To patent, or not to patent. . .

For most of us on the Western Slope, the topic of patents is pretty dull.

Yet, from the iPhone to e-cigarettes; aspirin to airplanes, all these great inventions we love and loath are the product of inventors, innovators, and entrepreneurs, who, in exchange for sharing the technology with the public, are granted a monopoly (patent) over the invention for a limited number of years, usually twenty.

Patents allow inventors to recoup the cost of research and development and to be able to make a profit from their hard work. Strong patents rights also have a consumer benefit. When competitors are blocked from copying and flooding the market with cheap knock-offs, it means real innovation has to occur in order to avoid infringement. If a copycat is merely tweaking, society’s knowledge base isn’t being expanded.

US Supreme Court hear 90 minutes of arguments in
Oil States v. Greene on Nov. 27, 2017. Matt Soper photo.

On Monday, Nov. 27th, the U.S. Supreme Court heard oral arguments in Oil States Energy v. Greene's Energy, a case which could drastically change whether an inventor opts to patent new technology, or, like the Coca-Cola recipe, keep it as a trade secret.

The legal question is fairly simple: whether patents are property rights, like land or cars, or whether they are public rights, similar to a marriage licence, driver’s licence, or licence to practice medicine.

If patents are held to be property rights, then only a Federal Court has the power to take that property away from its owner. If the Supreme Court decides patents are akin to licences, then the U.S. Patent & Trademark Office (PTO), as an administrative agency, may invalidate the patent at any time after its been issued.

Let’s say you have spent thousands of dollars and hours researching and developing an invention, then several thousands more in attorney and PTO fees, and then, after a cumbersome multi-year process of examination against prior art, the PTO finally issues you a patent. With this patent you build a business and hopefully are successful. At this point in time, you aren’t going to take too kindly to the Patent Trial and Appeals Board within the PTO accepting a petition to review the validity of your patent, especially since the Board doesn’t afford parties the same due process and procedural protections as courts.

The America Invents Act 2011, among other reforms, created the Inter Partes Review (IPR) process for administratively reviewing the validity of issued patents.

Congress created IPR on the presumption that the PTO had issued too many bad or weak patents over the years. Patent trolls take these “bad patents” and assert frivolous lawsuits with the goal of scaring the end user into a settlement. IPR was designed to make challenging bad patents cheaper and faster. However, as of Jan. 2018, it will cost a petitioner $30,500 to initiate an IPR and the patent owner will spend at least $300,000 defending the patent.

Instead of juries determining whether a patent was nonobvious or novel, Congress moved this determining process to the PTO – an executive agency. Such a change also meant patents were no longer treated as property and presumed valid, unless proven otherwise, but instead, IPR treats issued patents as if they are still in the application process.

Currently, roughly 75% of patents subjected to the IPR process are declared invalid. The losing party may appeal to the D.C.-based Court of Appeals for the Federal Circuit (CAFC). However, CAFC has only reversed 10% of the PTO’s IPR decisions.

The Court's liberal justices appeared to voiced support for IPR. Justice Sonia Sotomayor noted during oral arguments that the ability to appeal “saved” the IPR system.

Colorado’s-own Justice Neil Gorsuch questioned the fairness of a system that could allow a government agency to take property after it had been granted.

Conservatives on the Court seemed concerned about the government’s ability to void patents too easily.

The fact that an overwhelming majority of patents subjected to IPR are revoked and CAFC acts as a rubber stamp for the PTO means small businesses and micro inventors are discouraged from pursuing and developing patented technology.

This author believes issued patents are vested rights that should only be taken away through a court of law and not via an administrative board.

A decision is expected in June 2018.

* Matt Soper, a legal scholar, is a CMU alumnus and resident of Delta, Colo. He holds law degrees from the Universities of Edinburgh and New Hampshire. Contact him at matt.soper@alumni.law.unh.edu. 

_________________________________

Matthew Soper, "To patent, or not to patent." Grand Junction Daily Sentinel (Dec. 3, 2017) p. B5.

Legal Perspective: Doctrine of abatement ab initio

The doctrine of abatement ab initio is a common law creation which operates to extinguish all criminal proceedings initiated against defendant from indictment through conviction, where the
defendant dies pending appeal.

The reason for such a doctrine is twofold: 1) unfair to maintain conviction against a deceased Defendant, where conviction is untested by appellate review, and 2) the primary purpose of criminal proceedings is to punish behaviour and correct behaviour and warm others not to engage in similar behaviour. With Defendant death, the state can't really punish or correct anymore.

Aaron Hernandez entering a courtroom.
2017/NY Post photo

The first part of the reasoning for the doctrine is rooted in Blackstone, which is quoted in the Sports Illustrated article by University of New Hampshire Law Professor Michael McCann, as it is better that 10 guilty go free, than one innocent be punished. This same quote was refashioned by Benjamin Franklin to be 100 guilty go free, than one innocent be punished. The idea is that without a conviction being reviewed by an appellate court, even the narrowest or margins for innocence are untested.

