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Monthly Archives: January 2012

Palin hacker’s SOX conviction upheld

Mug shot of David Kernell

Apparently the Sarbanes-Oxley Act isn’t just for snagging corporate crooks. It also provided a handy tool for sending to prison a college student who hacked into Sarah Palin’s e-mail account during the 2008 Presidential election. 

Yesterday, the 6th Circuit upheld the constitutionality of a lesser-known provision of Sarbanes-Oxley that makes it a crime to destroy records that may be of interest to federal investigators. 

As we all know, the passage of Sarbanes-Oxley in 2002 brought volcanic changes to securities regulation and corporate governance. The package of laws passed by Congress as part of Sarbanes-Oxley included an obstruction of justice provision, 18 U.S.C. §1519. 

Section 1519 prohibits the knowing destruction or alteration of any record “with the intent to impede, obstruct, or influence the investigation … of any matter within the jurisdiction of any department or agency of the United States … or in relation to or in contemplation of any such matter or case.”

While §1519 may have been aimed at preventing the sort of widespread destruction of evidence that federal investigators encountered in the Enron and Adelphia accounting scandals, it turns out the statute has other uses as well. 

David Kernell probably never even heard of Sarbanes-Oxley, let alone §1519, when in the early morning hours of Sept. 16, 2008, he wormed his way into Palin’s e-mail account.

At the time, Kernell was a University of Tennessee student. The son of a Democratic politician, he probably thought it was pretty neat when he posted several pages of Palin’s e-mail on an Internet message board.

But after boasting about his mischief on the Internet, he began to have second thoughts and started to take steps to try to erase from his computer information relating to his hacking of Palin’s e-mail. These actions proved to be the real problem when the FBI caught up with him and he was charged under §1519.

A federal jury convicted Kernell for violating the law by deleting information on his computer relating to the Palin affair.

Monday, the 6th Circuit affirmed Kernell’s conviction, turning aside his argument that §1519 is unconstitutionally vague.

Kernell raised two arguments in his challenge to the statute. First, Kernell contended that the structure of the statute creates an ambiguity as to the application of mens rea to the various elements of the statute.

The court rejected this argument, explaining that “‘the statute does not impose liability for “knowingly … destroy[ing] … any … document … in … contemplation of any [federal] matter,” without an intent to impede, obstruct, or influence a matter.’ By applying this requirement to each of the three scenarios, the construction creates the needed specific intent and avoids Kernell’s concern that ‘the statute would forbid innocent conduct such as routine destruction of documents that a person consciously and in good faith determines are irrelevant to a foreseeable federal matter.’”

Kernell also argued that §1519’s requirement that the defendant act “in contemplation of an investigation” is vague.

But the 6th Circuit observed that other courts “have consistently held that the belief that a federal investigation directed at the defendant’s conduct might begin at some point in the future satisfies the ‘in contemplation’ prong.”

The 6th Circuit conceded that “this interpretation makes ‘in contemplation’ under §1519 very broad,” but also observed that  “it is consistent with the legislative history and other cases to consider the question.”

Moreover, the court concluded that the statute could not be said to be vague as applied in Kernell’s case because the hacker had posted an Internet message revealing his concern that his actions could trigger a federal investigation.

“Thus there is no doubt from this post that Kernell ‘contemplat[ed]’ that an investigation would occur when he took his action, since he specifically referenced the possibility of an FBI investigation in his post,” the court said. “As such, to the extent there are any ambiguities in the ‘contemplation’ prong, Kernell may not raise or rely on them.” (U.S. v. Kernell

So Kernell’s conviction stands. According to Reuters, the hacker was released in November after serving less than eleven months of his one-year sentence, so he’s already paid his debt to society.

But Kernell’s misadventures do serve notice that Sarbanes-Oxley has some bite outside of Wall Street and the boardrooms of Fortune 500 companies.

– Pat Murphy


Student expelled over religious objections to homosexuality can sue

It’s always amusing when the high priests of tolerance get caught dishing out their own brand of intolerance.

Friday, the 6th Circuit taught several college professors the simple lesson that “tolerance is a two-way street” in the case of a graduate student who was expelled after she expressed religious objections to affirming homosexual behavior.

The expelled student is Julea Ward. In May 2006, after teaching at a suburban Detroit high school for ten years, Ward decided to add to her professional credentials by becoming a licensed school counselor. In order to achieve that goal, she enrolled at Eastern Michigan University and started taking classes towards a master’s degree in counseling.

In accordance with the American Counseling Association’s (ACA) code of ethics, Eastern Michigan University prohibits students in its counseling-degree program from discriminating against others based on sexual orientation. In fact, students are taught to affirm a client’s values during counseling sessions.

In her three years in the program, Ward frequently expressed a conviction that her Christian faith prevented her from affirming a client’s same-sex relationships as well as sexual relationships outside of marriage. Those views naturally brought her at loggerheads with liberal-minded professors who evidently view deeply held religious beliefs as being of no consequence when compared to someone’s sexual preferences.

Despite these head winds, Ward did quite well in her course work, maintaining a 3.91 GPA. But in order to complete the program, Ward was required to participate in a student practicum that involved counseling real clients. 

At this point Ward’s religious beliefs concerning homosexuality came in direct conflict with the university’s code of ethics. After she counseled two clients in the practicum without incident, the university asked Ward to counsel a gay client.

