JCOHS Lawyers and Attorneys

When a defendant or his attorney files a motion to suppress evidence he is asking the judge to rule that evidence is inadmissible because it has been obtained illegally. If evidence is inadmissible then it cannot come in at a Defendant’s trial. If incriminating evidence is kept out of a defendant’s trial, then the prosecution’s case may be seriously weakened or destroyed.

There are a number of reasons why evidence may be illegally obtained and therefore inadmissible. A good DUI lawyer in San Diego will review your case to determine whether the possible reasons for evidence to be inadmissible are present in your case. For example, if a police officer arrests a defendant but does not read the defendant his Miranda rights then any statements made by the defendant after his arrest and before the reading of his Miranda rights may be inadmissible.

In DUI criminal cases in San Diego the most damaging pieces of evidence are usually the results of breath or blood tests as well as a defendant’s performance on field sobriety tests. So, excluding a defendant’s post-arrest statements isn’t usually going to seriously weaken the prosecution’s case.

Another reason why excluding post-arrest statements may not put a big dent in the prosecutions case is that appellate courts have ruled that the initial contact between a police officer and a driver subjected to a DUI stop is not an arrest. Defendants generally make their most damaging statements early on in their contact with the police; for example, telling an officer how much they had to drink.

Because defendant’s generally make the most damaging statements early on, during the ‘investigation’ rather than the ‘arrest’ phase of the DUI stop, and because the most damaging evidence is usually the blood or breath tests, not the defendants’ statements, excluding evidence based on a failure to advise a defendant of his Miranda rights is rarely the key to winning a DUI case in San Diego.

But there is still good reason to file a motion to suppress in the right case; a motion to suppress in a DUI case can be a useful tool when a defendant argues that he was stopped or arrested illegally, as opposed to arguing that he made post-arrest statements without a Miranda warning. For example, if a police officer observes that an eventual defendant’s car wheels touch a lane line and observes no other irregularities in the defendant’s driving, then the police officer might not have a legal basis to stop the defendant. If the officer nonetheless stops the defendant, and the officer’s investigation leads the officer to suspect that the defendant is driving under the influence, then the defendant may argue to the judge that the initial stop was illegal.

If the defendant or his attorney can persuade the judge that the initial stop was illegal, then the judge might rule that all evidence obtained after the illegal stop – i.e., the result of a Blood Test, Breath Test or a Field Sobriety Test – is inadmissible in trial.

A motion to suppress can also be valuable because it offers an opportunity to a DUI lawyer to cross-examine a police officer in court in order to find out what the officer’s testimony will be at trial.

Another motion that may be filed is called a Pitchess motion. If a defendant wins a Pitchess motion then the judge will order the Police Department to give the defendant or his lawyer the contact information for other citizens who have filed complaints against the defendant’s arresting officers for dishonesty or use of excessive force. As discussed above, the case may arise where an officer writes in his police report that a defendant swerved across a lane line, and the defendant knows that his wheels just touched the lane line. In that kind of case it might be useful for a defendant to file a Pitchess motion in order to locate witnesses who might call the police officer’s credibility into question by testifying that the police officer has been dishonest in other cases.

To cause the court to hear a motion to suppress, a DUI attorney prepares a legal document that includes argument to persuade the judge to decide the motion in the defendant’s favor, and makes four copies of the document. The attorney goes to the San Diego courthouse to provide the documents to a court clerk, and asks the clerk to set a date when the motion may be heard in court, in front of a judge. The clerk keeps two copies for the court, and returns two copies to the attorney with the court’s official stamp. The attorney then takes the two stamped copies to the office of the prosecutor (the San Diego City Attorney or the San Diego District Attorney). The prosecutor’s office keeps one copy, and provides the attorney with a stamped copy. The attorney then has a copy of the motion with confirmation from the court that the motion has been filed and a date has been set, as well as confirmation from the prosecutor’s office that he has provided the prosecutor with a copy of the motion.



By: tim

About the Author:

EMPLOYMENT LAW BASICS FOR HAWAII EMPLOYERS:  ILLINOIS RULING HIGHLIGHTS THE IMPORTANCE OF POLICIES AND TRAINING TO HAWAII EMPLOYERS  

It is well established now under federal Title VII law that an employer is liable for actionable sexual harassment caused by a supervisor with “immediate (or successively higher) authority over the employee.”  However, in cases where the employee does not suffer a “tangible employment action,” such as discharge, demotion, or an unfavorable reassignment, there is an affirmative defense that an employer may raise to avoid Title VII liability and damages.  

Under such affirmative defense whether an employer has an anti-harassment policy is relevant evidence.  Also important is effective supervisory training and training of employees on the harassment policy and complaint procedure.

Training and educational programs for all employees take on an even higher degree of importance under Hawaii state law, HRS Chapter 378.  State law currently is interpreted by the Hawaii Civil Rights Commission (“HCRC”) as mandating strict liability for sexual harassment committed by supervisors. 

While the Hawaii Supreme Court has not addressed the HCRC’s interpretation of HRS Chapter 378 a recent Illinois Supreme Court decision upheld a Illinois Human Rights Commission ruling addressing a regulation similar to the HCRC’s–that an employer was strictly liable for a supervisor’s harassing conduct under Illinois state law even though the supervisor did not even have direct supervisory authority over the Complainant.

The April 16, 2009 Illinois decision will certainly be persuasive authority to a Hawaii Supreme Court faced with interpreting the HCRC’s regulation.  Accordingly, it is critical that Hawaii employers understand the importance of having an effective policy and company-wide training program on not only a defense to a sexual harassment claim, but prevention.

I.          The Importance of Having an Effective Harassment Policy

A.                The Faragher/Ellerth Defense

Having an effective sexual harassment policy and training program will greatly increase the chance of avoiding liability under the affirmative defense for sexual harassment claims recognized by the U.S. Supreme Court in Faragher v. City of Boca Raton, 524 U.S. 775 (1998) (“Faragher”) and Burlington Industries v. Ellerth, 523 U.S. 742 (1998) (“Ellerth”). 

Where alleged harassment by a supervisor does not culminate in an adverse (“tangible”) employment decision, the employer may avoid liability by showing that: (1) the employer exercised reasonable care to prevent and promptly correct any harassing behavior; and (2) the plaintiff unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer to avoid harm.  “A tangible employment action constitutes a significant change in employment status such as hiring, firing, failing to promote, reassignment with significantly different responsibilities or a decision causing a significant change in benefits.”  Ellerth, supra.

The importance of the Faragher/Ellerth defense was significantly increased by the U.S. Supreme Court’s decision in Pennsylvania State Police v. Suders, 542 U.S. 129 (2004), which held that the defense is available in constructive discharge cases unless the plaintiff quits in a reasonable response to an employer-sanctioned adverse action of an official nature, such as a demotion or a cut in pay.

A zero-tolerance harassment policy must fit the environment and employees.  The Ellerth court stated:

While proof that an employer had promulgated an antiharassment policy with complaint procedure is not necessary in every instance as a matter of law, the need for a stated policy suitable to the employment circumstances may appropriately be addressed in any case when litigating the first element of the defense.  The policy should be written in plain English, so that all employees regardless of their educational level or background can understand it … [a] policy should include a clear and precise definition of unlawful harassment so that employees know what type of conduct is prohibited by the policy and will be able to recognize that conduct should it occur.

Accordingly, if the alleged harasser has supervisory authority over the victim, the employer will be held automatically liable for any harassment committed by the supervisor unless the employer is able to successfully raise the affirmative defense. 

B.        Tips On Drafting a Zero-Tolerance Policy and Complaint Procedure. 

(1)               Write in simple English.

(2)               Include a clear definition and examples of prohibited conduct and make it broad enough to prohibit all forms of harassment.

(3)               State the company’s “zero-tolerance” philosophy in the policy regarding all forms of harassment,

(4)               Designate at least two specially trained managers who will be responsible for investigating harassment complaints for the company. 

(5)               Determine the complaint procedure that will be used to investigate complaints of harassment by supervisory employees, co-workers and outsiders. 

(6)               Provide a “clear chain of communication,” allowing employees to step outside of the normal hierarchy in the event the supervisor is the harasser and consider having a toll-free number employees can call.

(7)               State that employees who report prohibited conduct will be protected from retaliation.

(8)               State that the employer will promptly investigate the matter in an objective and discrete manner.

(9)               Provide the form of disciplinary action to which offenders can expect to be subjected.

(10)           State that the employer will also take remedial action.

(11)           Train your management employees and line employees on the policy and procedure. 

(12)           Have each employee sign an acknowledgment form that they have received a copy of the policy and procedure, and that they have received training on the harassment policy. 

C.        The Faragher/Ellerth Defense and Hawaii Law

Like Title VII, the Hawaii Employment Practices Act prohibits discriminating against individuals in virtually all aspects of employment.  However, it remains an open question whether an employer, under Hawaii state law, can assert the Faragher/Ellerth affirmative defense. 

Currently, under regulations promulgated by the HCRC, the state agency charged with the enforcing and interpreting Hawaii’s Employment Practices Act, strict liability would apply to a supervisor’s harassment of a subordinate regardless of whether tangible action is taken:

§12-46-109 Sexual harassment.

