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Monthly Archives: December 2011

Law school dean faces trial on anti-Republican bias

Only one out of 50 professors at the University of Iowa College of Law is a registered Republican, so it’s not exactly a stretch to suspect that political ideology might have something to do with the school’s hiring decisions.

Thanks to a decision by the 8th Circuit this week, one conservative activist will have the chance to prove to a jury that the school’s former dean violated the First Amendment by denying her a job based on her political beliefs.

The case involves Teresa Wagner, a registered Republican who is a long-time activist for socially conservative causes. In 1993, Wagner graduated from the University of Iowa College of Law. She later moved to Washington, D.C. to work with the National Right to Life Committee, the well-known anti-abortion organization, and the Family Research Council, another conservative advocacy group. 

While in Washington, Wagner also taught legal writing at the George Mason University School of Law.

In August 2006, Wagner returned to the University of Iowa College of Law to work part-time in the school’s writing center. But Wagner was on the lookout for a full-time job and fortune seemed to smile on her when the school advertised that it had openings for two full-time legal writing instructors.

Given that she was an alumnus with prior experience as a legal writing teacher, Wagner figured that she had a good shot at getting hired.

Yes, the school had the reputation as being one of the most liberal law schools in the country, but Wagner didn’t seriously figure that the fact that she was a rock-ribbed Republican would be held against her. When she applied for the job, Wagner unabashedly listed on her resume her work with the National Right to Life Committee and the Family Research Council.

Wagner successfully passed through the early phases of the job application process, being selected as one of the five finalists for the two legal writing openings.

But her job fortunes experienced a dramatic turnabout on Jan. 25, 2007, when her application went before the entire school’s faculty in a meeting with then Dean Carolyn Jones.

The faculty refused to give its stamp of approval to Wagner, instead voting only to recommend the hiring of another job applicant with self-proclaimed liberal leanings. This seemed rather odd because the applicant the faculty liked had never practiced law, had no legal publications, and had no prior successful teaching experience.

Dean Jones readily accepted the faculty’s non-recommendation of Wagner, informing her the next day via e-mail that the school would not be hiring her.

A couple of days later, Wagner was tipped off that Professor Randall Bezanson had been the primary opponent to her hiring at the faculty meeting. Coincidentally, Professor Bezanson had clerked for Justice Blackmun around the time Roe v. Wade was decided. Apart from spending a lifetime deifying Justice Blackmun and his abortion jurisprudence, Professor Bezanson is a staunch pro-choice advocate himself. 

Professor Bezanson in a later deposition had a failure of memory regarding whether Wagner’s politics were actually discussed when the school’s faculty considered her job application.

In any event, when Wagner later applied for other instructor jobs, she appeared to be butting up against a stone wall. Wagner applied four additional times for an adjunct position in January 2007, March 2007, June 2008, and January 2009. The school rejected Wagner’s applications each time without even affording her the opportunity to interview for the positions.

Fed up with the rejection letters, Wagner filed a §1983 suit, alleging that Dean Jones discriminated against her in violation of her First Amendment rights.

A district court granted summary judgment to Dean Jones based on qualified immunity.

But on Wednesday, the 8th Circuit revived Wagner’s lawsuit.

First, the court decided that Wagner’s allegations sufficiently stated a political discrimination claim under the First Amendment.

The court noted that Wagner had presented evidence that only one out of 50 faculty members at the school is a registered Republican and that, prior to her job interview, an associate dean had warned her to conceal the fact that she had previously been offered a job at a conservative law school.

The court further noted evidence that “someone” mentioned that Wagner held conservative beliefs at the faculty meeting to discuss Wagner’s job application. There was also evidence that, the day after the faculty vote, an associate dean sent Dean Jones an email inquiring whether Wagner’s politics had been a consideration.

“When the facts are viewed in their totality with all reasonable inferences being drawn in favor of Wagner, we believe that Wagner has presented sufficient evidence for a fact finder to infer that Dean Jones’s repeated decisions not to hire Wagner were in part motivated by Wagner’s constitutionally protected First Amendment rights of political belief and association,” the court said.

Dean Jones argued that Wagner’s political beliefs had nothing to do with her decision not to hire her for the full-time position. Jones contended that she routinely adopted the faculty’s recommendations in hiring matters and, besides, there were valid concerns that Wagner did not understand the analysis portion of the law school’s legal writing program.

But the court concluded that a jury must decide whether the dean’s explanations held water.

Further, the court found that there was sufficient evidence that the dean violated “clearly established” constitutional rights. 

“By her own admission, Dean Jones had the ability to hire someone whom the faculty had not recommended but chose not to do so. Dean Jones’s conduct confirmed the faculty’s recommendations, which a jury ultimately could conclude violated the First Amendment. …

“Consequently, Dean Jones has not shown that a reasonable university dean in her position would have believed that failing to hire Wagner was lawful in light of clearly established law,” the court said. (Wagner v. Jones)

The 8th Circuit’s decision is a nice little victory for those who are tired of the preachy liberalism that is the normal fare at most of today’s law schools.

