Happy New Year: fireworks laws

WWL-TV has the parish-by-parish are-fireworks-legal-or-not list, and the St. Tammany News tells us to be safe.

But, "encourage children to stand away and wear safety goggles?" Isn't that a bit much?

Happy New Year.

Judge Raymond Bigelow leaves bench to become federal public defender

So reads this headline from the Times-Picayune.

Judge Bigelow served 15 years on the Orleans Parish Criminal District Court.

Update: DA appealing $14m judgment [lawsuit]

I reported earlier about a $14m judgment against the Orleans Parish DA's office.

The DA's office is now appealing that decision:

Orleans Parish District Attorney Leon Cannizzaro said Tuesday that he will ask an appeals court to reconsider its decision affirming a $14 million judgment awarded to a man sent to death row because of prosecutorial misconduct.

St. Bernard Parish garbage dispute resolved

There's been a controversy brewing between the St. Bernard Parish government and SDT Waste & Debri Removal Services. For background, see WWL-TV's covereage here, here, and here.

Two weeks ago, the Times-Picayune reported:

The parish government, Parish Council and SDT are in the midst of reviewing data related to a series of sharp increases in the parish's disposal bills at River Birch Landfill on the West Bank. A forensic accountant, Harold Asher, has been hired by all three parties to analyze data from SDT and the parish.

Today, however, the matter is resolved:

An independent accountant hired by St. Bernard Parish government and SDT Waste & Debris Services to examine a series of increases in parish garbage disposal bills has found no evidence of wrongdoing by SDT. However, the company and the parish have agreed to a cash settlement for the company's use of a parish-owned waste collection site.

The accountant, Harold Asher, concluded that the garbage hauling services SDT provided after taking over a St. Bernard Parish-owned garbage transfer site in mid-2007 equaled the amount the parish paid to dispose of the waste at the site. SDT agreed to pay $204,000 for the 17 months it used the transfer facility on Paris Road, which has now been vacated by the garbage hauling company.

More coverage, by WWL-TV, here.

But, no word on SDT's troubles with the Orleans Parish government.

No class action for FEMA's (alleged) formaldehyde trailers

The Times-Picayune reports:

A federal judge Monday [December 29] refused to give class-action status to the lawsuits claiming that Gulf Coast hurricane victims were exposed to toxic fumes in government-issued trailers.

Instead, the U.S. District Court will treat each lawsuit individually since each plaintiff's case is unique, varying widely in age, health habits, and the amount of time spent in trailers delivered by the Federal Emergency Management Agency after Hurricane Katrina, said Judge Kurt Engelhardt. Plus, plaintiffs lived in different models of trailers, made by different companies, the judge said.

"All of the above are individual issues that render analysis on a class-wide basis utterly impossible, " Engelhardt ruled in a 50-page decision. "Each plaintiff's claims and alleged injuries will require an examination of individual evidence."

This story is getting national coverage: New York Times, USA Today.

You can read the court's 50-page order here.

44,739 voters un-registered [legislation]

The Advocate reports:

Nearly 45,000 inactive voters have been removed from the state election rolls since November presidential balloting, the state’s election chief said Monday [December 29].

The registration drop — about 1.5 percent of the state’s 2.9 million registered voters — isn’t nearly as much as in prior cancellation cycles thanks to a presidential election that energized people to go vote, Secretary of State Jay Dardenne said.

This year, the names of 44,739 people were removed from the voter rolls, he said. In 2006, 82,656 voter registrations were canceled, Dardenne said.

Prior to that, 108,850 names came off the rolls in 2004 and 96,281 in 2002, he said.

The state law referred to in the story is La. R.S. 18:193.

4th Circuit is through with Jefferson, for now [Dollar Bill]

The BLT (Blog of Legal Times) reports:

This morning, the U.S. Court of Appeals for the 4th Circuit denied Jefferson's request for a hearing en banc to consider his interlocutory appeal. Last month, a three-judge panel of the 4th Circuit affirmed a decision by the U.S. District Court for the Eastern District of Virginia not to dismiss the pending corruption indictment against Jefferson.

The 4th Circuit's panel opinion (which the en banc court has let stand) can be found here.