(a)        Harassment on the basis of sex is a violation of chapter 378, HRS. Unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct or visual forms of harassment of a sexual nature constitute sexual harassment when:

(1)        Submission to that conduct is made either explicitly or implicitly a term or condition of an individual’s employment; or

(2)        Submission to or rejection of that conduct by an individual is used as the basis for employment decisions affecting that individual; or

(3)        That conduct has the purpose or effect of unreasonably interfering with an individual’s work performance or creating an intimidating, hostile, or offensive working environment.

(b)        In determining whether alleged conduct constitutes sexual harassment, the commission will look at the record as a whole and at the totality of the circumstances, such as the nature of the sexual advances and the context in which the alleged incidents occurred. The determination of the legality of a particular action will be made from the facts, on a case by case basis.

(c)        An employer shall be responsible for its acts and those of its agents and supervisory employees with respect to sexual harassment regardless of whether the specific acts complained of were authorized or even forbidden, and regardless of whether the employer or other covered entity knew or should have known of their occurrence. The commission will examine the circumstances of the particular employment relationship and the job functions performed by the individual in determining whether an individual acted in either a supervisory or agency capacity.

(d)       With respect to conduct between employees, an employer shall be responsible for acts of sexual harassment in the workplace where the employer or its agents or supervisory employees knows or should have known of the conduct and fails to take immediate and appropriate corrective action. An employee who has been sexually harassed on the job by a co-worker should inform the employer, its agent, or supervisory employee of the harassment; however, an employee’s failure to give such notice may not be an affirmative defense.

D.        Problem Areas for Employers

* Inadequate complaint procedure

* Failure to disseminate policy

* Employer on notice of harassment

 * Failure to promptly investigate

 * Failure to take appropriate disciplinary action

 * Failure to apply it even-handedly

 * Failure to review and revise when necessary

 * Failure to provide training

E.         Illinois Supreme Court Decision a Foreshadowing of Hawaii Law?

In Sangamon Cty Sheriff’s Dep’t v. The Illinois Human Rights Comm’n, Nos. 105517, 105518 cons. (Ill. Apr. 16, 2009), decided on April 16, 2009, the Illinois Supreme Court gave the HCRC direct support of the HCRC’s own interpretation of HRS Chapter 378.

The Sangamon decision holds Illinois employers strictly liable for sexual harassment by any of their management or supervisory personnel, and, as noted by the dissent, “imposes a standard of liability which appears to be without precedent in any jurisdiction of the United States.”

In that case employee Feleccia filed a sexual harassment claim against employer Sangamon County Sheriff’s Department and Ron Yanor, who was a supervisor, but was not Feleccia’s direct supervisor.  The Illinois Human Rights Commission ruled that the Sheriff’s Department was strictly liable for Yanor’s conduct under the Act because Yanor was a supervisor. The Illinois appellate court reversed, and Feleccia and the Commission appealed to the Illinois Supreme Court.

The Illinois Supreme Court reversed and confirmed the Commission’s decision. In a 4-2 ruling, the Illinois Supreme Court agreed that the Sheriff’s Department could be held strictly liable in such circumstances.  The basis of the decision was the plain and ordinary meaning of the statute, which states that “an employer shall be responsible for sexual harassment of the employer’s employees by nonemployees or nonmanagerial and nonsupervisory employees only if the employer becomes aware of the conduct and fails to take reasonable corrective measures.”

According to the Court, the statute is unambiguous” and only excludes “nonemployees” and “nonmanagerial or nonsupervisory employees” from its strict liability standard.  As such, the Court found “[t]here is no language in the Act that limits the employer’s liability based on the harasser’s relationship to the victim.”  The Court rejected the employer’s argument that federal case law should apply to the case.

II.        The Importance of Conducting EEO Training

Of course, in Hawaii the HCRC has merely interpreted HRS Chapter 378’s statutory language to impose strict liability for supervisory harassment.  Unlike the Illinois statute interpreted by the Illinois Supreme Court it is reasonable to argue that Hawaii statutory law is ambiguous and not straightforward. 

Nevertheless, the HCRC is charged with the interpretation and enforcement of HRS Chapter 378 and it does not bode well for Hawaii employers that another state’s high court is willing to impose what some would consider harsh penalties on the employer defendant.  Accordingly, employers in Hawaii should redouble its efforts to train supervisors AND employees regularly on preventing discrimination and harassment in the workplace.  Training should include the consequences of violating company policy.

Training employees reduces the likelihood that inappropriate conduct will be engaged in or tolerated at a level that can create a hostile environment.  See Arquero v. Hilton Hawaiian Village, 104 Hawai’i 423, 91 P.3d 505 (2004) (coworker pinched buttocks of the plaintiff on two occasions); Nelson v. University of Hawai’i, 97 Hawai’i 376, 38 P.3d 95 (2001) (verbal harassment).

Second, in the event that inappropriate conduct takes place, employees who are offended will be substantially more likely to use the employer’s complaint procedure, thereby permitting the employer to remedy the situation and avoid having a lawsuit filed against it.

Lastly, training is a tool for prevention and reducing the potential of supervisory harassment.

A.        Training as a Tool for Prevention

The EEOC’s Policy Guidance on Sexual Harassment states:

An employer should ensure that its supervisors and managers understand their responsibilities under the organization’s anti-harassment policy and complaint procedure. Periodic training of those individuals can help achieve that result.  Such training should explain the types of conduct that violate the employer’s anti-harassment policy; the seriousness of the policy; the responsibilities of supervisors and managers when they learn of alleged harassment; and the prohibition against retaliation.

The HCRC regulations state that “prevention is the best tool for the elimination of sexual harassment.  Employers should affirmatively raise the subject, express strong disapproval, develop appropriate sanctions, inform employees of their right to raise and how to raise the issue of sexual harassment, and take any other steps necessary to prevent sexual harassment from occurring.”  §12-46-109(g).

As part of its settlements against employers, the EEOC and HCRC have chosen mandatory training as one of its primary responses through the use of consent decrees requiring organizations to conduct training and ensure policy compliance.

In 2004, the California Legislature passed Assembly Bill 1825, requiring all employers with fifty or more employees to conduct compulsory sexual harassment training for all of its supervisory employees by January of 2006, thus supporting the EEOC and HCRC’s position that training and education is the best tool for prevention.  Under the California law, the training must re-occur every two years, and all new supervisors brought in after the original round of training must go through the program within six months of their arrival. 

Managers who are aware of the implications of sexual harassment may be less likely to take official action they realize will create vicarious liability for the organization – this may preserve the employer’s right to the Faragher/Ellerth affirmative defense in a case of constructive discharge.  Further, managers who are aware of how to proceed with complaints from employees about harassment are more likely to intervene with an appropriate employer response thus making a stronger showing under the first prong of the Faragher/Ellerth affirmative defense.

Finally, as noted throughout this article training can be an effective tool to combat inappropriate behavior by supervisors and to reduce risks under state law—especially to the extent it is interpreted similar to the Illinois Supreme Court’s decision.

B.                 Training and the Faragher/Ellerth Defense

Conducting training will greatly increase the chance of avoiding liability under the Faragher/Ellerth affirmative defense.  The importance of this defense was significantly increased by the Suders decision, which held that the defense is available in constructive discharge cases unless the plaintiff quits in a reasonable response to an employer-sanctioned adverse action of an official nature, such as a demotion or a cut in pay.

The training of rank and file employees should be documented and if it is to be conducted on a regular basis, can include a certification by the employee that he or she has not been subject to any policy violations since the last training.

C.        Training and Damages Issues Under Hawaii Law

Generally, individuals cannot be found liable for violations under federal law.  Under Hawaii law, however, courts may award unlimited punitive and compensatory damages. 

Significantly, unlike under Title VII individuals can be held liable for violations of Hawaii’s Employment Practices Act.  See HRS §378-1 (defining “employer” to include “any person”) and §378-2 (3) (making it unlawful for any “person” to “aid, abet, incite, compel, or coerce the doing of any of the discriminatory practices forbidden by this part, or to attempt to do so.”); Schefke v. Reliable Collection Agency, 96 Hawai’i 408; 32 P.3d 52, 93-94 (2001) (holding individuals may be found liable under Hawai’i Employment Practices law).

Thus, training employees may alert them to the financial risks they take when they engage in behaviors prohibited by Hawaii law.

D.        Training to Reduce Exposure to Punitive Damages

In Kolstad v. American Dental Association, the Court held that “in the punitive damages context, an employer may not be vicariously liable for the discriminatory employment decisions of managerial agents where these decisions are contrary to the employer’s ‘good-faith efforts to comply with Title VII.’”  Accordingly, compliance efforts are both necessary and sufficient to avoid liability for punitive damages.

Roman Amaguin, Esq.; http://www.virtualhawaiiemploymentlawyer.com; http://www.amaguinlaw.com

 

 

 

 

 

 



By: Roman Amaguin

About the Author:

There are two types of divorce: absolute and limited. An absolute divorce, (also called a “divorce a vinculo matrimonii”) is a judicial termination of a marriage based on marital misconduct or other statutory cause arising after the marriage ceremony. As a result of an absolute divorce, the status of both parties is “single” again. Simply put, an absolute divorce dissolves the marriage. Once a judgment of absolute divorce is entered, the parties are free to remarry. After an absolute divorce, one party can no longer inherit property from the other, and any property owned by them jointly as husband and wife automatically becomes property held in common (each owns one-half).

In addition, the judgment may provide for sole or joint custody of the children, payment of alimony and child support, and the disposition of personal property. The court may also make an equitable distribution of all the parties’ assets, including ordering the sale of jointly held property and the dividing the proceeds.

