Now, some legislators want to offer additional credits for "family friendly" productions, and that absolutely does not include any production which has a gay character.

This may seem a weird way to view Freedom of Speech, but I cannot see how a State Legislature can offer additional incentives based on the content of the speech.  It has to be content neutral.  But, since when does the First Amendment matter to Christian conservatives unless it is to push their belief that they can do as the please while hiding behind their Bibles.

Now, individuals do have a cause of action in the State of New York (California too) if an advertiser or the like uses their likeness for profit, and just for profit.  There is an exception for art, such as when Mattel sued Aqua for their song "Barbie Girl."  In that case, Mattel lost.

Anyway, the funny part about this case is that Lindsay pretty much will have to argue that she is an alcoholic, that it is a part of her essence.  Gotta love it.  Please, let there be a deposition.

This case is interesting in that New York’s highest court clearly has an interest in this case.  But, who else can rule on the legality and constitutionality of this action other than the courts.  Even though everyone agreed that judges in New York needed a raise, must the legislature consider such legislation separately?  Is it really required by the Separation of Powers clause?

Read the opinion Chief Judge v. Governor

Issue.  Does the failure of the New York Assembly to give a raise to judges in over ten years violate New York’s Constitution?

Background.  The last time “Article VI judges” in New York received an increase in their compensation was in 1998.  Since that time, New York judges have seen their respective pay fall as these judges rank 50^th in compensation once you factor cost of living expenses.  All political sides in New York agree that judges needed a raise and attempts have been made to increase judicial salaries.  In fact, money had even been allocated.  However, the increased compensation had not been forthcoming as the increased compensation had been tied to other issues which had yet to be resolved.

Several judges sued the Governor and the State Assembly to get the raise that everyone agrees to which they were entitled.  Three such cases were consolidated and singularly ruled on by New York’s Court of Appeals.  The judges raised different issues.  They argued that the Compensation Clause of the New York Constitution compelled the Legislature to increase wages.  Further, they argued that Separation of Powers required the Legislature to consider judicial compensation separately, so it would not be subject to other political forces and/or factors.  The Court of Appeals rejected the Compensation Clause claim but did rule in favor of the judges with respect to the Separation of Powers claim.

Court’s Analysis.  For this blog entry, the discussion will focus on the Compensation Clause claim and the Separation of Powers claim.  Even before addressing the claims, the Court of Appeals did address its right to adjudicate this case even though it had a vested interest in the outcome.  Under the Rule of Necessity, the Court of Appeals has to hear the case because there is no other judicial body in the State with jurisdiction to hear the case.

Maverick Recording Company v. Harper - The Fifth Circuit held that an individual's intent or subjective belief cannot be used as grounds to assert that you are an "innocent infringer" of copyright.  Thus, Harper's assertion that she believed file sharing of music was akin to internet radio station does not make her an "innocent infringer."

Baribeau v. City of Minneapolis - Even though the Eighth Circuit threw out many claims against the Defendants for arresting a group of protesters on charges of displaying a simulated Weapon of Mass Destruction, the Court did allow the claim for false arrest to go forward.  It appears that the officers arrested the protesters without probable cause and made up a crime a few hours later.  (The protesters were never formally charged with anything.)

Deen v. Egleston - The Eleventh Circuit upheld the constitutionality of Georgia's revision of the statute of limitations for medical malpractice claims.

Lawrence v. Virginia - The Virginia Supreme Court threw out expert testimony that was based on unadjudicated allegations for which the truth of them had not been proven.

Go here for the settlement info.

If you live in an apartment building and you do not like the fact that the building only offers one company's services for phone, cable, and/or internet, you better come up with another complaint than the antitrust laws.  Even though the federal antitrust laws allow the relevant market to be defined wholly within one state, a single apartment building is too much.

Read the opinion McCann v. Foster Wheeler LLC

Issue.  Which state’s Statute of Limitations (or Repose) applies in a case when the injury occurred in Oklahoma but the Plaintiff did not realize the injury until years later when he became a resident of California?

Background.  Terry McCann sought recovery for mesothelioma, as a result of exposure to asbestos over a period of time.  One of the defendants that McCann sued included Foster Wheeler, LLC, and this case involves whether such a suit against Foster Wheeler was time barred. 

In 1957, Foster Wheeler was aiding in the installation of a boiler at the Oklahoma refinery where McCann was working.  McCann alleges that he was exposed to asbestos for the two week period when the boiler was installed; and thus, Foster Wheeler was responsible for his injuries.  McCann moved to California in 1975 and was diagnosed with mesothelioma in 2005.  It was in 2005 that McCann filed suit in California against Foster Wheeler. 

Foster Wheeler moved for dismissal on the ground that the case was time barred under Oklahoma law.  McCann countered that the suit was filed in California, that he was a California resident at the time he discovered his injury and that California should apply its own statute of limitations to the case.  Application of California’s statute of limitations would allow the case to go forward.