No, Wagner may not ultimately prevail in her challenge to the status quo at the University of Iowa College of Law, but the fact that she could get her case before a jury should serve as a shot across the bow for all law schools in their treatment of job applicants with diverse political views.

– Pat Murphy


Driver’s marijuana use kept from jury

In a tough auto accident case, any lawyer would love to get before the jury evidence that the other driver had used marijuana before getting behind the wheel.

But last week one state supreme court decided that such evidence was properly excluded in the case of a high school student who met an untimely end in a crash with a garbage truck.

The case involved the death of Ethanuel Holznagel. Ethanuel was a student at Mitchell High School. One day in April 2006, Ethanuel left school in his car for his lunch break.

Shortly after 11 a.m., Ethanuel found himself heading east on Eighth Avenue in Mitchell. At the intersection of Gamble Street, Ethanuel’s car collided with a Dependable Sanitation garbage truck driven by John Cutsinger.

At the moment of impact, Cutsinger was making a wide right turn from Gamble Street, intending to head west on Eighth Avenue. The wide turn was allegedly made necessary because Cutsinger’s truck was pulling a 30-40 foot long trailer at the time. In any event, the turn brought the garbage truck across Eighth Avenue’s imaginary centerline, into the path of Ethanuel’s car.

Ethanuel died from injuries suffered in the crash. His parents, Wayne and Paula Holznagel, subsequently brought a wrongful death action against Cutsinger and his employer, Dependable Sanitation.

The case wasn’t anything close to a slam dunk for the Holznagels’ lawyers. The evidence suggested that Cutsinger had come to a stop or a near complete stop before making his turn and, as mentioned, the wide turn was apparently justified by the size of his vehicle.

On the other hand, evidence suggested that Ethanuel was not maintaining a proper lookout for other traffic. Specifically, there was evidence that Ethanuel was leaning over the passenger side, attempting to operate a portable CD player, just before impact. Ethanuel also may have been speeding at the time.

What may have swayed the jury in the Holznagels’ favor was evidence that Cutsinger had smoked marijuana before reporting to work on the day of the accident.

In an interview two weeks after the accident, Cutsinger allegedly admitted to police that he had: (1) “probably” smoking marijuana before leaving for work at 6 a.m. on the morning of the accident; (2) smoked marijuana when he returned home after the accident; and (3) previously smoking marijuana approximately 50 times before reporting to work.

Cutsinger later denied making these statements, but blood and urine tests taken after the accident showed that the truck driver had tetrahydrocannabinol – the essential active component in marijuana – in his system. In Cutsinger’s favor was the fact the toxicology report was indeterminate as to whether he was under the influence of marijuana when the accident occurred.

Before trial, Cutsinger and Dependable Sanitation filed a motion to exclude any evidence of Cutsinger’s drug use, including a prior misdemeanor conviction for marijuana possession.

The trial court granted the motion and, given the state of the evidence, it wasn’t much of a surprise that the jury returned a defense verdict.

In a Dec. 21 decision, the South Dakota Supreme Court upheld the trial judge’s exclusion of evidence of Cutsinger’s marijuana use, fully agreeing with the lower court that the probative value of the evidence was outweighed by the danger of unfair prejudice.

“Even if it is assumed that Cutsinger used marijuana before the accident it would have been when Cutsinger was preparing to leave home for his 6 a.m. shift, at least five hours before the accident occurred. The investigating officer and [Cutsinger’s passenger and co-worker] did not find any indication that Cutsinger was under the influence of marijuana at the time of the accident,” the court explained.

The court concluded that exclusion of the drug evidence was justified given “the lack of evidence that Cutsinger was under the influence at the time of the accident, and that introducing the evidence of prior marijuana use could have both confused the jurors and led them to presume Cutsinger was negligent.” (Holznagel v. Cutsinger

– Pat Murphy


Arrest on quashed warrant doesn’t result in damages

When your client has been arrested on a warrant that had been quashed 13 months earlier, you probably like your chances of recovering damages for a violation of his civil rights.

But the Arizona Supreme Court decided last week that law enforcement officers had no liability from what would appear to be a clear violation of the Fourth Amendment.

The plaintiff in the case before the state high court was Clifford Ochser. In January 2003, Ochser failed to appear at a status conference in his marriage dissolution proceeding in Maricopa County Superior Court. The judge found Ochser in civil contempt for failure to pay child support and issued an arrest warrant.

In March, the judge quashed the warrant after determining that Ochser never received notice of the January status conference.

The order quashing the warrant was supposedly faxed to the Maricopa County Sheriff’s Office, but Ochser took the precaution of obtaining certified copies of the order to keep in his car and office.

Over a year later, in May 2004, the sheriff’s department conducted Operation Mother’s Day, rounding up parents with outstanding child-support arrest warrants. Deputies Gerard Funk and Anthony Cruz were assigned several warrants for execution in northern Arizona, including the 2003 warrant for Ochser’s arrest.

The department allegedly checked to make sure each arrest warrant was valid, but the problem was that the department’s records showed that the warrant for Ochser was still active. 