There are several grounds for an absolute divorce including:

· Adultery

· Desertion

· Voluntary separation

· Two-year separation

· Cruelty of treatment

· Excessively vicious conduct

· Conviction of a crime

· Insanity

Several jurisdictions’ statutes authorize limited divorces, or “divorce a mensa et thoro.” The consequences of limited divorces vary from state to state. Typically, a limited divorce is commonly referred to as a separation decree; the right to cohabitation is terminated but the marriage is undissolved, and the status of the parties is not altered.

To obtain a limited divorce, you must first prove at least one of four grounds including:

· Cruelty of treatment

· Excessively vicious conduct

· Desertion

· Mutual and voluntary separation

· Actual desertion

· Constructive desertion

Also, a spouse may obtain a limited divorce where one spouse engages in cruelty of treatment or excessively vicious conduct toward the other spouse or a minor child of the party who is filing for a limited divorce. A victimized spouse who leaves the marital home because of abuse also has a legal action for a limited divorce on the grounds of constructive desertion, as well as a justifiable defense to an abusing spouse’s claim of desertion.

Many states have enacted what is called no-fault divorce statutes. This is a response to outdated common law divorce that required proof in a court of law by the divorcing party that the divorcee had done one of several enumerated things as sufficient grounds for the divorce. This entailed proving that the spouse had committed adultery or some other unsavory act. No-fault divorce eliminates this potentially embarrassing and undesirable requirement by providing for the dissolution of a marriage on a finding that the relationship is no longer viable. It is hard to tell whether no-fault divorce statutes are the cause or an effect of the rising national divorce rate in America.



By: Lynn Fugaro

About the Author:

ght (c) 2009 Lucille Uttermohlen

If you end up in court over your divorce, the judge will decide the issues you and your spouse are still disputing. If you are unhappy with the decree, you may be able to “appeal” the court’s order. If you are considering an appeal, there are a few things you need to bear in mind.

Appeals are expensive. The first thing you will need to do is notify the trial court of your intention to appeal its order. You will have to pay a filing fee to the appellate court. Next, you will have to pay to have the evidence prepared, and to have the proceeding in the trial court “transcribed”, which is a word for word typed document of everything that occurred at your final hearing. You will have to pay an attorney to read the transcript, and prepare a brief for the appellate court.

Next, your spouse has an opportunity to respond to your brief, and to set out any grievances he / she may have with the trial court decision. You and your attorney respond to this brief, and the case is finally submitted to the court.

Several months can elapse before you hear whether your appeal was successful. If the trial court is not “affirmed” by the appeals court, several things can happen. The trial judge can be ordered to amend his / her order to comply with the appeals’ court’s decision. The appeals court’s decision could result in an entire new final hearing. If that happens, your divorce is still final, but the other issues are still up for grabs.

If your spouse agreed with the trial court, he / she can ask that your state’s supreme Court overturn the appeals court. If the supreme court agrees with the trial court, it can overturn the appeals court. If it partially agrees with the appeals court, and partially agrees with the trial court, it can reverse the appeals court and send the case back to the trial court to have the judge correct that portion of it’s original decree that the supreme court didn’t like. If it agrees with the appeals court, and the appeals court affirmed the trial court, all remedies are exhausted, and the trial court’s original decision still stands.

The supreme court can also refuse “certiary”, which means it doesn’t think the issues of the case are important or that its issues are so well settled by prior rulings that they don’t require further action. In short, appeals are only for the rich, or at least the fairly well-to-do.

Even if you do decide to appeal, you should understand that the appeals court is very limited in the relief it can grant. Generally, if there was any evidence that supported the trial court’s decision, it will be upheld. This means that if 20 witnesses say one thing, and 1 witness says another, the court is considered to have enough information to rule, even if it relies on the statements of the 1 witness. The trial court actually meets the parties and their witnesses, and is thus considered to be in a better position to judge the credibility of their statements. Thus, unless the trial court applies the wrong law, or applies the right law in the wrong way, it will be sustained by the higher courts.

By: Lucille Uttermohlen

About the Author:

One of the temptations of all government is to restrict Freedom of Information. It sometimes seems that the strongest Freedom of information legislation is always the first Act, introduced by a reformist government before it has secrets to hide. Freedom of Information is one of the most central cogs in integrity systems and should be seen as such. To fulfill this role, the rationale for restrictions should be rethought and the procedures changed to reflect that.

We see the key to reform in emphasizing that the information belongs to the public. It is not the property of the politicians. It is the property of the public they claim to represent and on behalf of whom they are governing. It would be a serious abuse of power to use powers given to them by information legislation to protect themselves from the judgment of the people. It would be an even more serious abuse of power to use legislation such an Official Secrets Act to block the release of information that reflects adversely on their performance or exposes lies that they had told in order to pursue a particular policy or to hold on to office.

This is not to say that there are not some valid reasons for withholding the release of information. However, the presumption should be in favor of release. Rather than requiring someone to apply for the release of information, most documents that get beyond a certain stage in the policy process should be posted on websites (this will incidentally save the cost of handling FOI requests) and all other documents should be available without review in a matter of days at reasonable cost. Those who want to withhold documents should have to justify this decision to an independent body. The body might permit classes of documents to be withheld subject to spot checks of what was in those documents and subject to an FOI application from citizens for particular documents that they want (as is the case now).

It would be up to the official to initiate action to withhold information rather than up to the citizen to seek it. Such an approach would not only make it much easier to get information, it would help change attitudes to documents in government. It would be more difficult to withhold rather than release information and, for once, sloth and lack of time would be on the side of virtue!

Judicial Appointment

Judges perform a critical role in integrity systems. However, the reasons for the appointment of one judge over another are rarely public and sometimes partisan. There are four safeguards against ‘stacking’.

- The first is the possibility of appeal and reversal against decisions made – always a potential embarrassment as well as defeating the purpose of ‘stacking’. This safeguard is, of course, non-existent in ultimate appellate courts.

- The second safeguard is the tenure of judges. Even here there can be problems where judges can be ‘promoted’ to another court.

- The third is that judges are joining a collegial institution where the opinion of their fellow judges is important to them. This works very well where judges have been appointed by different governments with different preferences and, especially, where they have appointed individuals with strong independent views. However, where a government holds power for a long time, stacking becomes a real possibility and the abovementioned safeguards are neutered.

- The fourth safeguard is that their decisions and reasons given are public. While few members of the general public read them, barristers do and judges are generally very keen to be thought to have integrity and ability by those who appear before them. This may seem ironic given the formally obsequious way in which barristers address the bench in many jurisdictions. However, in spite of this, or perhaps because of it, they appear very keen on the respect of their former peers.

Reforming judicial appointments is extremely difficult. Unfortunately, the power to appoint judges is much prized by Attorneys-General and governments. However, an attorney or government that bequeathed an improved system with a judicial commission to consider criteria, recommend appointments, provide judicial education, and recommend on disciplinary action, would be most valuable and in some jurisdictions, critical.



By: Artur Victoria

About the Author:

Pennsylvania State Court Decisions

1. Civil Litigation

1.1. Automobile Insurance

1.1.1. “Cars for Hire”

Supreme Court

f Prudential Property & Casualty Ins. Co. v. Sartno, No. 163 MAP 2005 (August 21, 2006)

Holding: An insured’s use of his private vehicle to deliver pizza does not render the automobile a “car for hire” and does not trigger the exclusionary provision of the insurance policy.

1.1.2. Uninsured & Underinsured Motorist Arbitration

Superior Court

f The Hartford Ins. Co. v. O’Mara, 2006 PA Super 236 (August 29, 2006)

Holding: Under the Uniform Arbitration Act of 1980, when the application or construction of an insurance policy provision is at issue, the dispute is within the exclusive jurisdiction of the arbitrators. A court will take jurisdiction only when the claimant attacks a particular provision as: (1) contrary to a constitutional, legislative or administrative mandate; (2) against public policy; or, (3) unconscionable.

f Nationwide Insurance Co. v. Schneider, 2006 PA Super 219 (August 17, 2006)

Holding: Section 1733 of the MVFRL specifies the priority for recovery of underinsured motorist benefits, but neither mentions nor requires exhaustion of limits. When an insured settles a claim in contravention of a policy’s consent-to-settle clause, an insurer must show that its interests are prejudiced.

1.1.3. Subrogation

* Supreme Court

f Wirth v. Aetna U.S. Healthcare, No. 28 EAP 2005 (August 22, 2006)

Holding: Pursuant to the Pennsylvania Health Maintenance Organization Act, 40 P.S. § 1560(a), a health maintenance organization is exempt from complying with the anti-subrogation provision of the Pennsylvania Motor Financial Responsibility Law.

1.2. Medical Malpractice Claims

1.2.1. MCARE Act

* Superior Court

f McManamon v. Washko, 2006 PA Super 245 (August 31, 2006)

Holding: The Medical Care Availability and Reduction of Error Act does not apply to injuries not caused by medical negligence.