Lafourche Parish government employees will not be subject to random drug tests (yet)

Earlier this month, Lafourche Parish councilman Lindel Toups proposed random drug testing for all Parish employees.

He introduced it after proposing random drug tests of public-school employees, which prompted some local residents to question why the same tests aren't required of government representatives.

Toups said he believes his peers will support his newest measure.

"I don't see why not. I don't see why somebody could vote against it," he said. "We drug test employees, so why not drug test the council and administration?"

Those opposed, however, were worried about getting sued:

Council members narrowly passed a law Tuesday [December 9] requiring random drug testing of themselves and anyone employed by Lafourche Parish government.

But legal precedent and some council members suggest the law is ultimately doomed to fail. Some said its passage could mark the start of a costly legal battle, with taxpayers footing the bill.

"All somebody has to do is challenge it. But why go through the expense of using public funds to challenge something we already know is illegal?" said Councilman Joe Fertitta.

The measure now awaits its first test, the judgment of Lafourche Parish President Charlotte Randolph.

Randolph, who acknowledged during the meeting that similar measures were deemed illegal, has ten days to either approve or veto the measure.

Ultimately, Lafourche Parish President Charlotte Randolph did veto the ordinance: "Parish President Charlotte Randolph has vetoed a controversial measure to drug test all Lafourche government employees."

But, the story isn't over yet. The ordinance got five votes (for passage), and only six are needed to override the veto; Toups says he plans to propose an override come January.

The full text of the ordinance is here (page 78 of the Parish Council's 12/9/2008 agenda).

Two fathers listed on birth certificate [lawsuit]

The Times-Picayune reports:

A same-sex couple in California has won a federal court ruling that their adopted son's Louisiana birth certificate must bear the names of both adoptive fathers.

The facts are so clear that no trial is needed, U.S. District Judge Jay Zainey wrote.

Louisiana's Office of Vital Records must give full faith and credit to the New York State court in which Oren Adar and Mickey Ray Smith of San Diego adopted the boy, he ruled Monday. The office had refused to issue a birth certificate listing both as the boy's legal parents.

The ruling can be found here.

No Cookies for Librarians [ethics]

The Times-Picayune reports:

After asking the state Board of Ethics last month whether library staff can accept inexpensive and homemade Christmas gifts from grateful patrons, St. Tammany Parish library officials last week received the board's response: Bah, humbug.

Even small gifts, such as "cakes, pies, houseplants, etc., from patrons of the library for their performance of the library employees' duties" are off-limits, according to an advisory opinion issued by the ethics board.

Any employee of a Louisiana public library who receives such a gift from a library patron needs to "return the cookies to the person and say that, 'I cannot accept these cookies under the ethics law,' " said Aneatra Boykin, staff attorney for the ethics board.

Times-Picayune gives a shout-out to CourtWatch NOLA

The Times-Picayune reports here about Court Watch NOLA:

The volunteers seek to plug a gap in the criminal justice system: Victims, criminal defendants and their relatives find it difficult to track progress in cases as they face an excruciating wait for resolution. The interested parties often can't make court dates and don't know when a hearing is delayed.

"Unsung heroes" is exactly the right term.

A law that will never be used... [lawsuit]

The Baton Rouge Advocate reports:

The wife of Louisiana Speaker of the House Jim Tucker dropped her effort to change the judge presiding over a child custody dispute with her ex-husband.

The Times-Picayune reported on this story last December.

Here's the background: in 2007, the legislature passed the following law:

Notwithstanding any other provision of law, if after August 26, 2005, and before August 15, 2007, a party has changed his domicile within the state and the other party resided in another state prior to the hurricanes, the custody or support proceeding shall be transferred to the parish of the domicile, upon motion made prior to December 31, 2007.

La. Acts 2007, No. 99, codified at La. Code Civ. Proc. art. 74.2(F).

Kind of narrow, eh? It is a law that is effective for all of three-and-a-half months. That is, it went into effect on August 15, 2007 (see La. Const. art. 3, § 19) and, by its terms, may only be used "prior to December 31, 2007."