On May 5, 2004, Funk and Cruz went to Ochser’s workplace at Lowell Observatory in Flagstaff. When Ochser arrived for work, the deputies placed him under arrest.

Naturally, Ochser protested that the arrest warrant against him was no longer active and that he had the documents to prove it. What ensued is subject to dispute. Funk later testified that he took steps at the scene of the arrest to verify the warrant. The deputy claimed that he called a court clerk and was told that the warrant was still valid.

In any event, it is undisputed that the deputies refused to permit Ochser to go to his office — a mere 20 yards away — to get his certified copy of the order quashing the warrant.

Instead, the deputies handcuffed and shackled Ochser, and took him to Phoenix where he spent the night in jail. Ochser was released the next day when law enforcement finally determined that his warrant had indeed been quashed.

Ochser sued the deputies under §1983 for a violation of his Fourth Amendment rights, but a state judge determined that the law officers were immune because they were acting on a facially valid arrest warrant.

Ochser’s appeal landed before the Arizona Supreme Court where he won a Pyrrhic victory.

In a Dec. 21 decision, the state high court recognized that Ochser’s Fourth Amendment rights had been violated when the deputies failed to allow him to take the simple step of going into his office to get his certified copy of the order quashing the arrest warrant.

“We hold, and clearly establish prospectively, that when, as here, law enforcement officers arrest someone pursuant to a warrant and are confronted with readily available information that objectively casts genuine doubt on the warrant’s validity, the officers must undertake further reasonable inquiry,” the court said.

Of course, the fly in the ointment for Ochser was that the court recognized in its holding that the law on this issue wasn’t “clearly established” at the time of his wrongful arrest.

This opened the door for the court’s further determination that Deputies Funk and Cruz Anthony were immune in Ochser’s suit for damages.

In reaching this conclusion, the court was persuaded by the split of authority in quashed-warrant cases.

“Given the conflicting case law at the time of Ochser’s arrest in May 2004, we cannot conclude that ‘every reasonable official would have understood’ that the deputies’ conduct here was unreasonable and violated Ochser’s Fourth Amendment rights,” the court said. (Ochser v. Funk)

– Pat Murphy


N.J. lawyer dodges discipline for website gaffe

Ty Hyderally should have paid a little more attention when he had his cousin design a website for his New Jersey law practice. Because he didn’t, Hyderally found himself before a state disciplinary board answering a charge of professional misconduct.

Hyderally maintains a practice in Montclair, N.J., with several attorneys and a paralegal. In 2005, the lawyer asked his cousin, Yusuf Asgerally, to create a website for his law practice. Asgerally is a California website designer, but not an attorney.

After reviewing the websites of other New Jersey attorneys, Asgerally thought it would be a grand idea to add the New Jersey Attorney Certification seal to Hyderally’s website. So the seal, including the language “New Jersey Supreme Court Certified Attorney,” appeared on sixteen pages of Hyderally’s new website, including the pages containing biographical information about his firm’s lawyers and staff.

The seal remained on Hyderally’s website for more than two years. While it may have impressed visitors to the site, there was a problem.

You see, neither Hyderally nor any of the associates in his firm had been certified by the New Jersey Supreme Court in any of the practice areas for which the court allows certification. So the appearance of the seal on the firm’s website was misleading to say the least.

Sure enough, in 2007, the supreme court’s attorney advertising committee received a grievance about Hyderally’s display of the seal. The state’s office of attorney ethics followed up on the complaint and charged Hyderally with violating the state rule of professional conduct regarding dishonesty, fraud, deceit or misrepresentation.

Hyderally immediately removed the seal from his website upon hearing of the grievance. According to Hyderally, he wasn’t paying attention when his cousin designed the website.

Of course, as a non-attorney Asgerally, didn’t understand the import of placing the seal on the firm’s website when none of its lawyers were certified. Hyderally later told the state’s disciplinary committee that he never took a real close look at the seal. Evidently, he just thought it was some official-looking emblem from the New Jersey Supreme Court that added a touch of authority to his website.

A state ethics committee concluded that Hyderally had breached a duty to monitor his website to ensure that it did not include improper content. The committee decided that this breach of duty amounted to “dishonesty, fraud, deceit or misrepresentation” in violation of the professional rules of conduct, and recommended that Hyderally receive a reprimand.

The state’s disciplinary review board recommended dismissal of the complaint, believing Hyderally’s story that his website’s display of the certification seal had been inadvertent.

Last week, the New Jersey Supreme Court agreed that there was no basis for concluding that Hyderally had knowingly engaged in misconduct.

“[W]e conclude that there is no clear and convincing evidence demonstrating that [Hyderally] either intentionally included the New Jersey Supreme Court Certified Attorney seal, or approved its continued presence, on the website created for him by Mr. Asgerally,” the court said in its Dec. 20 decision. “Accordingly, there is no basis for a finding, under the applicable standard of proof, that [Hyderally’s] conduct constituted ‘dishonesty, fraud, deceit or misrepresentation.’” (In re Hyderally

So the court adopted the board’s recommendation that the disciplinary complaint against Hyderally be dismissed, letting the Montclair lawyer escape unscathed.

