May It Please The Court: Weblog of legal news and observations, including a quote of the day and daily updates
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Quote of the Day - It used to be that a fellow went on the police force when everything else failed, but today he goes in the advertising game.
Supreme Court Denies Newspaper Access To Names Of Disciplined Police OfficersNewspapers have no right to review records of disciplined police officers, according to a recent court ruling in the case of Copley Press v. County of San Diego. The San Diego Union-Tribune newspaper wanted to attend a termination appeal hearing involving a deputy, but the San Diego Civil Service Commission denied access to the newspaper. The newspaper then sought access to the deputy's file, but the Commission redacted large portions of the file, and later produced most of the rest of the file, but with the deputy's name redacted. According to the documents, the officer was terminated due to "the deputy’s failure to arrest a suspect in a domestic violence incident despite having probable cause to do so, failure to prepare a written report documenting the incident, and dishonesty in falsely indicating in the patrol log that the victim bore no signs of injury and the suspect was 'gone on arrival.' " As a consequence of the Deputy's appeal, the Commission and the now former Deputy agreed to a mutual stand-down. The Deputy agreed to withdraw the appeal and the Commission agreed that the Deputy's records would show resignation by mutual agreement and remove the untruthfulness charges. The newspaper wanted the name of the Deputy and full disclosure, so it sued. The trial court denied the request, and the court of appeal reversed, opening the files to the newspaper. The Supreme Court upheld the trial court's decision allowing the Commission to keep the Deputy's name private. In fact, the Supreme Court ruled that the California Public Records Act precludes the release to a newspaper the name of an officer involved in a disciplinary proceeding. The Court was careful to exclude civil or criminal discovery proceedings from its ruling, limiting it's application to requests by newspapers. The Court noted that the Commission could have elected to release the disciplinary records in response to public statements made by the Deputy, but here the Deputy kept quiet. The Court also ruled on the newspaper's First Amendment arguments, dismissing them with the determination that the Supreme Court of the United States would not have allowed access to the officer's name. The California Supreme Court cited several U.S. Supreme Court cases, including Houchins v. KQED, which ruled, "There is no constitutional right to have access to particular government information, or to require openness from the bureaucracy. The public’s interest in knowing about its government is protected by the guarantee of a Free Press, but the protection is indirect. The Constitution itself is neither a Freedom of Information Act nor an Official Secrets Act." The case was a veritable Who's Who from the newspaper industry, with many filing amicus briefs, including the Los Angeles Times, the Orange County Register, the Hearst Corporation, the Associated Press, the Bakersfield Californian, the New York Times, the San Jose Mercury News, Inc., Bloomberg, the California Newspaper Publishers Association, the Society of Professional Journalists, the Reporters Committee for Freedom of the Press, California First Amendment Coalition, Californians Aware and Professor Erwin Chemerinsky. The Workplace Professor Takes Stock Of Last Week's BlawgsAssistant Professor of Law Paul M. Secunda of the University of Mississippi School of Law takes a look at last week's law blogs. Give a look-see and tip your hat! What Causes The Color In The Salmon You're Eating?If it's farmed salmon, then you're not going to know in the near future. The California Court of Appeals blocked an attempt by several non-profit corporations to challenge the alleged practice of adding artificial food coloring to fish feed, if it's true. Two years ago, they sued a group of supermarket chains alleging that the grocers didn't disclose whether the salmon they sold was wild or farm-raised, and if farm-raised, then whether artificial food coloring was added to make the salmon appear salmon pink instead of gray. According to the Court's decision, the plaintiffs "allege that fish farmers feed farmed salmon the chemicals canthaxanthin and astaxanthin to obtain a color of flesh resembling that of wild salmon. They allege that the flesh of farmed salmon would appear grayish without the chemical additives and that consumers believe that the color of salmon is an indication of its origin, quality, freshness, flavor, and other characteristics." At the end of the opinion, the Court observes that if that allegation is true, then it would violate the Federal Food Drug and Cosmetic Act. But the Court didn't decide that. The Court instead ruled that private citizens can't bring these claims. When a private citizen can take over the job of the government, that person is called a "private attorney general." In order to become a "private attorney general," however, the statute that the private citizen wants to enforce has to include a section that allows private citizens to take over for the government. The Court ruled that the FFDCA does not contain such a section, and it barred these non-profit plaintiffs from pursuing the lawsuit any further. If there's going to be any enforcement of this statute regarding the allegations cited above, then it's going to be done by either California Attorney General Bill Lockyer or United States Attorney General Albert Gonzales. The battle over farm-fed salmon is far from clear. There are allegations that it's bad for you, and allegations that it's not. Saturday Night On The Town Foiled By Grocery Store ClerkYou've seen