Monthly Archives: December 2007

Anonymous blogging still safe.

In Monmouth County, New Jersey, at least.

Here we discussed the efforts of a New Jersey Township/civil litigant to out an anonymous Blogspot blogger critical of the litigation and Township governance generally, and the Electronic Frontier Foundation’s efforts to quash the Township’s subpoena. Yesterday the New Jersey state court judge presiding over the case granted EFF’s motion, which means that Google (Blogspot’s owner) need not comply with the Township’s demand for information on the blogger’s identity.

The judge’s order (pdf, 2 pages) is available here. The order doesn’t provide any detail, which is fairly typical of orders resolving discover-related motions, but EFF’s website says the judge found that “the subpoena amounted to ‘an unjust infringement on the blogger’s First Amendment rights’ and that the blogger ‘has a right not to be drawn into the litigation.'” (And EFF ought to know. Their lawyers drafted and argued the motion to quash.)

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Colorado Supreme Court Round-Up (12/17/07)

The Supreme Court had itself a busy Monday before Christmas.

Opinions:

People v. Juhl, No. 06SC637 (pdf, 25 pages): C.R.S. 18-1-408(3) addresses sentencing in criminal cases where a defendant is found guilty of multiple offenses arising out of the same act or series of acts. The statute mandates concurrent sentences (as opposed to consecutive) where the convictions are supported by identical evidence.

The defendant hit another vehicle head-on while trying to elude the cops in a high speed chase. The defendant plead guilty to both first degree assault and vehicular assault. The trial judge imposed consecutive sentences and the Court of Appeals affirmed.

The Supreme Court reversed, holding that (1) the concurrent sentencing provision applies regardless of whether the defendant pleads guilty or is found guilty by a jury, and (2) the convictions were supported by “identical evidence,” even though the elements of the crimes at issue were different.

Goettman v. North Fork Valley Restaurant, No. 07SA167 (pdf, 37 pages): An Australian limited liability company had a subsidiary company in the United States. The Australian company sent one of its employees to the subsidiary’s offices in Pennsylvania to help with customer service issues. The Australian gent traveled to Colorado on business with an employee of the American subsidiary. One night they did some barhopping in Hotchkiss, Colorado and got themselves all gooned up. The Australian ran their car off the road, and the American was killed in the crash.

The decedent’s widow filed a wrongful death action in Colorado against multiple defendants, including the Australian LLC. The company moved to dismiss the claims against it, arguing that its contacts with Colorado were insufficient to support an exercise of personal jurisdiction by a Colorado court.

A state court can exercise jurisdiction over a defendant from another state or a foreign country if two criteria are met: (1) there’s a state law basis for exercising jurisdiction; and (2) the exercise of jurisdiction comports with the Due Process Clause of the Fourteenth Amendment to the U.S. Constitution. Like most states, Colorado has a “long-arm statute” that authorizes courts to exercise jurisdiction over nonresident defendants based the commission of  certain listed acts. Although the statement isn’t even remotely accurate, the state Supreme Court has long said that the long-arm statute extends jurisdiction to the full limits permitted by the Due Process Clause. Thus, personal jurisdiction analysis boils down to due process analysis in this here state.

Court decisions and scholarly commentary on what does and doesn’t qualify as a constitutionally proper exercise of personal jurisdiction over a nonresident defendant can fill entire libraries. Suffice it to say that the Supreme Court held that the trial court properly exercised jurisdiction over the Australian company in this case based on an agency theory. The decision serves primarily to illustrate the procedure for deciding motions to dismiss for lack of personal jurisdiction, and how easy it is to beat such motions on the merits in Colorado.

People v. Terrazas-Urquidi, No. 07SA177 (pdf, 14 pages): The cops went to a residence in Aurora, Colorado looking for a suspect in a sexual assault, a residence where the suspect was known to have family. With the homeowners’ consent, the cops searched the house but didn’t find their man. They went into the backyard where they found a shed with a power cord running to it from the house. The cops knocked on the shed door, announced their presence, and demanded that whoever was inside open the door.

The shed’s occupant complied. Turns out that the guy living in the shed (with the property owner’s permission) wasn’t the suspect but rather the suspect’s cousin. Unfortunately, he had an illegal handgun nearby and was charged with two violations of state firearms laws.

The defendant motion to suppress the gun as the product of an unlawful search. The trial court granted the motion and the state appealed.