But the court warned that it might not be so forgiving in the future. It reminded members of the state bar that “attorneys are responsible for monitoring the content of all communications with the public – including their websites – to ensure that those communications conform at all times with the Rules of Professional Conduct.”

The court concluded its say on the matter with a parting shot across the bow.

“Prospectively, attorneys who are not authorized by [supreme court rules] to utilize the New Jersey Supreme Court Certified Attorney seal, but who display that seal on their websites or in other communication, will be subject to appropriate discipline,” the court said.

“Whether a website is created by an outside consultant or developed and maintained by an attorney or his or her staff, all language and design that appears on it should be reviewed frequently for compliance with … all Rules of Professional Conduct.” 

– Pat Murphy


Nissan faces liability for SUV’s lack of back-up sensors

A Kentucky mother backed over and killed her nineteen-month-old son while trying to move her Nissan SUV. Rather than accepting the full blame for not ensuring that the child was in a safe place, she now wants Nissan to cough up the cash for failing to equip the SUV with a rearview camera and back-up sensors.

Remarkably, the Kentucky Court of Appeals has decided that the woman shall have the opportunity to take her case before a jury.

The facts are these.

On April 15, 2005, Sandra Messerly and her two young sons were playing outside the family’s Boone County home. To make more room for play, Sandra decided to move her 2002 Nissan Xterra mid-size sport utility vehicle from a concrete pad behind her home.

The first order of business should have been to make sure her children were safely out of the way when she backed up her SUV.

Sandra got it half right. Five-week-old Carter was strapped into his stroller out of harm’s way. That left nineteen-month-old Foxx.

Sandra made the mistake of assuming that Foxx was in a safe place. The toddler was in the garage sitting on his father’s ATV. Anyone who has children knows that toddlers can never be counted on to remain in any given spot when left to their own devices. Yet Sandra made the judgment that it was okay to leave Foxx sitting on an ATV while she maneuvered a 3,660-pound vehicle around the drive.

Thinking all was clear, Sandra started up the SUV, checked her mirrors, and looked over her shoulder. Then she started backing up.

Unfortunately, Foxx had had enough of sitting on the ATV and moved behind the SUV. As Sandra was backing up, she hit Foxx with the right side of the Xterra. Foxx’s injuries were fatal.

Despite the fact that Foxx’s death could have been easily avoided had Sandra taken a simple step like placing the toddler in the Xterra with her while she moved the vehicle, she thinks the real culprit is Nissan for the car company’s failure to equip its vehicles with a rearview camera or back-up sensors.

So Sandra and her husband, Curtis, sued Nissan in Boone County Circuit Court, alleging that the 2002 Xterra was defective and negligently designed because it was not equipped with those safety features.

Of course, Sandra and Curtis may have had second thoughts about buying the Xterra in the first place had they had to pay several thousand dollars more for having the vehicle equipped with those safety features. And there are millions of auto purchasers out there who won’t be thrilled picking up the tab should rearview cameras and back-up sensors become standard due to the auto manufacturers’ fear of liability.

A Boone County judge may have seen things that way and that may have been part of the reason for his tossing Sandra’s case out on summary judgment.

Unfortunately for Nissan, the Kentucky Court of Appeals on Dec. 2 opened up a Pandora’s box on the product liability front by concluding that it was a jury issue as to whether the  2002 Xterra should have had a rearview camera or back-up sensors.

In deciding that the risk of a backover injury in the 2002 Xterra was a question for the jury, the court looked to the Kentucky Supreme Court’s decision in Montgomery Elevator Co. v. McCullough, 676 S.W.2d 776 (Ky. 1984).

“We believe that Montgomery Elevator elucidated the considerations for the trier of fact, i.e., the jury, when determining whether a product was manufactured ‘in a defective condition unreasonably dangerous,’” the state appeals court explained. “While the parties argue extensively about the obviousness of the danger, i.e., the patency of the danger, and whether as a matter of law the court could decide such questions, Montgomery Elevator clearly places this decision in the purview of the jury in the case sub judice.” (Messerly v. Nissan)

It will be interesting to see whether the Kentucky Supreme Court takes up the case and agrees with the appeals court’s interpretation of Montgomery that it cannot be determined as a matter of law that an SUV without a rearview camera or back-up sensors is defective or unreasonably dangerous.

As described in this court’s opinion, there’s a dispute between the experts as to how effective backup technology is in preventing injuries to children. As a consumer, I’d hate to have to foot the bill for safety features I don’t want or need.

– Pat Murphy


La. Supremes toss $50K verdict for wrongful expulsion

A former Louisiana high school student claims he was denied due process when he was expelled at the beginning of his senior year.

But the state’s supreme court decided this month that the student’s problem wasn’t a violation of constitutional rights, but the fact that school decision makers just didn’t believe his story about how a bottle of whiskey found its way into his backpack.