1.3. Sovereign Immunity

1.3.1. Real Property & Sidewalks Exceptions

* Commonwealth Court

f Reid v. City of Philadelphia, No. 1572 C.D. 2005 (August 3, 2006)

Holding: A street owned by a municipality that is designated a Commonwealth highway continues to be owned by the municipality. If a person is injured on a municipal sidewalk that adjoins a designated highway, the municipality remains the owner of the sidewalk and the sidewalk is, therefore, within the “right of way” of a street owned by the municipality for purposes of analyzing governmental immunity under the Political Subdivision Tort Claims Act.

f LoFurno v. Garnet Valley School District, No. 2082 C.D. 2005 (May 3, 2006)

Holding: A belt sander, designed to be bolted to the floor, that is not hardwired or permanently attached to the floor or to a dust collection system, is personalty, and not a fixture under the real property exception to governmental immunity under the Political Subdivision Tort Claims Act.

2. Civil Procedure

2.1. Appeal

2.1.1. Conflict Between Federal & Pennsylvania Law

* Superior Court

f Trombetta v. Raymond James Financial Services, Inc., 2006 PA Super 229 (August 22, 2006)

Holdings: 1.The standards of review of an arbitration award under the Pennsylvania Uniform Arbitration Act are not preempted by the Federal Arbitration Act (FAA).

2. The standards of review under the FAA cannot preempt the Pennsylvania standards for review of arbitration awards unless the Pennsylvania standards of review frustrate the underlying objectives of the FAA because standards of review are an inherently procedural mechanism used to facilitate judicial resolution of controversies after the underlying arbitration agreement has been enforced in accordance with the FAA.

3. Common law arbitration standards of review do not violate the core objective and principles underlying the FAA. Pennsylvania law governs the question of whether parties can impose de novo review on trial courts by virtue of contractual agreements.

4. De novo review clauses contained in arbitration agreements are unenforceable as a matter of law in Pennsylvania.

f Joseph v. Advest, Inc., 2006 PA Super 213 (August 8, 2006)

Holding: The provision of the Federal Arbitration Act permitting a party three months to challenge an arbitration award is procedural. Pennsylvania’s 30-day deadline (under either the Uniform Arbitration Act or common law arbitration) for contesting arbitration awards applies to such appeals, and appeals filed more than 30 days after the entry of the award are untimely.

2.2. Capacity to Sue

* Superior Court

f George Stash & Sons v. New Holland Credit Co., LLC, 2006 PA Super 206 (August 2, 2006)

Holding: The Fictitious Name Act provides that an entity that fails to register its fictitious name shall not be permitted to maintain any action in a Pennsylvania tribunal. Where, as here, a person or entity knows the identity of the persons with whom he or she is dealing, he cannot assert the lack of capacity to sue under the Fictitious Name Act.

2.3. Collateral Source Rule

* Superior Court

f Simmons v. Cobb, 2006 PA Super 222 (August 16, 2006)

Holding: The collateral source rule does not preclude a plaintiff from introducing evidence of the receipt of Social Security Disability benefits. Rather, the collateral source rule, which is intended to protect tort victims, provides that payment from a collateral source shall not diminish the damages otherwise recoverable from the wrongdoer. In this case, plaintiff sought to introduce evidence of receipt of SSD benefits.

2.4. Forum Non Conveniens

* Superior Court

f Wright v. Aventis Pasteur, Inc., 2006 PA Super 203 (August 2, 2006)

Holding: In determining whether to dismiss a case pursuant to 42 Pa.C.S.A. § 5322(e) based on forum non conveniens, the trial court must consider two important factors: (1) a plaintiff’s choice of the place of suit will not be disturbed except for weighty reasons, and (2) no action will be dismissed unless there is an alternative forum available to the plaintiff. As Superior Court acknowledges – this decision diverges from “the apparent trend in recent forum non conveniens decisions … toward dismissing cases brought in Pennsylvania where another forum is available.”

2.5. Interlocutory Appeals

2.5.1. Generally

* Supreme Court

f Pridgen v. Parker Hannifin Corp., Nos. 8 & 9 EAP 2005 (August 22, 2006)

Holding: In order for a trial court Order to be a “collateral order” under Pa.R.A.P. 313 – and appealable as a matter of right – the following three factors must be present:

1. The Order must be separable from and collateral to the main cause of action;

2. The right involved is too important to be denied review and must involve rights deeply rooted in public policy going beyond the particular litigation at hand; and,

3. The question presented is such that if review is postponed until final judgment in the case, the claim will be irreparably lost.

1.1.1. Trade Secrets

* Superior Court

f Crum v. Bridgestone, 2006 PA Super 230 (August 23, 2006)

Holding 1: This decision contains the same holding relating to collateral orders as Pridgen (above).

Holding 2: Pursuant to Section 757(b) of the Restatement (2d) of Torts and Pennsylvania law, in order to determine whether particular information is to be given trade secret status, a court should consider the following factors:

1. The extent to which the information is known outside of the business;

2. The extent to which the information is known by employees and others involved in the business; and,

3. The extent of measures taken to guard the secrecy of the information. Order must be separable from and collateral to the main cause of action.

For a court to determine whether a protective order is appropriate under Pa.R.Civ.P. 4019(a)(9), the discovery standard should embrace both (1) relevance and necessity, and (2) a balancing of need versus harm. Once a party establishes that the information sought is a trade secret, the burden shifts to the requesting party to demonstrate by competent evidence that there is a compelling need for that information and that the necessity outweighs the harm of the disclosure.

1.1. Judgment by Default

* Superior Court

f State Farm Insurance Co. v. Barton, 2006 PA Super 210 (August 7, 2006)

Holding: After a responsive pleading is filed, even if untimely, a judgment by default cannot be entered because the responding party is no longer in default.

1.2. Settlement

* Commonwealth Court

f Brannam v. Reedy, No. 2590 C.D. 2005 (August 14, 2006)

Holding: An evidentiary hearing is required when one party disputes the existence of a settlement agreement or its binding effect, and is the appropriate procedure even when there is a written agreement signed by counsel if it is alleged that counsel lacked the authority to bind his client. There must also be a hearing when a settlement is vacated by court order or enforced by court order. A hearing must be held even if the trial court has “intimate knowledge” of the facts as a result of a pre-hearing conference because a trial court’s recital of facts is not a substitute for a full record. A hearing must also be held, despite filing a petition and answer, even if no party requests one.

1.3. Transfer From Federal Court to State Court

f Falcone v. The Insurance Company of the State of Pennsylvania, 2006 PA Super 241 (August 30, 2006)

Holding: Pursuant to 42. Pa.C.S.A. § 5103, a party may transfer a case from federal court to the appropriate state court when the federal court lacks diversity jurisdiction. The date of the federal filing becomes the date of the state filing for purposes of the applicable statute of limitations. To comply, a party must promptly file a certified transcript of the final judgment of the federal court and related pleadings in a Pennsylvania court or magisterial district. A party does not comply with the statute by filing a new complaint in state court.

2. Unemployment Compensation

2.1. Necessitous and Compelling Reason to Quit

* Commonwealth Court

f Brunswick Hotel & Conference Center, LLC v. Unemployment Compensation Board of Review), No. 464 C.D. 2006 (August 23, 2006)

Holding: Elimination of health care benefits constitutes a substantial change in employment terms and serves as a necessitous and compelling reason for a claimant to resign from employment, thus entitling the claimant to unemployment compensation benefits.

3. Workers’ Compensation

3.1. Appellate Review

* Supreme Court

f Trimmer v. Workers’ Compensation Appeal Board (Monaghan Township), No. 58 MAL 2006 (August 3, 2006)

Holding: The Commonwealth Court (and presumably the Workers’ Compensation Appeal Board) may not substitute its determination of the facts and credibility of witnesses for the Workers’ Compensation Judge’s proper assessments. This per curiam Order summarily reverses the Commonwealth Court’s decision because determination of facts and credibility is solely within the province of the Workers’ Compensation Judge.

3.2. Hearing Loss/Employer Liability

* Commonwealth Court

f Hayduk v. Workers’ Compensation Appeal Board (Bemis Co., Inc.), No. 230 C.D. 2006 (August 11, 2006)

Holding 1: When an employer (Company A) purchases the assets, but not the liabilities, of another company (Company B), including the plant where the claimant worked, and the purchase specifically excludes any of Company B’s workers’ compensation liabilities that arose prior to the purchase of the assets, Company A is not liable for any work-related hearing loss that occurred prior to its purchase of Company B.

Holding 2: Under Section 306©(8)(iv) of the Workers’ Compensation Act,audiometric testing for a work-related hearing loss must conform to applicable OSHA standards. It is the employer’s burden, however, to establish that an occupational hearing loss is attributable to a previous employer. When, as here, the employer fails to meet this burden, it remains liable for all of a claimant’s compensable hearing loss.

3.3. Impairment Rating Examinations

* Supreme Court

f Dowhower v. Workers’ Compensation Appeal Board (Capco Contracting, Inc.), No. 542 MAL 2003 (August 11, 2006)

Holding: The Supreme Court has granted claimant’s Petition for Allowance of Appeal and will, presumably, address the issue of whether an employer may request an Impairment Rating Examination before the 104-week period in Section 306(a.2)(1) of the Workers’ Compensation Act.

3.4. Physical Examinations

* Commonwealth Court

f Knechtel v. Workers’ Compensation Appeal Board (Marriott Corp.), No. 140 C.D. 2006 (August 24, 2006)

Holding: Pursuant to Section 314(a) of the Workers’ Compensation Act, when an employee’s physician attends an employer-requested physical examination, the employee is entitled, at employee’s expense, to have a health care provider of his or her own selection participate in such examination. Participation is limited to attendance and observation.