The second part of the reason is the idea that if the person for whom punishment and correction is sought no longer is alive, then the state's interest in penal justice ceases too.

The doctrine dates back to the 19th Century, earlier references being matters of bankruptcy and debt collection, rather than the voiding of a criminal case. The first US Supreme Court case fully addressing the issue was List v. Pennsylvania (1888) 131 U.S. 396. In List, the Court ordered abatement and dismissal of the writ of error. The reasoning was that it was a criminal case. Courts' focus in the 19th and early 20th Centuries was on punishing crime and upholding due process, thus abatement ab initio flows very logically. Later, victims became more of a concern for courts.

 A Texas Court of Appeals in the 1879 case of March v. State, held that a criminal proceeding were still pending when an appeal was being taken. Because defendant died before opinion of appeals court was announced, the court declared that the prosecution abated in toto. March v. State (1879) 5 Tex. Ct. App. 450.

In 1892, the Illinois Supreme Court took the view that, "[a] judgment cannot be enforced when the only subject-matter upon which it can operate has ceased to exist." O'Sullivan v. People (1892) 32 N.E. 192.

Interestingly, some states never developed the doctrine of abatement ab initio, Connecticut is one example. In 1971 the issue came before the state supreme court and the court refused to render opinion, citing that the issue was "neither briefed, nor argued before." State v. Raffone, 285 A.2d 323, 325-26 (Conn. 1971).

The doctrine in the US derived from the issue of whether the obligation to pay penal fines abated with death of the defendant. In the 1907 case of US v. Pomeroy, the Second Circuit Court of Appeals noted there was little precedent for the court, but the judges did reason on policy grounds, stating that the purpose of the criminal is to punish the defendant and not the relic and issues. Court held that defendant's penal monetary obligation abated along with the judgement against defendant and thus the estate was not liable. United States v. Pomeroy, 152 F. 279, 280 (C.C.S.D.N.Y. 1907), rev'd sub. nom., United States v. N.Y. Cent. & H.R.R. Co., 164 F. 324 (2d Cir. 1908).

Throughout the 20th Century the doctrine developed along the lines of Pomeroy. The idea being that the personal representative, estate, spouse and children of deceased defendant should not bear the obligation. Boyd v. State, 108 P. 431 (Okla. Crim. App. 1910); also see: Blackwell v. State, 113 N.E. 723, 723 (Ind. 1916) and People v. Alexander, 281 P. 697, 697 (Cal. Ct. App. 1929).

In the US, "there has never been a constitutional right to appeal a criminal conviction. The ability to review a conviction is essential to protecting due process and ensuring that 'the innocent will
not be punished'." Timothy A. Razel, Dying To Get Away With It: How the Abatement Doctrine Thwarts Justice--And What Should Be Done Instead, 75 Fordham L. Rev. 2193, 2202 (2007).

By the late 20th Century and early 21st Century, the rights of victims emerged as worthy of preserving. 1 Wayne R. LaFave et al., Criminal Procedure § 1.4(k) (2d ed. 2000).

In 1982, President Ronald Reagan commissioned a task force on victim's rights that recommended amending the Sixth Amendment of the US Constitution to ensure victim's right to be "heard" in all phases of criminal proceedings. President's Task Force on Victims of Crime, Final Report 114 (1982). Amending the constitution didn't go anywhere, but proponents were able to convince Congress to pass the Victim and Witness Protection Act of 1982, Pub. L. No. 97-291, 96 Stat. 1248 (codified in scattered sections of 18 U.S.C. (2000)).

Today, the majority of courts, including most all of the federal circuits, allow abatement ab initio. A dozen states refuse to abate a jury conviction and therefore the conviction stands post-defendant death. Around seven states allow a substitute party to continue the appeal on behalf of the defendant, but not abating. The Third and Fourth Circuits abate all but restitution orders. Some states, such as Connecticut, just don't recognise the doctrine.

Victims have an interest in receiving compensation for loss due to crime perpetrated against them by the defendant. The doctrine can have devastating effects on the ability of victims (or their families) to recover damages in a civil action. If the record is not vacated, victims or their families in death cases, can use the criminal conviction in a later civil trial for damages.

Massachusetts has been the scene of three prominent abatement cases. The first is the case of  John Salvi who opened fire on an abortion clinic in 1994, killing two women and injuring five others. After Salvi's conviction, but before appeal, Salvi committed suicide. The court abated and one of the deceased victim's mother took the the pulpit and said it is as if the judiciary wiped Salvi's record clean for the history books. The Massachusetts legislature nearly passed a law the following session to abolish abatement in criminal matters.

The next case is that of Father John Geoghan, a priest who was convicting of sexually molesting children. Geoghan was murdered by a fellow inmate in his prison cell whilst awaiting an appeal. The court abated, rendering him innocent by operation of law. After the order, one lawyer quipped that abatement "revictimize the victims."

