Friday Links

In honor of Labor Day, above, we showcase the cover of JLA: Welcome To The Working Week #1.  (JLA, of course, stands for the Justice League of America, whose members include Batman, Superman, and the rest.). Here’s how Comicvine describes the plot:

How does the JLA act behind closed doors? You’re about to find out! When Marlus Randone stows away on the JLA Watchtower, he relies on his notebook and disposable camera to document the petty squabbles and inside decisions made by the members of the JLA.

Now, we expect that a day at the office of the JLA Watchtower – which Wikipedia tells us is either “a building on Earth’s moon [or] a space-station in orbit in the Justice League Unlimited cartoon – is no typical day at the office.  Whatever the case, we suspect that JLA was forced to remove its daily operations to the moon or to outer space because their unique issues simply aren’t contemplated by modern employment law. Perhaps this issue would shed some light on that predicament.

If you’re into writing tips, here are “Elmore Leonard’s 10 Simple Rules For Writing.”

“Protect Our Super-Rights!” A few years back, we shared some labor themed comic book covers.  Do you remember? If not, you can revisit those here.

Okay, you’ve had a long week. So have we.  But as you prepare for this holiday weekend, there is something in your future that will bring you much joy.  Yes, that’s right, all five monster cereals are returning! Even Fruit Brute and Yummy Mummy!

Speaking of odd food products, are you ready for Pepsi-flavored Cheetos?  PepsiCo doesn’t think so, according to this article.

The Return of College Football

Well, the wait is over. As of today, college football has returned. We here at Abnormal Use couldn’t be more excited. So, to prepare for this momentous occasion, we have prepared a list of links to our prior football related posts.  Mind you, some of these posts concern professional football (which seems to result in more litigation). However, we won’t let that get in the way of assembling the list below, which includes posts from each year our little blog has been in existence.  So, we hope you enjoy revisiting our past. Oh, and let us know which Carolina you’ll be rooting for tonight in the big game! (Since we have offices in both North and South Carolina and lawyers with alma maters in both states, it may be a tense day.).

NFL Litigation May Forever Change Football” (August 19, 2013).

PA vs. NCAA: Does the Commonwealth Have Standing?” (January 16, 2013).

NFL Punter Claims Turf Unreasonably Dangerous” (November 29, 2012).

Former NFL Players Allege NFL Concealed Risks of Injury” (September 14, 2011).

The Return of College Football (And Some Law Stuff)” (September 1, 2011).

South Carolina’s College Football Stadium Parking Jurisprudence” (July 12, 2011).

Oh, and here’s one that sounds like it’s about college football, but it’s really not:

Georgia vs. Texas” (March 25, 2010).

Zimmerman Case Puts More Florida Laws Under Scrutiny

In the course of following the George Zimmerman/Trayvon Martin case, the entire country learned about Florida’s so-called “Stand Your Ground” law.  In case you’ve been under a rock for the better part of a year and a half, Zimmerman was a neighborhood watch volunteer who encountered 17-year-old Trayvon Martin one night in his gated community.  After calling the police, Zimmerman and Martin got into an altercation that resulted in Zimmerman fatally shooting Martin. While the defense team for Zimmerman did not actually use Florida’s Stand Your Ground law as a defense at trial, the case itself brought that law and others like it from other jurisdictions under intense scrutiny.  Protests such as this sit-in reported by The New York Times sprung up around the nation against these types of laws, passed in the name of self defense.

Zimmerman’s recent acquittal has brought another Florida law into the limelight.  As reported by NBC News, Zimmerman’s attorneys are preparing a motion that would ask the State of Florida – i.e. the Florida taxpayers – to pick up part of the tab for his defense, to the tune of almost $300,000.  The motion would be based on a Florida law that “says a defendant who’s acquitted isn’t liable for costs associated with his or her case,” according to NBC.