The Advocate described the facts of the case as follows:

Marisol Tucker attempted to move the child custody and support lawsuit from state district court in Plaquemines Parish to one in Orleans Parish. She relied on a state law her lawmaker husband pushed [which] was signed into law by then-Gov. Kathleen Blanco in June 2007. The Tuckers married in July 2006 and moved into a house in Orleans Parish. In September 2007, Marisol Tucker asked to have the lawsuit with her former husband transferred to Orleans Civil District Court.

The ex-husband argued that the law was unconstitutional. I don't know the specifics, but I'm assuming it was based on La. Const. art. 3, § 12(A)(3), which prohibits the legislature from passing "a local or special law concerning any civil or criminal actions, including changing the venue."

Anyway, the end result is that Ms. Tucker has apparently resigned herself to litigating in Plaquemines. And a pointless law if I ever saw one.

Board of Private Investigator Examiners cannot regulate red light camera operators [traffic cameras]

The Daily Advertiser (Lafayette) reports:

A Baton Rouge judge has ruled that the Louisiana State Board of Private Investigator Examiners does not have control over Redflex Traffic Systems' operations in Lafayette. . . .

19th Judicial District Judge Timothy Kelley ruled that Redflex and its employees are not conducting the activities of a private investigator or private detective as defined by state law. [See La. R.S. 37:3503(8).]

In addition, Kelley reversed the board's declaration that it had authority over Redflex's activities in Lafayette and also ordered the board not to conduct hearings to determine whether a cease-and-desist order should be entered regarding Redflex's Lafayette operations.

Pat Englade, director of the state board, said members would make a decision on how to move forward at its Jan. 20 meeting.

"The attorneys will come in and explain to the board what the judge's ruling was and give them options," Englade said. "They will then make a decision. There's certainly the option to appeal, but that will be up to the board."

As for the background, the minutes from the Board's July 22, 2008 meeting reflect the following:

Mr. Littleton made a motion that the Louisiana State Board of Private Investigator Examiners does have Jurisdiction over Redflex. Seconded by Mr. Burrell. Roll call vote: Mr. Asmussen yea, Mr. Littleton yea, Mr. Burrell yea, Mr. Chauvin yea, and Ms. Kovac abstain. Motion carried.

A list of the Board members can be found here.

Confusion about new boat-registration law [legislation]

The Daily Comet reports here. The way things used to be, you had to registered your boat with the State or the Coast Guard. Now, you need to register with the State and with the Coast Guard. (See La. Acts 2008, No. 35.)If you've got a boat, and it isn't registered with the State, have fun.

NFL, StarCaps litigation: update

The Times-Picayune's "Saints Beat" blog reports:

The NFL on Monday filed an appeal to a judge's ruling blocking the suspension of three New Orleans Saints and two Minnesota Vikings.

Nothing fancy - just a plain ol' notice of appeal.

My previous coverage of this story can be found here.

Backlog of complaints against contractors [Katrina]

WDSU reports about citizens who have been screwed by contractors in post-Katrina New Orleans (here, here).

Unfortunately, the Louisiana State Licensing Board for Contractors has limited capacity:

For nearly three weeks, NewsChannel 6 has tried to get the Louisiana State Licensing Board Of Contractors to walk through the Gentilly homes with the Orleans Parish District Attorney's Office.

"We have 25 investigators statewide," said Licensing Board Administrator Frances Gilson. "We have more than we can possibly get to, and I apologize that no one called you back, but we have been really busy."

And it doesn't help that the state budget is kind of tight days.

And,

The Licensing Board said that, because el Amin has a commercial license, he's exempt from needing a home improvement registration for work between $7,500 and $75,000.

The amounts Charles and Williams each paid are within that range.

"That means that on these three cases, there's not a lot that the board can do at this point, because of the way the law is written," Gilson said.

Maybe we should call our legislators - to get them to do something to empower the board to take some sort of action.

$14m to wrongfully convicted man upheld [lawsuit]

WWL-TV reports:

A federal appeals court has upheld a $14 million award to a former Louisiana death row inmate who was exonerated after 18 years in prison.

The man is named John Thompson. The opinion is here, previous news coverage can be found here and here.

This case has a somewhat storied history. Anybody remember In re Riehlmann from their legal ethics course?

