Monthly Archives: July 2009

8105 – A Shot Across the Borough

  Who owns the Declaration of Independence? This case got started back in July of 1776 when the Russell Printing Company in Salem Massachusetts was ordered to print several hundred copies of the Declaration of Independence to be distributed to churches so they could be read to the public. The copies were known as “broadsides,” and after they were read, they ended up in a variety of places, mostly town clerks’ offices. This particular broadside ended up in the estate of a descendant of the Town Clerk of what used to be Pownalborough, Massachusetts, and is now Wiscasset, Maine. After it was recently purchased at auction by Russell Adams of Virginia for $477,000, the state of Maine sued, arguing it’s a public document and should remain in public ownership. But the Court said that common law provides that possession of property constitutes prima facie evidence of ownership until a better title is proven. It was printed by a private printer and could go into private hands. So the Virginia Supreme Court fired a broadside at the state of Maine, and it’s fitting that the Declaration of Independence will remain independent.


Maine v. Adams, No. 080987, slip op. (Va. Sup. Ct. Feb. 27, 2009).

8104 – Robbing Lobbying


Lobbyists banned and banished by the Obama administration are making a comeback.  I don’t know how you feel about lobbyists, but if you dislike them, you’re not alone.  A lobbyist friend of mind has a poster on his wall that reads, “I’m ashamed to tell my mother I’m a lobbyist.  She thinks I’m a part-time piano player in a brothel.”  Lobbying is named after those who hung around the lobby of the Willard Hotel hoping to see President Grant, who liked to sit in the lobby smoking cigars.  President Obama had limited lobbyist access to his administration, including a complete ban on registered lobbyists having any conversations with government officials regarding any item funded by the $787 billion Stimulus Act.  But a recent blog posted by a presidential advisor indicated that oral communication with lobbyists will be banned only after a specific project has been let out for bid, a significant reversal of the earlier policy.  It is clear how information gets to government officials without lobbyists, but one thing is clear, for Washington lobbyists, there’s not a lot of living room.


8103 – A Bid for Justice


Judge not lest ye be judged, particularly if who you’re judging has given you a lot of money.  The case was Caperton vs. Massey Coal Company and is reminiscent of the John Grisham novel, The Appeal.  It involved a pitch battle between Hugh Caperton and the Massey Coal Company which culminated a $50M jury verdict for Caperton, that’s when things got interesting.  Knowing the State Supreme Court would be hearing the appeal, the Chairman of Massey Coal decided to support Attorney Brent Benjamin rather than the incumbent and donated $3M to get him elected.  When the Massey case came before the Court, Caperton asked Benjamin to remove or recuse himself, but he refused and Massey won a reversal 3-2.  The U.S. Supreme Court has just reversed the reversal, holding that significant and disproportionate influence demands recusal.  So its “bye, bye bias” and “recusal refusal” will never be quite the same.


Hugh M. Caperton, et al v. A.T. Massey Coal Co., Inc., U.S. Supreme Court, No. 08-22, June 8, 2009, Kennedy, J.

8102 – Signs of Light


Can storm windows be religious?  In anticipation of hosting the National Football League Super Bowl, the city of  Detroit agreed to fund 50% of the cost of renovations to publicly visible building facades and parking lots in the downtown area, up to $150,000 per building and $30,000 per lot.  Ninety-one projects were completed at the cost of $11.5M, including renovation of building and parking lots belonging to three churches.  American Atheist Incorporated sued, claiming that by helping to refurbish churches, the city was advancing religion, in violation of the First Amendment.  The Court that first heard the case upheld all the grants, except for church signs and storm windows that covered stained glass.  But the Court of Appeals upheld all the grants, stating that storm windows and signs have no religious significance.  So for American Atheist Incorporated, let’s just call it a “sign of the times,” and when it comes to windows, a “painful decision.”


American Atheists, Inc. v. Detroit Downtown Development Authority, Sixth Circuit Court of Appeals, No. 07-2398, May 28, 2009, Sutton, J., 6-9-09

8101 – Gunning for a Change


When it comes to handguns, it may all come down to your state of mind, as well as the mind of your estate. At issue in this case were ordinances in Chicago and Oak Park, Illinois, which basically banned the possession of handguns.  The National Rifle Association sued arguing last year’s Supreme Court Heller case held that the Second Amendment gives individuals the right to bear arms and possess handguns in their home for self defense.  But the Seventh Circuit Court of Appeals said, “wait a minute, man” and held the Second Amendment only applies to the Federal Government and not to the states, that the Heller case involved the District of Columbia, which is a unit of the Federal Government, and states and cities can still ban handguns if they want to.  Fundamental constitutional rights are applied to the states by way of the Fourteenth Amendment.  But the Court ruled the possession of handguns is not a fundamental right.  This should head back to the Supreme Court, but in the meantime, in Chicago and Oak Park, guns and the Second Amendment have been checked at the door.