the bit on TV: something valuable gets shoved down the front of our hero's pants, only to slide down and out the bottom. That scene was perhaps best done by Michael Douglas' character Jack T. Colton in Romancing the Stone when the El Corazon emerald shows up on the tip of his cowboy boot after the butt of a rifle freed it up from its hiding place. Now that you've got that image, imagine this: You're thirsty and you're in Des Moines, Iowa at the local Hy-Vee store. (For those of you who've never been to Iowa, it's a large grocery store chain). The only problem you have, however, is that you're short on cash, and perhaps short on a few other things. So, as you're walking down the liquor aisle, you spot your favorite drink, Jack Daniels, and since you've seen the movie, you suddenly become inspired. You take the bottle and shove it down the front of your pants and then calmly proceed to walk out of the store. There are only two defects in your plan - you forgot Newton's law and your pants pockets are on the outside. As you're walking, the bottle slips down your pants leg and crashes on the floor, spilling the bottle's contents and sending glass everywhere. No worries, you think, you're not only inspired, you're bulletproof. So you head back to the liquor aisle, but this time you're in a bit of a rush because you don't want to be discovered. Let's pause here for a moment and examine what's happened so far. You don't know it, but not only did someone see you stuff the Jack Daniels down your pants, you're also on the store's video. Plus your pant leg is wet, you reek of alcohol (most likely your breath as well as your shoe) and you've just alerted the media with grocery store's PA system screaming: "Spill on Aisle Four." But no matter, you're ten feet tall and bulletproof. Even so, you still have a bit of sense left and realize that in order to accomplish your goal, you need to grab something and quickly get out of the store. With the aplomb that inspired you the first time, you reach for the closest bottle, which happens to be Ten High bourbon. Now that you're experienced, however, you remember Newton's law and secure the bottle. With a furtive glance to the left and to the right, you head for the door, omitting the stop at the cash register. "Not so fast," a grocery clerk says, and you break into a run. Several good citizens assist the clerk and after a bit of shoving back and forth, the police arrive and hook you up for a night in the tank. Your friends at the party couldn't have missed you too much, though: You're still in the Polk County jail the next morning, complete with a hangover, but sans two bottles of whiskey. Who's charged with these allegations? Our hero is 41-year-old Scott Allen Morton of Des Moines, who now faces a second-degree robbery complaint. I'll Bet You $30,000 You Can't Finish That HamburgerIn the world of professional gamblers, that's a bet that one of the two contestants will win and the loser will honor. "If you don't keep your word, you don't have much," said Jonathan Grotenstein, the co-author of "All In: The (Almost) Entirely True Story of the World Series of Poker," according to Harriet Ryan, a Court TV reporter. That comment arises out of amateur poker player Jamie Gold's winnings of some $12,000,000 in a recent Las Vegas tournament. That win now involves the World Series of Poker, a lawsuit, celebrity endorsements for BoDog apparel, reputations, recorded telephone messages, an injunction and an alleged, unwritten promise to split half of those winnings. It's almost a made-for-TV drama-laden miniseries turned reality show, and no, I can't make up stuff this good. I just report it. Let me introduce the other players in this story. British TV executive Crispin Leyser alleges that he befriended Gold prior to the tournament and agreed to share the $10,000 seat that BoDog paid for in return for Gold delivering celebrities who would wear BoDog apparel while Gold played Texas Hold 'Em. Gold, however, is a talent agent and television producer and has represented James Gandolfini, Lucy Liu and Felicity Huffman. If that's the case, then you have to wonder why he needed Leyser to find celebs to wear T-shirts at the tournament. Leyser, on the other hand, produced the well-known celebs Matthew Lillard who played Shaggy in the "Scooby Doo" movies, and Dax Shepard, a comedian who appeared on the MTV show "Punk'd." Right. Apparently Gold refused to split his winnings and Leyser sued. Leyser's allegations, however, were good enough to convince a judge to issue an injunction prohibiting the Rio from distributing the winnings to anybody. Leyser claims to have a recorded telephone message from Gold that says, "You've trusted me the whole way, you can trust me a little bit more. I promise you there's no way anybody will go anywhere with your money. It's your money. All right, I send you love," according to Leyser's suit. In the 15 months before his victory, Gold had been playing poker 40 hours a week in card rooms and casinos around Los Angeles, and had won just $100,000. This recent victory was a big change that resulted in some big change. Now, we just have to wait and see whether Leyser or Gold has the better poker face, and who will win the Final Table in Court. Coast to Coast Internet Radio Turns One!Coast to Coast, co-hosted by my fellow attorney and Law.com blogger Bob Ambrogi, celebrates its one-year in the legal podcasting arena on the LegalTalkNetwork. Great guests and interesting legal topics keep us at the top of the listening list! We thank you. This week, you can hear about how it works, who is listening and what's ahead in technology for podcasters along with guests and fellow veteran legal bloggers and podcasters Attorney Evan Schaeffer and Attorney Denise Howell, as well as Legal Talk Network's Co-founder Lu Ann Reeb. Put on your party hat, grab a horn and give a toast to our anniversary show! 
