Go Ahead and Eat Those Poppy Seed Muffins

I thought it was relatively clear that your employer could require you to take a drug test in order to qualify for employment.  I was wrong.  In a case out of the 9th Circuit, Lanier v. City of Woodburn, the Court held that a City cannot have such a requirement.

Ms. Lanier applied for a job as a "page" at the public library in Woodburn (no pun intended).  Apparently, a page at the library retrieves books from the book drop, and then returns the books to the shelves.  The City of Woodburn had declared itself to be a "drug-free workplace", and required all applicants to submit to a drug and alcohol screen, and successfully pass the screening.

The City had adopted its "drug-free" policy in response to incident with affected employees in the past, and for the library because it attracted a lot of youth for its services.  Regardless, the Court found no special need for sober employees at the library and banned the regulation for the City.

Why do THEY work so hard to look foolish?

Here's your government at work.

The Clayton Sam Colt Hamilton Trust owns a 3,200 acre ranch in Val Verde County.  It is near the City of Del Rio, Texas.  As you might expect, there's not any water on the ranch, but it lies just above the Edwards-Trinity Aquifer, and can pump water from the Aquifer.

In 1997, the Trust sold 15 acres to the City of Del Rio, and the tract is wholly surrounded by ranch land.  The Deed says: 

GRANTOR reserves unto Grantor, its successors, heirs and assigns forever all water rights associated with said tract, however, Grantor may not use any portion of the surface of said tract for exploring, drilling or producing any such water.

So, the City bought the property without any water rights at all.  But, three years after buying the tract, the City started drilled a water well on the tract.  When the Trust manager objected, the City said "too bad", and replied to the inevitable lawsuit by saying that it had the right to drill for water.  The City claimed that you can't own (and can't reserve) water until it is pumped out of the ground.   According to the City in the case, "only through the most strained interpretation of the Trust's reservation of 'water rights' may the Court reach the conclusion that there is an accompanying prohibition on the City's pumping rights."  So, the City claimed that there is such a thing as "pumping rights" that are distinct from the thing you are pumping. As the Court noted in its opinion - the City cited no authority for this assertion. 

The Texas Supreme Court had consistently, and for over 100 years, held that you can separate water rights from the land that is being sold, and that you can therefore reserve the water rights when you sell the surface estate.

Thank you, San Antonio Court of Appeals, for the lesson in obviousness so clearly underappreciated by the City of Del Rio.

Late, but Deserved Congratulation

I have neglected my blog due to a long-deserved vacation, and the work that piled up while I was gone.  On the vacation front, I went to the Florida Keys, and fished for Eagle Rays.  Our captain was quite expert at guiding us in this venture, and I was quite successful.  I returned to learn that a lady had died doing the same thing in almost precisely the same area of the Keys.

But, before I left, I collected an article about a case at the Texas Supreme Court that hasn't been mentioned on any Baylor Law blog that I could find.  In El Paso Hospital District v. Texas Health & Human Services, the Court invalidated an agency rule about the submission of Medicaid claims.   The Agency had not followed the rulemaking requirements of the Texas Administrative Procedures Act, according to the opinion.  But, the judgment of the Court did not enjoin enforcement of the rule.

After the initial unanimous opinion, your Professor - Ron Beal - wrote a letter to the Court as an amicus curaie  noting that the opinion did not say that the Agency tried to follow the rule-making process in good faith.  Instead, the Court found the rule to be a nullity, and therefore, the Agency was not entitled to "cure" the rule - the Court should render judgment enjoining enforcement of the Rule.  The Court followed Professor Beal's advice on that issue and on several other issues that he mentioned in his letter.

Good Job - Professor Beal.

And, While We're Talking About California

In an earlier post, I gave praise to a California appellate court for its treatment of the anonymous blogger issue.  But, if you got the impression that California lawsuits are really just about like lawsuits elsewhere, consider Orlando v. Alarm One.