Ward advised the school that her religious beliefs would preclude her from affirming his sexual orientation. As an accommodation of her Christian faith, Ward requested that the client be referred to another student in the counseling program outright or at the point when a counseling session turned to relationship issues. 

Ward’s faculty supervisor did refer the client to another student, but certain of the program’s professors concluded that Ward had violated the code of ethics and commenced a disciplinary hearing into Ward’s referral request.

A committee composed of several faculty members heard the matter and expelled Ward from the program. This seemed rather harsh, particularly in light of Ward’s academic success and the fact that graduation was in sight.

One wonders why the school just didn’t accommodate Ward’s religious beliefs and allow her to complete the program. After all, public universities are famous for accommodating all sorts of outside-the-norm beliefs and behaviors.

One can imagine that if Ward had been a Wiccan the school would have given her a longer leash. But as someone with deeply held Christian beliefs, she evidently wasn’t going to be cut any slack.

Fortunately, Ward didn’t take the expulsion lying down and filed a §1983 suit against the university and her professors, alleging violations of her First Amendment rights regarding freedom of speech and religion.

The university argued that Ward’s dismissal from the program was justified because her request for a referral violated the American Counseling Association’s code of ethics.

But the court pointed out that it was not entirely clear that the ACA code of ethics prohibited Ward’s request that her gay client be referred to someone else. On this point, the court asked:

What exactly did Ward do wrong in making the referral request? If one thing is clear after three years of classes, it is that Ward is acutely aware of her own values. The point of the referral request was to avoid imposing her values on gay and lesbian clients. And the referral request not only respected the diversity of practicum clients, but it also conveyed her willingness to counsel gay and lesbian clients about other issues – all but relationship issues – an attitude confirmed by her equivalent concern about counseling heterosexual clients about extra-marital sex and adultery in a values-affirming way.

The court observed that the record showed that the program had indeed allowed referral requests in other circumstances, raising a jury question as to whether the school’s treatment of Ward was motivated by impermissible factors.

The court said that the record “shows that the counseling department was willing to avoid unsuitable student-client matches in some instances. Why treat Ward differently? That her conflict arose from religious convictions is not a good answer; that her conflict arose from religious convictions for which the department at times showed little tolerance is a worse answer.”

In reversing the district court’s grant of summary judgment in favor of the university, the court found that “a reasonable jury could conclude that Ward’s professors ejected her from the counseling program because of hostility toward her speech and faith, not due to a policy against referrals.” (Ward v. Polite)

In its decision, the court was careful to distinguish the 11th Circuit’s recent ruling in Keeton v. Anderson-Wiley that the First Amendment does not protect a student in a graduate counseling program who was directed by school officials to enter a remediation program due to her religious views on homosexuality. The 6th Circuit explained:

The two claimants’ theories of constitutional protection … are miles apart. Keeton insisted on a constitutional right to engage in conversion therapy – that is, if a “client discloses that he is gay, it was her intention to tell the client that his behavior is morally wrong and then try to change the client’s behavior.” That approach, all agree, violates the ACA code of ethics by imposing a counselor’s values on a client, a form of conduct the university is free to prohibit as part of its curriculum. Instead of insisting on changing her clients, Ward asked only that the university not change her – that it permit her to refer some clients in some settings, an approach the code of ethics appears to permit and that no written school policy prohibits.

– Pat Murphy


Law firm fumbles away malpractice coverage

A Colorado law firm’s sad tale reemphasizes why it’s important to strictly observe the notice requirements of a professional liability insurance policy.

The hard lesson was handed down Tuesday by a federal judge in Davis & Associates v. Westchester Fire Insurance.

Davis & Associates (now Davis Schilken, PC) was retained in February 2004 by Ella Mae Bates. The client wanted the Golden, Colorado, firm to create a trust that would enable her to qualify for Medicaid benefits.

The Davis Firm duly created the Bates Trust, but a state agency subsequently denied Bates’ application for Medicaid benefits. According to the state, the assets of the Bates Trust were not exempt from consideration because of the terms of a loan provision in the trust.

Bates’ application for Medicaid benefits was denied on March 15, 2007. The Davis Firm prosecuted the administrative appeal of the denial of benefits, but it was ultimately upheld by the state in a final agency decision entered Sept. 4, 2007.

Pertinent to Bates’ later malpractice lawsuit, the Davis Firm allegedly failed to file an action for judicial review before the 30-day statute of limitations expired. Thus, the client lost her right to have  a state court review the administrative decision.

Naturally, Bates was miffed at the result. She had funded the trust and depleted her remaining assets, all without accomplishing her goal of attaining Medicaid eligibility.

In March 2009, the Davis Firm became aware that Bates was considering a suit for legal malpractice. The firm accordingly turned its attention to its insurance coverage.

The Davis Firm was insured continually under successive professional liability policies for the period in question. Specifically, Westchester Fire Insurance issued three successive “claims made and reported” policies from April 1, 2007, through April 1, 2010.

On March 29, 2009, a few days before coverage under the 2008-2009 policy ended, the Davis Firm notified Westchester of a potential claim resulting from its representation of Ella Mae Bates.

The law firm probably assumed it was safely covered under the 2008-2009 policy. But its assumption was wrong.