In the fall of 2003, Justin Christy was an honors student at Captain Shreve High School in Shreveport. His senior year had just begun, so the months ahead should have been spent creating fond memories to last a lifetime.

But Christy made a mistake that would end his senior year prematurely. On the morning of Monday, October 6, 2003, Christy drove to school after having spent much of the weekend at the home of his friend, Andrew Heacock.

Christy plopped his backpack on the desk of his first period classroom. The backpack was open and out rolled a fifth of whiskey. The bottle fell to the floor and broke, ending Christy’s school days.

Christy tried to explain to school administrators that he did not know the bottle was in his backpack and did not know how it had come to be there.

However, school administrators didn’t believe Christy’s story, even when Heacock came forward and confessed to placing the bottle in the backpack without telling his friend. Accordingly, school administrators expelled Christy under the Caddo Parish School District’s zero tolerance policy.

Christy appealed the decision to the school board. But the board upheld the expulsion and, instead of having senior honors courses to bolster his college resume, Christy was forced to get a GED.

Instead of blaming himself for bad judgment, either in his actions or choice of friends, Christy sued the school board for wrongful expulsion, alleging a violation of his due process rights.

According to Christy, the school administrators who recommended his expulsion wrongly downplayed or ignored Heacock’s confession. A state judge bought Christy’s due process argument and awarded him $50,000.

On Dec. 6, the Louisiana Supreme Court decided that, regardless of the mistakes or omissions of school administrators, Christy had a full and fair opportunity to present his case to the school board, which made the ultimate decision to expel him.

And the problem there, said the court, was that school board members just didn’t believe Christy’s claim that he had no knowledge of the bottle of whiskey that rolled out of his backpack.

The court pointed out it was not so far-fetched to disbelieve Christy given that a bottle of whiskey has some heft. 

It noted that, at trial in state court, Christy did not introduce his backpack into evidence or testify about the backpack’s contents, such as whether it was otherwise full of books. From Christy’s testimony in state court, it appeared that, apart from the bottle,  he only had a written homework assignment and photographs from a homecoming dance in his backpack.

“From all that appears in the record, Justin raised more questions than he answered at trial about whether he knew the backpack he carried into the classroom contained a bottle of whiskey,” the court observed.

And this uncertainty over whether Christy was telling the truth supported the school board’s decision to expel him.

“However, losing on the merits of one’s claim does not equate to a denial of due process,” the court explained.

“To have any prospect of recovering in tort, Justin would have had to prove by a preponderance of the evidence that he was deprived of due process by the School Board. As has been shown, the School Board afforded Justin the opportunity to fully present his case, including the explanation that Andrew Heacock was fully responsible for Justin bringing the bottle of whiskey to class.” (Christy v. McCalla)

– Pat Murphy


Class action challenging Facebook ‘friend’ ads gets green light

A California federal judge on Friday turned aside Facebook’s attempt to dismiss a class action alleging that the social networking site’s “sponsored story” advertisements violate state law regarding commercial endorsements. 

“Plaintiffs have articulated a coherent theory of how they were economically injured by the misappropriation of their names, photographs, and likenesses for use in paid commercial endorsements targeted not at themselves, but at other consumers, without their consent,” wrote U.S. District Judge Lucy H. Koh in Fraley v. Facebook.

At issue in the case is a Facebook’s advertising practice called “sponsored stories.” Sponsored stories appear on a Facebook member’s profile page and typically consist of another member’s name, profile picture, and an assertion that the person “likes” a particular advertiser. Sponsored stories are typically generated when another member clicks on the “like” button on a company’s Facebook page. 

Facebook launched its sponsored stories program on Jan. 25, 2011, enabling the program for all Facebook members by default. 

The lead plaintiff in this case is Angel Fraley of Seattle, Washington. Fraley is registered on Facebook with the name Angel Frolicker.

According to Fraley’s complaint, she visited Rosetta Stone’s Facebook profile page and clicked the “like” button in order to access a free software demonstration. Subsequently, her Facebook user name and profile picture appeared on her friends’ Facebook pages in a sponsored story advertisement consisting of the Rosetta Stone logo and the sentence, “Angel Frolicker likes Rosetta Stone.”

Of course, this type of targeted marketing is an advertiser’s dream, but Fraley and her co-plaintiffs think that Facebook’s practice of appropriating their names and likenesses for commercial endorsements violates a California statute protecting one’s right of publicity.

The state law prohibits the use of “another’s name, voice, signature, photograph, or likeness, in any manner, on or in products, merchandise, or goods, or for purposes of advertising or selling, or soliciting purchases of, products, merchandise, goods or services, without such person’s prior consent.”

Fraley also contended that Facebook’s sponsored stories violated California’s unfair competition law, which generally prohibits “any unlawful, unfair or fraudulent business act or practice.”

Fraley filed her putative class action in the friendly confines of the Santa Clara County Superior Court in California on March 11, 2011, but Facebook responded quickly by removing the lawsuit to the U.S. District Court for the Northern District of California.    