Well, Riehlmann was a close friend of Gerry Deegan, one of the prosecutors in Thompson's original murder trial. In April 1994, Deegan found out that he was dying of colon cancer, and had to get something off of his chest: over drinks at a bar, he confided to Riehlmann that he had suppressed exculpatory blood evidence in a criminal case he prosecuted while at the District Attorney's Office. In re Riehlmann, 2004-0680, p. 1 (La. 1/19/2005), 891 So.2d 1239. (Mr. Riehlmann got in trouble for not bringing this to the attention of the appropriate authorities. See Rules of Professional Conduct, Rule 8.3.)

The case that Deegan was talking about was this case.

Nearly five years after Mr. Deegan's death, one of the defendants whom he had prosecuted in a 1985 armed robbery case was set to be executed by lethal injection on May 20, 1999. In April 1999, the lawyers for the defendant, John Thompson, discovered a crime lab report which contained the results of tests performed on a piece of pants leg and a tennis shoe that were stained with the perpetrator's blood during a scuffle with the victim of the robbery attempt. The crime lab report concluded that the robber had Type "B" blood. Because Mr. Thompson has Type "O" blood, the crime lab report proved he could not have committed the robbery; nevertheless, neither the crime lab report nor the blood-stained physical evidence had been disclosed to Mr. Thompson's defense counsel prior to or during trial.

In re Riehlmann, 2004-0680, p. 2.

In reversing Thompson's conviction, the Fourth Circuit wrote:

[T]he State had withheld blood identification evidence in an unrelated armed robbery case in which the relator had been convicted of attempted armed robbery just prior to the trial in this case. The evidence conclusively proved that the relator was not the perpetrator of that offense. The State had used the attempted armed robbery conviction as an aggravating circumstance to support the imposition of the death penalty in the present case.

State v. Thompson, 2002-0361, p. 3 (La. App. 4 Cir. 7/17/2002), 825 So.2d 552. The attempted armed robbery conviction also prevented Thompson from testifying in his own defense:

There is no doubt that the unrelated attempted armed robbery conviction was improper. The defendant's decision not to testify at the murder trial was based upon the existence of this prior conviction. . . .

The State does not dispute that the relator would have testified in the absence of the attempted armed robbery conviction.

Id. at p. 7; see also La. C.E. 609.1(A) ("In a criminal case, every witness by testifying subjects himself to examination relative to his criminal convictions").

The Fourth Circuit then reversed Thompson's murder conviction. Thompson was then re-tried by the Orleans Parish District Attorney's Office, and was acquitted.

-----

It's a damn shame that this can happen - and I'm glad that Mr. Thompson was able to get some justice.

At the same time, where is the DA's office going to get fourteen million dollars? They had a hell of a time coming up with $3.4m from the Eddie Jordan debacle.

N.O. Inspector General's Report on City-Owned Vehicles [New Orleans]

The Times-Picayune has the story, including the full text of the 53-page report.

What jumps out at me the most, however, is what was reported by WWL-TV:

[Cerasoli] also writes about the misuse of fuel, instances of fuel dispensed in excess of the vehicle's capacity. One example, a Ford F-150 with a fuel capacity of 18 gallons was fueled with 91.2 gallons, and in another case, a Ford Taurus with a fuel capacity of 18 gallons was fueled with 39.9 gallons.

Smells like theft to me.

Lil Wayne sued for copyright infringement [lawsuit]

I found this out from the The Daily Reveille's story published last Tuesday.

The Am Law Daily blog is all over it, and has a copy of the complaint.

Monroe murder conviction upheld [criminal case]

The Monroe News-Star reports:

The conviction and sentence of a Shreveport man convicted and sentenced to three life terms plus another 50 years for killing three people when he intentionally ran his car into a vehicle was affirmed by the 2nd Circuit Court of Appeal on Wednesday.

Background here and here. Essentially,

Jatazz Warren caused the wreck intentionally while trying to kill himself and his girlfriend, Lamesha Anderson, who was a passenger in his car.

James and Patricia Shalala of Ohio, who were headed to Fort Polk to see their son before he deployed to war, died at the scene of the March 2006 accident on U.S. 165 in Monroe. Their granddaughter, 11-year-old Halle Gibson, died later at a hospital in Shreveport. Halle's mother, Maureen, was seriously injured.

Warren's [ex-]girlfriend, Lamesha Anderson, is wheelchair-bound and suffered brain damage. Eyewitnesses said they saw her trying to jump out of the PT Cruiser before the collision.