Westchester denied the claim, asserting that, on the inception date of the 2008-2009 policy, April 1, 2008, the Davis Firm had a reasonable basis to believe that it had breached a professional duty owed to Bates and that a legal malpractice lawsuit was a distinct possibility.

The Davis Firm filed a suit to establish its right to coverage in the U.S. District Court for the District of Colorado.

Judge Robert E. Blackburn duly considered the parties’ arguments and on Jan. 24 handed a victory to the insurance company in the form of a summary judgment.

The problem for the Davis firm was an insurance clause that should be pretty familiar to attorneys. The 2008-2009 policy issued by Westchester to the Davis Firm provides coverage for a claim only if “at the inception of this policy the Insured had no reasonable basis to believe that any Insured had breached a professional duty and no reasonable basis to believe an act, error, omission or Personal Injury might be expected to result in such Claim or Suit.”

Applying this clause to the Davis firm’s dealings with Bates, it became clear to the judge that Westchester had no coverage obligation:

By the time the 2008-2009 Policy became effective on April 1, 2008, more than 200 days had passed since the Davis Firm had learned of the thirty day deadline to file an action for judicial review [in the Bates Medicaid case]. The Davis Firm’s knowledge of this breach of duty, and the resulting reasonable belief that a claim might be expected to result from the breach, prior to April 1, 2008, demonstrates that the 2008-2009 Policy does not provide coverage for this claim. 

 (Davis & Associates v. Westchester Fire Insurance

The basic problem for the Davis firm was that it should have been alert to the potential legal malpractice claim in 2007 and taken the steps necessary to trigger coverage under Westchester’s 2007-2008 policy. The firm didn’t, so now it will have to bear the full brunt of its former client’s lawsuit.

– Pat Murphy


Calif. court revives ‘warm gas’ suit against Chevron

Liquid expands as the temperature increases. That simple law of physics is at the heart of a consumer class action that alleges Chevron is cheating California consumers by selling motor fuel at an average temperature of 70 degrees.

Yesterday, a state appeals court revived much of the lawsuit after Chevron had succeeded in having it dismissed.

The plaintiffs in Klein v. Chevron U.S.A. claim that they’re getting short-changed in their gas purchases. Chevron’s alleged scam goes like this. Chevron and other oil companies purchase motor fuel at the wholesale level using an industry standard that adjusts for differences in the temperature of motor fuel. The standard defines a “U.S. Petroleum Gallon” as 231 cubic inches of petroleum at 60 degrees Fahrenheit.

While Chevron makes sure that’s its fuel purchases are adjusted for temperature, the company is not so careful when selling gas at the retail level. According to the plaintiffs’ complaint, gas sold to California consumers is, on average, in excess of 70 degrees Fahrenheit, meaning that consumers receive less fuel (measured in terms of mass and energy) than they would receive if the fuel was delivered at the temperature-adjusted standard of 231 cubic inches at 60 degrees Fahrenheit.

Apart from consumers receiving less fuel for their money, this sleight of hand allegedly results in a windfall for Chevron. According to the plaintiffs, Chevron is able to collect and retain more motor fuel taxes from consumers than it is required to pay to the government.

Asserting that billions of dollars are at stake, the plaintiffs filed their class action in March 2007 in the Los Angeles County Superior Court. The complaint asserts claims for violations of California’s unfair competition and consumer protection laws, breach of contract and unjust enrichment.

Chevron moved to dismiss, arguing that it could not be sued for failing to adjust the temperature of retail motor fuel because California law permitted the practice.

The trial court agreed in part, dismissing the plaintiffs’ claims for breach of contract, unjust enrichment and “unlawful” business practices. However, the trial court rebuffed Chevron’s attempt to dismiss the plaintiffs’ consumer protection claim, as well as their claims for “unfair” and “fraudulent” business practices.

Chevron was provided the key to having the remaining claims dismissed when, in March 2009, the California Energy Commission released the results of its investigation into whether implementing “Automatic Temperature Compensation” (ATC) fuel pump technology that would compensate for temperature increases in retail motor fuel.

The commission’s report concluded that consumers would not realize any economic benefit from requiring retailers to implement the use of ATC fuel pumps because the oil companies would simply increase their prices to account for any loss in revenue.

The California legislature had mandated the energy commission’s investigation, so Chevron argued that the plaintiffs’ remaining claims were barred by the judicial abstention doctrine since state lawmakers had clearly expressed their intent to address the issues in the plaintiffs’ complaint.

The trial court was convinced and the rest of the plaintiffs’ claims were dismissed.

The California Court of Appeal weighed in yesterday and concluded that the trial court had wrongly applied the judicial abstention doctrine. The court explained:

Contrary to Chevron’s assertion, it is not clear at this stage of the proceedings that plaintiffs’ claims will necessarily require the court to enter into complex areas of economic policy. Moreover, the Legislature has not provided any alternative means of addressing the issues raised in plaintiffs’ claims, nor has it provided any certainty that it will address those issues in the future. Abstention would therefore leave the plaintiffs without a remedy.

With the door reopened, the court went on to address whether the plaintiffs’ complaint stated viable claims. The court concluded that the plaintiffs’ didn’t have a case with respect to their breach of contract and unjust enrichment claims, but said that they could go forward with their allegations that Chevron violated California’s unfair competition and consumer protection laws.