Like good little lawyers, we looked up the statute.  It states as follows:

(1) A defendant in a criminal prosecution who is acquitted or discharged is not liable for any costs or fees of the court or any ministerial office, or for any charge of subsistence while detained in custody. If the defendant has paid any taxable costs, or fees required under s. 27.52(1)(b), in the case, the clerk or judge shall give him or her a certificate of the payment of such costs, with the items thereof, which, when audited and approved according to law, shall be refunded to the defendant.
(2) To receive a refund under this section, a defendant must submit a request for the refund to the Justice Administrative Commission on a form and in a manner prescribed by the commission. The defendant must attach to the form an order from the court demonstrating the defendant’s right to the refund and the amount of the refund.
Fla. Stat. Ann. § 939.06.  A few decisions out of Florida have clarified the statute.  First, the public policy behind the statute is fairly obvious, but it’s worth repeating.  The purpose of the law is, as stated by the Florida District Court of Appeals, is to “protect a defendant from costs when he is innocent or when the state fails to pursue a vigorous prosecution.”  State v. Crawford, 378 So. 2d 822, 823 (Fla. Dist. Ct. App. 1979).
It should also be noted that not everything that Zimmerman–or his lawyers–spent on behalf of his defense effort is eligible for reimbursement; only “taxable costs” are provided for in the statute.  The Supreme Court of Florida has provided some guidance here:
Given its plain meaning, the relevant portion of this statute simply says: No acquitted criminal defendant shall be liable for any court costs or court fees, any costs or fees of a ministerial government office, or any charges for subsistence, and that if such a defendant has paid any of these taxable costs he or she shall be reimbursed by the county.
Bd. of Cnty. Comm’rs, Pinellas Cnty. v. Sawyer, 620 So. 2d 757, 758 (Fla. 1993).  Examples of costs that would not be reimbursable under Florida law include investigative costs, private attorneys’ fees, deposition transcription fees, video deposition fees, process service fees,  expert witness fees, and fees for transcription of excerpts of trial.  Id.; Hillsborough County v. Martinez, 483 So.2d 540 (Fla. Ct. App. 1986); Justice Admin. Comm’n v. Neighbors, 927 So. 2d 218, 219 (Fla. Ct. App. 2006).

It will be interesting to see if this law receives the same kind of attention and criticism as Stand Your Ground.  The Zimmerman case continues to make news and provide a microscope with which to view the rule of law and other issues of socio-economics and race in America.  Fascinating stuff.

News on the Discipline Front

In case you missed it, here are the factual findings in the recent reprimand of a former state court magistrate judge, who was recently disciplined by the South Carolina Supreme Court for the following:

  • He set a criminal defendant’s bond at $10 and then he posted bond on the defendant’s behalf.  So the judge was on the bond form as both judge and the surety.
  • He signed off on an agreement between a property damage victim and a defendant whereby the victim agreed to drop criminal charges based on the payment of restitution.  This led defendant to believe the matter was over and done.  However, this agreement was not binding on the prosecution and the defendant was later arrested for failure to appear at his court date.
  • He directed a clerk to change the disposition code on a case, which was tried by a different judge, from guilty to not guilty.
  • When a defendant was mistakenly transported from the jail to the court house on the wrong day, he disposed of the case by letting the defendant plead guilty and then sentencing the defendant.  The law, however, requires that the victim  be notified of the hearing and provides the right for the victim to be present for the hearing.
  • He declined to grant a restraining order against a police officer because he incorrectly applied the reasonable doubt standard.  In announcing his decision denying the request. he also commented on the serious negative effect such an order could have on the officer’s career.
For these issues, he was publicly reprimanded by the Court.  However, the magistrate, who was not a member of the bar, has since retired from the bench. He was barred from seeking a future judgeship as part of the agreement.

Seinfeld’s Jackie Chiles is Back, Honey Bears Targeted

Winnie The Pooh, beware. Jackie Chiles is coming for you. Chiles, the flamboyant and opportunistic trial lawyer of “Seinfeld” fame, has been retained by Jim Beam to enjoin bears everywhere from continuing with their honey theft.

So what’s Jim Beam’s beef with bears? Well, the Kentucky bourbon whiskey brand has developed a new product infused with honey and liqueur known as Jim Beam Honey. It appears that honey production has been depressed by a decline in the honey bee population. Even though the supply is waning, Jim Beam needs its honey – and it is willing to fight the largest consumer to get it.

Speaking to the media through his handlers, Chiles had this to say about the suit:

“Bears are egregious, devious, and just plain mischievous! . . . I’m here to go on the record – with Jim Beam Honey as my witness – to ensure that sweet, mouth-watering justice is served!”

With Chiles leading the charge for Beam, the bears may be in trouble. For their sake, we hope the bears have Vincent Gambini on speed dial.

We here at Abnormal Use are glad to see Chiles back in action. We are typically not fans of frivolous lawsuits, but Chiles is a friend of the blog. (We previously scored an interview with Phil Morris, the actor who brought Chiles to life). We have no idea what will happen with the bears, but for some reason, hearing about Chiles’ revival makes us want to buy a bottle of Jim Beam Honey. In fairness, though, we probably would have done that anyway.