(Quoted material comes from both stories.)

The Second Circuit's opinion can be found here.

Warren assigned six points of error on appeal - two related to pre-trial procedure, three related to the trial, and one related to sentencing.

Pre-trial. Warren said the trial court should have granted his motion for change of venue (pp.17-20) and struck certain jurors for cause (pp.11-17).

Trial. Warren said that [1] the court should not have admitted evidence related to "other crimes, wrongs, or acts" (La. C.E. art. 404(B)) (pp.21-24), [2] that the court should have granted a mistrial because of improper statements made by the prosecutor during closing arguments (pp.25-27), and [3] that the evidence was insufficient to sustain the conviction (pp.7-11).

Sentencing. Finally, he argued that the sentence was excessive (pp.27-30).

This strikes me as exceptionally silly: he was convicted of three counts of second degree murder, and a conviction for second-degree murder carries a mandatory sentence of life. See La. R.S. 14:30.1(B). He was sentenced to serve three consecutive life sentences (plus 50 years for one count of attempted second degree murder, because Lamesha Anderson didn't die). What possible relief court the court grant should it have found the sentence to be 'excessive'? Let him serve them concurrently, instead of consecutively?

I suppose, ultimately, it's a problem with the way the law is written. But, silly, nonetheless.

AG's Katrina-based class action against insurance companies dismissed

WWL-TV reports:

A federal judge has dismissed an antitrust lawsuit that Louisiana's former attorney general filed against some of the nation's largest insurance companies after Hurricane Katrina.

The case was State of Louisiana et al v. Allstate Insurance Company et al., No. 07-9409 (docket). It was originally filed last November in state court (local news here, here; national news here, here). It was then removed to federal court, and stayed there (see here, here).

The reasons for dismissal were apparently assigned orally -- law.com reports that Judge Zainey "said he agreed with insurers that the suit failed to present evidence of a conspiracy among competing companies" and the only docket entries are a one-page minute entry and a one-page judgment.

Katrina & the Crescent City Connection Blockade

During the aftermath of Hurricane Katrina, the Gretna police prevented hundreds of people from crossing the Crescent City Connection. This made national news (e.g. 60 Minutes, New York Times, Los Angeles Times, Washington Post) and sparked a grand jury investigation. Ultimately, no charges were filed, but several lawsuits were later filed against the City of Gretna.

WDSU reports that one of these suits was partially resolved in favor of the City of Gretna, and that the plaintiffs intend to appeal.

The Court's reasoning was as follows:

Defendants have demonstrated compelling safety and welfare reasons for refusing to allow plaintiffs to cross on foot the CCC.

It is undisputed that Hurricane Katrina caused a monumental crisis in the entire New Orleans area; that the aftermath of the storm led to widespread flooding and social unrest in the area; that the CCC was never open to foot traffic; that at the same time plaintiffs were attempting to walk across the CCC on foot, there was heavy vehicular traffic, including emergency vehicles, on the CCC to and from the east and west banks of the city; that there were hundreds of people without food or water attempting to cross the bridge; and that the City of Gretna had no food, water or shelter available for evacuees.

It is also undisputed that Alexander and Golden eventually obtained transportation out of the area; that at the same time plaintiffs were attempting to cross the CCC on foot, arrangements were being executed to provide them safe passage from the city; and that although Alexander was not allowed to proceed across the CCC on foot, buses were dispatched from the west bank to the east bank to pick up Alexander and her group, and then transport them over the CC to the west bank.

The evidence supports that had foot traffic been allowed on the CCC, the pedestrians would have been in the middle of heavy vehicular traffic, including law enforcement, speeding emergency vehicles, and vehicles with other evacuees. Further, the evidence demonstrates that in denying plaintiffs passage across the CCC on foot, law enforcement was attempting to preserve order and safety in the state of emergency created by Hurricane Katrina. Although plaintiffs were not allowed to cross the CCC how and when they wanted, it is undisputed that plaintiffs eventually were able to leave the area.

Alexander, et al v. City of Gretna, et al, Civil Action No. 06-5405 (Rec. Doc. 64, Ruling on Motion for Partial Summary Judgment, pp. 10-11) (E.D. La. 12/03/2008).