The last case is also one that is pending in Massachusetts. Former New England Patriots' Tight End Aaron Hernandez had been convicted, after a nine week jury trial, in April 2015 of murdering, in the first degree, Odin Lloyd. Hernandez was sentenced to life in prison. "On Apr. 19, just five days after being acquitted of two murders in Boston, Hernandez hung himself in his jail cell at the Souza-Baranowski Correctional Center in Shirley, Mass." Michael McCann, Examining the effects of a potential abatement in the aftermath of Aaron Hernandez's death, Sports Illustrated online ed. 2 May 2017.

According to McCann, the prosecution has asked that the court not abate in this case. Time will tell whether the Hernandez case could contribute to the growing trend towards abrogating abatement; or whether the court will follow stare decisis, whereby the court follows precedent.

Colorado man at center of important lawsuit on libel verus free speech

US Supreme Court on the day of oral arguments

We all remember the fable of the boy who cried wolf. The moral Aesop illustrates is that liars are rewarded, until the fabrication becomes reality.

This week the U.S. Supreme Court held that airlines are immune from defamation liability when making reports to the Transportation

Security Administration, even when those reports are known to be false or are so reckless as to be a willful disregard to the truth.

In 2004, Coloradan William Hoeper was employed by Air Wisconsin Airlines. The airline was changing its entire fleet of planes and was requiring pilots to become certified on the new aircraft. Hoeper was nearing retirement age and had failed three previous certification exams.

During the fourth attempt in Northern Virginia, Air Wisconsin told Hoeper if he failed again, he’d be terminated. Hoeper became convinced that the airline was sabotaging his exam. A Colorado jury later agreed this was indeed the case.

Hoeper exchanged some expletives and other choice words with his supervisor, Patrick Doyle, before announcing that he was quitting and calling the pilots’ union. Doyle immediately booked Hoeper on the first flight back to Denver.

While Hoeper was boarding a regular commercial plane bound for Colorado, Doyle was calling the TSA. Doyle told the TSA that an “unstable pilot” was boarding a plane and that he was “concerned” because the pilot was terminated earlier and might be “armed” and dangerous. The Colorado Supreme Court later held these statements to have been “made with reckless disregard of their truth or falsity.” Doyle knew Hoeper was a deputized federal flight deck officer, which entitles him to carry a firearm when flying.

As in Aesop’s fable, when wolf is cried, all the villagers go running to save the boy from the pack of vicious animals. Here, the TSA sent snowplows and fire trucks to stop the Boeing 757 from proceeding down the tarmac. A SWAT team came bursting into the cabin. Meanwhile, Hoeper was looking for the “terrorist” on his flight, not knowing the special agents were after him.After a lengthy interrogation, no charges were filed and Hoeper was finally re-united with his family in Colorado. Hoeper immediately filed a defamation lawsuit against Air Wisconsin Airlines, alleging vicarious liability for the actions of its agent, Patrick Doyle.

Defamation is a statement that adversely affects a person’s reputation. Reputation has an economic value upon which individuals in our society peddle goods and services. Defamation is also about damages to a person’s good name and credibility. If someone damages your reputation, then they have damaged your economic value.

my ticket to the oral arguments

A Colorado jury awarded Hoeper $1.2 million in damages ($849,625 in presumed damages, $350,000 in punitive damages and $222,123.09 in costs).

Air Wisconsin appealed to the Court of Appeals, alleging that it was immune from liability pursuant to the Aviation and Transportation Security Act.

The ATSA provides that an air carrier that voluntarily discloses suspicious activity “shall not be civilly liable.”

The Colorado Supreme Court annually chooses a case to hear in front of Colorado high school students; in 2012, Hoeper v. Air Wisconsin Airlines was the case. The court upheld the jury’s verdict and the appeals court ruling.

The U.S. Supreme Court granted a writ of certiorari to Air Wisconsin, and oral arguments were heard on a frigid and snowy day in Washington, D.C. (I was fortunate to attend the proceedings.)

All odds were against Hoeper. The Obama administration sided with the airlines and feared that liability for defamatory statements would discourage airlines and their employees from reporting suspicious activity to the TSA. Even The New York Times and The Washington Post filed amicus briefs with the Court, siding with the petitioner, as they didn’t want to see penalties for “First Amendment speech.”

Justice Sonia Sotomayor delivered the opinion of the court, which reversed the finding of the Colorado Supreme Court, by granting immunity to airlines who make reports to the TSA. Sotomayor said, “All of us from time to time use words that, on reflection, we might modify ... If such slips of the tongue could give rise to major financial liability, no airline would contact the TSA.”

Justices Antonin Scalia, Clarence Thomas and Elena Kagan were the dissenters. It is odd to see two of the most conservative justices joining one of the most liberal. They argued (correctly, I believe) that a jury, made up of regular Americans, could make the determination of whether Hoeper was a threat to public security or if Doyle made the report based on a vindictive and reckless disregard for the truth or falsity of the information being reported.