With respect to whether Chevron violated state unfair competition law, the court said that the plaintiffs stated a viable claim that the company acted “unfairly” by alleging that, “by failing to compensate for temperature variations in retail motor fuel, Chevron is engaging in a practice that misleads consumers as to the actual amount of motor fuel they are purchasing and the actual price that they are paying for that fuel.”

Likewise, the court decided that the plaintiffs sufficiently alleged that Chevron engaged in fraudulent conduct:

At the pleadings stage, we cannot say, as a matter of law, that consumers are not likely to be deceived in the manner alleged by plaintiffs. As the trial court observed, plaintiffs have alleged “facts which, if true, may reveal that members of the public . . . [assumed] that . . . they were receiving standardized units of motor fuel when, in fact, the energy content of each gallon depended on the temperature of the motor fuel at the time of purchase.” Plaintiffs have also alleged facts that, if true, may reveal that consumers were deceived as to the true price of motor fuel, which may vary depending on the temperature at which it is sold.

And regarding the plaintiffs’ claims under California’s consumer protection statute, the court said:

[The plaintiffs] allegations are sufficient to state a … claim predicated on a material omission, which “consist[s] of the suppression of a fact by one who . . . gives information of other facts which are likely to mislead for want of communication of that fact.” Plaintiffs allege that Chevron’s failure to disclose the effect of temperature on motor fuel is deceptive because it advertises the price of its product in what consumers understand to be standardized units (gallons). Stated differently, plaintiffs allege that Chevron provided information to the consumer (a stated price in “gallon” units) that was deceptive in light of its omission of other relevant information (the amount of energy output in a gallon of motor fuel depends on the temperature at which it is sold).

– Pat Murphy


Does UM policy cover road rage incident?

After being on the receiving end of a golf club in an episode of road rage that erupted in a McDonald’s parking lot, two Colorado men wondered whether their injuries would be covered by the Allstate policy on their car.

Last week, the Colorado Court of Appeals decided that the men were out of luck.

The insurance claim filed by Chanson Roque and Shannon Isenhour arose when the two men, in Isenhour’s car, exchanged angry words with Richard Terlingen, who was driving  alongside in his car. Isenhour turned into the parking lot of a Denver-area McDonald’s, but Terlingen wasn’t finished.

When Isenhour parked his car, Terlingen pulled up behind. Blocked in, Isenhour and Roque emerged from their car and were confronted immediately by Terlingen. The argument escalated from there, and Terlingen pulled a golf club from the trunk of his car. Terlingen used the golf club to administer a severe beating to Isenhour and Roque.

The two injured men subsequently sued Terlingen for their injuries.

Terlingen held home, umbrella, and automobile insurance policies with American Family Mutual Insurance Company. American Family obtained a declaratory judgment in federal court that it was not required to cover Terlingen. With regard to Terlingen’s auto policy, the federal court decided that it only covered Terlingen for third-party claims “due to the use of a car,” and that the road rage injuries suffered by Isenhour and Roque did not result from such use.

The federal court judgment rendered Terlingen an uninsured motorist, so Isenhour and Roque sought UM coverage under an Allstate policy on Isenhour’s vehicle. They sued in state court when Allstate denied coverage.

The trial court agreed with Allstate’s contention that the plaintiffs’ injuries did not arise from the use of an automobile.

Last week, the Colorado Court of Appeals affirmed the summary judgment in favor of Allstate issued by the trial court.

Isenhour and Roque did win one point before the state appeals court. Allstate argued as a threshold issue that, because the declaratory judgment in federal court determined that plaintiffs’ injuries had not resulted from Terlingen’s use of his vehicle, issue preclusion barred their claim against Allstate.

In rejecting Allstate’s argument, the state appeals court explained that “the issue litigated in federal court was not identical to the issue before us. This case involves a policy providing first-party coverage mandated by Colorado’s UM statute. The federal court addressed a different insurer’s policy providing third-party coverage. Such coverage does not fall under the UM statute.”

Unfortunately, Isenhour and Roque were doomed to lose on the substantive issue of whether their road rage injuries were covered by the Allstate policy.

“We conclude that exiting the car and then engaging in intentional misconduct breaks the requisite causal chain between use of the vehicle and the injuries,” the court said. (Roque v. Allstate

The court concluded on this note: 

Colorado’s uninsured motorist statute is intended only to “compensate[] a person injured by an uninsured motorist to the same extent as one injured by a motorist who is insured in compliance with the law,” not to “require full indemnification of losses suffered at the hands of uninsured motorists under all circumstances.”

– Pat Murphy


Paralegals get green light for FLSA class action

A Texas personal injury firm last week failed in its bid to derail a putative class action brought by salaried paralegals who claimed they were entitled to overtime under the Fair Labor Standards Act. 

Batting aside The Mostyn Law Firm’s contention that its paralegals’ job duties were too varied to permit class treatment, a federal judge on Thursday granted conditional certification in an FLSA lawsuit brought by Sherri L. Davis and Carlos Alvarado.

“[T]he Court believes that Plaintiffs have advanced sufficient evidence to support conditional certification on a firm-wide basis, and as to all salaried paralegals,” wrote U.S. District Court Judge Keith P. Ellison in his Jan. 19 order.