National Rifle Association of America, Inc. v. Chicago, Seventh Circuit Court of Appeals, No. 08-4241, June 2, 2009, Easterbrook, J., USLW Vol. 77, No. 47, Pg. 1752, 6-9-09

8100 – A Little Child Won’t Lead Them

How do you feel about reading the bible in kindergarten?  Wesley was participating in a curriculum unit called “All About Me,” in which kindergarteners would identify individual interests, learn about others, and bring a snack and their favorite stuffed animal to share.  Parents were invited to read to the class, and Wesley asked his mother to read from his favorite book, the bible.  She selected psalm 118, which begins “give thanks unto the Lord for he is good because his mercy endures forever.”  After the school principal informed Wesley’s mother that reading the bible to the class would be against the law, Wesley’s mother sued.  She claimed that other parents read The Grinch Who Stole Christmas and The Best Easter Eggs Ever, and one parent even read The Matzo Ball Fairy.  Wesley’s mother apparently felt that to allow The Matzo Ball Fairy but deny psalm 118 made her feel like chopped liver.  But the Court ruled for the school stating that the younger the student, the more control the school can have.  So there it is – Dr. Seuss is in, God is out, let’s just say it’s the principle of the matter.


Busch v. Marple Newton School Dist., No. 07-2967, slip op. (3d Cir. Jun. 1, 2009).

8099 – Good Night and Good Luck


Counting sheep is one thing, counting nights is quite another.  The Internal Revenue Service has just published final regulations clarifying the Counting Nights Rule, which is used to identify the custodial parent of a child whose parents are divorced, separated or living apart.  The issue is important since the custodial parent gets to take the tax exemption.  The former rule said the custodial parent is the one with whom the child resides for the greater number of nights during the calendar year.  The problem came over the definition of a night.  Is it where the child happens to be at midnight?  Is it where the child is sleeping, and for which tax year is the night of December 31 counted?  Well, the final regs provide that a child resides for a night with the parent if the child sleeps at the parent’s home.  The night is also counted if the child is with the parent at some other location, such as when they are away on vacation.  And a night that extends over two taxable years is allocated to the taxable year when the night begins.  And that’s the last word on nights which, for the IRS, is all in a day’s work.


IRS Final Regulations Published July 2, 2008, U.S. Law Week, Vol. 77, No. 2, Pg. 2028, 7-8-08

8098 – Reception Static


When your wedding reception gets a bad reception, a successful lawsuit may be the icing on the cake.  This case got started when an African-American couple decided to have their wedding reception at a hotel in Ann Arbor, Michigan.  They filled out an official sales and catering walk-in inquiry form, which had to be approved by the wedding specialist.  Although they made repeated telephone calls, visited twice more, filled out a second form and even got a tour of the facilities, they never heard back from the wedding specialist.  They finally gave up and booked another hotel.  They then complained to the Fair Housing Agency, which sent out four testers, three of whom were African-American, also unable to rent the facility.  The Sixth Circuit ordered that the plaintiffs were entitled to see all of the hotel wedding contracts, and that the hotel’s behavior gave rise to an inference of discrimination sufficient for a jury trial.  So it’s a matter of black and white and when it comes to wedding receptions, hotels should probably say I do instead of we won’t.


Skeck v. Graham Hotel Systems, Inc., Sixth Circuit Court of Appeals, No. 08-2024, May 21, 2009, Merritt, J., U.S. Law Week, Vol. 77, No. 46, Pg. 1728, 6-2-09

8097 – Food for Thought


Stamping out food stamp abuse has turned out to be a real food fight.  The plaintiffs operate a small grocery store authorized to issue food stamps.  One day while a part-time employee was working alone, a man came in and asked if he could exchange $30 worth of food stamps for $30 in cash.  The employee said no problem.  Unfortunately, the person getting the cash turned out to be an undercover agent with the Food and Nutrition Service, and the store was charged with trafficking in food stamps and summarily thrown out of the food stamp program.  The store appealed stating the employee knew that exchanging food stamps for cash was prohibited, that it was just a momentary lapse of judgment and the store should not be thrown out of the program.  The Court that first heard the case ruled the store had no standing, but the Court of Appeals reversed holding that vendors didn’t have proper notice of the severity of punishment.  The Court noted that the regulation said, “It’s a good idea to have a written anti-trafficking policy,” and the Court said it’s a bad idea to punish what was not clearly required.  So in this food stamp case, it’s the government whose taken a licking.


Affum v. U.S., U.S. District Court of Appeals, No. 08-5189, May 26, 2009, Edwards, J., U.S. Law Week, Vol. 77, No. 46, Pg. 1727, 6-2-09

8096 – They Should’ve Turned Over a New Leaf


Big tobacco has suffered a big defeat and the industry is reeling from RICO.  The D.C. Circuit Court of Appeals has recently held that nine cigarette manufacturers could be found to have violated RICO, the Racketeer Influenced and Corrupt Organizations Act.  In a 1,600-page opinion, the Court said the evidence showed that beginning as far back as 1953, the manufacturers met together to strategize a response to growing public concern about the health risks of smoking and engaged in a scheme to defraud smokers by falsely denying the adverse effects of smoking.  They also manipulated cigarette design to assure delivery of addictive levels of nicotine, conspired to market cigarettes to youth, to understate the effects of secondhand smoke, and to falsely represent that light and low tar cigarettes presented fewer health risks.  In a final blow, the Court held that the master settlement agreement with the states settled future tort cases but not future racketeering claims.  Let’s just say that tobacco industry is staring down the barrel of a smoking gun.


U.S. v. Philip Morris U.S.A., Inc., D.C. Circuit Court of Appeals, No. 06-5267, May 22, 2009, per curiam, U.S. Law Week, Vol. 77, No. 46, Pg. 1737, 6-2-09