Lies should not be rewarded. As in the tale of the boy who cried wolf, this week’s ruling encourages abuse and recklessness.
_____________________________________________________________
M Soper (Op Ed), "Colorado man at center of important lawsuit on libel verus free speech." The Daily Sentinel. Grand Junction, Colo. 2 Feb 2014, B4 <http://www.gjsentinel.com/opinion/articles/colorado-man-at-center-of--important8232-lawsuit-o> accessed 9 Feb 2014.

M Soper (Op Ed), "Case of Colorado’s defamed pilot shows no regard for truth." The Western Slope Watchdog. Montrose, Colo. 2 Feb 2014, Opinion Section. <http://westernslopewatchdog.com/2014/02/guest-editorial-case-of-colorados-defamed-pilot-shows-no-regard-for-truth/> accessed 9 Feb 2014.

Matt Soper meets head of US Secret Service

Matt Soper, a resident of Orchard City and former trustee, had the opportunity on Friday, February 15, 2013 to have lunch with US Secret Service Director Mark Sullivan during his visit to the University of New Hampshire’s School of Law. Director Sullivan has announced his intentions to retire, after 30 years with the agency, on February 22, 2013.

The outgoing Secret Service director said he was pleased with the work he had achieved since being appointed to director in 2006.

Mr. Soper said, “I asked Director Sullivan about Colorado Senate Bill 13-013, which is being sponsored by local State Senator Steve King.”

Secret Service Director Mark Sullivan (on right) & Matt Soper

Colorado State Senator King’s proposed legislation will give Secret Service agents limited peace officer authority in the State of Colorado. The premise for this bill stems from Colorado’s increased position in presidential politics and gives the Secret Service the ability to detain or arrest suspects, under Colorado law, who threaten individuals whom the Secret Service is charged with protecting.

Problems have arisen where jurisdictional issues have resulted in questions sufficient cause under federal law and possible usurping state authority. One such issue, resolved last summer before the US Supreme Court, concerned a Summit County resident who confronted then-Vice President Dick Cheney about the War in Iraq. The Secret Service felt the suspect’s sudden aggressive movement warrant detaining the individual. The individual sued, claiming his First Amendment right to political speech had been infringe and that the agents did not have authority in Colorado to detain him. The Supreme Court ruled in favor of the Secret Service and the agents, holding that the agents have immunity.

State Senator King hopes to resolve the conflict in jurisdictional issues by granting the Secret Service limited peace officer status while they are within the State of Colorado. Secret Service Director Sullivan indicated he supported measures designed to enhance cooperation.

Mr. Soper and Director Sullivan also talked about how the Secret Service is charged with more than protecting the President and Vice President and their families. Around 1,000 agents are assigned to the presidential detail, but this pales in comparison to the number of agents who are cracking down on counterfeiting and international criminal attempts to disrupt America’s monetary system.

The US Secret Service began in 1865, after the assassination of President Abraham Lincoln. Originally the agency fell under the auspices of the Treasury Department was tasked with protecting the president and stopping counterfeiters. Today the Secret Service is under the Department of Homeland Security and protects high level public official both domestically and abroad. The agency continues to suppress counterfeiting and electronic fraud, and cybercrime affecting the monetary supply. 

Farrelly v. Concord: never date the police chief's daughter

The case of Farrelly v. City of Concord is a civil action before the United States District Court for the District of New Hampshire. On Tuesday, 27 November 2012 at 11:00 AM I was privy to the oral arguments before the Honorable Judge Landya McCafferty concerning a duel motion to reconsider.  The motion by defendants, the City of Concord, was to suspend an order regarding NH RSA 507-B (municipality immunity question), pending reconsideration and appellate review if necessary. The plaintiff’s motion was to have the court reconsider claims IV (malicious prosecution) and VIII (negligence), which earlier had been dismissed by a motion. The malodorous facts of Farrelly are lucid in contrast to the procedural quandary before the parties.  This essay will commence with a presentation of the facts, followed by a discussion of the motions and in-court observations of the actors, and conclude with a few personal remarks about courtroom observation and the attorney’s jibes at each other.

            The story begins when Mr Farrelly started dating Ms Corliss, who is the daughter of a 30-year veteran of the City of Concord, New Hampshire Police Department.[1] At one point, Mr Farrelly moved in with Ms Corliss and her daughter.[2] After the relationship dissolved, Mr Farrelly sent a total of three emails to Ms Corliss in February 2009, expressing his disappointment in how she treated him and her daughter.[3] The emails allegedly contained an expletive.[4] Ms Corliss responded by filing a complaint with the Concord Police, alleging harassment and inappropriate language.[5] On 21 February 2009, two police officers, one being Officer Pichler, arrived at Mr Farrelly’s apartment inquiring about the emails.[6] After several questions, Mr Farrelly admitted to sending the emails.[7] Officer Pichler then made a warrantless arrest of Mr Farrelly “because he thought he was permitted to do so by RSA 594:10, I(b), based on his belief that Farrelly had committed domestic abuse, as defined in RSA 173-B:1.”[8] Mr Farrelly informed officers of a shoulder injury.[9] Police officers negligently handled Mr Farrelly resulting in severe damage to the shoulder, hip, wrist, and arm.[10] “The charges against Farrelly were dropped [the day] before trial, due to the unconstitutionality of RSA 644:4, I(f).”[11] After the charges were dropped, the Concord District Court ordered Mr Farrelly’s arrest to be annulled and voided from the record.[12]