Facebook thereafter launched a multi-pronged effort to have the lawsuit dismissed, but on Dec. 16 the putative class action escaped Facebook’s motion to dismiss largely unscathed.

As a threshold matter, Facebook contended that Fraley and her co-plaintiffs could not establish Article III standing.

Judge Koh rejected this argument, concluding that the alleged violation of the plaintiffs’ individual statutory rights under California law constituted “an invasion” of a legally protected interest for Article III purposes.

“Plaintiffs assert that they have a tangible property interest in their personal endorsement of Facebook advertisers’ products to their Facebook Friends, and that Facebook has been unlawfully profiting from the nonconsensual exploitation of plaintiffs’ statutory right of publicity,” Koh wrote.

Next up, the court rejected Facebook’s contention that it enjoyed immunity under the federal Communications Decency Act.

“Plaintiffs allege that they themselves have no control over whether to post a particular company’s name or logo, and that Facebook maintains sole control over whether to display a Sponsored Story at all. …

“Based on plaintiffs’ allegations, [Facebook] appears to be a content provider, in addition to being an interactive computer service provider. CDA immunity ‘applies only if the interactive computer service provider is not also an “information content provider,”’ and therefore, construing all facts in the light most favorable to plaintiffs, [Facebook] is not at this stage entitled to CDA immunity,” the judge wrote.

Turning to the nuts and bolts of the plaintiffs’ claim under the state’s publicity statute, the court rejected the argument raised by Facebook that its sponsored stories advertising program fell within the scope of the law’s “newsworthiness” exception for which consent to use one’s identity is not required.

“Because Facebook’s publication of plaintiffs’ ‘likes’ is alleged to be for commercial advertising purposes and not part of ‘any news, public affairs, or sports broadcast or account, or any political campaign,’ the court does not find it appropriate to dismiss the claim under the newsworthiness exception,” Judge Koh wrote.

Moreover, the judge determined that the plaintiffs could show injury under state publicity law.

“Plaintiffs here have made specific allegations that their personal endorsement of Facebook advertisers’ products are worth two to three times more than traditional advertisements on Facebook, and that Facebook presumably profits from exploitation of this calculable commercial value,” the court said.

For related reasons, the judge declined to dismiss the plaintiffs’ unfair competition claim, explaining that the plaintiffs’ have successfully alleged that Facebook’s advertising practice “is contrary to a statutorily declared public policy of preventing the nonconsensual appropriation of an individual’s name, photograph, or likeness for commercial gain.”

– Pat Murphy


Illinois employer in hot water for checking private e-mails

An Illinois employer may be liable for violating state and federal privacy laws by accessing personal e-mails through an AOL account a former employee had left active on her work computer.

That was the conclusion reached last week by the Illinois Appellate Court in Borchers v. Franciscan Tertiary Province of the Sacred Heart.

In 1994, Diane Borchers began working as the food service director for Mayslake Village, Inc., a not-for-profit corporation that provides housing to low- and moderate-income senior citizens. Her job involved planning menus, ordering food, taking inventory and managing food services staff.

Mayslake Village provided Borchers with a computer which she used to place food orders via the Internet. The employer also provided Borchers with an e-mail account in order to communicate with vendors and employees. Mayslake’s written policy concerning workplace computers permitted “occasional personal use” apart from legitimate business-related uses.

In 2004, Mayslake switched from its dial-up Internet service with CompuServe to a high-speed service with Comcast. During the transition, Borchers downloaded AOL onto her work computer and used her personal AOL account to handle work-related e-mails.

Mayslake eventually issued Borchers a Comcast e-mail address. Although an icon for AOL remained on her computer desktop screen, from that point on Borchers used the Comcast account for work-related e-mails.

The end of Borchers’ tenure at Mayslake began in early 2007 when she reported to human resources that she was being sexually harassed by her supervisor, Michael Frigo. Mayslake conducted an internal investigation and determined that there was no evidence of harassment.

Of course, the relationship between Borchers and Frigo chilled considerably in the wake of the sexual harassment investigation. Evidently, the stress became too much for Borchers and she left work on March 16, 2007, never to return.

Borchers went on disability for mental health problems, but she wasn’t through with her former employer. In June 2007, Borchers filed a sexual harassment charge with the Equal Employment Opportunity Commission.

Meanwhile, Mayslake was in the process of transitioning to a new food service director. When Borchers’ temporary replacement became overwhelmed with all the details of the job, Frigo directed his administrative assistant, Katherine Maxwell, to check Borchers’ old e-mails to make sure nothing was slipping through the cracks.

At some point between April 11 and April 30, 2007 (before Borchers filed a formal charge with the EEOC), Maxwell went to Borchers’ old office and turned on the computer. There to greet Maxwell was the AOL icon giving her access to all of Borchers’ personal e-mail.

Now, even though Frigo and Maxwell later testified that they were only interested in work-related communications, Maxwell proceeded to click on the AOL icon and access Borchers’ personal e-mail account. Maxwell read part or all of various e-mails that Borchers had sent to or received from friends, family members and even her lawyer since her last day of work, and printed out 36 of them.