In that case, the Alarm One people were sued for sexual battery, and other claims arising out the team-building exercises that they held for employees.  Alarm One sells residential alarm systems, and apparently has periodic sales motivational programs where the employees engage in zany, pep-rally style exercises.  One of the exercises involves giving spankings to adult sales force members who have not met their quota.

I can't write too much more about this, and don't feel the need to.  I take back my tongue in cheek comments that implied that Indiana law was problematic.  

Would You Like Your Child to be on TV?

The Overton County School Board, in Tennessee, decided to install video surveillance cameras in the local middle schools. Although they wanted to install the cameras, they simply assigned the task of how and where to install the cameras to a Director of Schools. This guy delegated the job to a principal, who further delegated the job to an assistant principal. The assistant principal then installed the camera facing doors, and in the girls and boys locker rooms. All collected camera images were transmitted to the computer in the Assistant Principal's office and stored on his hard drive. When the cameras became operational, the Assistant Principal noticed that the cameras were capturing pictures of kids dressing and undressing in the locker rooms, and suggested a change.  It wasn't done.

I know you think you know what's coming, but it's even worse.

The camera images could be accessed not only on-site, but remotely.  The password and user ID for the remote access was never changed from the default password, and quite a few people across the country got a peek at the locker room activities.  

So, when the kids found out about this, they understandably sued for an unreasonable search under the Fourth Amendment.  The District Court was asked to dismiss the case on the claim that the school officials had qualified immunity - basically that they neither knew of, nor understood that they were violating anyone's constitutional rights.   When the case got the 6th Circuit, the Court said that it understood the nee for video surveillance as a security measure for schoolchildren, but could not countenance the idea that this particular search was reasonable.   Notably, the parents and students were not given notice that the kids were subjected to video recording of them in various stages of undress.  

In holding that the school officials were not entitled to a "pass" for this violation, the Court said that, "Some personal liberties are so fundamental to human dignity as to need no specific explication in out Constitution in order to ensure their protection against government invasion."  

It is sometimes amazing not only what our school administrators will do (like even installing the cameras in the locker room in the first place), but just as amazing that they will attempt to avoid any responsibility for their actions.  I'm sure the kids learned something from this. 

As If Airport Security Wasn't Bad Enough

Although I shouldn't be surprised, I was a little (at first).  The Border Patrol and Customs folks are apparently doing more than the metal detector and x-ray system to scan people who enter the U.S.  The Electronic Frontier Foundation and the Asian Law Caucus recently sued over some very intrusive search techniques used by the government.  Here's how the EFF website describes it (eff.org):

"ALC, a San Francisco-based civil rights organization, received more than 20 complaints from Northern California residents last year who said they were grilled about their families, religious practices, volunteer activities, political beliefs, or associations when returning to the United States from travels abroad. In addition, customs agents examined travelers' books, business cards collected from friends and colleagues, handwritten notes, personal photos, laptop computer files, and cell phone directories, and sometimes made copies of this information."

There were people who had their laptop seized, with a demand for the log-on name and password.  And, when things are returned (and sometimes they are not), they have often been altered by the Government.  The Government calls these searches "routine".  I would beg to differ, and would probably change my flight or not travel if my other option was turning over my electronic equipment without any idea what was going to be done, or when I would get it back.

Anonymous Posting Protected by California Court

A California appellate court has gone the extra mile to protect the identity of bloggers. In a financial message board, there was apparently a lively, and not very nice discussion about the corporate officers of a Florida company. Upset with the cyber-smear, one of the corporate officers sued to get the identity of 10 Yahoo! posters. One of the anonymous posters objected, and the Court of Appeal in California agreed.

In an interesting opinion, the Court noted that courts have recognized the right to publish anonymously as a long-standing tradition.  "Persecuted groups and sects from time to time throughout history have been able to criticize oppressive practices and laws either anonymously, or not at all."  

Of course, the right to be nameless is not the same as the right to defame without disclosing your identity.  The California court used the same balancing test that the Texas court used in the case I posted about here.

Essentially, in order to learn who the blogger is, you must have a defamation case that would survive a Motion for Summary Judgment.  I think that is a decent way to balance interests, and am glad to see other courts adopting it.