The Mostyn Law Firm has its headquarters in Houston. Some of the firm’s 30 lawyers also work out of offices in Austin, Beaumont and Galveston. Of late, the firm has been heavily engaged in representing property owners in insurance disputes arising from Hurricanes Ike and Rita.

Davis alleged that she was employed as a salaried paralegal with Mostyn from June 2007 until February 2009. According to Davis, she typically worked more than 70 hours a week. She claimed that dozens of other salaried paralegals at Mostyn worked more than 40 hours per week and, like her, were denied overtime pay.

Alvarado likewise claimed that he was employed by Mostyn as a paralegal from July 2009 to June 2010.  According to Alvarado, he regularly worked in excess of 50 hours a week. He also alleged that “dozens” of paralegals at Mostyn worked in excess of 40 hours a week and were not paid overtime.

Last August, Davis and Alvarado filed a class complaint for FLSA overtime against Mostyn in the U.S. District Court for the Southern District of Texas. The plaintiffs subsequently moved for issuance of class notice, seeking to notify current and former Mostyn paralegals of their right to recover unpaid overtime by joining the lawsuit.

Mostyn’s general position has been that the plaintiffs were independent contractors and that at least five different exemptions to the FLSA apply to any given paralegal in its workforce.

According to Mostyn, class treatment was particularly inappropriate because its paralegals perform a wide variety tasks depending on how they are classified within the firm and the particular office in which they work.

These were the main points in Mostyn’s argument that the plaintiffs could not show that they were similarly situated to other paralegals for purposes of justifying conditional FLSA class certification.

Judge Ellison concluded Thursday that the plaintiffs had made a sufficient showing to go forward with issuing notice to potential class members.

In particular, the judge decided that the plaintiffs satisfied their burden of providing evidence that Mostyn subjected a group of similarly situated potential class members to a “single decision, policy, or plan” that violated the provisions of the FLSA.

Addressing Mostyn’s point that its paralegals could not be deemed similarly situated because of their varied duties, the judge wrote:

Although there may have been some variation in paralegal duties, such variation does not indicate that the paralegals were not similarly situated. Indeed, even if paralegals’ duties “vary to some degree from day-to-day and possibly from location to location,” or even from docket to docket, the “thrust of the job duties,” as established by Plaintiffs’ declarations, remains similar. Moreover, the fact that some paralegals may have had different titles does not contravene the fact that the paralegals are in essence similarly situated.

The court also found that the plaintiffs sufficiently alleged that they were subject to the same company-wide policy as other salaried paralegals, explaining that “Plaintiffs state that they have knowledge of other paralegals who performed similar work, were paid on a salary basis, and did not receive overtime. In addition, Davis alleges that she spoke with her office manager, who informed her that no salaried employee received overtime pay. At this stage, Plaintiffs’ declarations and allegations are sufficient to meet their lenient obligation.”

Mostyn probably imagined it had an ace in the hole in the form of the Supreme Court’s articulation of a heightened standard for class certification in Wal-Mart Stores v. Dukes

The firm was to be disappointed in this regard. The judge wrote that “Dukes does not advance Mostyn’s case, as Plaintiffs and salaried paralegals who have worked at Mostyn during the three-year period do not suffer from ‘dissimilarities’ that may ‘impede the generation of common answers.’”

Dispensing with Mostyn’s remaining objections, the judge conditionally certified a class of all of the firm’s “current and former salaried paralegal employees who worked more than forty (40) hours in a workweek but were not paid one and one-half times their regular rate of pay at any time starting August 3, 2008 to present.” (Davis v. The Mostyn Law Firm)

As a consequence of the judge’s decision, Mostyn has to go about the process of turning over to the plaintiffs information necessary for identifying and contacting potential class members.

To keep everything on the up and up, the judge further prohibited Mostyn’s management “from communicating, directly or indirectly, with any current or former paralegal employees about any matters which touch or concern the settlement of any outstanding wage claims or other matters related to this suit during the opt-in period.”

– Pat Murphy


Bigfoot carries the day in free speech fight

You probably never imagined that you would ever see the terms “Bigfoot” and “First Amendment” in the same sentence, but somehow a staged appearance by the hairy beast at a famed New Hampshire mountaintop turned into a court fight over freedom of expression.

As it turns out, the guy in the monkey suit struck a blow for free speech.

The guy in the monkey suit happens to be Jonathan Doyle. The 31-year-old performance artist has an interest in the legendary ape-like creature known as Bigfoot. Several years ago, he came up with the bright idea of filming himself dressed up as Bigfoot at the top of Mount Monadnock in New Hampshire.

I’ve never heard of the place before, but supposedly the 3,165-foot peak is the second-most climbed mountain in the world. Tourists are drawn to the mountaintop because it gives 100-mile views to points in all six New England states.

Doyle just couldn’t keep himself from such a stage. On Sept. 6, 2009, Doyle hiked up Mount Monadnock with his girlfriend and put on an ape costume. Dressed as Bigfoot, Doyle filmed himself clowning around with other hikers.

After about 20 minutes of harmless fun, Doyle took off the costume and called it a day. On his way down the mountain, he came across a couple of Monadnock State Park staffers and got them to play along with the gag by writing a note to confirm that there had been a “Bigfoot sighting” on the mountain.

With note in hand, Doyle reported the Bigfoot sighting to the local police and the New Hampshire State Police.

