Uncategorized

Schiano may get 75% of $27.7 million from UT

As a follow-up on my previous opinions on the Greg Schiano-Tennessee vols mess (see here, here, here), the executed memorandum of understanding has been released:

Paragraph 4 of the MOU deals with termination without cause by the University. It states that the University of Tennessee may, in its sole discretion, terminate the MOU without cause and provide Schiano 75% of the base pay and supplemental pay as stated in the document. The MOU would have paid Schiano $27.7 million over the span of six years.

Ouch.

 

Star NFL player sued by NC man who says the player seduced his wife

According to the Charlotte Observer,

Fletcher Cox, a two-time Pro Bowl defensive tackle with the Philadelphia Eagles, is being sued for alienation of affection by Joshua Jeffords in Mecklenburg County Civil Court.

This lawsuit has been brought in North Carolina. “An action for alienation of affection permitted recovery for ‘loss of consortium, humiliation, shame, mental anguish, loss of sexual relations, and the disgrace the tortious acts of the defendant have brought.’” Andrews v. Gee, 599 F. Supp. 251, 253 (D.S.C. 1984)

I am not sure the policy reasons for such but this kind of suit is unavailable in Alabama. An Alabama statute, Section 6-5-331, reads:

There shall be no civil claims for alienation of affections, criminal conversation, or seduction of any female person of the age of 19 years or over.

“Since the abolition in Alabama of the heart-balm torts, this Court has refused to recognize ‘any claim for damages against a third party, no matter how denominated, that is based on allegations of interference with the marriage relationship.’” D.D., 600 So. 2d at 223

Laws like that in North Carolina seem to be good policy which protect the family and marriage; it certainly puts a financial penalty for potential adulterers. Perhaps its something the Alabama Legislature should reconsider. Seemingly, only Hawaii, Illinois, Mississippi, New Mexico, North Carolina, South Dakota and Utah still have such a cause of auction.

However, in some jurisdictions, alternative theories have been allowed. For instance, in Scamardo v. Dunaway, 650 So. 2d 417 (La. Ct. App. 1995), the Louisiana Court of Civil Appeals allowed an intentional infliction of emotional distress:

In comparing the two theories of recovery, we find that they are distinguishable. Neither the policies nor legal principles giving rise to the claims for framing the rights are the same. Although both have the emotional distress of plaintiff as a primary element of damages, and thus, may appear to overlap, the infliction of emotional distress is a separate, recognizable tort. The law does not limit the action to non-marital situations. However, the mere seduction and loss of one’s spouse due to the seduction or affair cannot be the basis for the action. There must be proof that defendant violated some legal duty to plaintiff, so that plaintiff is in fact the victim and not just the jilted party. Further, the burden of outrageous conduct is a heavy one. Otherwise, the cause of action is for alienation of affections, which is not legally recognized in this state.

D.D. seems to preclude this argument. (However, perhaps the existence of the separate duty towards the Plaintiff could make a difference to the Alabama courts.) See also, Gasper v. Lighthouse, Inc., 533 A.2d 1358 (1987); Accord Payne v. Osborne, No. 1997-CA-001818-MR (Ky. App. 06/04/1999).

Alabama statute has placed a target on the back of juveniles for sex predators.

In Alabama, some juvenile sex offenders which have been adjudicated low-level offenders have protection from the harshness of the Alabama Sex Offender Registration and Notification Act. After consideration of evidence from a juvenile court, the judge may exclude a child from notification or, at least, limit the requirements as the particular facts demand.

However, in an odd quirk of statutory language, many juveniles which are automatically transferred to adult court are subject the full impact of lifetime, mandatory registration and notification scheme.

For these children, the state has placed a target on their back for sexual predators. According to this study performed by Dr. LeTourneau of Johns Hopkins University,  children on the registry were five times as likely to have been approached by an adult for sex in the past year, compared to nonregistered children.

The study also showed:

  • Children on the registry were four times as likely to have attempted suicide in the last 30 days, compared to nonregistered children.
  • Registered children were nearly twice as likely to have experienced a sexual assault.