The e-mails addressed Borchers’ feelings of anxiety, stress, despair, betrayal, anger, and depression relating to the circumstances of her departure from Mayslake. Some e-mails expressed spiteful feelings toward Frigo and others at Mayslake. Other e-mails indicated that Borchers was in no hurry to return to work and intended to take full advantage of disability benefits. 

Maxwell passed the copies of the e-mails up the chain of command, later explaining that she just felt that her bosses needed to see them. The e-mails were later handed over to Mayslake’s lawyers who dutifully disclosed them in Borchers’ sexual harassment case before the EEOC.

There must have been some pretty damaging material in those e-mails because Borchers withdrew her sexual harassment complaint shortly after their disclosure.

But Borchers still wasn’t through with Mayslake. She sued in state court, alleging violations under the federal Stored Communications Act as well as claiming intrusion upon seclusion under Illinois law.

Mayslake argued that Maxwell had not acted with wrongful intent when she accessed Borchers’ personal e-mail and a state judge granted the employer summary judgment on that basis.

However, last Wednesday the Illinois Appellate Court revived Borchers’ privacy lawsuit, concluding that it was not so clear that Frigo acted with a pure heart when he directed Maxwell to check Borchers’ e-mail, or that Maxwell was entirely innocent when she clicked on that AOL icon and scrolled through the messages.

The court was quick to point out that Frigo and Maxwell were well aware of Borchers’ sexual harassment allegations against Frigo at the time the e-mails were accessed. In addition, Maxwell testified that she knew that Borchers used her Comcast e-mail account for work-related purposes. Despite this knowledge, Maxwell clicked on the AOL icon to open that e-mail account and made the further decision to open and read part or all of the individual e-mails she saw in Borchers’ in-box.

Of course, there was also the undisputed fact that Maxwell printed out 36 e-mails that had nothing to do with business-related communications about food orders, vendor accounts and special event plans, the purported objects of her investigation.

“All of this circumstantial evidence is sufficient to raise an issue of the credibility of Frigo’s and Maxwell’s statements about their intent with respect to the accessing, printing, and sharing of the plaintiff’s personal e-mails, and such credibility issues are properly resolved by the trier of fact,” the court said.

– Pat Murphy


Home surveillance video trips up murder defendant

Scott Pattison told police that he came home from work and found his wife with a weight bar pinned across her throat. His account of his wife’s tragic death may have held up except for the fact that he had forgotten that he had equipped his home with a surveillance system.

At 12:14 p.m. on July 2, 2009, Pattison called 911 to report that his wife, Lisa Pattison, wasn’t breathing and that he was driving her to the hospital in Marion, Indiana. Pattison requested a police escort and a few minutes later an ambulance and a police officer intercepted Pattison’s truck en route. The ambulance took Lisa to the hospital where she was pronounced dead.

Pattison, who owned a roofing business, told police that he had come home at 11:30 a.m., entered the house at 11:45 a.m., and discovered Lisa in the exercise room.

According to Pattison, Lisa was lying on a weightlifting bench with the weight bar pinned across her throat. He administered CPR. When he was unable to revive his wife, he put her in his truck and headed for the hospital.

Pattison’s story sounded plausible, but Marion police had cause for suspicion because in 2001 the Wabash County Sheriff’s Department received a report that Pattison had asked a person to kill Lisa. That investigation went nowhere, but it was duly noted by Marion detectives.

On the day of Lisa’s death, detectives went to Pattison’s house to conduct a search. In the garage, the detectives noticed a surveillance system that was connected to cameras mounted outside the house. The recording device had a slot for a DVD, but there was no DVD in the machine.

Police felt that, without a DVD, they were out of luck. But several days later an employee of the company that had installed Pattison’s surveillance system called the detectives to inform them that the system recorded to an internal hard drive.

Figuring that they might be about to strike gold, detectives sought and obtained a search warrant for the surveillance system and seized the system from Pattison’s house. Sure enough, Pattison’s story unraveled when detectives got the chance to review the recording from July 2, 2009.

Pattison told police that he arrived home around 11:30 in the morning. However, the surveillance video showed that Pattison had returned home at 8:32 a.m. The cameras also recorded him entering and exiting the house and walking around outside of the house at 9:56 a.m., 10:03 a.m., 10:07 a.m., and 11:38 a.m.

Police dug up other evidence that would lead to Pattison’s indictment for murder, including evidence that his marriage was troubled and the fact that Lisa wasn’t known to use the weight bench on which her body was found.

But the surveillance video evidence was sure to be critical at trial, so Pattison’s lawyer went to work to keep it from getting before the jury. The main thrust of Pattison’s argument was that the search warrant for the surveillance equipment was not supported by probable cause.

The trial court rejected this argument and the jury convicted Pattison of murder after seeing the surveillance video.

Last week, the Indiana Court of Appeals concluded that, even though the affidavit supporting the search warrant included some stale information, there was enough valid information provided by detectives to establish probable cause.