Immensely pleased with himself, Doyle began to plan another Bigfoot event on the mountain, getting the word out via his website and a press release. A local newspaper also played along. The Keene Sentinel reported that Doyle would once more climb the mountain dressed as Bigfoot.

Everyone seemed to recognize that Doyle was engaged in harmless fun with the exception of officials with the New Hampshire Department of Resources, which runs Monadnock State Park.

Park Manager Patrick Hummel in particular was annoyed that he was being called by newspapers about the Bigfoot story. On Sept. 19, 2009, Hummel intercepted Doyle and five others when they returned to Mount Monadnock to stage their second Bigfoot event.

Hummel told Doyle and his crew to leave when they couldn’t produce a special-use permit. Under a state regulation, a person must obtain a special-use permit to use park properties for “[h]olding organized or special events which go beyond routine recreational activities.”

An individual must apply for the permit 30 days in advance of a scheduled event. In addition to paying $100, the applicant must obtain a $2,000,000 insurance policy that protects the state from any unforeseen problems.

Doyle left the mountan with his Bigfoot costume that day, but then fired off a lawsuit alleging that the state regulation violated his free speech rights under the First Amendment and the state constitution.

A state trial court upheld the constitutionality of the regulation, but earlier this month the New Hampshire Supreme Court decided that the state’s constitution protected Bigfoot mania.

As a threshold issue, the court decided that Doyle’s Bigfoot activities “unquestionably” fell within the realm of protected speech.

“Even though Doyle’s activities may have been nothing more than a playful hoax, ‘[w]holly neutral futilities . . . come under the protection of free speech as fully as do Keats’ poems or Donne’s sermons,’” the court said.

Next, the court decided that the state permitting regulation was overbroad and for that reason violated Doyle’s free speech rights under the state constitution.

In particular, the court found fault with the fact that the special-use regulation applied regardless of the number of people involved on the event:

Perhaps requiring very small groups to obtain permits would be constitutionally permissible where “the public space in question [is] so small that even a relatively small number of people could pose a problem of regulating competing uses.” That is not, however, the case here – Mount Monadnock is quite large, and the permit requirement applies to the entire park. Furthermore, even if requiring a single person to obtain a permit would occasionally serve [the state’s] significant interests, “it does so at too high a cost, namely, by significantly restricting a substantial quantity of speech that does not impede [the state’s] permissible goals.”

The court also concluded that the regulation on its face needlessly stifled political speech.

For example, if a group of three people supporting a political candidate were to climb the mountain and walk around the summit with campaign signs, they would need a permit. This event is special – it is not every day that political supporters climb the mountain to spread their message, and organizing on the mountain for a political purpose is plainly not a routine recreational activity. Requiring a permit for such an event is wholly unnecessary – a group of three people carrying signs will hardly burden park resources and will not likely cause unwelcome or unwarranted annoyance. [The state regulation], therefore, burdens substantially more speech than is necessary to serve [the state’s] interests.

(Doyle v. New Hampshire)

So with the regulation declared unconstitutional,  Doyle can break out his Bigfoot costume and head back up Mount Monadnock. And perhaps park officials just might be able to discover a sense of humor.

– Pat Murphy


N.J. Supremes: County isn’t liable for bicyclist’s death

Local governments are going to go broke if they’re exposed to liability for minor defects in road surfaces.

That’s probably the best way to sum up yesterday’s decision by the New Jersey Supreme Court that Essex County isn’t responsible for the death of a bicyclist caused by an inch-and-a-half depression on the shoulder of a county road.

“Public entities do not have the ability or resources to remove all dangers specific to bicycles,” the court said in Polzo v. Essex County.

The case addressed the death of Mathi Kahn-Polzo.

Around noon on Aug. 18, 2001, Kahn-Polzo and four other experienced bicyclists were riding downhill on the westbound shoulder of Parsonage Hill Road in Millburn Township. Kahn-Polzo was traveling at a speed of approximately 15 miles per hour when she encountered a circular depression on the shoulder of the road and lost control of her bicycle.

Despite wearing a helmet, Kahn-Polzo suffering a catastrophic head injury when she struck the pavement. The woman died 26 days later without ever regaining consciousness.

Parsonage Hill Road is owned and maintained by Essex County. In 2002, Kahn-Polzo’s husband, Donald T. Polzo, sued the county for wrongful death. Polzo claimed the county breached a duty of care by failing to detect and repair the depression in the roadway that caused his wife to lose control of her bike. The depression at issue was later determined to be two feet in diameter and approximately one-and-one-half inches deep.

Now, whether you live in an urban area, the suburbs or the country, you could get in your car and in about 20 minutes come across a number of similar defects in your own local road network. The fact is our roads take a beating from traffic and the weather. Road surfaces age and break up. Erosion or shifting underneath constantly cause road surfaces to settle or buckle.

Local governments are always behind keeping up with road repairs. Some do a better job at maintenance than others, but few really do enough to satisfy their citizens, let alone satisfy the standards that personal injury attorneys would impose on them.

The taxpayer dollars simply aren’t there to pay for the all the road repair manpower, equipment and materials one might want in an ideal world.

That’s the real-life context in which Polzo brought his suit against Essex County.