By: Daniel Siegel

About the Author:

Creation of the Right of Publicity in California

The “right of publicity” is generally defined as the right to control or prevent the unauthorized use or commercial exploitation of one’s name, likeness, voice or “personality.”[1] The right of publicity evolved from the right of privacy, which itself has evolved dramatically over more than a century. In 1890, Samuel D. Warren and Louis D. Brandeis published a seminal article in the Harvard Law Review entitled The Right to Privacy,[2] in which they argued for a remedy for those injured by unauthorized public disclosure of truthful but embarrassing private facts.[3]

By the mid 1900’s, some courts and state legislatures had adopted some elements of the Brandeis-Warren theory. However, the question arose as to how to apply these rights to celebrities who had voluntarily and affirmatively sought the spotlight.

Second Circuit Judge Jerome Frank answered that question in 1953 when he coined the term “right of publicity” in the case of Haelan Laboratories Inc. v. Topps Chewing Gum, Inc. [4] The Haelan case asked whether a baseball player could assign exclusive rights to produce a card with his photograph on it to one single baseball card manufacturer.[5] The court determined that prominent persons do possess a “right of publicity”[6] which was an assignable interest, unlike the strictly personal – and therefore non-assignable — right to privacy.[7]

Judge Frank’s opinion was followed by a prominent article by Professor Melville B. Nimmer that analyzed the right to publicity as an assignable property right.[8] Nimmer explained that a mere right to privacy did not sufficiently address the issues unique to celebrities; while the right to privacy protected individuals from indignity and embarrassment, the right to publicity dealt with a celebrity’s ability (and, theoretically, anyone’s ability) to protect the commercial value of his or her image and identity.[9]

California first codified the right of publicity in 1971, when the California legislature enacted Civil Code section 3344, which enables recovery by any living person whose name, photograph, or likeness has been used for commercial purposes without his or her consent.[10] California courts have recognized both the statutory and the common law right of publicity. [11]

 However, both the common law and statutory rights of privacy were only available to living plaintiffs; the right was not freely descendible and thus expired by operation of law upon the death of the person claiming the right.[12] This very issue lay at the heart of two seminal companion cases decided in 1979: Lugosi v. Universal Pictures[13] and Guglielmi v. Spelling-Goldberg Productions.[14] In those cases, the California Supreme Court determined that the heirs of deceased celebrities had no statutory protections against posthumous exploitation of the celebrity’s image.

In Lugosi, the heirs of actor Bela Lugosi (best known for playing the title role in the 1930 movie, “Dracula”) sued to enjoin and recover profits from Universal Pictures for licensing Lugosi’s name and image on merchandise.[15] The California Supreme Court upheld the decision of appellate court in finding that the right to exploit one’s name and likeness is personal and must be exercised, if at all, by him during his lifetime.[16]

Similarly, in Guglielmi, the California Supreme Court cited to and relied upon its opinion Lugosi in holding that Rudolph Valentino’s heirs could not obtain an injunction or damages from the defendant because Valentino’s right of publicity was not descendible under California law.[17] Because Valentino had not exploited his name and likeness during his lifetime, others could now use it without liability to Valentino’s heirs.[18]

Courts outside of California honored the Lugosi and Guglielmi decisions as well in applying California law. In Groucho Marx Productions, Inc. v. Day and Night Company, Inc.[19], the Second Circuit held that the rights of publicity were not descendible under California law. In that case, the Marx Brothers’ assignees sued a production company for interference with the assignees’ publicity rights; the production company incorporated three characters that strongly resembled the Marx Brothers in its Broadway musical, “A Day in Hollywood/ a night in the Ukraine.” The federal district court in New York had applied New York law, determining that New York recognized a descendible right to publicity and granting summary judgment to the plaintiffs.[20] The Second Circuit, however, reversed that decision, holding that the descendibility issue was governed by California law and as a result, the plaintiffs had no right to relief.[21]

Legislating a Post-Mortem Right of Publicity

The holdings in Lugosi and Guglielmi precipitated legislation designed specifically to create a statutory descendible right to publicity. In 1984, the California legislature enacted Civil Code section 990 (renumbered as section 3344.1 in 1999), creating a post-mortem right of publicity for “deceased personalities,” – individuals whose names, voices, signatures, photographs, or likenesses had commercial value as of the time of their death.[22] This legislation became effective January 1, 1985.

Section 990 explicitly stated that the right of publicity is a property right, “freely transferable, in whole or in part, by contract or by means of trust or testamentary documents” whether that transfer occurs before, by or after death of the personality.[23] The statute held that absent an explicit transfer of this right, it automatically goes to the statutory/ intestate heirs of the deceased (spouse, children, parents).[24] If the celebrity fails to transfer the right explicitly and dies without any statutory heirs, the right of publicity terminates.[25] Otherwise, the extended right of publicity would expire 50 years after the death of the deceased personality.[26]

In an attempt to maximally preserve First Amendment protections for creative outlets, the new statutory provision exempted from liability plays, books, magazines, newspapers, musical compositions, films, and radio and television shows that used a deceased celebrity’s likeness, name, voice, etc.[27]

 The registered owner of the posthumous rights to The Three Stooges comedy act relied on section 990 to obtain damages against an artist who reproduced his charcoal drawings of the act on lithographs and t-shirts.[28] The artist had claimed that his artwork was creative and transformative enough to warrant First Amendment protection against the plaintiff’s right of publicity claim, just like the specifically listed exemptions in the statute. The court agreed that when a work of art is so transformative that the value of the work derives primarily from the skill and creativity of the artist rather than from the fame of the celebrity depicted, the work may be protected by the First Amendment.[29] However, the court determined that Saderup’s depictions were more literal than transformative — a clear attempt merely to exploit the Three Stooges’ fame — and therefore First Amendment protection did not apply.[30] If Saderup wanted to continue to use these images, he needed to obtain the consent of the right of publicity holder.

However, that same list of exempt uses in section 990 posed new problems, exemplified in two main cases:

In Joplin Enterprises v. Allen,[31] a federal district court applied section 990 to find that a two-act biographical play about deceased singer Janis Joplin was not actionable. Joplin’s devisees alleged that the play constituted copyright infringement as well as misappropriate of Joplin’s privacy and publicity rights.[32] The court determined that section 990 applied only to unauthorized “merchandise, advertisements and endorsements,” and it explicitly exempted plays from liability.[33]

The Ninth Circuit similarly exempted an instructional dance video from liability under section 990 in Astaire v. Best Film & Video Corp.[34] In Astaire, the widow of famed dancer Fred Astaire sued a videotape manufacturer for using Fred Astaire’s image in a series of dance instructional videotapes – each tape opened with about 90 seconds of footage of Astaire. Mrs. Astaire claimed the company violated her statutory right to control the use of her husband’s name and likeness under section 990.[35]

The Central District of California agreed with Mrs. Astaire, finding that the company used Astaire’s image “on or in products, merchandise, or goods” in violation of the statute.[36] But the circuit court reversed and remanded, finding that the pre-recorded videotapes fell into the “film” exemption of section 990(n).[37] Indeed, the court determined that the film exemption applied even if the use was an advertisement or commercial announcement.[38]

The Astaire Amendment: Deleting exempt uses

After losing her difficult and expensive lawsuit, Mrs. Astaire teamed up with the Screen Actors Guild to sponsor legislation that would clarify and expand the post-mortem right of publicity. That bill, SB 209, passed in 1999 and became known as the “Astaire Celebrity Image Protection Act.”

 Most significantly, the Astaire Amendment eliminated the list of exempt uses of deceased celebrity likenesses, thereby substantially increasing the types of uses for which consent of the celebrity’s heirs is required. The bill also extended the descendible right of publicity from 50 years to 70 years following the celebrity’s death.[39]

Despite these amendments to clarify and expand the descendible posthumous right of publicity, there remained a gap in the law that was revealed by two similar cases regarding the posthumous rights of Marilyn Monroe: Milton H. Greene Archives, Inc. v. CMG Worldwide, Inc.[40] and Shaw Family Archives, Ltd. v. CMG Worldwide, Inc.[41] (collectively, the “Monroe cases”). When Marilyn Monroe died, she left the residue of her estate to her acting coach, Lee Strasburg, who, upon his death, left most of his estate to his wife, Anna Strasberg.[42] Anna Strasberg then transferred her interest in Monroe’s estate to Marilyn Monroe LLC, who licensed CMG Worldwide, Inc. to use Monroe’s images and likenesses.[43] In these two actions, CMG sued other parties for their unauthorized use of Monroe’s image.

In the Monroe cases, both courts interpreted section 3344.1 as prohibiting publicity rights from passing by will if the personality died prior to January 1, 1985.[44] In other words, the statutory descendible right of publicity did not exist when Monroe died, so, by operation of law, it could not have been a property right that she possessed upon death.[45] Because Monroe did not own this property right at the time of her death, she could not have transferred it in the residuary clause in her will.[46] Moreover, even if Monroe did possess the right, section 3344.1 only enables transfers to statutory heirs – Monroe had no statutory heirs, so her right would terminate in any event.[47] Both courts ruled against CMG on summary judgment.