Friday Links

Above, you’ll find the cover of Daredevil: The Movie #1, a comic book film adaptation published a decade ago in 2003. Ben Affleck, as you may recall, portrayed Daredevil. Yesterday, we learned that Mr. Affleck will play Batman in the upcoming sequel to the Superman movie Man of Steel. Twitter fell over itself responding to the news. We here at Abnormal Use are not certain how to react.  On the one hand, Affleck played George Reeves, the actor who played Superman on television in days of yore, in the 2006 film, Hollywoodland.  He wasn’t too bad in that.  But on the other hand – it is Ben Affleck! Gigli! Jersey Girl! How can this be? We are crestfallen. (Note to our readers: Technically, this is a legal themed comic book post because, after all, Daredevil’s alter ego was attorney Matt Murdock. So there.).

Okay, so imagine that you had to open a new matter and run a conflicts check on this dispute.

We think we remember these Empire Strikes Back trading cards. Those were the days, no?

In huge legal name change news, there’s this.

Friend of the blog Neil Burger of the Carrington Coleman firm has unveiled a new blog: Sua SponteThe Dallas Appellate Blog. Check it out.

Eric Goldman asks: “Are the Days of Independent Legal Blogging Over?” We think not.

Our friends over at the North Carolina Law Blog reran our post “There Is Now Federal ‘Selfie’ Authority.”  Check out that post at their site, or here, as well as their archives of other news.

Third Circuit Holds Clean Air Act Does Not Preempt State Tort Claims

Two Pennsylvania women brought a state law nuisance claim in federal court against the owner of coal fired power plant that allegedly damaged their property through the emissions of ash, chemicals, and odors.  The power plant, which is owned by GenOn Power, was apparently in compliance with the state and federal environmental regulations that govern the operation of coal power plants.  The lawsuit was initially dismissed by the district court, which held the suit was preempted by the Clean Air Act.   The Third Circuit recently reversed the district court and held that the Clean Air Act is not preemptive.

In its decision, the Third Circuit found that “nothing in the Clean Air Act [indicates] that Congress intended to preempt state common law tort claims.”  The Court further stated that the Clean Air Act is “a regulatory floor, not a ceiling, and expressly held that states are free to impose higher standards on their own sources of pollution, and that state law tort is permissible way of doing so.”  The Third Circuit relied in large part on the Supreme Court’s holding in International Paper Co. v. Ouellette, 479 U.S. 481 (1987),which held that the Clean Water Act did not preempt state law tort claims.

The Third Circuit’s ruling appears to go against strong authority supporting preemption.  In Am. Elec. Power Co., Inc. v. Connecticut, the Supreme Court held that the Clean Air Act preempted federal common law nuisance claims as a means to curb emissions from a power plant. 131 S. Ct. 2527 (2011). In that case, the Supreme Court noted that the EPA has been designated to serve as the emission regulator and is better suited to do so than judges issuing ad hoc injunctions.  Additionally, the Fourth Circuit has held that that state law nuisance claims against power plants are preempted because they threaten the comprehensive regulatory scheme. See N. Carolina, ex rel. Cooper v. Tennessee Valley Auth., 615 F.3d 291, 303 (4th Cir. 2010).

This new ruling is very significant as it opens the door to a potential onslaught of litigation.  It means that residents can pursue property claims against power plants even though they are in compliance with state and federal regulations.  That sound that citizens in Northeast are hearing is the sound of their electricity rates and bills clicking higher.


There Is Now Federal “Selfie” Authority

Who says the federal courts lag behind technical advances?

Well, thanks to last week’s United States v. Doe, No. 1:12–cr–00128–MR–DLH (W.D. N.C. Aug. 14 2013), we now have a federal definition of “selfie.” Well, kind of.

The opinion arises from a motion to suppress, and since we don’t opine on criminal law, we won’t recite the facts and specific issues.  But check out this footnote:

The term “selfie” is the name given to a self-portrait photograph, “often snapped at odd angles with smartphones[,]” and “typically made to post on a social networking website (or sen[t] in a text message)[.]”

See id. at *8 n.6 (citing Katy Steinmetz, “The Top 10 Buzzwords of 2012,” Time, Dec. 4, 2012,–10–news–lists/slide/selfie).

According to our very, very brief Westlaw search, this is the only state or federal court to use the word “selfie.”

