Courtroom Weekly: Miners, strippers and doctors visit the courts

February 7, 2013

by: the State Court Staff

Courts deal with murder, negligence, employment and the Internet

Courtroom Weekly The latest and greatest in court cases around the nation In this issue... Featured case News from West Virginia News from Minnesota News from Kansas News from California

Featured case Rare court of inquiry investigates current Texas judge   Court: Texas District 213 An uncommon court of inquiry, which are brought to order when a public official is accused of wrongdoing, is underway in Texas. Current judge and former prosecutor Ken Anderson's actions in a 1987 murder case are under investigation following the 2011 release of a wrongly-convicted murder suspect. Anderson, currently the judge of Texas District 277, was the chief prosecutor during the murder trial of Michael Morton. Morton was accused and convicted of beating his wife, Christine Morton, to death with their three-year-old son present. Morton maintained his innocence throughout his trial and subsequent imprisonment, and was finally exonerated in 2011 when DNA evidence cleared his name. Since his release, Morton has sought justice for his wrongful imprisonment, and has accused Anderson of willfully hiding evidence that could have cleared his name. Morton's attorneys have pointed to Anderson's lack of filing of case notes--most notably those of Sgt. Don Wood--as well as the omission of the complete testimony of Morton's three-year-old son. At the time, his son had stated that his father was not the murderer, and that a "monster" killed his mother. Judge Doug Arnold of the Williamson County Court at Law, Number 3 has testified in the case as he was a colleague of Anderson's at the time. He has testified about Anderson's general habits and work as well as general practices in prosecution. Judge Louis Sturns of Texas District 213 is hearing evidence in the case; the hearing began on Monday, February 4th, and may last up to a week. If Judge Sturns finds that a crime was committed, he will refer the case for prosecution. Judge Anderson has apologized to Morton, but has indicated that there was no wrongdoing on his part. In 2011, Mark Alan Norwood was implicated in the 1987 murder with the same DNA that cleared Michael Morton. He is currently in custody, and his trial begins in March. He has also been indicted in a 1988 murder of another woman, who lived in close proximity to the 1987 home of the Mortons.

News from West Virginia Supreme Court rules negligent mine inspectors at fault in deaths   Court: Supreme Court of Appeals of West Virginia On February 5, 2013, the Supreme Court of Appeals of West Virginia issued a unanimous ruling stating that mine safety inspectors can be sued when their negligence results in the death of a coal miner. The case involved a 2006 fire at Massey Energy’s Aracoma Coal Co. Alma No. 1 mine which left two men dead, Don Israel Bragg and Ellery Elvis Hatfield. Their widows accused the Mine Safety and Health Administration (MSHA) for negligence since the casualties were caused by, among other things, a faulty ventilation system. The path to the West Virginia's high court was winding. Since the MSHA is a federal branch, the lawsuit started at the federal level. U.S. District Judge John Copenhaver, of the Southern District of West Virginia, dismissed the lawsuit, explaining that the inspectors couldn't be deemed negligent under current state laws. The widows appealed to the U.S. Court of Appeals for the 4th Circuit, which determined the issue to be "a pure question of state law" and instructed the state appellate court to specifically address the question of liability. Justice Robin Jean Davis, in the state Supreme Court's opinion, wrote that inspectors owe "a duty of care" to the miners who they know are likely to be harmed by any negligence. This decision may revive the widows' case against the MSHA. Attorney Bruce Stanley, representing the widows, stated, “ "The conscious decision of coal companies to ignore the most basic of mine safety laws and instead just run coal should not and cannot excuse government regulators from their independent responsibility to enforce those laws." ”