Interestingly, though much ado was made over the race issue in the news coverage, the court noted that "[t]here are no allegations of racial bias in plaintiffs' complaint." Id. at 7, n. 29.

In ruling in favor of the City of Gretna, the court relied upon Zemel v. Rusk, a Supreme Court case stating that the right to interstate travel “does not mean that areas ravaged by flood, fire or pestilence cannot be quarantined when it can be demonstrated that unlimited travel to the area would directly and materially interfere with the safety and welfare of the area.” Id. at 7, 10.

Noting that, best of luck to plaintiffs on their appeal.

Red light camera litigation: update

Judge Vance denied the defendants' motions to dismiss in the Sevin case today.

The Times-Picayune, in addition to reporting the story, provides the full text of the ruling.

The court dismissed two of the plaintiffs' state law claims - one relating to Article VI, §9(A) of the Louisiana Constitution, and the other related to the spousal witness privilege (see pp. 11-14 of the court's ruling).

Otherwise,this is a victory for the plaintiffs.

Bastrop city council to consider Sunday liquor sales

Bastrop, a town that's about a half-hour north-northeast of Monroe, is considering extending Sunday liquor sales to 2am (from midnight) at the request of a bar owner. There's apparently some resistance:

[Boo Robinson, District A] stated that she did not like being asked to change laws “that we’ve had for a long time” for one person. Additionally, she said she didn’t like alcohol sales on Sunday because families have used that as time together “for millions of years.”

Suit filed in twin span construction accident

Anybody remember the I-10 twin span construction accident that happened this past October?

Ten workers fell more than 30 feet into Lake Pontchartrain, and one of them was trapped under a 70-ton, 135-foot concrete girder. The worker trapped under the girder did not survive. (See here, here.)

The widow of the deceased worker filed suit last Friday:

The flaws in the girder, made by Gulf Coast Pre-Stress of Pass Christian, Miss., were known to both the Louisiana Department of Transportation and Development and the company responsible for engineering and inspection of the construction of the $800 million Interstate 10 bridge, according to the suit filed in Orleans Parish Civil District Court.

A couple of notes for non-lawyers. The story about the lawsuit says that (1) the widow "is seeking an unspecified amount of damages" and (2) the suit "does not name Boh Bros. Construction Co., the lead contractor on the project and Blackmon's employer." This is because (1) in Louisiana state court, you are not allowed to plead a specific amount of damages, La.CCP.893, and because (2) an employee may only seek worker's compensation benefits from his employer for on-the-job injuries, La. R.S. 23:1032.

Classy.

The Times-Picayune reports:

A fight broke out this morning at a hearing in a class action lawsuit against Louisiana Citizens Property Insurance Corp., ending with one lawyer on the ground and another being ordered to spend the night in jail.

Orleans Parish School Board employees certified as class

WDSU reports the story here, much more detail here.

Student sues after being suspended over Facebook page

So reads the headline of this story, reported by Houma Today last Thursday.

Hannah Rae Jegart, a former student of E.D.White Catholic High School, is suing the Diocese of Houma-Thibodaux, Bishop Sam Jacobs, the Catholic school superintendent, and also E.D. White's president, principal, assistant principal, and dean of students.

The suit is Jegart et al v. Diocese of Houma-Thibodeaux et al, No. 2:08-cv-4841, pending before Judge Barbier in the Eastern District: docket (pdf), complaint (pdf).

Hannah had created a Facebook group devoted to E.D. White's "Apologetics" class called "Screw you Apologetics and yo wonky ass sources" with the following description: "MAYBE I DON'T WANT TO DEFEND THE CATHOLIC FAITH!?"

The complaint states:

12. The Facebook internet site that E. D. White High School officials declared objectionable had been created by HANNAH RAE JEGART to assist herself and other students with research for a paper in an Apologetics course assigned to graduating seniors in the Houma-Thibodaux Diocese.

13. All of the thirteen white students identified with the website at issue initially received short-term academic suspensions of only one or two days. The punishment meant that students could not receive credit for class work during their suspensions and received a failing ("F") grade for any tests given.

14. While all of the white students received only short term suspensions, the African-American plaintiff, HANNAH RAE JEGART, received an extraordinary nine-day academic suspension.