The trial court applied Oklahoma’s Statute of Repose and dismissed the case against Foster Wheeler.  On appeal, the Court of Appeals disagreed and applied California law.  The case was appealed to the California Supreme Court which agreed with the trial court and held that Oklahoma law applied to the matter.  [There is also an issue as to whether Oklahoma law would allow this action.  In other words, did the trial court apply the correct Statute of Repose?  The trial court found that it would not, but the Court of Appeals did not reach the issue.  Thus, the Supreme Court remanded the case to the Court of Appeals to determine whether the trial court was correct with respect to that ruling.]

Court’s Analysis.  Back in the early days of choice of law analysis, courts would make a distinction between “substantive” and “procedural” issues in determining which state’s law to apply.  Traditionally, the forum would apply its own law with respect to procedural issues.  Thus, these courts would apply their own statute of limitations laws with respect to a particular matter.  That raised a problem when all the parties and the incident occurred in one state where the action would be time barred but it was brought in another forum where it was not time barred.

Gorzynski v. Jetblue Airways Corp. - The Second Circuit ruled that the trial court needed to engage in a fact basis to determine whether Jetblue was entitled to summary judgment on a hostile work environment claim even though the Plaintiff may not have taken advantage of Jetblue's preventative measures with respect to such claims.

U.S. v. Stephens - The Eighth Circuit overturned a trial court's finding that a provision of the Adam Walsh Act was unconstitutional.  In this case, the Court determined that it was not unconstitutional to impose a curfew and electronic surveillance as terms of pretrial release for an individual charged with trafficking child pornography.  Further, there is no need for an individualized assessment of each accused.

People v. Brown - The New York Court of Appeals ruled that a defendant who pled guilty even though he professed innocence but did so he could visit his son in the hospital could withdraw his plea because it was given under duress.

Interest of H.K. - The North Dakota Supreme Court ruled that a juvenile could be adjudicated delinquent for disorderly conduct after the juvenile continuously and menacingly called another girl "n**ger".  The adjudication did not violate the First Amendment.

Read the opinion Nebraska v. Ford

Issue.  Did the trial court err in the admission and/or denial of certain pieces of evidence during a rape trial?

Background.  The victim, C.H., and the Defendant Jacob Ford both attended a party which was a celebration of Ford’s overseas deployment.  There was a great deal of drinking at this party.  Both parties agreed that a sexual act occurred between C.H. and Ford, but disagreed as to who initiated it.

It is undisputed that C.H. and Ford were wasted and that C.H. had engaged in consensual sexual relations with another individual at the party – a man that she had had sex with before.  After having sex, the man went upstairs to cook breakfast.  Ford, who was staying in that man’s room, decided to go in there to sleep.  That is when the stories are in dispute. 

C.H. claims that she was passed out and awoke to being penetrated by Ford who ejaculated on her stomach.  C.H. claims that she never consented to sex and that she had texted her friend shortly thereafter (within 10 minutes) that Ford had raped her.  Ford claimed that when he went into the bed, C.H. had initiated sexual contact and that Ford told her several times that he was Ford and not the man she had slept with previously.  After the act, Ford went upstairs where he told of his exploits to the man C.H. had had sex with earlier.  The man thought maybe C.H. was confused but Ford told him that he had told her several times.  The two then laughed.  Ford believed that C.H. had heard the laughter, was embarrassed and cried rape.

At trial, there were disputes over the admission of certain pieces of evidence.  Ford wanted to introduce evidence that C.H. was flirting with him that evening and that she had engaged in and made sexual comments during the party.  The Court rejected the evidence but did allow a picture of C.H. with two other women making a sexual hand gesture.  Ford also objected that the trial judge struck evidence of Ford’s tendency of being peaceful.  Ford also objected to the admission of his subsequent sexual history.  The Prosecutor sought evidence of a woman Ford was interested in at the time of the alleged rape and with whom he had sex with the following month.

Ford was convicted and sentenced to 4 to 6 years in prison.  Ford appealed based on the judge’s evidentiary rulings.  The Nebraska Supreme Court found that the trial court did not err in refusing to admit evidence of C.H.’s conduct that evening, but that it did err in striking character evidence of Ford’s peacefulness and evidence of Ford’s subsequent sexual history.  Further, the Nebraska Supreme Court found that admission of Ford’s subsequent sexual history was not harmless error and Ford was entitled to a new trial.

Court’s Analysis.  For this blog excerpt, let’s focus on the trial court’s rulings on two pieces of evidence:  1.) C.H.’s behavior on the night of the alleged rape, and 2.) Ford’s subsequent sexual history. 

What right does the School have to view such videos?  Further, if this is true and any child was in a stage of undress at the time, those individuals should be arrested for the manufacture of child pornography.  Just plain disturbing.

Oh, quick side note - I love how some public schools, in rich districts, can "give" every student a computer.  (No, I am not hating.)