The holdings in the Monroe cases had unsettling implications. Many deceased celebrities and their devisees left or transferred residual estates to charitable organizations, which relied in part on their ability to license the famous images for fundraising purposes. The Monroe holdings effectively removed from these organizations many rights they had relied upon. Reflecting these concerns, the federal district court for the Central District of California wrote:

The court reaches this conclusion with some reluctance because … at least some personalities who died before passage of the California … right of publicity statute[] left their residuary estates to charities, which will be “divested” of those rights under the court’s holding… As noted, however, nothing in this order prevents legislatures from enacting right of publicity statutes so as to vest the right of publicity directly in the residuary beneficiaries of deceased personalities’ estates or their successors-in-interest.[48]

 The 771 Amendment: Enabling retroactive transfers to residual estates

The California legislature wasted no time following the suggestion of the Milton H. Greene court. Merely six weeks after that opinion was published, State Senator (and former child actor) Sheila Kuehl[49] fast-tracked through the legislature[50] Senate Bill 771, designed specifically to clarify the scope of Cal. Civil Code section 3344.1 and to abrogate the decisions in the Monroe cases.[51]

The somewhat controversial SB 771 accomplished several goals. First, it explicitly stated that a deceased celebrity’s right of publicity applies to individuals whether or not they died before January 1, 1985.[52] The amendment deems, retroactively, that a deceased celebrity’s right of publicity existed and was transferable even if they died before the enactment of section 3344.1.[53] In the event the celebrity did not expressly transfer this right (and why would they, if they didn’t know it existed?), the right became part of the deceased personality’s residual estate and was transferred to whomever received those assets.[54] The resulting owner of that right has 70 years from the date of the celebrity’s death to control use of the celebrity’s image for commercial purposes.[55]

Despite the efforts to get SB 771 drafted and passed quickly, it still did not help CMG Worldwide and Marilyn Monroe LLC (“MMLLC”). On November 21, 2007, armed with the newly-passed SB 771, CMG and MMLLC filed a motion for reconsideration in the Milton H. Greene case, which the federal district court granted.[56] The court agreed that, due to the passage of SB 771, CMG and MMLLC did have standing to assert Monroe’s posthumous right of publicity under California law.[57] However, after a detailed analysis, the court determined that Monroe was domiciled in New York, not California, at the time of her death.[58] Because New York did not recognize either a common law or statutory posthumous right of publicity in 1962 and because, unlike California, New York has not passed a statute to recognize such rights retroactively, Monroe did not possess the right to publicity when she died and therefore could not have transferred it in her will.[59]

Right of Publicity Laws in Other States

 Though the right of publicity is derived from the Constitutional notion of the right of privacy, it is created and enforced via state laws. At least nineteen states have developed and passed a statutory right of publicity[60]; not all of them treat the right as descendible.[61] At least eleven other states only recognize a common law right to publicity.[62] The American Law Institute’s Third Restatement of Unfair Competition (1995), section 46, also recognizes the right of publicity as a separate legal theory.

The state of Indiana actually has the most comprehensive right of publicity statute on the books.[63] Enacted in 1994, Indiana’s law protects a deceased individual’s right of publicity for 100 years after his death and includes protections for the celebrity’s signature, photograph and gestures, as well as the more typical name, image and likeness.[64] Otherwise, Indiana’s law is similar to Cal. Civil Code section 3344.1.

 New York, on the other hand, gives celebrities a statutory claim against the use of only their “name, portrait, or picture…. for advertising purposes or for the purposes of trade.”[65] New York Senator Martin Golden and Assemblywoman Helene Weinstein presented SB 6005/ Assembly Bill A08836[66] to the New York Legislature. While early attempts were made to rush that bill through the New York legislature, the bill was halted, apparently due to concerns that it is overly broad in nature, posing potential conflicts with Constitutional rights and other rights.[67]

Potential Negative Implications of SB 771

The New York legislature’s hesitancy to rush right into endorsement of its bill — the identical twin to California’s SB 771 — reflects some of the real concerns about and potential problems resulting from SB 771.

Because SB 771 is retroactive in nature, it may grant rights to some people retroactively while taking away from others rights that they had relied upon by entering into contracts and otherwise lawfully exploiting certain images.[68] As a result, this area is certainly ripe for testing, with the strong possibility of some untenable judicial results and, subsequently, more statutory amendments.

 The statute attempts to preempt some future litigation by including this condition: If a statutory heir[69] exercised his or her rights to exploit a deceased celebrity’s likeness before May 1, 2007, and that exercise was not challenged successfully in court by a transferee of the celebrity’s residual estate, the residual estate transferees cannot use SB 771 to now come back and claim that right to publicity.[70] In fact, in this factual scenario, the residual estate is forever barred from claiming the right of publicity, which remains with the statutory heirs throughout the statutory period.[71]

 However, that statutory provision does not address what will certainly be the more common situation – when the transferees of a celebrity’s residual estate file suit for damages and an injunction against a person or company that lawfully used that celebrity’s image or likeness for commercial purposes long before enactment of SB 771. Due to the retroactive nature of SB 771, the residual estate could theoretically reach back many years and disgorge substantial profits from an entity whose use had been legal throughout that time, as well as permanently enjoin future use by an entity who may have built an entire brand around the use.

 Because the right to publicity differs so dramatically from state to state, and because there is so much overlap between right to publicity issues and issues dealing with trademark and copyright law, First Amendment protections, and other laws, several groups are pressing for Congressional enactment of a federal right to publicity law. The proposal by the International Trademark Association, for example, would amend the Lanham Act to add a federal right of publicity that would specifically preempt all state law, both statutory and common law.[72]

 The INTA’s proposed federal law does include a descendible and transferable right of publicity effective for a period of time after a celebrity’s death.[73] However, it also includes a provision that the California’s law lacks – a “grandfather clause” that protects the rights of prior users.[74]

Conclusion

Undoubtedly, California’s right of publicity statute remains on the frontlines of the evolution of this legal concept. As home to an abundance of celebrity’s, California’s statute is frequently tested and amended when those tests reveal a gap in the law. Senate Bill 771 represents only the latest step in the evolution, but it probably goes too far, creating more legal problems than it may solve.

As a result, SB 771 certainly will not be the last word on California’s statutory descendible right of publicity. Whether ultimately preempted by a new federal law or not, the California statute will need to address the rights of prior users who acted in reliance on their pre-SB 771 rights and are harmed as a result of this retroactive bill. Future litigation on this very issue, likely followed by yet another legislative amendment, is predictable.

——————————————————————————–

[1] See, e.g., Miller v. Glenn Miller Prod., Inc., 454 F.3d 975, 99. 988-989, n.6 (9th Cir. 2006).

[2] Samuel D. Warren and Louis D. Brandeis, The Right to Privacy, 4 Harv. L. Rev. 193 (1890).

[3] Id. at 213.

[4] 202 F.2d 866, 868 (2nd Cir. 1953).

[5] Id. at 867.

[6] 202 F.2d at 868.

[7] Id. at 868-869.

[8] Melville B. Nimmer, The Right of Publicity, 19 Law & Contemp. Probs. 203 (1954).

[9] Id. at 203-04.

[10] Cal. Civil Code. Section 3344(a). The statute exempts from liability uses made in connection with  news, public affairs, sports broadcasts or accounts, and political campaigns. Cal Civil Code, section 3344(d).

[11] Miller v. Glenn Miller Prod., Inc., 454 F,3d 975, 988-89, n.6 (9th Cir. 2006).

[12] Lugosi v. Universal Pictures, 25 Cal. 3d 813, 820-822 (1979).

[13] Lugosi, supra.

[14] 25 Cal. 3d 860 (Cal. 1979).

[15] Lugosi, 25 Cal. 3d at 817.

[16] Id. at 822-823.

[17] 25 Cal. 3d at 864.

[18] The implication is clear that had Lugosi and Valentino actually contracted with the defendants regarding use of their likenesses during their lifetimes, the heirs would have the right to enforce those contracts posthumously. In these cases, however the defendants were using the images without the benefit of a contract that related to use of the images.

[19] 689 F.2d 317 (2d Cir. 1982).

[20] 689 F.2d at 319.

[21] Id. at 323.

[22] Cal. Civil Code section 3344.1(h).

[23] (Former) Cal. Civil Code section 990(b) (now amended and renumbered)

[24] Id. at 990(d).

[25] Id. at 990(e).

[26] Id. at 990(g).

[27] Id. at 990(n).

[28] Comedy III Productions Inc. v. Gary Saderup, Inc., 25 Cal. 4th 387 (2001).

[29] 25 Cal. 4th at 407.

[30] Id. at 409.

[31] 795 F. Supp. 349 (W.D. Wash. 1992).

[32] Id. at 350.

[33] Id. at 351.

[34] 116 F.3d 1297 (9th Cir. 1997), as amended by 136 F. 3d 1208 (9th Cir. 1998).

[35] 116 F.3d at 1299.

[36] Id. at 1300.

[37] Id. at 1301-1302.

[38] Id. at 1302.

[39] Cal. Civil Code section 3344.1(g).

[40] Milton H. Greene Archives, Inc. v. CMG Worldwide, Inc. (unreported), (No. CV-05-02200MMM), 2008 WL 655604 (C.D. Cal. Jan. 7, 2008), summary judgment affirmed by Milton H. Greene Archives v. CMG Worldwide, Inc., ___ F. Supp. ___. 2008 WL 1922980, No. CV 05-2200 MMM (C.D. Cal. March 17, 2008).

[41] 486 F. Supp. 2d 309 (SDNY 2007).

[42] Shaw, 486 F. Supp. at 312.

[43] Id.

[44] Id. at 317; Milton H. Greene, 2008 WL 655604, at *1.