Dr. LeTourneau concludes,

“The process of subjecting children to sex offender registration and notification requirements not only conveys to the child that he or she is worthless, it also essentially alerts the rest of the world that a child has engaged in an illegal sexual behavior,” says study lead Elizabeth Letourneau, PhD, a professor in the Bloomberg School’s Department of Mental Health and director of the Moore Center for the Prevention of Child Sexual Abuse. “Not only is this policy stigmatizing and distressing, but it may make children vulnerable to unscrupulous or predatory adults who use the information to target registered children for sexual assault.”

I argue that the Alabama Sex Offender Registration and Community Notification Act (hereinafter “ASORCNA)” is unconstitutional as applied to minor children like this because it violates his due process rights and is a cruel and unusual punishment.

The Alabama statute, without question, is the most comprehensive in the nation. If convicted as a youthful offender, a child will be required to SORNA register as an adult for life as follows:

  1. His name, photograph, address of residence and employment and where he goes to
    school, his physical description, the license plate and description of any vehicle he
    uses, the criminal history of the sex offense for which he was convicted, the text
    of the criminal provision of the sex offense for which he has been convicted and
    his current status will be posted on a website available to the public for the rest of
    his life. Ala. Code § 15-20A-8 (a)(1)-(10).
  2. If he fails to register, he will be guilty of having committed a class C felony,
    which carries a prison term of up to ten years. Ala. Code §§ 15-20A-10(j); 13A-5-
    6(a)(3).
  3. He will be required to appear during his birth month and every three months
    thereafter to reverify all of the information on file with the registry. Ala. Code §
    15-20A-10(f).
  4. Any time he changes residences or schools or employment, or any other change
    which affects the information required for registration, he must appear in person
    “immediately” to re-register. Ala. Code § 15-20A-10(b-c).
  5. His driver’s license or ID shall bear designation that he is a registered sex offender. §15-
    20A-18.
  6. He will subject to electronic monitoring supervised by the Board of Pardon and Paroles for 10 years following release.
  7. There are housing and employment restrictions. A child may be required to move out of their home if minor sibling resides there, regardless whether the sibling was the victim or even the same sex as the offending child.

ASORCNA, and other registration schemes like it, do not reduce recidivism when applied to minor children because juvenile recidivism is already statistically less than five percent. If anything, evidence shows that registration and notification for juveniles may actually increase the level of recidivism due to the ostracism and lack of opportunity for healthy social connections that juveniles experience.

Minor children have transitory character traits and lessened culpability. Because of this, they are entitled to individualized review of the risk of recidivism before any adult registration requirement can be imposed on them. In 2014, the Pennsylvania Supreme Court ruled that Pennsylvania’s own lifetime registration requirements for violated due process when applied to youth offenders. In the interest of J.B. 107 A. 3d 1, 35 (Pa. 2014). The majority opinion held that “statutes that infringed upon protected interests or denied benefits by utilizing presumptions that the existence of one fact was statutorily conclusive of the truth of another fact” violated due process when there was no “meaningful opportunity to contest the validity of the second fact.” Id., at 25 (citing Vlandis v. Kline, 412 U.S. 441 (1973); Stanley v. Illinois, 405 U.S. 645 (1972); Bell v. Burson, 402 U.S. 535 (1971)). Like the Pennsylvania statute, Alabama’s law creates an irrebuttable presumption that all minor children who have committed certain sex offenses are likely to recidivate without giving them a meaningful opportunity to contest this presumption.

Furthermore, juvenile “impulsivity and sexual curiosity” lower as children become more mature, which leads to the lower rate of sex offense recidivism. J.B., at 17. Alabama’s juvenile code has an acceptable alternative for determining whether an offender is likely to recidivate, namely by assessing each juvenile individually to determine what is in their best interest and the best interest of the community.