News from Minnesota Minnesota Supreme Court rules online comments are protected speech   Court: Minnesota Supreme Court In an opinion issued on January 30, the Minnesota Supreme Court reversed a Court of Appeals decision and ruled that an online posting in which a man described a doctor as "a real tool" is protected speech. In 2010, Dr. David McKee, a neurologist in Duluth, Minnesota, filed a defamation suit against a patient's son, Dennis Laurion, who made negative comments about McKee on a website designed to allow people to review their doctors. Laurion's father, who had suffered a stroke, had been treated by McKee during a stay at St. Luke's Hospital earlier that year. Laurion was dissatisfied with McKee's treatment of his father and his family, and expressed his frustration in several online posts. Among the statements Laurion wrote about McKee was a claim that "[he] mentioned Dr. McKee's name to a friend who is a nurse, [and] she said, 'Dr. McKee is a real tool!'" In the lawsuit, McKee claimed defamation, stating that the false statements posted on the Internet interfered with his business, and asked for over $50,000 in damages. However, the Supreme Court found that none of Laurion's statements were actionable because McKee did not offer proof that they were false or capable of harming his reputation. Justice Alan Page, on behalf of the court, wrote that Laurion's comments were opinions and were thus protected speech. He elaborated, "'Referring to someone as ‘a real tool’ falls into the category of pure opinion because the term ‘real tool’ cannot be reasonably interpreted as stating a fact and it cannot be proven true or false." The court dismissed McKee's case because mere opinion "'cannot be the basis for a defamation action.'"

News from Kansas Strippers receive employee status in Kansas   Court: Kansas Supreme Court After a lengthy court battle, dancers at a gentleman's club in Topeka have finally won the right to be called employees--and therefore qualify for unemployment benefits. On February 4, the Kansas Supreme Court handed down its opinion in the case of Milano’s v. Kansas Department of Labor Contributions Unit. The court ruled in favor of the Kansas Department of Labor, stating that owners of gentleman's clubs must contribute to the state unemployment benefit fund and, if they are laid off from those clubs, the dancers will be eligible to receive benefits out of that fund. This ruling comes nearly seven years after a dancer at a Topeka club originally filed for unemployment benefits but was denied. The club, known as Club Orleans, considered the dancers to be independent contractors and therefore did not contribute in the unemployment benefit fund. As a result, when the dancer was laid off from the club, she was not eligible for benefits. Two key issues seemed to sway the Kansas Supreme Court in favor of the Department of Labor (and the dancers). First, the court considered the "integration" of the dancers in the "financial success" of the club. A document filed with the court by the Department of Labor stated: "[w]ithout the dancers, nothing distinguishes Club Orleans from any other food and drink establishment." The dancers' images are used in wide-spread marketing campaigns in the area and can be found on billboards, flyers, magazines, etc. Second, the court opinion focused on the topic of control in the workplace. Traditionally, these dancers have been considered independent contractors, meaning they work at the club by a written contract or verbal agreement with the owner or manager of the club. The existence of an independent contractor relationship depends on control. If the club controls the dancer's activities and working conditions as an employer would, the dancer looks more like an employee and less like an at-arms-length independent contractor. The opinion states dancers must rent stage and dressing room space, as well as help pay the D.J. and bouncers. The club also dictates how much dancers can charge for special events. Additionally, the dancers must seemingly clock in and out with a bouncer when they come to work. Yet, the dancers receive no salary from the club, though they did at one time. Now their only compensation is the tips they receive nightly from patrons. Despite this, the court found enough facts that, when taken together, show the club wields a measure of control over the dancers which looks like more like that of an employer and less like the principal in a contract-based relationship. As a result of this ruling, the club at the heart of this dispute and others like it must now begin viewing their dancers as employees and offer them benefits as such.

News from California Apple cleared of credit card privacy suit in California   Court: California Supreme Court The California Supreme Court ruled in favor of the multinational technology company Apple Inc. earlier this week, saying the company's online credit card payment policy did not violate the state's privacy laws. A credit card privacy suit was brought against Apple, claiming its online payment policy requiring customers to provide both addresses and phone numbers was in violation of California's privacy laws, which prohibit retailers from unnecessarily gathering consumer information. The decision handed down by the court was split 4-3. Justices Tani Cantil-Sakauye, Goodwin Liu, Kathryn Mickle Werdegar, and Carol Corrigan ruled in favor of Apple, while Justices Joyce Kennard, Marvin Baxter, and Ming Chin dissented. Writing for the majority, Justice Goodwin Liu wrote, “ While it is clear the Legislature enacted the Credit Card Act to protect consumer privacy, it is also clear that the Legislature did not intend to achieve privacy protection without regard to exposing consumers and retailers to undue risk of fraud. ” In dissent, Justice Joyce Kennard wrote, “ The majority's decision is a major win for (merchants), but a major loss for consumers, who in their online activities already face an ever-increasing encroachment upon their privacy. ”

See also

• Courtroom Weekly