15. At the time defendant officials of the Houma-Thibodeaux Diocese imposed the nine-day suspension against HANNAH RAE JEGART, they knew the inability to make up school work and the required failing grads would preclude the plaintiff from graduating with her class.

16. At the time defendant officials imposed the nine-day suspension, they knew that HANNA RAE JEGART was an honor student scheduled to graduate Magna Cum Laude.

17. At the time they imposed the nine-day suspension, school officials deliberately tailored the length of the suspension to not only preclude graduation, but to cause forfeiture of scholarships and other academic honors that HANNA RAE JEGART had earned by her sterling and superior performance as a student at E. D. White High School.

18. No penalty was imposed or even considered for any of the white students similarly situated as registrants on the Facebook website. None of the white students received punishment or discipline that jeopardized their scheuled graduation or academic standing. . . .

Based on what I've read, the only thing that strikes me as incongruous is her lawyer's characterization of white students as "similarly situated" because they were registrants of the Facebook group (¶18) read alongside the admission that she was the creator of the the group (¶12).

But while I can understand that there may be a rational basis for treating the 'leader' differently from the 'followers' (if you will), but one or two days versus nine days - and screwing her out of graduating with her high school class - does seem unnecessarily harsh.

The Saints and that whole StarCaps-NFL-Steroids-Policy Thing

You've heard about the NFL-ordered suspensions of Deuce McAllister, Will Smith, and Charles Grant, right? (See here, here.)

After the players got suspended, the NFL Player's Association (Wikipedia, official site) sued the NFL on their behalf, trying to enjoin the suspension (so the players could play the remainder of the season).

In a little bit more detail, here's what's going on.

The dispute is about the NFL's "Policy on Anabolic Steroids and Related Substances," which lists as a banned substances the diuretic "Bumetanide". Steroid Policy, at p. 16.

Each of the players suspended - McAllister, Smith, and Grant from the Saints, and Kevin Williams and Pat Williams from the Vikings - had taken a nutritional supplement called "Starcaps". StarCaps contained bumetanide, but it was not listed as an ingredient on the label. (The manufacturer later issued a recall for this reason.)

The lawsuit alleges:

Indeed, one of the Players, Deuce McAllister, only commenced using StarCaps after the NFL Supplement Hotline advised him that StarCaps did not contain any prohibited substances. 11/18/08 Hearing Tr. at 200-02. Two of the other Players, Will Smith and Charles Grant, only began using StarCaps after Mr. McAllister informed them of the advice he received from the Hotline. Id.

Memorandum in Support of Plaintiff/Petitioner's Motion for a Preliminary Injunction, at pp. 24-25 (emphasis in original).

This is relevant because the NFL Steriod Policy (on page 6) states:

E. Unknowing Administration of Prohibited Substances

Players are responsible for what is in their bodies, and a positive test result will not be excused because a player was unaware that he was taking a Prohibited Substance. If you have questions or concerns about a particular dietary supplement or other product, you should contact Dr. John Lombardo at (614) 442-0106. As the Independent Administrator, Dr. Lombardo is authorized to respond to players’ questions regarding specific supplements. You may also contact the NFL/NFLPA Supplement Hotline at (866) NFL-SUPP or NFLSupp@DrugFreeSport.com. Having your Club's medical or training staff approve a supplement will not excuse a positive test result.

The lawsuit goes on to allege:

Dr. John Lombardo, the Independent Administrator of the Policy appointed by the NFL and charged with overseeing all aspects of the Policy, including communications with players, expressly knew and willfully withheld the critical information that StarCaps secretly contained the banned diuretic substance. If this were not bad enough, Adolpho Birch, the NFL's Vice President of Law and Labor Policy who is charged with overseeing the Policy on behalf of the NFL and NFLMC, also expressly knew and withheld from players and the NFLPA the critical information that StarCaps contained a prohibited substance that could jeopardize the health and career of any player who used the product.

Memorandum in Support of Plaintiff/Petitioner's Motion for a Preliminary Injunction, at p. 3. This is certainly in dispute, as the NFL responds that "the Policy encouraged ploayers to contact Dr. Lombardo if they had any questions, and the record clearly established that none of the players challenging their suspensions here had done so." Memorandum in Opposition to Plaintiff's Motion for a Preliminary Injunction, at p. 3.