The Supreme Court of Ohio addressed this issue in In re C.P., In holding that the federal registration requirements violated due process, the court said that “fundamental fairness is not a one-way street”. In re C.P., at 750. In other words, fundamental fairness does not mean that states can lessen due process requirements for juveniles. Instead, fundamental fairness mandates “additional procedural safeguards for juveniles in order to meet the juvenile system’s goals of rehabilitation and reintegration into society.” Id. Several states give discretion to courts to weigh specific facts and circumstances in making the decision as to whether registration will be required of an adjudicated juvenile. See A.R.S. 13-3821(D); IC 11-8-8-5(c); M.G.L. 6 § 178E(c); N.C.G.S. §14-208.26(a); 10A Okl.St. § 2-8-104A-B; RI ST § 11-37.1-4(j); VA Code § 9.1-902G; RCW 9A.44.143. In those states, unlike Alabama, lifetime registration is not automatically imposed simply because of the nature of the offense. Courts are allowed to determine whether registration is vital to the public interest. To provide fundamental fairness in the adjudication of minor children, Alabama should, at a minimum, join the ranks of these states.

This tradition of treating juveniles differently than adults is based on our knowledge of child brain development. The United States Supreme Court held, ten years ago, that juveniles are inherently less culpable than adults for their actions because they are not fully developed, which leaves them more impulsive, susceptible to outside forces and with transitory traits of character. Roper v. Simmons, 543 U.S. 551, 569-570 (2005) (finding the imposition of the death penalty on juveniles to be cruel and unusual punishment). More recently, in 2010, the Supreme Court ruled that life without parole sentences for non-homicide crimes is cruel and unusual punishment when applied to juveniles. Graham v. Florida, 560 U.S. 48, 68 (2010). Based on empirical evidence of the American Medical Association and the American Psychological Association, the Supreme Court of the United States held that “developments in psychology and brain science continue to show fundamental differences between juvenile and adult minds . . . parts of the brain involved in behavior control continue to mature through late adolescence.” Id., at 68. The Court also recognized that “juveniles are more capable of change than are adults, and their actions are less likely to be evidence of ‘irretrievably depraved character’ than are the actions of adults.” Id., at 68, quoting Roper, at 570. The Court stated, moreover, that, “it would be misguided to equate the failings of a minor with those of an adult, for a greater possibility exists that a minor’s character deficiencies will be reformed.” Id. ASORCNA ignores the judicial findings of fact by the Supreme Court of the United States by declaring that certain children are not capable of change or rehabilitation and should be punished as adults simply because of the nature of the crime, without taking into account the individual, transitory characteristics of the child.

In 2006, Franklin Zimring, a law professor at the University of California, conducted a study of 6,000 juveniles and determined that “juvenile sex offending did not predict adult sex offending” because “juvenile sex offenders were not statistically more likely than juvenile non-sex offenders to commit an adult sex offense.” Amy. E. Halbrook, Juvenile Pariahs, 65 Hastings L.J. 1, 14 (2013).

Just five years ago, the Supreme Court of the United States voided a portion of Alabama’s Juvenile Code which automatically sentenced juveniles to life imprisonment without parole for homicides as a violation of the United States Constitution’s 8th Amendment ban on cruel and unusual punishment. Miller v. Alabama, 132 S.Ct. 2455, 2469 (2012). The Supreme Court’s reasoning was as follows, “by making youth (and all that accompanies it) irrelevant to imposition of that harshest prison sentence, such a scheme poses too great a risk of disproportionate punishment.” Id., at 2469. The Court invoked its previous rulings, acknowledging that, “we have by now held on multiple occasions that a sentencing rule permissible for adults may not be so for children.” Id. at 2470. Alabama has not, to date, evaluated the constitutionality of mandatory lifetime registration provisions of ASORCNA under the United States Supreme Court’s rulings that adolescent development must be taken into consideration when determining punishment and culpability for the juvenile defendant.

Registration and notification denies the youth the ability to develop a positive self-identity. Id. “For a juvenile offender, the stigma of the label of sex offender attaches at the start of his adult life and cannot be shaken . . . It will be a constant cloud, a once every three month reminder to himself and the world that he cannot escape the mistakes of his youth.” In re C.P., 697 N.E. 2d 729, 741-42 (Ohio 2012). This is disastrous to both the juvenile justice goal of rehabilitation and for preventing recidivism, as is the stated goal of SORNA. “Crime is more likely to occur when bonds with mainstream society are weakened — that is when individuals lose or fail to develop social anchors such as school involvement, stable employment, stable residence, military service, job advancement, engagement with prosocial institutions, becoming a part of prosocial friendship networks, fitting into a neighborhood, having prospects for marriage or committed relationships or raising a family.” Mark Chaffin, Our Minds are Made Up — Don’t Confuse us with the Facts, University of Oklahoma Health Sciences Center, Child Maltreatment Vol. 13 No. 2, 110, 113 (May 2008).

