See post below.  In a rare concession, the Dept. of Justice admitted that it was its responsibility to brief the Court on military law but failed to do so.   Note that the Court’s decision may not effectively hold the military death penalty for child rape unconstitutional (as I concluded below).  Because the matter has never been decided by the Supreme Court, this issue is still up in the air.

It’s been a wild week for the US Supreme Court.  Along with their landmark decision in Heller v. DC providing for an individual’s right to own a handgun, the Court ruled that the Eighth Amendment prohibits the death penalty for child rape due to the disparity between the crime versus the punishment.  Kennedy v. Louisiana, No. 07-343.   Sounds like a Dostoyevsky novel.

Not only was Kennedy v. Louisiana criticized for being too lenient on criminals, there came an academic attack which no one could disagree with, coming not from legal scholars but a blogger, CAAflog.com.   The New York Times caught the item and wrote an article about the glaring error in Justice Kennedy’s majority opinion.  Kennedy reasoned that the Court’s decision aligned with the federal government and that of several other states where the death penalty could not be imposed for child rape.  This “factual” statement was absolutely wrong.  In 2006, revisions were made to the Uniform Code of Military Justice whereby under military law, the crime of child rape could be punishable by death.  The military is under the guise of the federal government.

The article notes that the State of Lousiana has 25 days to seek a reconsideration of the issue from the Court.  But would it really matter?  Probably not.  Justice Kennedy noted that six states provided for the death penalty in cases of child rape.  The addition of one more jurisdiction into the Court’s analysis would not have made much of a difference.  Now with the Court’s ruling , the military will no longer have the option of imposing the death penalty in those cases. 

 

 

Reported by the Los Angeles Daily Journal, several female adult entertainers have filed suit against 19 Los Angeles strip clubs for violating federal and state minimum wage laws. California Coalition of Undressed Performers v. Spearmint Rhino, et. al., CV08-04038 (C.D. Cal, filed June 18, 2008). Their lawyer Patrick Manshardt complains that his clients are not paid a wage; instead, they must pay the club a “stage fee” for the privilege of dancing there out of the money made from tips, i.e., lap dances. This procedure he claims is illegal.

Fair labor laws guaranteeing a minimum wage to employees, e.g., 29 U.S.C. § 206, California Labor Code § 1173, generally do not apply to independent contractors because they are usually paid for the job performed; they are not employees in the legal sense. For example, it makes sense to pay your auto mechanic or dentist for the job performed rather than for time spent. Employers may attempt to avoid paying minimum wage by assigning certain jobs “independent contractor” status. But mere title changes carry little weight when courts attempt to classify a person as an employee or an independent contractor.

Courts distinguish between the two using the “control” test: whether the employer has the right to control the manner and means by which the employee accomplishes the work. Plaintiffs will likely be considered independent contractors if their jobs are found to be unique, done with minimal supervision, and requiring a high level of skill. However, the Court could rule the other way if it was understood between the parties that a traditional employer-employee relationship was being created. To make their case, Plaintiffs would likely stress that the clubs provide the tools of the trade, i.e., the stage, lighting, and music; and ii) that the employers’ sole business is in adult entertainment. (See Reynolds v. Bement (2005) 36 Cal.4th 1075.)

If the California Coalition of Undressed Performers are successful at trial, then the defendants will be required to pay them back wages which can amount to a lot.

Quirky lawsuits are always interesting.  In June 2008, Macrida Patterson, traffic officer for the California Department of Transportation, filed a products liability lawsuit against Victoria’s Secret re: a defective V-string underwear, as opposed to the universal G-string.  Allegedly, while being used in its intended manner, a decorative piece from the garment came loose and struck Ms. Patterson in the cornea.  She is suing for an unspecified amount of damages.

The biggest obstacle for Plaintiff in this case is damages.  Her lawyer Jason Buccat was interviewed by KTLA news, with the client by his side.  Though he states that her cornea suffered an abrasion, he admits that she can still work and drive.  Unless Plaintiff can show missed work days, medical bills, and any lasting pain and suffering, her monetary damages could be minimal.

