violated §23123(a) because there was substantial evidence that he listened to a hand-held wireless telephone during his fleeting pause at a traffic light ‘while driving’ on public roadways in Richmond,” the court said. (California v. Nelson)

Of course, Nelson’s lawyer tells The San Francisco Examiner that he expects to take the case to the California Supreme Court. But it is hard to avoid the conclusion that a decision allowing Nelson to avoid his ticket would essentially make enforcement of the state’s distracted driving law unworkable.  

That point was made clear by the state appeals court in yesterday’s decision.

“Were we to adopt [Nelson’s] interpretation, we would open the door to millions of people across our state repeatedly picking up their phones and devices to place phone calls and check voicemail (or text-based messages) every day while driving whenever they are paused momentarily in traffic, their car in gear and held still only by their foot on the brake, however short the pause in the vehicle’s movement,” the court said.

Heck, I’m for anything that reduces the number of clowns on the road with one hand on the wheel and the other holding a cell phone.

– Pat Murphy

patrick.murphy@lawyersusaonline.com

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