The Supreme Court reversed, holding that the gun was admissible as evidence. In a breathtakingly bewildering decision, the Court found that the defendant had no standing to raise a Fourth Amendment challenge to the cops’ presence outside the shed. He was living in the shed, which had a peephole in the door and a deadbolt lock on the inside. That, the Court said, suggested that the defendant expected casual visitors. That in turn means that he had no reasonable expectation of privacy in that area. The fact that the cops exceeded the scope of the property owner’s consent by rummaging around the back yard was irrelevant.

The Court also rejected the defendant’s argument that he was seized in violation of the Fourth Amendment. The Court found that a reasonable person in the defendant’s position would not have considered himself obliged to open the door, so no “seizure” took place.

Whiskey Tango Foxtrot.

Holcomb v. Jan-Pro Cleaning Services, No. 06SC757 (pdf, 26 pages): This was a deceptive trade practices case based on the defendant’s alleged violations of Colorado’s No-Call List Act, which generally prohibits businesses from making sales calls to residential phone numbers that the numbers’ owners register with the state’s no-call database. On appeal of a county court judgment for the defendant, the district court found that the plaintiff sometimes used his home phone for business purposes and registered the phone number as both residential and commercial, thereby removing himself from the class of persons protected by the Act.

In a straightforward statutory interpretation exercise, the Court determined that a phone number used and registered as both residential and commercial is still within the Act’s ambit. The Court remanded the case for additional fact finding as to a statutory affirmative defense asserted by the defendant and accepted by the county court.

Petitions for Rehearing:

Two denied, none granted.

Cert. Petitions:

Two granted, thirty-five denied.

In Washington v. People, No. 07SC614, the Court will decide:

Whether the trial court and the court of appeals erred in declining to vacate Petitioner’s convictions based upon the State’s non-compliance with the “fair cross-section” requirement of the Sixth Amendment to the United States Constitution.

In Sayles v. People, No. 07SC732, the Court will decide:

Whether the court erred in refusing to convene a new jury panel or to grant a new trial because of Arapahoe County’s systematic exclusion of African-Americans from the venire.

The rest of yuns petitioners are shit outta luck.

NJ Township wants to out anonymous blogger.

Stuart Moskovitz was serving as the attorney for Manalapan Township, New Jersey in 2005. The Township wanted to buy land near its recreation center, presumably for expansion purposes, and Mr. Moskovitz drafted the purchase agreement. After the sale went through, an underground heating oil tank was found on the property. Soil testing revealed heating oil and pesticide contamination. The land can’t be used until it’s cleaned up.

Back in June of this year, the Township filed a legal malpractice lawsuit against its former attorney, alleging that Mr. Moskovitz breached the applicable standard of care by failing to include indemnity provisions in the purchase agreement that would allow the Township to go after the prior owners for cleanup costs. The Township’s decision to sue generated a lot of controversy, most of which centered on the very real possibility that even if the malpractice allegation has merit, the Township would spend more on attorney fees than it could ever hope to recover.

One vocal critic of the litigation — and of Township government in general — is an anonymous Blogspot blogger known as daTruthSquad. The Township, apparently convinced that daTruthSquad is actually Mr. Moskovitz, served a subpoena on Google, Blogspot’s owner. The Township demanded that Google turn over the blogger’s identity along with “any and all information related to the blog.”

The Township’s lawyers, who have reportedly billed some $100,000 over the six months the case has been pending, now find they have a tiger by the tail. The Electronic Frontier Foundation has taken up the blogger’s cause, filing a thirty-page motion to quash the subpoena. The motion raised all the standard defenses — a subpoena issued in connection with litigation in one state and served in another state isn’t valid, the subpoena is a mere fishing expedition that isn’t reasonably calculated to lead to the discovery of admissible evidence, etc. — along with First Amendment and federal statutory arguments.

The motion to quash and a host of other court filings are available here courtesy of EFF. A hearing on the motion is scheduled for today, and should be under way even as I type.

Tommy, we hardly knew ye.

The scramble for the Republican Party’s presidential nomination became palpably less insane today when Colorado congressman and all-around nutburger Tom “I hate Mexicans and so should you” Tancredo dropped out of the race.

Of course, “less insane” is a rather malleable idea. We still have Mitt Romney (who’s no doubt busting his buttons over getting Tancredo’s endorsement) and Mike Huckabee tussling over Jesus and Lucifer being brothers. Ron “I luvs me some whities” Paul is still polling poorly despite the blimp and the unwavering support of feeble minded fifteen-year-olds the internet over, but he’s hanging tough. And there’s Rudy Giuliani, America’s favorite 9/11 pimp, who seems to be weathering revelations that he misappropriated public funds to spirit his then-cum dumpster, now-wife all over New York City for adulterous trysts.

Bottom line: Less crazy without Tancredo? You betcha. Not at all crazy without Tancredo? No goddamn way.