News from California
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California Supreme Court rules county map databases are public records
Court: California Supreme Court
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| By Matt Latourelle
California's Supreme Court issued a decision on July 8 that makes county map data available under the Public Records Act.
The Sierra Club, in 2007, requested access to Orange County's database of maps, which includes extensive geographical and property information. The database is called the OC Landbase and is in a GIS file format, which allows for in-depth computer analysis. The request was made under the assumption that the mapping database fell under the California Public Records Act (PRA) and must be provided upon request at the cost of duplication. The County, however, wanted to charge a licensing fee and subject the use of the database to their license's restrictions. The County pointed to a provision of the PRA which states, "Computer software developed by a state or local agency is not itself a public record."[4]
The Sierra Club sued, but the Superior Court sided with the County. The Court of Appeal upheld the Superior court's ruling.
On appeal, the Supreme Court concluded that the term "computer software" in the PRA exempts GIS mapping software from public records, but not the actual data. The Sierra Club pointed out the distinction between software and data, arguing that if data produced by computer software was not within the public record, that would include all data produced by computer programs such as Microsoft Office. The high court pointed out that the state Constitution required them, in such circumstances where the legislative intent is unclear, to "'broadly construe' the PRA to the extent 'it furthers the people‘s right of access' and to 'narrowly construe' the PRA to the extent 'it limits the right of access.'"[4] Thus, the court reversed the lower courts' rulings.[5] |
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News from Colorado
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Colorado Tea Party fined
Court: Colorado Court of Appeals
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| By Samantha Ward
The Colorado Court of Appeals upheld a fine against the Southern Colorado Tea Party in its ruling on July 3.
The fine of $10,000 stems from campaign finance violations during the 2010 election. The group failed to file the necessary reports listing contributions made to its efforts. The fine, and an additional $9,700 in attorney fees, was handed down in May 2012 by an administrative law judge. The group appealed the fine, claiming it is not actually a political committee. Colorado law requires political committees to file finance reports. Randy Scott, a Board Member of the group, said that "that the organization doesn't raise money and doesn't have the $10,000."[6]
The original complaint against the Southern Colorado Tea Party was filed by Dr. Malik Hasan. The group claims that Hasan filed the complaint seeking vengeance for the party's failure to endorse his son's bid for state treasurer.[7]
The Tea Party has been in the headlines of finance news lately. It came to light in June that the IRS has targeted certain conservative groups, including the Tea Party, because of their tax-exempt status. That status was originally given to organizations whose exclusive mission was social welfare; however, in the 1950s, Congress tweaked the language and now the group mission must only be "primarily" social welfare. These organizations are not required to file financial disclosures on donors.
The tax code has never defined the word "primary." Thus, the IRS employees reviewing tax-exempt status applications have been "defining what is political activity, as opposed to lobbying; and . . . quantifying how much political activity is too much" under the rules.[8] Critics claim "[t]he combination of the murky rule and political strategists taking advantage - along with the IRS' failure to properly scrutinize these groups - has led 'to massive misuse of the tax laws to hide donors financing campaign activity.'"[8] Senator Sherrod Brown of Ohio says the rule is a "loophole that the IRS should close," instead of Congress becoming involved.[8]
If the IRS does change its rules, the Tea Party and other groups targeted by the IRS may be required to disclose more information. |
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News from Connecticut
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Jury says bar and employees failed to keep patrons safe from Yankees fan
Court: New Haven District Superior Court, Connecticut
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| By Susan Lawrence
A New Haven, Connecticut jury recently awarded $4.3 million to a Boston Red Sox fan who suffered a brain injury, stroke and disfiguring scars after he was attacked and stabbed in a bar by a Yankees fan.
The case stems from an incident which took place in October, 2010. Monte Freire, of Nashua, New Hampshire, and some friends were at the Chowder Pot restaurant in Branford, Connecticut. The group had come to town for a softball tournament. The Boston Red Sox and New York Yankees played a double header that day, with each MLB team winning one game. According to witnesses, John Mayor approached Freire and his friends and stated they sounded like Red Sox fans because of their accents. He informed the group they were in Yankees territory and began harassing them.[9]
In an unprovoked attack, Mayor picked up a steak knife from the table and stabbed Freire in the neck. Following the incident, Mayor fled the scene and attempted to discard the knife in the woods. Police apprehended him in the restaurant's rear parking lot, with the help of Freire's friends, and located the weapon. Freire was in critical condition after being taken to the hospital.