[45] Shaw at 319; Milton H. Greene, 2008 WL 655604, at *1.

[46] Shaw at 319.

[47] Shaw at 319; Milton H. Greene, 2008 WL 655604, at *1-2.

[48] Milton H. Greene court’s May 14, 2007 Order granting summary judgment in favor of plaintiffs, at 36:15-20, n.38 and n.80.

[49] The bill was drafted and sponsored by the Screen Actors Guild at the urging of CMG. It received strong support from the Cecil B. DeMille Foundation, the Marilyn Monroe LLC, the Motion Picture and Television Fund, [John] Wayne Enterprises and the California Labor Federation.

[50] The  bill passed through the California legislature on September 7, 2007 and was signed into law by governor Arnold Schwarzenegger on October 10, 2007. It took effect January 1, 2008.

[51] Section 2 of Stats. 2007, c. 439 (S.B. 771).

[52] Cal. Civil Code section 3344.1(b).

[53] Id.

[54] Id.

[55] Cal. Civil Code section 3344.1(g).

[56] Milton H. Greene Archives v. CMG Worldwide, Inc., ___ F. Supp. ___. 2008 WL 1922980, No. CV 05-2200 MMM (C.D. Cal. March 17, 2008).

[57] ____ F. Supp. at ____; 2008 WL 1922980 at *3.

[58] More specifically, the court found that authorized representatives of Monroe’s estate had repeatedly represented in various forums that Monroe was a resident of New York, not California, and was only in California temporarily for work, with no intent to remain in California.  The court performed a lengthy and detailed analysis to determine that CMG was barred by judicial estoppel from asserting that Monroe was domiciled in California and therefore possessed a right of publicity under California laws. 2008 WL 1922980, at *33 – *34.

[59] Id. at *3.

[60] These 19 are: California (Cal. Civ. Code section 3344 and 3344.1), Florida (Florida Stat. section 540.08), Illinois (Ill. Rev. Stat. ch. 765 section 1075/1 et seq.), Indiana (Ind. Code section 32-36-1 et seq.), Kentucky (Ky. Rev. Stat. Ann. Section 391.170), Massachusetts (Mass. Gen. L., ch. 214 section 3A), Nebraska (Neb. Rev. Stats. Section 20-202), Nevada (Nev. Rev. Stat. sections 597.770 – 597.810), New York (N.Y. Civil Rights Law sections 50, 51), Ohio (Ohio Rev. Code Ann. Sections 2741.01 et seq.), Oklahoma (Ok. Stat., Title 12, sections 1448 and 1449), Pennsylvania (Pa. Cons. Stat. Title 42, section 8316), Rhode Island (R.I. Gen. Laws sections 9-1-28 and 9-1-28.1(a)(2)), Tennessee (Tenn. Code Ann sections 47-25-1102 to 47-25-1107), Texas (Texas Prop. Code Ann. Section 26.001 et seq.), Utah (Utah Code Ann. section 45-3-1 et seq.), Virginia (Va. Code section 8.01-40), Washington (Wash. Rev. Code Ann. 63.60-010 et seq.) and Wisconsin (Wisc. Stat. section 895.50(2)(b)).

[61] The following states’ right of publicity statutes do not appear to grant rights after death: Massachusetts, Nebraska, New York, Rhode Island, Pennsylvania, Utah, and Wisconsin.

[62] They are: Alabama, Arizona, Connecticut, Georgia, Hawaii, Maine, Michigan, Minnesota, Missouri, New Jersey, and Oregon.

[63] Ind. Code. Ann. Sections 32-36-1 et seq.

[64] Id. at 32-36-1-7 and 32-36-1-8(a).

[65] N.Y. Civ. Rights Law sections 50 and 51 (McKinney 2007).

[66] The New York bill is essentially identical to California’s SB 771. Like SB 771, it was introduced immediately after publication of the Monroe decisions and was similarly backed by CMG. There were rumors that CMG had hired a lobbyist specifically to assist the bill’s expedition.

[67] “Marilyn Monroe Historic Legislation Halted – Surprise to CMG and MMLLC”, PR-inside.com, June 25, 2007, located at http://www.pr-inside-com/marilyn-monroe-historic-legislation-halted-r161341.htm#.

[68]David Marcus, attorney for the Shaw Family Archives, claims (without specificity) that SB 771 conflicts with California laws relating to wills and estates. New York intellectual property attorney Nancy Wolff asserts that the California legislature violated its own procedural rules when it rushed SB 771 through. (“California Adopts New Right of Publicity Law,” pdnonline.com, October 12, 2007 (located at http://www.pdnonline.com/pdn/newswire/article_display.jsp?vnu_content_id=1003658099). If either or both of these assertions are true, they would provide additional grounds for legal challenges to SB 771.

[69] Other than someone who was specifically disinherited by the deceased personality. Cal. Civil Code section 3344.1(o).

[70] Id.

[71] Id.

[72] See the INTA’s Adopted Resolution on the Federal Right of Publicity at http://www.inta.org/index.php?option=com_content&task=view&id=285&Itemid=153&getcontent=3.

[73] Id.

[74] Id.





By: Thomas F. Zuber

About the Author:

Matter of Michael Caliguiri Appellate Division, First Dept. Admitted to Bar: 1980. Discipline imposed: One year suspension from practicing law.

From 1984 until 2003 Caliguiri was employed by Garbarini & Scher, a law firm that mostly represented doctors and hospitals that were sued for medical malpractice. Caliguiri became the firm’s managing partner in 1999. Medical Liability Mutual Insurance Co. (MLMIC), a huge insurer of doctors, was one of the firm’s major clients.

In light of Caliguiri’s expertise, a neighbor of Caliguiri’s asked him to answer medical malpractice questions from one of his partners, for which no money changed hands. Caliguiri knew that the defendant doctor being sued by the neighbor’s law firm was insured by MLMIC.

Caliguiri’s wife worked for MLMIC and secretly copied MLIC’s confidential file on the neighbor’s law firm’s case and gave it to Caliguiri. Both Caliguiri and his wife testified that she did this without Caligiuri ever asking her to do so. Caliguiri had looked at the file, which confirmed his opinion that MLMIC would not voluntarily settle the case because it felt it could successfully defend it.

The neighbor’s law firm disclosed Caliguiri’s participation to MLMIC and the medical malpractice case was settled.

At the end of 2005 Caliguiri left Garbarini & Scher over “philosophical differences.” One month later his wife was fired by MLMIC.

Caliguiri says: The opinion he gave about the way the case would proceed was the same before he read the documents as after. In other words, he did not formulate his advice based on something he learned from the file.

The Appellate Division found: that while it believed that Caliguiri did not ask for his wife to copy MLMIC’s file, he should never have even looked at it.

Despite the fact that Caliguiri made no money (there was no personal gain at all) the Appellate Division held that his conduct violated the attorney-client privilege, and that he should have kept secret his client’s confidential information, even though his law firm was not even representing the client for that particular case.

Commentary: The Court actually toyed with imposing a longer suspension, but found that in addition to not gaining financially from his misconduct, Caliguiri showed “profound remorse” and had suffered devastating financial and personal consequences. It also helped that he had a clean disciplinary record, this being his first infraction in an otherwise clean 25-year legal career.



By: Gary E Rosenberg

About the Author:

Civil juries have been called the conscience of the community. John Stuart Mill once observed that the jury system is “at the very heart of democracy Similarly, Alexis De Tocqueville stated that the American civil jury system is “one of the most efficacious means for the education of the people which society can employ.”

Those fighting for the rights of the people, namely Personal Injury Lawyers in Wrongful Death, Birth Injury, Brain Damage, Medical Malpractice, Truck Accident an similar cases, have long fought for strengthening the jury system.  The right to a trial by jury in civil cases is firmly embedded in the United States Constitution, as well as most state constitutions. The Seventh Amendment provides: “In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by jury, shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law.” And the United States Supreme Court has held that “[m]aintenance of the jury as a fact-finding body is of such importance and occupies so firm a place in our history and jurisprudence that any seeming curtailment of the right to a jury trial should be scrutinized with utmost care.”

Why, then, has the American jury system been under attack in recent years? One answer is that this attack is nothing new. As early as 1872, Mark Twain commented: “The jury system puts a ban on intelligence and honesty, and a premium upon ignorance, stupidity and perjury. It is a shame that we must continue to use a worthless system because it was good a thousand years ago.”  Likewise, in 1911 Ambrose Bierce defined “trial” as a “formal inquiry designed to prove and put upon record the blameless characters of judges, advocates and jurors.”

Contrary to the literary critique of the 19th century, the recent attack on the American jury is far more potent.  Corporations and their insurers have been at the forefront of such attacks on civil juries, seeking to limit corporate liability exposure by replacing the civil jury system with a more manageable statutory structure.

And their call for jury reform is getting louder. Following the recent $253.4 million dollar jury verdict against Merck in the first Vioxx suit in Texas, some tort “reformists” have called for the “End of the Jury System for Civil Cases.” According to Professor Brainbridge of UCLA, this Vioxx verdict “raises serious questions as to the competence of lay jurors to resolve technical issues.”

Other commentators disagree, arguing that juries in civil cases stand as indispensable watchdogs over corporate negligence and corruption. Specifically, the Vioxx verdict illustrates how, “for ordinary Americans, the civil justice system is the last check-and sometimes the only check-against corporations that put profits before the health of safety of their own customers.”