Of course, there was the information uncovered by detectives that Pattison and Lisa were having marital problems to the point that Pattison had filed for divorce. Then there was the obvious fact that the camera surveillance system may have recorded footage outside of the Pattisons’ home on the day that Lisa died.

Most importantly, the affidavit supporting the application for the search warrant advised the court that an autopsy of Lisa revealed that her death may not have been an accident.

The coroner who performed the autopsy would later testify that Lisa’s neck injury was not consistent with the weight bar falling on her neck at a high rate of speed. Instead, it was his opinion that Lisa’s death was caused by asphyxiation due to compression of the weight on her neck.

In upholding Pattison’s murder conviction, the court of appeals concluded that “reasonable inferences drawn from the totality of the evidence indicate that there was a fair probability that evidence of murder would be found in the surveillance system, and the trial court had a reasonable basis to issue the search warrant. The admission of the surveillance system equipment and video into evidence did not violate the Fourth Amendment.” (Pattison v. Indiana)

– Pat Murphy


Teen faces charges after malevolent abortion attempt

One is left speechless in the face of a 17-year-old girl’s decision to pay a stranger to repeatedly punch her in the stomach in order to terminate her late-term pregnancy.

What kind of family environment spawns that kind of monstrous decision-making?

Yesterday, the Utah Supreme Court had to decide the technical legal question of whether the teen mother’s alleged actions amounted to solicitation to commit murder or somehow could be shoehorned into a woman’s right to seek an abortion.

The case involves J.M.S. of Vernal, Utah. According to the state, in 2009, the seventeen-year-old found herself with an unwanted pregnancy. She went to an abortion clinic to solve her problem, but learned that her pregnancy was too far advanced and that she was no longer eligible for the procedure under state law.

With that news, J.M.S. figured she was in real trouble. No, J.M.S. wasn’t thinking long-term about the harsh reality of being an unwed teen mother. According to the state, what was really top most on J.M.S.’s mind was the fact that her boyfriend had told her he would have nothing to do with her while she was pregnant.

Trapped by her boyfriend’s ultimatum, J.M.S. was determined to end her pregnancy one way or the other. So she allegedly hatched a plan to pay a stranger to punch her in the stomach to kill her unborn child.

J.M.S. found the necessary stranger, Aaron Harrison, and allegedly went to his home and paid him to repeatedly punch her in the stomach.

How does a teenager come up with such an evil plan?

There are those always ready to forgive the transgressions of the young, chalking off to immaturity all sorts of bad judgments. But the alleged actions of J.M.S. can’t just be dismissed as the wrong-headed moves of a love-sick teen. Such actions suggest an individual with a completely disengaged moral compass.

Of course, apart from the sinister motives, there were also problems with the execution of the plan. After taking repeated blows from Harrison, J.M.S. called her mother and claimed that someone had sexually assaulted her.

So J.M.S.’s mother drove her to the police station. During questioning, J.M.S.’s story fell apart. She came clean, allegedly confessing that she had not been sexually assaulted, but instead had paid Harrison to hit her to kill her fetus.

So J.M.S. found herself in trouble with the law. What’s more, her attempt to end the pregnancy was unsuccessful and the child was born “relatively” healthy. (Harrison himself was later convicted of attempting to kill an unborn child.)

In May 2009, the state filed a delinquency petition in the juvenile court in Vernal. The state alleged that J.M.S. had engaged in criminal solicitation to commit murder, a first degree felony if committed by an adult.

J.M.S. found herself before an “understanding” juvenile court judge who was evidently prepared to do back flips in order to let the teen off the hook. The judge decided that J.M.S.’s conduct fell within the state’s definition of “abortion,” which “includes any and all procedures undertaken to kill a live unborn child.”

According to the judge, J.M.S. had simply resorted to an unorthodox “procedure” to end her pregnancy and, therefore, her alleged conduct constituted seeking an abortion, not solicitation of murder.

The state appealed the dismissal of its delinquency petition and yesterday the Utah Supreme Court politely instructed the trial judge that he had gone  astray in interpreting state law.

First, the court concluded that the authorization of “procedures” to terminate a pregnancy under the state’s abortion statute only refers to medical procedures.

“Given the overwhelming medical focus of the Abortion Statute, we conclude from the plain language of the abortion definition that its use of the term ‘procedure’ refers to medical procedures,” the court said.

In reversing the dismissl of the delinquency petition, the court further decided that defining what J.M.S. allegedly did as an abortion procedure would render meaningless sections of the state’s criminal code which protect unborn children.

“If the broad interpretation of ‘procedure’ as ‘a series of steps taken to achieve a result’ is taken to its logical end, then any act undertaken to intentionally kill an unborn child would constitute an abortion. This result creates a logical conflict within the criminal homicide statute; the legislature cannot have intended to criminalize the intentional killing of an unborn child while simultaneously exempting from prosecution any series of steps intentionally undertaken to kill an unborn child,” the court said. (Utah v. J.M.S.

So J.M.S. will have to answer for her actions in juvenile court after all. We can only hope that her child can escape unscathed from whatever environment produced her mother.

– Pat Murphy