Under the New Jersey Tort Claims Act, a local government is subject to liability “only when a pothole or depression on a roadway constitutes a dangerous condition; the public entity either causes the condition or is on actual or constructive notice of it; and, if so, the public entity’s failure to protect against the roadway defect is palpably unreasonable.”

In addition to his experts who said Essex County breached its duties under the statute, Polzo tethered his claim of liability to a road department record showing that a county worker had filled potholes and conducted an inspection on Parsonage Hill Road five weeks before his wife’s accident.

According to Polzo, this report showed that the county should have known about the dangerous depression and fixed it.

Polzo’s lawsuit took a tortuous path through New Jersey’s courts. The only thing we need to recount here is that the trial court granted summary judgment in favor of the county on the ground that it didn’t have notice of the dangerous condition.

The New Jersey Appellate Division reversed the trial court’s decision, concluding that a jury issue existed as to whether the county should have had a proactive program in place to inspect its roadways for the type of roadway defect that caused the death of Mathi Kahn-Polzo.

With amicus New Jersey State League of Municipalities buzzing in its ear, the New Jersey Supreme Court slapped down the court of appeals’ decision.

First, the high court rejected outright the lower court’s conclusion that the county “created” the dangerous condition by failing to have a routine road inspection program in place.

On this issue, the state supreme court stated flatly that “a public entity does not create a dangerous condition merely because it should have discovered and repaired it within a reasonable time before an accident.”

Further, the court observed that Essex County did in fact have a roadway inspection program in place, just not one that would satisfy Polzo and his experts. Recognizing that the courts are inappropriate minders of taxpayer dollars, the court said:

This Court does not have the authority or expertise to dictate to public entities the ideal form of road inspection program, particularly given the limited resources available to them. We cannot find that the absence of a more systematic program violates the Tort Claims Act, particularly when plaintiff has not provided this Court with any recognized standard of care that demands otherwise.

Turning to the issue of whether the county had notice of the depression at issue for purposes of the state tort claims law, the court first framed the question in terms of what bicyclists should be prepared to expect from local governments:

We understand that many bicyclists may be inclined to ride on a roadway’s shoulder to stay clear of vehicular traffic and out of concern for their safety. Nevertheless, inherent dangers confront bicyclists who travel on roadways that are not faced by operators of motor vehicles. A tree branch, a stone, and even a pothole or depression might destabilize a bicycle that a car would harmlessly pass over. Public entities do not have the ability or resources to remove all dangers peculiar to bicycles. Roadways cannot possibly be made or maintained completely risk-free for bicyclists.

With these caveats in mind, the court predictably proceeded to conclude that the depression which felled Polzo’s wife was not so obvious that it could reasonably be concluded that the county had actual or constructive notice of that defect:

The evidence viewed in the light most favorable to the plaintiff reveals a failure of proof. The depression, located on the roadway’s shoulder, was, at best, just one-and-one-half inches in depth, and the generally intended purpose of a roadway is for vehicular use and the generally intended purpose of the shoulder is for emergency use. Based on these factors, plaintiff cannot show, even under the indulgent summary-judgment standard of review, that the shoulder depression “was of such an obvious nature that the public entity, in the exercise of due care, should have discovered the condition and its dangerous character.”

– Pat Murphy


Mayhem at the 18th hole

A golfer will have to fork over $50,000 after a Kentucky court placed its stamp of approval on a jury’s determination that he was the aggressor in a golf course scuffle.

I can’t back this up with empirical evidence, but it sure seems like a disproportionately large number of golfers find themselves in court suing for personal injuries.

Usually, they want to get paid for being struck by an errant ball, but there are also the cases of those who slipped or tripped at a golf course, or suffered some sort of mishap involving a golf cart. Then there’s the odd case of the golfer who gets nailed by a golf club because he’s standing too close when another player tees off.

Why golfers sue is something of a mystery. Perhaps it’s because it’s a good bet that there’s a lawyer in the clubhouse ready to egg on the injured golfer. Or maybe too many golfers just come from that class of people who can’t bring themselves to slough off life’s bumps and bruises like the rest of us.

The good thing is that courts like clockwork boot golfer cases almost as fast as they come in, reasoning most of the time that the injury in question falls within the normal hazards of the game.

Michael Nichols is one golfer who may have had a viable claim if only a jury believed his version of events. Unfortunately for Nichols, a jury didn’t buy his story.

On August 2, 2008, Nichols and his girlfriend, Mary Gaines, were playing golf at the Charlie Vettner Golf Course in Louisville, Kentucky. Their round was uneventful until after the twosome teed off on the 16th hole. While looking for their balls, someone in the group behind them hit a ball that landed near them.

The trailing group included Michael Hazelip and Steven Gregson. After the near miss, Nichols yelled back to Hazelip and Gregson to warn them to hold off until he and his girlfriend played themselves out of harm’s way.

Evidently, someone in this exchange said something that created some hard feelings because a full-blown confrontation would later erupt on the course.

While Nichols waited to tee off on the 18th hole, Hazelip and Gregson passed by on their approach to the 17th green. What happened next is in dispute, but there is no doubt that Nichols, Gregson and Hazelip wound up in a wrestling match.

According to Nichols’ later testimony, the fight started when Gregson approached and began pushing and hitting him. Nichols claims that Hazelip piled on, placing him in a choke hold until he began to lose consciousness.