Court Upholds Contract That Limits One Party's LiabilityOil well drilling can be a dangerous job. As a conseqence of the danger, several types of contracts exist that allocate the risk differently, and allocate it between the parties differently. The adage "the big print giveth and the small print taketh away" never had such a close examination by a court. This case involves a blow-out, contamination and a death. The employee's death is the subject of an entirely separate suit, however. We're just going to talk about the allocation of risk between the two companies. TEG Oil and Gas (the owner/operator) and CAZA Drilling (the contractor/driller) signed what's known in the industry as a Daywork Drilling Contract. There are other types of contracts, too. According to the Court's opinion, "Besides the standard 'Daywork Drilling' contract there are standard 'Turnkey' contracts and 'Footage' contracts, and that operators sometimes prepare their own agreements. Under a Turnkey contract, the contractor hires a geologist and formulates a drilling plan, but under a Daywork Drilling contract, 'the Operator is in control' and '[t]he Contractor receives all of its direction from the Operator.' [CAZA's area manager] stated that standard provisions are negotiable and that if a company wished to place responsibility for damage caused to the geologic structure on CAZA, 'CAZA [would] allow such a change in exchange for a dramatically increased drilling cost to the Operator'." So there you have it. Let's look at the conditions in the Daywork Drilling contract, and perhaps learn why the court was so willing to look past Civil Code section 1668, which generally prohibits a party from "exempt[ing] any one from responsibility for his own fraud, or willful injury to" another. The driller pointed to one provision: "[e]xcept for such obligations and liabilities specifically assumed by [CAZA], [TEG] shall be solely responsible and assume liability for all consequences of operations by both parties." The court hung its hat on that paragraph, in my mind in large part because there were a number of other paragraphs that allocated other specific risks differently between the parties. As an example, "the contractor (CAZA) "assume[s] liability" for "damage to or destruction of Contractor's surface equipment." Whether you're drilling oil wells or dealing with other risky operations, it pays to read the contract,, and perhaps even more so to have a lawyer look at it. The opinion is much more complicated than I've laid out here, and if you're looking for specifics, you should read the opinion. MIPTC Makes Accessibility ImprovementsMIPTC is proud to announce some accessibility improvements you might not have noticed, but our differently-abled readers (and listeners) will appreciate. These changes owe a hat tip to Skye Kilean and her seminar at BloGher. Thanks Skye! If you'll look closely, then you'll notice that this text is much easier to read. That's because we eliminated a design element in MIPTC's background. The background used to be textured, but no longer. Apparently, those readers with limited sight had a difficult time distinguishing the text because the background had small elements of grey in it that interfered with the black text. Now, with the dark black text against a solid, bright background it's much easier to read. For our readers who use a text reader to have MIPTC read out loud, you'll no longer have to listen to our entire blogroll. For those who don't use them, text readers read from top left of a page to bottom right, something I didn't know because I've never used a text reader. Now, however, we've made it easier for our non-sighted readers. We've added "skip to content" navigation code for text readers that will jump from the masthead directly to the most current post. That way, the text reader won't read (speak) the entire blogroll any longer on the left navigation bar. Finally, we've made a slight change to the links. For readers who have full or slight color blindness, it's difficult to distinguish the hyperlinks after clicking on them and following the hyperlink in the new window that pops open. When those readers return to MIPTC, they couldn't distinguish what links they had clicked on and which ones they hadn't. So, now we've changed our code so they links change color from maroon to grey (to more closely match the black text). The change will help non-color blind readers, too.
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