On 16 December 2010 Mr Farrelly launched this civil action against the City of Concord and the two police officers stating six causes of action in his complaint.[13] The complaint was later amended to add two additional causes of action.[14] The reason the United States District Court for the District of New Hampshire was able to hear the case was because one of the causes of action raised a question of federal law and jurisdiction was asserted on account of the parties residing in the district. The causes of action included: violation of due process; violation of 1st Amendment rights of speech; violation of 4th Amendment rights against unreasonable search and seizure; malicious prosecution; false imprisonment; violation of New Hampshire’s Constitution; failure to supervise; and negligence.[15]

In September 2012, Judge McCafferty ruled on a motion for summary judgment and in an 86 page opinion partially granted defendant’s motion, partially denied, and granted plaintiff’s motion to amend the complaint.[16] False imprisonment was the sole cause of action to survive summary judgment.[17] The plaintiffs were permitted to bring an amendment and try again.[18]

The day I observed the oral arguments for a duel motions to reconsidering hearing, the defense’s motion to reconsider and have the final claim dismissed by summary judgment. That claim is false imprisonment, which is a state law claim under common law intentional tort. The plaintiff’s motion to reconsider was for the court to allow two previously dismissed claims of malicious prosecution and negligence to proceed to trial. The oral arguments lasted about one hour and 40 minutes. The plaintiff was represented by Jon Meyer and the defendants were represented by Charles Bauer. Only the attorneys were present before the court.

            Mr Bauer began first. He reminded Judge McCafferty of her 86 page summary decision on the relevant issues of law in question. The defense said a majority of the complaints were dismissed under 42 U.S.C. § 1983. The defense reminded the court that malicious prosecution was one of the claims dismissed by the court. The defense continued by stating that of the original 8 claims presented, only one remains in question – the false imprisonment claim – which is a New Hampshire state law claim.  The defense then stated that the motion for reconsideration hearing was an opportunity for the court to re-hear the reasons for dismissing the false imprisonment claim as a matter of law. Mr Bauer then proceeded to lecture Judge McCafferty on how she eroded in not dismissing the false imprisonment claim and that she eroded in entertaining the plaintiff’s motion to reconsider these formerly dismissed claims of malicious prosecution and negligence.

            The basis for dismissing the false imprisonment claim was N.H. Rev. Stat. §507-B:2, which concerns Liability for Negligence. RSA 507-B:2 sets forth circumstances under which a governmental unit may be held liable for negligence.[19] The defense states that these circumstances are limited only to pertinences (eg- sidewalks, buildings, etc.) and motor vehicles (eg- cars, trucks, planes). The defense further argued that 13 out of 14 courts have not allowed a municipality to be held liable for an intentional tort, such as false imprisonment, and the one court which did allow the action to proceed involved a retired judge. The plaintiffs argue that RSA 507-B:2 does not state or imply that a governmental unit has no liability for intentional torts. The plaintiffs explained that if the legislature had wanted to exclude intentional torts, then they would have been more specific.

At this point in the oral arguments, Judge McCafferty asked if the standard of measure was an objective or subjective one. The judge explained the question of municipal immunity rested on determining if the immunity is either official immunity[20] or qualified immunity[21]? Qualified immunity with an objective standard would preclude all intentional tort claims against municipalities. A subjective standard would favor the plaintiff’s case.

The plaintiff’s argued that the defendants cite no state case law to support its proposition of official immunity, and instead rely on the federal law of qualified privilege. Federal law, the plaintiff’s argue, is inapplicable, since it is based upon decisions of the U.S. Supreme Court establishing an objective standard for qualified immunity which has no counterpart in common law privileges. In 1985, the New Hampshire Supreme Court made subjective reasonableness a constitutional requirement which would be equally applicable to official immunity.[22] Further, the plaintiffs state that official immunity does not bar an intentional torts action from proceeding to trial. The plaintiffs pointed out that no proof had been led by defendants as to why Mr Farrelly was arrested without a warrant on the basis of a statutory clause which had been declared unconstitutional three year earlier.

The Everitt v. Gen. Elec. Co., 156 N.H. 202 (2007) decision is considered precedential by both sides. The defendants argued that Everitt precludes official immunity from barring claims of intentional wrongdoing. The plaintiffs pointed out that Everitt explicitly states that municipalities are to be held to the same standard as corporations; and a corporation can be liable for an intentional tort.

Both the defendants and plaintiffs agreed that since the federal district court was acting under supplemental jurisdiction, that a certified question on the issue of immunity would be appropriate. Under the Erie Doctrine, federal courts which have questions of state and federal law should apply the substantive law of the state, in this case, New Hampshire, to the state law question(s). The Erie Doctrine requires the federal court to predict how a state court would decide the same question. A certified question on substantive law is not mandated, but if the federal court agrees and the New Hampshire Supreme Court accepts, then the highest court will be given the opportunity to rule on that question of law.

In conclusion, this was a very fascinating case to observe in-person, as had the legal counsel for the City of Concord not lectured the judge on how she eroded, there might have been much more of an opportunity to have the immunity question decided in defendants favor. When the defense counsel said that Judge McCafferty’s opinions were worthless as he would appeal to the First Circuit Court of Appeals and that court would then tell her what the law is. The counsel for the plaintiff had a funny zinger, as he made a sarcastic reference that he didn’t realize retired judge’s opinions carried less precedential weight. Judge McCafferty seemed quite keen to not make a judgment based on dicta. She wanted an actual citation for where the defense was claiming the Everett case created blanket immunity. After the hearing, the two attorneys were already discussing lunch plans and a settlement deal for other clients they represent. I found it amazing how they had just had a heated argument about a heavy question of law and then were capable of moving onto other subjects without fully collecting their papers.

---

[1] Complaint and Demand for Jury Trial at 2, Farrelly v. City of Concord, No. 10-cv-00583-LM (D. N.H. Dec. 16, 2010), ECF No. 1-3.

[2] Id.

[3] Id. at 3.

[4] Oral Arguments, Farrelly v. City of Concord, No. 10-cv-00583-LM (D. N.H. Nov. 27, 2012).

[5] Answer and Affirmative Defences at 3, Farrelly v. City of Concord, No. 10-cv-00583-LM (D. N.H. Jan. 24, 2011), ECF No. 6; see Farrelly, 2012 WL 4513888, at *3.

[6] Complaint and Demand for Jury Trial at 3, Farrelly v. City of Concord, No. 10-cv-00583-LM (D. N.H. Dec. 16, 2010).

[7] Amended Complaint and Demand for Jury Trial at 3, Farrelly v. City of Concord, No. 10-cv-00583-LM (D. N.H. Nov. 8, 2011), ECF No. 31-1.

[8] Farrelly v. City of Concord, No. 10–cv–583–LM, 2012 WL 4513888, at *9 (D. N.H. Oct. 2, 2012).

[9] Farrelly, 2012 WL 4513888, at *4.

[10] Order Denying Defendant’s Motion to Dismiss at 1, Farrelly (D. N.H. Sept. 12, 2011).

[11] Farrelly, 2012 WL 4513888, at *10.

[12] Order Denying Defendant’s Motion to Dismiss at 2, Farrelly (D. N.H. Sept. 12, 2011).

[13] Complaint and Demand for Jury Trial, Farrelly (D. N.H. Dec. 16, 2010), ECF No. 1-3.

[14] Amended Complaint and Demand for Jury Trial, Farrelly (D. N.H. Nov. 8, 2011), ECF No. 31-1.

[15] Amended Complaint and Demand for Jury Trial at 6-8, Farrelly (D. N.H. Nov. 8, 2011), ECF No. 31-1.

[16] Farrelly, 2012 WL 4513888, at *85-86.

[17] Id.

[18] Id.

[19] “A governmental unit may be held liable for damages in an action to recover for bodily injury, personal injury or property damage caused by its fault or by fault attributable to it, arising out of ownership, occupation, maintenance or operation of all motor vehicles, and all premises; provided, however, that the liability of any governmental unit with respect to its sidewalks, streets, and highways shall be limited as provided in RSA 231 and the liability of any governmental unit with respect to publicly owned airport runways and taxiways shall be limited as set forth in RSA 422.”

[20] Doctrine of official immunity protects individual government officials or employees from personal liability for discretionary actions taken by them within the course of their employment or official duties. RSA 99-D:1. “Official immunity” shields public employees against lawsuits alleging common law torts, such as negligence.

[21] Doctrine of qualified immunity protects government officials from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which reasonable person would have known. “Qualified immunity” shields public employees against lawsuits alleging constitutional violations. This is also known as “good faith” immunity, meaning it does not protect against bad faith actors. See Black’s Law Dictionary.

[22] Opinion of the Justices, 126 N.H. 554, 564 (1985); see also City of Claremont v. Truell, 126 N.H. 30, 39 (1985) (New Hampshire Supreme Court held a statute should be interpreted so as to preserve its constitutionality).

2012 year-in-review: LL.B. to LL.M.