Curiously, the link cited in the footnote is no longer active; the correct portion of the cited article can be found here.

The court also noted:

With the popularity of social media sites like Twitter, Facebook, and Instagram, together with cell phones’ capability to send text messages and pictures, common sense would lead a practical person to conclude that human behavior includes the making of flattering or unflattering “selfies.” That the Defendant’s phone probably would contain evidence of the three crimes listed in the warrant application was within the issuing magistrate’s realm of lawful consideration. The issuing magistrate, therefore, had a substantial basis for concluding that probable cause existed.

Id. at *8.

It’s good to see courts catching up to the technological trends, and we hope any selfie-related litigation cites to this opinion.

Facebook At Issue in South Carolina Family Law Case

Here we go again with the social media discovery, in our own territory no less. In McKinney v. Pedery, — S.E.2d —-, No. 5165   (S.C. Ct. App. Aug. 14 2013), a family law matter, a husband appealed the trial court’s ruling which had terminated his former wife’s requirement to pay permanent periodic alimony “when the court found that Husband continuously cohabitated with his paramour in contravention of section 20–3–130(B)(1) of the South Carolina Code.” Apparently, that statute requires the termination of alimony “on the remarriage or continued cohabitation of the supported spouse.” Of course, Facebook is at issue in this opinion. Our favorite paragraph of the opinion:

Wife submitted evidence to family law attorneys from Davis Law Firm [Husband’s Purported Cohabitant] kept all of her personal belongings at Husband’s residence, including her clothing, undergarments, shoes, and toiletries. Husband’s testimony that [Husband’s Purported Cohabitant] only packed an “overnight” bag when she traveled to Duncan to care for her grandchildren lends support for the conclusion that [Husband’s Purported Cohabitant] “lived under the same roof” as Husband. Further, Husband admitted that he gave [Husband’s Purported Cohabitant] an engagement ring and that [Husband’s Purported Cohabitant’s] relationship status was listed as “engaged” on Facebook prior to Wife filing for termination of alimony. We are not persuaded by Husband subsequently referring to [her] engagement ring as a “friendship ring” or by [Husband’s Purported Cohabitant] changing her relationship status from “engaged” to “in a relationship” immediately following Wife’s initiation of this action. Rather, this is evidence of Husband’s attempt to downplay their relationship and living arrangements, which we find unconvincing.

(Emphasis added).

So, there’s that.

NFL Litigation May Forever Change Football

If you are a football fan, you have probably heard about the concussion/brain injury litigation against the NFL. The litigation has been going on for quite some time and seems to be growing with every passing week. We here at Abnormal Use first wrote about it way, way back in 2011. Two years later, there appears to be no end in site. While we have no idea when the litigation will end, we have a pretty good idea of how it might do so. More than likely, the numerous current and former player plaintiffs will find themselves the recipients of a hefty settlement. But the financial and legal ramifications of this suit should be the least of the NFL’s concern. We here at Abnormal Use fear that this litigation may put a nail in the coffin of football as we know it.

Before you criticize us for such draconian ideas, hear us out. Since the early days of football, the game has gotten safer as technology has evolved. Safety should always be a concern, and we encourage any equipment upgrades which can offer the players better protection. With that being said, however, we strongly oppose altering the game of football as we generally know it.

Undoubtedly motivated by the litigation, the NFL has revealed a number of new safety rules for the 2013 season, including a rule that prohibits ball carriers from initiating contact with the crown of the helmet. Likewise, the NCAA has instituted automatic ejections for helmet-first contact. For the naysayers, these new rules sound reasonable and prudent. For football purists, on the other hand, these rules are the first steps in the game’s demise.

As we stated back in 2011, football by its very nature is a dangerous sport. The players are bigger and more athletic than ever before. The NFL and the NCAA can and should continue to explore safer equipment alternatives to protect these athletes. But changing the rules in an effort to eliminate “dangerous” contact robs the game of its very essence. Sure, the new rules are aimed to lessen head injuries and may very well serve their purpose. We are concerned, however, of the slippery slope in store. Now that players can’t hit high, they have nowhere else to hit but low. With more lower hits, comes more season or career ending knee injuries. Football probably needs a rule to prohibit that, too.

Football is a contact sport; therefore, contact will happen. The only way to truly prevent injuries, short of dressing players in sumo costumes, is to do away with contact altogether. If the NFL continues to be overly reactive to the threat of litigation, football will become so regulated that it no longer resembles the sport we have come to love.