On the other hand, Gregson and Hazelip would each testify that Gregson approached Nichols to apologize for almost hitting him on the 16th hole. They claimed that, rather than accepting the apology, Nichols took a swing at Gregson with a golf club.

Gregson and Hazelip testified that Gregson fell to the ground in attempting to get out of the way, at which point Nichols began hitting Gregson. Hazelip testified that he only intervened to pull Nichols off of Gregson.

That probably should have been the end to the matter. In fact, later events would demonstrate that Nichols should have let sleeping dogs lie.

But Nichols just couldn’t help himself. He sued Gregson and Hazelip for assault and battery, claiming that he aggravated a shoulder injury in the tussle.

Prodded by Nichols’ suit, Gregson filed a counterclaim against Nichols alleging assault.

The jury didn’t believe Nichols after hearing the evidence and determined that he was the initial aggressor. Apart from ending Nichols’ chances of a pay day, the jury’s finding opened the door to the entry of a verdict in favor of Gregson on his counterclaim. The jury duly awarded Gregson $50,000 in compensatory damages for pain and suffering and $200 in punitive damages.

Surely Nichols never contemplated that this would be the result when he filed his lawsuit. With the tables turned, Nichols sought relief from the Kentucky Court of Appeals.

Friday, that court decided that Nichols would have to fork over the cash, rejecting his argument that Gregson could not recover damages for mental and emotional suffering because he didn’t suffer physical injuries in the clash on the golf course.

The court explained that the “evidence presented suggested Gregson feared for his life during the altercation, specifically at the moment he fell backwards while he claimed Nichols was preparing to swing a golf club at him. Gregson testified that he was lying on the ground expecting to be hit with a golf club. The trial court understood such a fear to be consistent with the award granted by the jury, and Nichols fails to cite any evidence contrary to this position.” (Nichols v. Hazelip

– Pat Murphy


Is ice fisherman’s shanty subject to warrantless search?

The ice fishing thing I don’t get. My idea of fun doesn’t include sitting around a hole in the ice on a bitter January morning.

But if you live in northern climes, you know that there are fanatical sportsmen who every year look forward to getting out on some frozen lake in the middle of winter.

Of course, comfort is still a priority for any American sportsman. For an ice fisherman, an ice shanty is just the thing to take the edge off winter cold and wind.

An ice shanty is a wooden or tent-like structure that a fisherman can slide over the surface of a frozen lake. Once in position, the fisherman can cut his hole in the ice and drop his line in comparative comfort.

While waiting for the fish to bite, it’s not uncommon for a fisherman and his pals to indulge in adult beverages. Other fisherman might be partial to illicit substances.

That’s exactly what Officer Brandon Fehrenbacher encountered one day while patrolling Spring Lake, in Lake County, Illinois. Fehrenbacher is employed as a conservation officer by the Illinois Department of Natural Resources Law Enforcement.

On Jan. 27, 2010, Fehrenbacher was making summary checks on ice fishermen on Spring Lake to ensure that they were in compliance with fishing regulations. Sometime before noon, Fehrenbacher observed an ice shanty with a canvas covering on the west side of the lake. He approached the shanty and stopped outside for a few minutes to listen in on the conversation of the shanty’s three occupants.

Fehrenbacher heard one occupant comment on who was going to “pack the bowl” and compliment the quality of the “weed.” The conservation officer naturally reached the conclusion that the occupants were smoking marijuana, so he opened the ice shanty’s front and identified himself as a law enforcement officer. Upon opening the cover, the conservation officer was greeted by the odor of marijuana smoke.

Ronald Slavin was one of the three fishermen inside. Caught red-handed, Slavin produced an orange glass pipe and a plastic bag containing 1.93 grams of cannabis when questioned by Fehrenbacher.

The officer took Slavin into custody and cited him for the misdemeanor of possession of marijuana and drug paraphernalia.

In moving to suppress, Slavin argued that Officer Fehrenbacher violated his Fourth Amendment rights by entering his ice shanty without a warrant, likening ice shanties to camping tents in which some courts had recognized a reasonable right to privacy.

The state countered that the officer’s entry was permitted under the automobile exception to the warrant requirement. In making this argument, the state tried to make the case that Slavin’s ice shanty was akin to an automobile for Fourth Amendment purposes in that it is was easily collapsible and moveable.

The trial court denied Slavin’s motion to suppress and he was convicted.

At the end of December, the Illinois Appellate Court upheld Slavin’s conviction.

The court rejected Slavin’s position that his shanty was like a dwelling. But it also nixed the state’s contention that searches of ice shanties should fall within the automobile exception.

Instead, the court decided that Fehrenbacher’s warrantless entry of the ice shanty was justified by exigent circumstances, pointing out that the conservation officer had probable cause to believe the shanty contained contraband based on what he had overheard.

In explaining that the specific exigency at hand justified Fehrenbacher’s search, the court said that, contrary to Slavin’s contention, “Fehrenbacher could not have called another officer to monitor the scene while he obtained a warrant, as the suspected cannabis likely would have been removed from the scene or destroyed by simply smoking it or dropping it through the hole into the water below. Given the officer’s reasonable belief that someone in the shanty was smoking cannabis, and his knowledge that the evidence likely would have been destroyed if he had delayed, the warrantless entry was reasonable under the Fourth Amendment.”  (Illinois v. Slavin)

– Pat Murphy