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Major League Baseball has reported that the Florida Marlins has received a subpoena from Justin Kimball for video footage of Ken Griffey Jr.’s 600th home run on June 9th. He claims that he caught the rare home run ball in his wool cap but had it ripped away from “Joe.” Mr. Kimball even requested the Court to restrain “Joe” from selling the ball which was denied. Marlins President David Samson states that the video shows beyond a reasonable doubt that “Joe” caught the ball on the fly.

Let’ say that Mr. Kimball is telling the truth; can he get the ball back, or at least the cash equivalent? It depends. His likely cause of action, or claim against the defendant for recovery, would be conversion, the civil version of theft. The determinative issue would be if Mr. Kimball had possession or control of the ball prior to “Joe.” If the ball was in the wool cap for a split second but then bounced out, did Mr. Kimball have enough possession to call it his own? What if it safely landed in the cap but then sneaky “Joe” snatches it? Possession by “Joe” or Mr. Kimball? Sadly, there are no clear answers; it’s all contingent upon how the “truth” of the events are presented. Some law schools, including my own, have spent an entire week discussing this issue.

It’s like that Buddhist parable where a disciple asks his master if person A is right: the master would say “Yes. He’s right.” The disciple then asks if person B is right: the master would say “Yes. He’s right too.” The disciple then questions, “But master. They both can’t be right!” The master replies, “Yes…you’re right too.”

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Managing a hedge fund can demonstrate a fascinating lesson in life: that losing all your money may not be the worst thing in the world; you could be in jail too. These are the circumstances facing Bear Stearns Fund managers Ralph Cioffi and Matthew Tannin.

(Source: Reuters)

According to their criminal indictment for securities fraud, they managed two hedge funds for Bear Stearns Asset Management worth approx. $ 1.5 billion in July 2006. To entice investors, Cioffi represented that the funds purchased high grade, low risk securities, and that he put $ 6 million of his own capital into the hedge fund. The alleged fraud occurred on two occasions: i) He failed to disclose that the hedge fund would substantially depreciate in value due to the impending subprime mortgage crisis; and ii) Cioffi withdrew $ 2 million of his own money from the fund without telling investors.  Until Jan. 31, 2007, both funds showed positive returns on paper; but in truth, they were hemorrhaging. In June 2007, investors were told that the funds had negative returns of -5 and -19 %, and redemptions could no longer be honored, i.e., investors could not withdraw any remaining funds. Eventually, the hedge funds lost 100% of its value.

What’s particularly astonishing is the disappearance of $ 1.5 billion in one year.  A person couldn’t physically give away $ 1.5 billion in one year, and yet, two Bear Stearns managers managed to do just that. Only if New York prosecutors prove that Cioffi and Tanni intended to deceive investors will there be a conviction. They would be innocent however if they truly believed, albeit naively, that the hedge fund would survive the subprime collapse. Investors rightly assume the inherent risks in dealing with hedge funds, but managers should be held liable when they cross the line between optimistic forecast and duplicitous concealment.

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Think you can smoke marijuana legally in California if you have one of those medical marijuana cards? Think again. This is a fickle area of the law where a state says one thing but the federal government says another. California allows using marijuana for medical purposes, and under their Compassion Use Act, Health & Safety Code § 11362.5, all counties are required to implement a process of issuing medical use cards. The problem is that these programs are subject to abuse; for every cancer patient with a prescription, there are at least 2 or 3 others claiming benign stress or insomnia. San Diego and San Bernardino counties refused to implement the program and sued California in state court, arguing that active involvement in distributing “mary jane” violates federal law.

(Source: AP)

They make a good point. Federal law is crystal on this issue; marijuana is a Schedule I narcotic with no recognized medical use whatsoever: the only exception being for government research. In US v. Oakland Cannabis Buyers’ Co-op (2001) 532 U.S. 483 (2001), the Supreme Court gave a resounding “No” to any medical necessity exception. Generally, when federal law conflicts with state law, the former wins. Because cannabis clubs are still operating in California, it makes you wonder why the feds allow it. This is a good example of “selective enforcement.” The US does prosecute those clubs resembling drug traffickers but keeps a cautious eye on smaller clubs that don’t cause any problems.

Because public opinion favors medical marijuana, it should be interesting to see how the state court rules and how Attorney General Mukasey reacts. Will there be any repercussions for medical marijuana users if the court favors San Diego’s argument? It’ll mean a long drive to Orange or Los Angeles to replenish your supplies.

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