In the year since graduating from the University of Edinburgh much has happened in my life. I have gone from law student to campaign manager to youngest elected city council member of my home town to working for the leading NGO on maritime piracy to once again being a law student. In this time I have met and visited with the president, vice president, GOP challenger, a retired US Supreme Court justice, the highest judges from New Hampshire, Texas, and New York, along with visiting with Colorado's governor, New Hampshire's governor, Texas' governor, the junior US senator from South Dakota, and a former US senator from Pennsylvania, not to mention having lunch with a former governor of New Hampshire and a former US senator from Colorado. Life has also been challenging, I was present when my aunt Clara passed away and not long after that I received the letter saying I had been denied admittance to sit the New York bar. This resulted in me having to step down as trustee and pursue an LL.M. degree, which is one of the new requirements for sitting the bar. I also experienced the economic downturn, but applying to over 50 businesses and hearing no responses. Perseverance and no matter the odds, never give up, have become daily mantras. The following is a year in review:

27 November 2011 - graduated from University of Edinburgh with an LL.B. in Law

December 2011 - launched exploratory committee for a possible bid for the Colorado House of Representatives, Dist 61

January 2012 - began campaign manager for Bruce Hovde's re-election campaign for Delta County Commissioner, Dist 2

February 2012 - began campaign for Orchard City Board of Trustees

3 April 2012 - elected Orchard City's youngest Trustee

April - October 2012 I served on the Orchard City Board of Trustees. 

April 2012 - became campaign manager for Mark Roeber's Delta County Commissioner Campaign, Dist 3

May - August 2012 - maritime piracy legal researcher (intern) with Oceans Beyond Piracy, which is an NGO that provides research on the economic and human costs of piracy at sea, along with engaging stakeholders to find a governance based solution to countering piracy. Working included revising and enhancing counter piracy matrix, editing law reports, following pending criminal and tort cases, and providing information for diplomats, the military, and industry. 

September 2012 - begin LL.M. in Intellectual Property (IP) Law at the University of New Hampshire's School of Law (Franklin Pierce Center for Intellectually Property)

September 2012 - visited Portland, Maine; Kennybunkport, Maine; Boston, Massachusetts; Mount Washington, New Hampshire; the White Mountains of New Hampshire; Newport, Rhode Island

October 2012 - shook hands with President Obama in Portsmouth, NH; visited with Vice President Joe Biden in Concord, NH; talked constitutional law with form US Supreme Court Justice David Souter in Concord, NH; and gave words of encouragement to Mitt Romney in Manchester, NH.

October 2012 - travelled to New York City for the first time since I was 12 years old. Met up with my former Edinburgh flatmate and good friend, Fabio Pucci. We were flatmates for nearly 3 1/4 years. He was in NYC to present a paper at the Rockefeller. We went to the top of both the Rockefeller Center (Top of the Rock) and the Empire State Building. I stayed the first night in Harlem and the second in Times Square. Whilst walking in Central Park, I thought to myself Manhatten Island is crazy, fun, and looking at the buildings might injure my neck ;-) I also went to the cite of the World Trade Center attacks. I was disappointed that there were venders (including the National Commission) selling goods, profiting off of the dead of nearly 3,000. Fabio put things in perspective by saying the towers were about commerce and free enterprise, capitalism, and trade. "If there weren't venders selling goods and making money on the very site where so many died, then the terrorists would have won." 

October 2012 - sat the Multi State Professional Responsibility Exam (MPRE), this exam, along with the Bar Exam, is required to be admitted to practice law.

October 2012 - visit Montpelier, Vermont

October 2012 - elected as a "write-in" to the Board of Governors of the New Hampshire Student Bar Association 

November 2012 - hung out with the Supreme Court Chief Justices of New Hampshire, Texas, and New York; in addition to having lunch with former New Hampshire Governor Steve Merrill.

Public law: Judges v Legislators

It wasn't until my jurisprudence class this year that I realized that the criticism of 'activist judges' is not actually as accurate as the term may suggest. At the Supreme Court level, judges tend to be more politicians and fewer jurists, as their decision creates a binding precedent which the lower courts are bound to follow. If the legislature deems the decision wrong, they have the ability to change the law, but the legislature process and multiple interests may make that nearly impossible, as we know.

At the lower level courts, judges, I'll argue, are actually more representative than legislators, as they see regular people every single day. Decisions made in courts directly affect the lives of the individuals and do not require the implementation of the bureaucracy. A judge in a lower court is bound under the law and the arguments set forth by the two sides.

I've been reading a text on piracy from the US Naval War College and there is a great summary on how our founding fathers left a lot of leverage and digression to the lower courts and knew that the supreme court was limited by the executive's willingness or unwillingness to implement a decision - as FDR illustrated, a decision out-with the agreement of the president may lead to packing the court by diluting the majority which ruled against the White House and Congress.

The counter argument is that legislators are more democratically accountable as they are elected by the people they represent, whereas judges are removed from the electoral process. Though in the many American states the Missouri Plan for selecting judges is used, whereby a judge is nominated by a judicial commission, selected by the state’s governor and confirmed by the state senate, then held up for a retention election every few years to ask the people if the judge is performing the duties charged under the constitution and laws of the state.

Prima facie, it is difficult to counter the argument that perhaps judges could be ‘closer’ to the people than legislators. Legislators are elected by their constituents for a prescribed term. Whereas judges are unelected, appointed for life tenure and they do not respond to the people in any direct way. The challenge to a representative democracy is that unelected individuals can overturn the decisions of an elected body, and therefore challenge the will of the people.