The other allegation is that "the Arbitrator in these proceedings, Jeffrey Pash, the NFL's Executive Vice President and chief legal officer, was fatally biased and unqualified as an Arbitrator by the direct involvement of his officer and subordinate, Mr. Birch, in the wrongful failure to disclose what was at issue in the Arbitrations." Memorandum in Support, at p. 3.

Ultimately, the Court stated in its order granting the injunction:

The issues in this case are complex and contentious, and the parties have raised questions that deserve careful consideration. Moreover, due process requires that the Court fully and fairly review all of the submissions and the legal arguments of the parties. That consideration is not possible in the two days that remain before the players at issue are next scheduled to take the field. Thus, due process mandates the entry of an injunction preserving the status quo to allow for the Court’s review of the issues.

Later, in refusing to dissolve the injunction, the court "extend[ed] the preliminary injunction entered on December 5, 2008, until a full hearing on the parties’ claims can be held."

Primary sources:

• NFLPA's Complaint and Petition to Vacate Arbitration Awards (pdf);
• NFLPA's Motion for Preliminary Injunction (pdf);
• NFLPA's Memorandum of Law in Support of Plaintiff/Petitioner's Motion for a Preliminary Injunction (pdf);
• NFL's Memorandum of Law in Opposition to Plaintiff's Motion for Preliminary Injunction (pdf);
• the Court's Order granting the issuance of a preliminary injunction (pdf);
• the Court's Memorandum and Order preserving the preliminary injunction (pdf);
• the Court's docket as of 12-11 (pdf).
  
  
  Posted by MBC at 01:34 PM
  

What's up with the red light camera lawsuits?

In the past month or so, I've seen a couple of news stories (here, here) about red light camera law suits. The news, unfortunately, doesn't go into a whole lot of detail. I'm curious, so I did a little digging, and here's what I've found.

There are three lawsuits pending:

(1) Sevin et al v. Parish of Jefferson et al., No. 2:08-cv-802, pending before Judge Vance in the Eastern District: docket (pdf), complaint (pdf).

(2) Ware et al v. Lafayette City-Parish Consolidated Government, et al, No. 6:08-cv-218, pending before Judge Melancon in the Western District: docket (pdf), complaint (pdf).

(3) McMahon v. New Orleans City et al, No. 2:08-cv-5030, pending before Judge Lemmon in the Eastern District: docket (pdf), complaint (pdf).
These are the allegations.

The camera schemes violate the following individual rights:

• the right to be innocent until proven guilty, because the photos are considered to be prima facie proof of a violation;
• the right against double jeopardy, because your violation may be used against you at a later date;
• the right to confront witnesses, because the "witness" is a machine;
• in Lafayette only, procedural due process, because you have to pay an extra $30 in order to get a hearing;
• the right to service of process, because first-class mail is insufficient in a civil proceeding;
• the right against expropriation/forfeiture of property, because the government is making you forfeit money; and
• the spousal testimonial privilege, I'm really not sure how.

The camera schemes violate the structure of government established by the state constitution because:

• the city/parish is improperly alienating its police power by contract with a private entity;
• the city/parish does not have authorization from the state legislature to enforce traffic laws with cameras; and
• the scheme conflicts with state laws governing the same subject matter.

The allegations are found in the Sevin complaint at ¶¶ 14-28, in the Ware complaint at ¶¶ 14-27, and in the McMahon complaint at ¶¶ 13-28.

Here's the status of each case.

Sevin: the defendants have filed motions to dismiss, which are currently pending and "under consideration" (pdf).

Ware: the defendants have filed motions to dismiss, which are currently pending and "under advisement" (pdf). They've been under advisement since June, so hopefully an order will be forthcoming soon.

McMahon: the defendants still need to be served with process.

As for the specifics of the motions to dismiss, most of the documents are more than 30 pages long - which means it would cost $2.40 to access each document - and my curiosity is capped at about four dollars.

Programming Note

My name is Matt Caplan, and I'll be intermittently updating the site and adding new posts. If you have any questions/comments/suggestions/etc., please email me at mattcaplan (at) myway (dot) com.