Another Thing You Can't Do In Front of A Jury

I've posted on this topic before, but came across this interesting event from a products liability case. At the end of a trial, the plaintiff apparently began his closing argument in the traditional way - thanking the jury for their time. But, then he said that his client - the Plaintiff - would like to stand and thank the jury as well.

It's good to know, at this point, that the plaintiff is a grandmother was suing on behalf of her daughter and grandchildren who had died in events giving rise to the suit.

As the Texas Supreme Court put it:

Immediately, without leave of court or notice to opposing counsel, [the plaintiff] stood and said to an all-Hispanic jury: "Muchas gracias les doy de parte de mis nietos y mi hija y de parte mia la jurado." ("Thank you very much to the jury on the part of my grandchildren and my daughter and on my part.")

At oral argument before the Texas Supreme Court, the lawyer conceded that it was improper for the plaintiff to address the jury but argued that the error was harmless. The Supreme Court thought the harm was "manifest" to any experienced trial lawyer. A party's personal expression of gratitude to the jury at the close of a case is error that cannot be repaired, the Court said.

I would tend to agree that this is pretty tacky tactics, but still stand by the idea that a jury ought to be pretty wise to this scam. It's an obvious play for sympathy. And, once again, you would hope that jurors would do better than feel obliged to give the person employing this tactic money as a reward for the tactic. Would the case really have turned out differently if grandma had not said this?

Happy Valentine's Day

This was making the e-mail rounds today. It's kinda funny, but I'm not sure I'd recommend it.

A Real Life View of Defamation Law

Here are some facts from a recent case out of the Supreme Court of Illionois. Its a defamation case, and arises from two competitors in the men's clothing business. One shop - Imperial - was owned by folks of Jewish descent. The other - Cosmos's - was run by folks of Italian descent. Cosmo's prides itself on being home of the original 3-for-1 sale. After making an allegedly objective comparison between what Cosmo's offered in its 3-for-1 promotion, Imperial decided that its 1-for-1 prices were really lower than the combined prices at Cosmo's and tried to exploit this price advantage by offering its own 3-for-1 promotion. Cosmo responded with a big ad in the paper that included the following language (quoted from the Court opinion):

We all know, there is only one "America" in the world and only one "3 for 1" in the Midwest...and in both cases it was the original thinking of an Italian that made them famous. So to the shameless owners of Empire rags center, east Eden and south of quality, we say..."Start being kosher...Stop openly copying and coveting your neighbor's concepts or a hail storm of frozen matzo balls shall deluge your "flea market style warehouse".

It is laugable how with all the integrity of the "Iraq Information Minister", they brazenly attempt pulling polyester over your eyes by conjuring up a low rent 3 for imitation that has the transparency of a hooker come on...but no matter how they inflate prices and compromise quality, much to their dismay, Cy and his son Paul the plagiarist still remain light years away from delivering anything close to our "3 for 1" values.

I assume you get the idea, even though the ad is more extensive. The Court opinion is 17 pages of recital and analysis of the law, the end result of which is this -- no reasonable reader would construe these things as statements of fact, and they are not, therefore, actionable. I bring the case up because I think that the general populace has the idea that you are not permitted to print advertisements with racial slurs and general denigration of a competitor's product. In Illinois, that's not the case. The Court said, "No matter how distasteful they may be, ephithets aimed at ethnic or religious groups fall within the protection of the first amendment....No circumstances are alleged in this case that would strip the language used in the ad here of that protection."

Given the likelihood that the "speech" here is commercial, and the minimal value of this kind of sppech in contributing to the commercial purpose, I wonder whether the Constitution really protects this type of ad. I have no information that indicates that the case might go to the Supreme Court, but it would not surprise me if it did.

Oregon Supreme Court Won't Change its Mind on Punitive Damages

Two weeks ago, the Oregon Supreme Court affirmed a punitive damage award of $80 million against Philip Morris. Now that case is the one where the United States Supreme Court expressly told the Oregon court that a punitive damage award is not allowed when the jury is allowed to base its award on harm that was suffered by persons other than the Plaintiff.