Still, even the firmest supporters of the American civil jury agree that juror comprehension is strained by lengthy cases, complex evidence and intricate law. In such cases, not only are the interests of justice poorly served, but jurors themselves become dissatisfied with their participation. Accordingly, recent jury reform efforts have been aimed at making the jury system more responsive to citizen needs, as opposed to abandoning civil juries altogether.

The American Bar Association (ABA) has recently spearheaded two such efforts to highlight the importance of jury service in our nation: the American Jury Project and the Commission on the American Jury. The former has been charged with producing a single set of modern jury “Principles” that the ABA proposes as a model for courts across the country. The latter has been charged with a mission to encourage appreciation of the American jury system, to persuade the public to participate in the process, and to stimulate reform in hopes of improving the experience of serving on juries.

This paper examines some of the newest and more controversial jury trial innovations being considered by judges and attorneys to maximize juror comprehension of evidence and applicable law.

DISCUSSION

A.        Jurors Asking Questions

One of the more controversial jury-reform proposals is to allow jurors to ask witnesses questions during trial. This practice is slowly gaining acceptance in jurisdictions throughout the country, and is a practice endorsed by the American Bar Association.

Proponents of allowing jurors to ask questions note the difficulty juries face in analyzing evidence presented through one-way communication. That is, attorneys and witnesses speak during trials, while jurors only listen. The United States Court of Appeals for the Fifth Circuit, in United States v. Callahan, held that “[t]here is nothing improper about the practice of allowing occasional questions from jurors to be asked of witnesses. If a juror is unclear as to a point in the proof, it makes good common sense to allow a question to be asked about it.”

There are essentially two approaches on how jurors might ask questions during trial.   Under the first approach:

After both lawyers conclude their respective direct and cross-examination, the trial court asks the jurors for written questions; the jury and witness leave the courtroom while the judge determines the admissibility of the questions; the trial court reads the questions to both lawyers and allows them to object; the jury and witnesses are brought back into the courtroom and the judge reads the admissible questions to the witness; after the witness answers, both lawyers may ask follow-up questions limited to the subject matter of the jurors’ questions.

Under the second approach:

The juror writes the question and hands it to the bailiff, who then passes it to the judge; the judge (most often at a break) furnishes copies of the question to the attorneys so long as in the judges opinion, the question-or some variation of the question-is potentially meritorious (having foundation in law as well as being relevant and material to the case at hand); the juror’s question now belongs to the attorneys, who are free to handle the question as they deem appropriate and in their client’s best interest.

Opponents of allowing jurors to ask questions under either approach argue that it may disturb the respective roles of the attorneys and juries, transcending jurors from neutral fact-finders into advocates. Additionally, jurors might become distracted by thinking of questions rather than paying attention to the trial. Furthermore, a probing question from a juror might improperly aid an otherwise ineffective attorney.

State appellate courts have taken differing approaches to the practice of allowing juror questions. In City of Springfield v. Thompson Sales Co., the Missouri Supreme Court expressly upheld the use of jury questioning. On the other hand, in Steele v. Atlanta Maternal-Fetal Medicine, P.C.,the Court of Appeals of Georgia found that the trial court abused its discretion by allowing jurors to submit questions for witnesses. The Supreme Court of Vermont, in State v. Dolesny,held that it was within the trial court’s discretion to permit jurors in criminal cases to submit written questions for the witnesses.

Despite the increasing number of jurisdictions permitting jurors to ask questions, most attorneys remain cautious about this reform proposal. In a traditional adversary trial, lawyers control the questioning of witnesses, subject only to judicial scrutiny. When jurors are allowed to ask questions, attorneys must yield some of this control to the jury.

B.        Consecutive Expert Witness Testimony

Most of the criticism surrounding the Vioxx verdict suggests that jurors are incapable of understanding and evaluating complex expert testimony. One jury reform proposal seeks to address this concern by reordering the sequence of proof so that opposing experts offer their testimony consecutively.

In complex cases involving a “battle of the experts,” some jurisdictions have experimented with reordering the traditional sequence of proof to better facilitate juror comprehension. For example, if a plaintiff offers an expert witness on the issue of causation, the defendant’s causation witness would testify immediately after the plaintiff’s expert, rather than much later in the trial during the defendant’s case-in-chief. This procedure would allow jurors to hear all the expert causation witnesses in the same approximate time period.

Another approach would allow each side’s expert to appear together in front of the jury, following their testimony, to answer one another’s questions about the testimony. For instance, expert witness A could be asked to respond to expert witness B’s criticism of expert witness A’s conclusions. This technique allows the jury to examine the extent of any real difference between expert testimony and to compare these differences side by side.

Still, this proposal certainly has detractors. Both plaintiff and defense lawyers are concerned with disrupting their trial presentation strategy by reorganizing the timing of presentation of expert witnesses. Accordingly, most commentators agree such reordering of testimony should not occur without the consent of the judge and all parties.

C.        Interim Summaries

Another controversial jury-reform innovation is to allow attorneys to provide jurors with interim summaries during various stages throughout the trial. One common problem for jurors is the inability to put individual pieces of evidence together in any meaningful context. Because jurors can better understand evidence when they know why it is being presented to them, some jurisdictions permit lawyers to make mini-summations during the trial.

Proponents of the practice argue that such summaries are useful in long and/or complex jury trials. Mini-summations can help the jury focus on the significance of evidence and place evidence in context while it is still fresh. The Arizona Supreme Court Committee on More Effective Use of Juries concluded that “[i]nterim summaries can enhance jury comprehension, aid juror recall of the evidence and help jurors avoid making premature judgments in the case.”

Opponents of mini-summation argue that this practice allows lawyers to “put a spin on the testimony before all the evidence is in,” which can be highly prejudicial. Furthermore, opponents note that interim summaries can waste time, bore the jurors, and interrupt the flow of presenting testimony.

D.        Juror Deliberations During Trial

In most jurisdictions, jurors are prohibited from discussing the case until they receive final jury instructions. However, some jurisdictions have considered permitting pre-deliberation discussions by jurors, especially in lengthy or complex cases.

In fact, Arizona became the first jurisdiction to expressly permit jurors to discuss evidence during civil trials. Currently, Arizona jurors can do so only in civil trials; in criminal trials they must still wait until the final deliberations to discuss the case with one another.

In civil cases in Arizona, jurors are instructed at the outset that they may discuss the evidence amongst themselves during the trial but only in the jury room and only when all are present. They are cautioned that discussion is appropriate only as long as they keep an open mind until they have heard all the evidence, all the instructions on the law, and all arguments of counsel. A number of trial judges across the country are using this procedure on an experimental basis, generally with the consent of the parties.

The foremost objection to pre-deliberation jury discussion is the belief that jurors who engage in this practice will prejudice the case before hearing all the evidence and instructions on the law. This practice also raises concerns about shifting the burden of proof from the plaintiff to the defense, if jurors form an opinion before the defense has presented its case.

CONCLUSION

Many of the innovative jury reform proposals described above can enhance the civil jury’s decision-making ability. To the extent that reform makes jury duty a more enjoyable experience and helps lawyers communicate more effectively with jurors, such proposals should be seriously considered.

However, jury reform should not disturb the role of jurors as impartial finders of fact. Perhaps the best thing to come out of the jury reform debate is that trial lawyers are becoming keenly aware of the need to communicate more effectively with juries.



By: Mathew A. Passen

About the Author:

The word ‘expunge’ means to ‘seal’ or ‘erase’. A person can never be criminal for the whole of his life. He doesn’t want that his criminal record follow him forever. The criminal arrest or record can cause problem in ones personal as well as professional life.

Your criminal record will accompany you wherever you go. You will face lots and lots of hindrances in getting a new job.  The employers are always so much concerned about the previous records of their employees. They never offer a job to the person who is having a criminal record. From the employer’s point of view its right because the person with criminal record may repeat the same in the future.

The society also has a non helping hand towards you. They also don’t want to keep any relation with you. They start keeping distance from you as you have some infectious disease. Even your friends, nears and dears will behave in the same way.

You will start feeling frustrated.  But you need not to worry and get so tensed about your past criminal record. Don’t spoil your life with your past criminal records. There is a hope to get way from all these records. You can erase or expunge all those records officially. By expunging or sealing criminal records you will again start leading a fresh life without any criminal background. Again you can get a new job in a well established company.

There are many legal ways through which you can erase or expunge your criminal records. Don’t give up the hope of getting a new job even if you are having criminal records.  If you are arrested and not convicted in a crime, you can expunge or seal the record of your arrest. There are lot of licenced law firms are available through which you can clear your criminal records.

Expungement: You should apply for an expungement if all the charges in the case were either dismissed by the judge or dropped by the State and did not proceed to trial.

Sealing: If you pled guilty or no contest to the charges, or were found guilty after a trial, and adjudication was withheld (meaning you were not convicted), then you can apply for sealing. Before you apply for a sealing, you should have completed ALL parts of your sentence, including completing your probation, paying all court costs and paying all restitution that was ordered by the judge.

The Abreu Law Firm is a full-service criminal defense firm representing clients in both State and Federal Courts. We strive for excellent client service. Our attorneys are always accessible to our clients. Abreu Law Firm has expunged or sealed numerous criminal records all over the State of Florida. Call today for a free consultation and speak to an attorney in either English or Spanish for the expungement or seal your record.



By: JYOTI

About the Author: