Barbara Walters shielded from suit by First Circuit

The First Circuit has affirmed dismissal of a suit against Barbara Walters by her daughter's prep school roommate. Shay v. Walters. The case arose in part out of matters revealed in Walters' 2008 autobiography Audition. The First Circuit affirmed the District Court's dismissal on the pleadings.

SCORI overturns preliminary injunction in tort case

The Supreme Court of Rhode Island has overturned a preliminary injunction in a case arising out of a shooting near the Sportsmans Inn on Fountain St. in Providence. In Vasquez v. Sportsmans Inn, the court reversed a preliminary injunction that restrained the defendant from alienating certain property in order that it might be available to satisfy a possible judgment. Plaintiff was shot within proximity to the Sportsmans Inn and sought to establish the Inn's liability based on allegations of inadequate security. The Supreme Court concluded that there was, at this stage of the case, inadequate demonstration of any duty owed to plaintiff, and that plaintiff therefore had not shown an adequate likelihood of success to warrant injunctive relief.

SCORI on Superior Court authority to remand to arbitrator

The Supreme Court of Rhode Island issued an opinion today addressing the circumstances when the Superior Court may remand a case to an arbitrator. Drago Custom Interiors v. Carlisle Building Systems.

DC Cir. on Affordable Care/Contraceptive Mandate

Message to the Obama Administration on in the Contraceptive Mandate case from the D.C. Circuit: Deliver on your promise and we can all go home. Here's the interim order issued in Wheaton College v. Sebelius. This matter is essentially held in abeyance to see whether the government will, as promised, (1) withhold enforcement against employers with religious objections to the mandate and (2) revise the contraceptive mandate to exempt them. Get back to us in 60 days, the court ordered.

First Circuit -- Rare Aquittal on Appeal

Finding the evidence insufficient, the First Circuit in United States v. Burgos reversed a conspiracy conviction and remanded with an order to enter a judgment of acquittal. Carlos Burgos, a Worcester police officer, had been charged with involvement in a drug dealing conspiracy allegedly run out of an auto repair shop where his brother-in-law had worked at one time. The Government's theory was that the officer knew of the drug activity and appeared to have warned the participants that they were under surveillance. The First Circuit concluded that the inferences required for a conviction were not supported by the Government's evidence, and the Court therefore reversed and ordered a judgment of acquittal.

SCOTUS will wrestle with Double Jeopardy conundrum

The U.S. Supreme Court will today hear arguments in Evans v. Michigan, a case involving a Double Jeopardy pretzel. In Evans the trial court misinterpreted the underlying charge to require an element that the prosecution did not actually have to prove. Finding that element missing, the trial judge granted a mid-trial judgment of acquittal. On the prosecution's appeal, Michigan appellate courts held that the trial judge's erroneous acquittal did not constitute an "acquittal" for Double Jeopardy purposes, and that the defendant could be retried. SCOTUS granted cert. and will hear arguments today. The US SG has weighed in on Michigan's side.

Florida v. Jardines SCOTUS argument . . .

After reading today's oral argument transcript from Florida v. Jardines . . . I'm guessing Florida will lose the case because the police officer's warrantless visit to the defendant's front door, accompanied by a drug-sniffing dog, violated the Fourth Amendment. There was a lot of discussion, though, suggesting that a Girl Scout selling cookies would not be a Fourth Amendment violation . . .

Forensic "science:" how reliable?

PBS's NOVA recently ran Forensics on Trial, a program that focused on the flaws in what passes for "science" in criminal trials. The program raises many questions about the validity of evidence that is often accepted in court, notwithstanding its dubious validity. H/T Eric Metaxas.

And as the World Series opens . . .

. . . Judge Savage releases Stewart v. Stewart, a case involving ownership of significant MLB memorabilia accumulated by a former AL umpire.

First Circuit rejects asylum claim

A Guatemalan man who proves (1) that a bus driven by his father in Guatemala was bombed by guerrillas; (2) that his mother was robbed by guerrillas; (3) that as a teenager he rejected recruitment efforts by guerrillas and fears persecution if returned to Guatemala; and (4) that if returned there from the U.S. there is a likelihood he will be targeted for perceived wealth . . . has no basis for asylum in the U.S., the First Circuit rules in Escobar v. Holder. Judge Boudin (from the comfort, no doubt, of Boston's palatial, heavily-protected federal courthouse) scoffs at Escobar's fears: ". . . being a target for thieves on account of perceived wealth, whether the perception is temporary or permanent, is merely a condition of living where crime is rampant and poorly controlled."

By 3-2 vote SCORI rejects Tobon recount petition

The Rhode Island Supreme Court this afternoon issued an Order denying certiorari in District 58 Candidate Tobon's request for a hand recount of Rep. San Bento's one-vote primary victory. The majority concluded that the Court had no authority to order hand recount. Dissenting Chief Justice Suttell and Justice Goldberg read the statutes and case law to permit, indeed require, a hand recount under the circumstances.

Extending Appendi?

The United States Supreme Court today granted cert. to review the Fourth Circuit's decision in United States v. Alleyne. This is a new case in the Apprendi line, wherein the Court will decide whether a federal district court can enhance the sentence in a robbery case for the defendant's "brandishing" of a firearm, where there is no specific jury finding on that fact (he was, however, convicted of "use or carry" of a firearm during the robbery). For Alleyne to prevail, the Supreme Court would have to overrule their 2002 decision in Harris v. United States; the cert. grant invites argument on that point.

One more thing . . .

Candidate Tobon has filed a reply to the memos that opposed his cert. petition. We shall see. . .

Tobon v. San Bento -- Memos opposing cert. O

Rep. San Bento has filed his objection to certiorari, asserting that a "standardless" hand recount would violate the Equal Protection principles set forth in Bush v. Gore. Similarly, the Board of Elections' opposition to certiorari relies in part on the much-maligned SCOTUS decision in Bush v. Gore.

Carlos Tobon lost the primary in Rep. District 58 to incumbent William San Bento by one vote . . . or did he? How likely is SCORI to grant Candidate Carlos Tobon's Petition for Certiorari seeking review of the Board of Elections' refusal to conduct a hand recount of all ballots? Tobon makes a compelling case for further review, but the Supreme Court rarely gets involved in election disputes . . . given the narrowness of the margin and the relatively simple task of hand-counting about 1000 ballots, this seems like a case where the balance favors a grant of cert. We should know soon.

RI - DHS has issued a new regulation effective Sept. 3, 2012, providing for Medicaid interception of certain insurance payments made to Medicaid recipients. The regs include a process for requesting a pre-intercept hearing.

The Massachusetts Supreme Judicial Court today recognized a "judicial deliberative privilege" that protects the thought processes of a judge in reaching judicial decisions. In re Enforcement of a Subpoena. The matter arose in the context of a judicial ethics investigation of a trial judge. The investigation was initiated by a district attorney who was concerned about the judge's handling of various criminal matters. The SJC severely restricted the investigative body's ability to get behind the judge's decisions. H/T Howard Bashman.

The Second Circuit, in United States v. Voustianiouk, holds that the Fourth Amendment requires suppression, where police searched a second-floor apartment based on a warrant that authorized the search of a first-floor apartment. Conviction for possession of child pornography, and five-year sentence (of which already two years have been served) vacated.

The Supreme Court today issued an opinion in Zharkova v. Gaudreau, setting out the elements of common law marriage. The Supreme Court affirms Family Court's finding that the plaintiff had failed to prove those elements by the required standard of clear and convincing evidence.

Pro Jo reports that Gov. Chafee has signed the bill de-criminalizing possession of small amounts of marijuana. NOTE: This bill takes effect on April 1, 2013.

The Senate has approved a new Superior Court Justice, new Magistrates for the District and Family Court, and a new District Court Clerk.

California Prop. 8

The Ninth Circuit has denied rehearing in the Prop. 8 case, Perry v. Brown. The stage is now set for SCOTUS review . . .also likely in the First Circuit's DOMA case.

First Circuit holds Defense of Marriage Act unconstitutional. Commonwealth of Mass. v. U.S. Dept. H.H.S.

Gov. Chafee and Jason Pleau have applied to Justice Breyer for a stay of the First Circuit's mandate. Here's a link to the SCOTUS Docket for the application. Justice Breyer might act on the application himself, or he might refer it to the Justices' Conference. Here's a link to the stay application, courtesy of scotusblog.

The ProJo is reporting that Gov. Chafee has nominated AUSA Luis Matos to the Superior Court.

The ProJo reports that Judicial Nominating Commission will interview seven candidates for the opening created by Judge Darigan's retirement

Gov. Chafee will seek SCOTUS review of Pleau, the ProJo reports.

Is the Pleau case cert-worthy? Predicting cert. decisions is perilous, but SCOTUS' rules describe some of the considerations that govern cert. What seems most applicable here is Rule 10(c), which suggests that cert. might be granted in a case where "a United States court of appeals has decided an important question of federal law that has not been, but should be, settled by this Court . . ." No doubt application of the Interstate Agreement on Detainers (IAD) is an important question, but is this issue likely to occur again? Perhaps not with sufficient frequency that SCOTUS needs to get involved. On the other hand, this case arises in an atmosphere of tension in federal-state relations manifested in the Obamacare cases and the Arizona immigration case. Of course, the Department of Justice could moot the entire controversy by backing off on its threat to seek Jason Pleau's execution. Stay tuned!

In an opinion by Chief Justice Suttell, the Rhode Island Supreme Court affirmed a grant of summary judgment resolving this "dueling coverages" case. Empire Fire & Marine v. Citizens Insurance, (R.I. May 7, 2012)

In an opinion by Chief Justice Suttell, the Rhode Island Supreme Court affirmed the denial of post-conviction relief in Sifuentes v. State (R.I. May 7, 2012).

The United States Court of Appeals for the First Circuit, sitting en banc, has rejected Gov. Chafee's authority to refuse to deliver Jason Pleau to federal authorities for trial. United States v. Jason Pleau (1st Cir. May 7, 2012). Gov. Chafee has argued that his refusal (based on Rhode Island's opposition to the death penalty)was within his power under the Interstate Agreement on Detainers. The First Circuit rejected his argument -- reversing the panel that originally heard the matter -- albeit over the strong dissent of Judges Torruella and Thompson (who constituted the original majority). Any one for cert?

Sorry for the lag in postings.....SCORIBLOG will be updated soon.

The Rhode Island Supreme Court today issued an opinion in Quality Concrete v. Travelers Property Casualty Co. (R.I. Apr. 16, 2012). In an opinion by Justice Robinson, the Court affirmed Superior Court Justice Brian Stern's grant of summary judgment for Travelers. The Court held that Travelers was not required to provide pre-suit independent counsel for the insured on the circumstances presented.

D.C. Circuit Judge Janice Rogers Brown has written what I think will come to be seen as a very important concurring opinion in Hettinga v. United States (D.C. Cir. Apr. 13, 2012), dealing with judicial scrutiny of economic legislation. Judge Brown advocates greater protection of economic freedom and, therefore, stricter judicial scrutiny of economic legislation favoring one faction over another.

The Providence Journal reports this afternoon the indictment of two RI defense attorneys (and the client of one).

In the "Trayvon Martin" case . . .second degree murder in Florida law is defined as "the unlawful killing of a human being, when perpetrated by any act imminently dangerous to another and evincing a depraved mind regardless of human life, although without any premeditated design to effect the death of any particular individual . . " Here's the affidavit that purports to show probable cause for the charge against George Zimmerman. Kinda thin, I'd say.

The Supreme Court today released the opinion in State v. Wesley Spratt (April 13, 2012), affirming the denial of post-conviction relief.

Superior Court Justice Taft-Carter has issued a decision with a comprehensive discussion of easements, prescriptive and implied. Caluori v. Dexter Credit Union (April 11, 2012)

Congratulations to former Sen. John McBurney on the Senate's vote confirming his nomination to serve as Superior Court Magistrate.

The Supreme Court of Rhode Island today issued an opinion in Hernandez v. J.S. Pallet Co., Inc

WELCOME TO SCORIBLOG

This BLOG will follow developments in Rhode Island law, principally in the Supreme Court of Rhode Island.