This is the third time that the case has been heard by the Oregon Court. And, it sets up an argument that the Oregon court is actually thumbing its judicial nose at the Supreme Court. This time, the Oregon court recognized that the Supreme Court said that the award was constitutionally infirm - because it violated the due process clause. But, the Oregon judges now say that they need not follow the Supreme Court's ruling because there were state law procedural defects in raising this issue. Specifically, Philip Morris did not make a valid objection to the jury instructions, and Philip Morris did not submit a jury instruction that was valid under State law.

The obvious tactic of the Oregon court is to do whatever is necessary to punish the evil tobacco company, now by basing its decision affirming the award on an "independent state ground". The United States Supreme Court clearly has said that a punitive damage award cannot stand if it is a multiple of more than 10 times the actual damages. In short, it is fairly clear that the award is wrong under the due process clause, and it will be interesting to see if Philip Morris appeals back to the United States Supreme Court to make sure that the "multiple of actual damages" rule is expressly applied to this case.

Breaking News: Congress Wasting Time!

Today, Congress is holding hearings involving the use of steroids - including the testimony of Roger Clemens and Brian McNamee. The hearing started with statements by the Congressman - a predictably boring beginning. In fact, as I write, we have more than 30 minutes of statements, and not a single question to anyone.

Now, what is the purpose of this? The initial statements tell you why. The Congressmen are there to keep their friend, George Mitchell, from having his long-winded report criticized.

The bottom line is that if Roger Clemens or Brian McNamee have done anything wrong, they should be arrested, charged and tried in a court. Putting either of them in a spot where they have few, if any, of the trial protections that Americans routinely enjoy would seem to be wrong-headed on many levels. Republican Tom Davis as much said so - saying that although this was not a court of law - "that's OK". He claimed that the purpose of the hearing was to "save lives".

I'll leave it to the reader as to whether this is a waste of time, and provide you a picture of the Committee Chair - Henry Waxman - who, in this photo, is rockin' his 70's porn stache. As I am watching, I wonder why the Republicans are for Clemens (in large degree), and the Democrats are against him. What political ideology is behind that?

Apparently, the resolution of the matter will depend on the marks on Roger's Rear End. This is getting silly.

Election Update

Thurbert Baker - who describes himself as "Tough as Nails" is won re-election as the Attorney General for the State of Georgia last November. Mr. Baker is the prosecutor who insisted that Genarlow Wilson serve 10 years in jail for a consensual sex act committed with an underage partner. I reported on Genarlow Wilson's release here.

I don't know whether to believe that people approve of a rather two-faced approach to a very difficult situation, whether they thought that Mr. Baker did the best he could in a bad situation, or whether they have forgotten what happened here.

I would not have forgotten that after a Judge said that the punishment was far out of line, the prosecuting authority insisted on contesting that ruling, and insisting that Genarlow serve the entire sentence. On the other hand, I don't know what the option was -- who was opposing Mr. Baker.

State of Texas Steals Dirt from Landowner

It's a nice headline, but the conclusion comes from a case just decided by the 14th Court of Appeals in Houston. It seems that the State (surprisingly) decided to improve a highway, and needed land to build a detention pond. A detention pond catches all the water that runs off the concrete, that might otherwise be soaked into the land. The State tried to condemn land to do this, but eventually negotiated a permanent easement with the landowner allowing the State to have its pond.

The State then built the pond, but in the course of doing so, carted off some 87,500 cubic feet of dirt. It then hauled the dirt to its other construction projects and used it. Although it paid for the easement, it didn't pay for the dirt. When the landowner found out that the State had taken the dirt and used it for another purpose, they sued. The State claimed that the dirt was part of the deal, even though the dirt was never mentioned in the negotiated agreement. The State countered that use of the dirt was implied.

The Court of Appeals adroitly noted:

The State, no novice to construction projects, knows the value of dirt. It is also quite likely, though this case has not progressed to the point of determining the value of the dirt removed, that it exceeds the $55,000.00 paid ... for the permanent easement.

In this case the State actively negotiated and procured an easement for the single purpose of building a water detention facility, but then proceeded to remove thousands of cubic meters of soil from that location for a purpose unrelated to the construction of the detention facility. While it may be "reasonably necessary" for the state to displace the soil to dig the detention facility, the state provided no testimony or other evidence that it was reasonably necessary for it to cart off an enormous amount of soil to another location ... and use it for its own purposes.

I assume that if the shoe was on the other foot, the State would insist on being paid for dirt. I'm glad to see the landowners did here.

Note: I don't know who the little kid on the big pile of dirt is in the picture for this post, but that is a very big pile...maybe 87,500 cubic feet?

Goodbye to Professor Horner

My contracts professor passed this week. And, although more and more close to me are passing through the years, I feel this loss because Professor Ed Horner was so exceedingly smart, yet so kind and unassuming. Long after I had left school, I saw him at school, and around town, and he never failed to have a kind word, and he was always ready to talk - about anything I might bring up. He had the heart of a servant - to his students, to his church and to his profession that set an example for everyone. I am a better person because I knew Professor Horner. And, there are likely thousands like me.

If I told Professor Horner that this was one of my favorite Hymns, he would have just smiled at me, and said it was his favorite too (whether it was or not). So, I'm going to print it here, to affirm that Professor Horner's hard work is over.

When my life work is ended, and I cross the swelling tide,
When the bright and glorious morning I shall see;
I shall know my Redeemer when I reach the other side,
And His smile will be the first to welcome me.

I shall know Him, I shall know Him,
And redeemed by His side I shall stand,
I shall know Him, I shall know Him,
By the print of the nails in His hand.

Oh, the soul thrilling rapture when I view His blessèd face,
And the luster of His kindly beaming eye;
How my full heart will praise Him for the mercy, love and grace,
That prepare for me a mansion in the sky.

Oh, the dear ones in glory, how they beckon me to come,
And our parting at the river I recall;
To the sweet vales of Eden they will sing my welcome home;
But I long to meet my Savior first of all.

Through the gates to the city in a robe of spotless white,
He will lead me where no tears will ever fall;
In the glad song of ages I shall mingle with delight;
But I long to meet my Savior first of all.

I shall know Him, I shall know Him,
And redeemed by His side I shall stand,
I shall know Him, I shall know Him,
By the print of the nails in His hand.

Words by Fanny J. Crosby

What Can You NOT say to Jurors

The Texas Supreme Court has taken a renewed interest in what kinds of lawyer arguments are improper. The basic premise behind the law relating to improper jury argument is that silver-tongued lawyers are able to appeal to the prejudices or sympathies of jurors to such an extent that the reasoning of the jurors is overwhelmed and the final verdict cannot be trusted.

With the general populace as skeptical about lawyers as they are today, I'm not sure that this premise can be voiced with a straight face. If the talk radio people can call the President a Nazi, is there really a belief that jurors can't separate vitriolic hyperbole from the role they are asked to undertake.

Recently, the Court said that lawyers can't refer to Nazis in their closing arguments to jurors. And, the lawyer in the Nazi case clearly went over the line of good taste and decorum. However, I want to believe that you can pick 12 people at random, and still be reasonably assured that they are not going to believe what the lawyer said just because he or she is so mesmerizing. The next case up involves these nefarious statements:

For years, in this conservative community, juries have been very liberal with the doctors, very liberal. What I mean is, their verdicts didn't send much of a message at all....physicians in this community have been able to count on the fact that juries are going to be liberal with them, and where has that gotten us? How do you send a message in this kind of case? It is with the amount of the verdict. And that is what I am talking about when I say the juries in Lubbock have been very liberal with doctors in the past, because juries' verdict haven't gotten anybody's attention, and that is what we are asking for here.

I'm not much persuaded that this case turns out differently if these words, or anything like it is said or is not said. But, I wouldn't bet money that the doctors don't get a reversal.