Mayor was charged with first degree assault and other charges. His bond was set at $500,000.[9] In 2012, he pled guilty and received a reduced sentence of 10 years in prison and 3 years probation.[10]
Other bar patrons said they told bartenders at the Chowder Pot that Mayor was harassing Red Sox fans in the bar. None of the employees in the restaurant took any action and continued serving alcohol to Mayor. Jan Trendowski, an attorney for the Chowder Pot, said employees were monitoring Mayor. He argued that before stabbing Freire, Mayor appeared to be arguing about the baseball game with other patrons but his actions did not seem to warrant kicking him out of the bar or refusing to serve him alcohol. Trendowski indicated the restaurant plans to appeal the verdict.[11]
Freire continues to suffer from injuries he sustained in the stabbing, including impairments to his speech and vision. According to his lawyer, Timothy Pothin, the case should serve as a warning "...to other bars and nightclubs in our community and their insurance carriers who continue to maintain untenable positions in cases of clear negligence."[11] |
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News from Indiana
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Police may stop drivers with too-dark windows, Indiana Supreme Court rules
Court: Indiana Supreme Court
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| By Alma Cook
In a unanimous decision, the Indiana Supreme Court has ruled that a police officer may stop a vehicle if he believes its windows are too dark—even if upon further examination the windows do comply with state law.[12]
Erving Sanders, listed as the defendant in a June 25 ruling, was pulled over in 2011 when a police officer speculated that the tinted windows of his Chevrolet Suburban violated state code. The law dictates that a driver's front, side and back windows must maintain a visible light transmittance of at least 30 percent and a solar reflectance of less than 25 percent.[13][12]
As the officer approached the vehicle, he smelled marijuana—and Sanders, when questioned, admitted to having "just smoked a joint." The officer searched the defendant's person to discover a plastic bag of cocaine in his pocket and proceeded to arrest him for cocaine possession.[13]
When charged by the state, Sanders filed a motion to suppress the suit, claiming that the officer's "subjective interpretation of [the vehicle's] tint did not justify his traffic stop," for it was later discovered that the windows of his Suburban indeed met statutory standards. Jose D. Salinas of the Marion County Superior Court did not grant the motion, but the Indiana Court of Appeals reversed the ruling. Sanders again appealed.[13]
It was then up to the Indiana Supreme Court to decide whether the officer was justified in stopping the vehicle and whether the evidence of drug possession could be legally presented in Sanders' cocaine possession trial.[13]
Judge Brent Dickson wrote in the ruling,
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Although the officer was ultimately mistaken in his belief that a violation occurred, the traffic stop was based upon a good faith, reasonable belief that a statutory infraction had occurred and thus we are unable to say that the traffic stop was not lawful.[13][14]
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The court dismissed Sanders' motion to suppress.[13][12] |
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News from Iowa
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Iowa Supreme Court affirms award of more than $28.9 million
Court: Iowa Supreme Court
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| By Ryan Cherry
Chief Justice Mark Cady authored a 52 page opinion, filed on July 5, for the Iowa Supreme Court, in which an award totaling more than $28.9 million was affirmed and increased in favor of the state. The lengthy opinion addressed Iowa's Buying Club Membership Law (BCL) and Iowa's Consumer Fraud Act (CFA), and how they applied to the marketing and sales practices of Vertrue, Incorporated, a Delaware corporation. Vertrue sells memberships for buying programs where members may purchase goods and services at a discounted price. Over 860,000 Iowans have signed up for the programs, through Vertrue, since 1989.[15][16]
In efforts to entice prospective members, Vertrue would offer "free" gift cards and "cash back" rewards, known as "premiums." However, Judge Robert A. Hutchison, a judge for the Iowa District 5C Court for Polk County, whose judgment Vertrue appealed, determined that Vertrue's practices in redeeming these premiums were "deceptive, unfair, and [involved] an omission of a material fact under the CFA."[15] When these "premiums" are used to attract customers but are never paid, it is called "breakage." Judge Hutchison went so far as to call Vertrue's breakage practices "double breakage," "because it required 'consumers to jump two sets of unnecessary hurdles...for the sole purpose of making it difficult for consumers to redeem the promised premium.'"[15] Vertrue also used free trial memberships with a "negative option," which means that the participant would need to affirmatively call in and cancel the membership to avoid being charged the monthly fees. The district court found that many of the Iowan members of Vertrue's membership programs were wholly unaware they were being enrolled in any program, much less one that would require the payment of monthly fees.[15]
In finding for the State on most counts, the district court determined that many of Vertrue’s practices violated both the BCL and the CFA, but found that Vertrue had not committed consumer fraud against the elderly because the elderly were not targeted by Vertrue's practices. The Iowa Supreme Court affirmed most of the district court's findings, but disagreed with the district court's interpretation of the subsection of the CFA regarding consumer fraud and the elderly. The Supreme Court found that requiring the marketing and sales practices of Vertrue to be "targeted" at the elderly, as the district court did, would frustrate the legislative intent behind the CFA by adding an element of intent to the Act. Instead, the State need only prove that Vertrue acted negligently or with a reckless indifference toward the elderly.[15]
The State presented evidence which showed that members who were 65 or older made up "50 percent of all Iowa members that were billed ninety or more times without ever using program benefits."[15] The State also presented data showing that only "about 19 percent of all Iowans were sixty-five or older during the relevant time frame," meaning the elderly were severely over-represented in the membership populations based on Vertrue's own information and other databases.[15] Even a study performed by Vertrue showed that the corporation, according to the court, "should have known that their fraudulent strategies disproportionately affected the elderly."[15] This helped the court find that, without the erroneous intent element, the State had proven facts sufficient to grant the State an additional civil penalty of up to $5,000 per violation involving the elderly. The court then increased the civil penalties award by $180,000, for a total of $3 million in civil penalties and more than $28.9 million overall.[15][16] |
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