Legislators will often not contemplate the constitutionality of a proposed bill, but discuss the political reasoning or popular logic in the arguments debated in the committee rooms and on the floor of the assembly. At the turn of the 21^st Century, many members of the US Congress voted for campaign finance reform even though it was thought to violate the First Amendment of the US Constitution. The Supreme Court was almost set up for political failure as the decision was to (a) uphold the will of Congress and thereby the people or (b) uphold the validity of the US Constitution and the social contract which congress and the people are bound. The Court held the latter and was criticised for crafting ‘bench made law’ and also for ‘judicial activism’ and undermining the people’s elected representatives.

The British Parliament is supreme and therefore can do ‘whatever the hell it wants, whenever it wants’. The British Supreme Court (formerly the Appellate Committee of the House of Lords or simply, the House of Lords), cannot strike down an Act of Parliament for being unconstitutional, as the supremacy of parliament means the legislature and therefore the will of the people is absolute and cannot be undermined by the constitution and the supreme court, both of which are granted authority from parliament. The concept of judicial review is different in the America, as the US Constitution is regarded as ‘higher law’ and all other law is subordinate. Acts of Congress, case law, and regulations would all be subordinate to the US Constitution and therefore classified as ‘normal law’ or ‘ordinary law’. The US Constitution is the supreme law of the land. A constitution usually seeks to define the relationship the institutions of government, the relationship between the individual and the state, and provide limits on the power of the state, along with setting forth the goals and principles of the state, usually found within the preamble.

Judicial review by its nature undermines popular will, as all or part of a statute, passed by the legislature and given the force of law by the executive, can be declared ultra vires by a court, and struck down as unconstitutional. However, popular will in legislative terms is the support of the majority. This means that a minority in civil society may be largely unrepresented.

In Brown v Board of Education of Topeka (1954) 347 US 483, the US Supreme Court overturned their earlier decision of Plessy v Fergusson (1896) 163 US 537, which had upheld the post-Reconstruction (1877) doctrine of ‘separate, but equal’ enshrined in ‘Jim Crow’ laws, such as rules segregating public schools (Cumming v Richmond County Board of Education (1899) 175 US 528) in the American South as being within the ambit of the Constitution. The Court quickly followed the Brown precedent by holding segregation based on race within public spaces to be a violation of the Equal Protection Clause of the 14^th Amendment to the US Constitution. Many US States tried to argue the 14^th Amendment only applied to Federal and not individual state citizenship (the Slaughter-House Cases (1873) 83 US 36). As Brown illustrates, nothing happened for the next fourteen years in regards to segregation, mainly due to a violent backlash from Southern states who claimed the Court was circumventing the democratic authority of the legislature. It was the legislatively crafted Civil Rights Act 1964 which finally brought an end to racial discrimination.

The function of the democratic accountability in the courts is to interpret the constitution in respect of popular opinion of the people. They filter public opinion through their decisions to interpret the constitution in consistency with public opinion. Judges interact with the public on such a regular basis that the knowledge of popular opinion and arguments presented is known and able to be effectuated through the decisions and judgements of the court. This school of thought is embodied by the American Realist movement, which began with US Supreme Court Justice Oliver Wendell Holmes in the early 20^th Century. 

The law concerning polygamy

Today while I was reading and annotating a few in preparations for my International Private Law tutorial I was reminded about an original aim of the Grand Old Party. In the mid-1800s there was wide-spread public hostility towards the practice of polygamy, meaning being married to more than one person concurrently. Joseph Smith, the founder and prophet of the Church of Jesus Christ of Latter Day Saints (Mormons), had a revelation in 1843 in which he called for men to marry more than one woman. Nine years later the Mormon Church officially announced polygamy was religiously superior to monogamy. Public outcry led to religious leaders, journalists and politicians denouncing the practice. The Republican Party, organized in Jackson, Michigan on 6 July 1854, had as their first national platform a denouncement of polygamy and slavery as “those twin relics of barbarism.”

The seminal case of polygamy came in England with Hyde v Hyde [1866] 1 LR-P & D, in which the Court declared marriage as being between one man and one woman. The leading American case is that of Reynolds v U.S. (1878) 98 US 145, in which the Supreme Court upheld the conviction of a Mormon leader for polygamy by rejecting the appellant’s claim to religious liberty as protected under the First Amendment of the US Constitution. In the UK most legal rights and privileges concerning married and cohabitating couples have been extended to same-sex couples by virtue of the Civil Partnership Act 2004. The concept of only two parties being privileged to a marriage or partnership was preserved. The common law in the UK has made special allowances for bigamy on a case by case basis.

The concept of bigamy (having two spouses) at common law was and is no different than that of polygamy. The U.S. Model Penal Code, s 230(1) classifies polygamy as a third-degree felony and the offence subsists until all cohabitation with and claim of marriage to more than one spouse terminates. Aliens from other jurisdictions visiting the US or the UK will not be any violation of criminal laws, so long as polygamy is lawful in the alien’s nation of origin.