Secondly, ASORCNA is cruel and unusual punishment as applied to minor children. The state argues that its not “punishment.” As the statutes applies to juveniles, the statutory scheme is “‘so punitive either in purpose or effect as to negate [the State’s] intention’ to deem it ‘civil.’”Smith v. Doe, 538 U.S. 84 (U.S. 2003) However, it meets the criteria for punishment set forth in Kennedy v. Mendoza-Martinez, 372 U.S. 144 (1963). Moreover, there is a national trend against juvenile registration. ASORCNA does not take into account the rehabilitative potential of minor children and, therefore, does not meet the penological goals of rehabilitation and integration.

Adult Survivors of Childhood Sexual Abuse Can Sue their Perpetrator

There has been another foster parent charged with sexually abusing a foster child, per reports:

The investigation began in November, after the Calhoun County Department of Human Resources filed a report with Rainbow City police alleging the sexual abuse of a male juvenile over a long period. Kelley had access to the boy as a foster parent with Seraaj Family Homes, described by its website as a network of therapeutic foster homes.

I prosecuted hundreds of child abuse cases while an assistant attorney general. I saw the lasting damage these children sustained years after the case concluded. The law though allows for these children, even after they become adults, to seek compensation for the psychological and emotional harm which the abuser caused to them.

They can seek damages for medical and therapeutic care.  They may also seek damages for the lingering impairment of their capacity to carry on their life. After obtaining a money judgment, these victims can recover that judgment through seizure of assets and wages of the perp.

The two most critical questions for those abused. The first question is directed at the mental health, strength, and endurance of the person abused. The court process can be very traumatic. Attorneys get to cross-exam and depose the victim. There is a substantial loss of privacy; these type of proceedings are usually open to the public. Even medical and pyschotherapy records become open to discovery.  Consultation with their therapist as well as the attorney should be considered before bringing this type of a lawsuit.

Secondly, there are statute of limitations involved. A statute of limitation is a bar to bringing lawsuits after a certain amount of time has passed since the last action. For assaults and false imprisonment claims, there is a six year statute of limitation. Other claims would be limited to two years. However, 6-2-8 extends the Statute of Limitations for civil actions by an additional 3 years after the child reaches the age of majority, 19 years old. (Update: There is a 20 year total cap. Also, if the child had a trustee or conservator, this extension may not apply.)

Note: for many child sexual offenses, there is no statute of limitations to institute criminal prosecutions in Alabama. Accordingly, you can institute criminal prosecution at any point. Criminal prosecution and civil prosecution can work together but are completely independent actions.

UPDATE, comparison with New York:

For 11 years, activists and lawmakers in New York have tried and failed to pass the Child Victims Act, which would expand the legal recourse available to people who say they were sexually abused as children, who now face some of the most restrictive laws in the country. As the national conversation bursts with a reckoning over sexual misconduct, activists hope that this year they will succeed and are advancing a new, more aggressive strategy to pass the bill. , ,

Under New York State law, victims of childhood sexual abuse have until they are 21 to sue the institution where the abuse took place, like a church or a school, and until 23 to sue their attacker. Criminal charges, with the exception of rape, must be filed before a survivor turns 23. . .

The Child Victims Act would allow survivors to sue until they turn 50 and let criminal charges be filed until they are 28. It would also create a one-year window during which cases from any time could proceed in court.

While the Alabama statute is overly constrained, this proposal is overly broad. There are legitimate policy reasons to have time limitations on civil and criminal allegations: death of witnesses, inability to mount a defense beyond he said- she said, inability to mount alibi, etc.

 

Does an Alzheimer’s diagnosis void Glen Campbell’s Last Will and Testament?

 

The surviving spouse of Glen Cambell is fighting with his children from a previous marriage over his $50 million dollar fortune. Per reports:

The will was written in September 2006, more than five years before he announced his Alzheimer’s diagnosis. It stipulates that all three of his kids from his second marriage to Billie Jean Nunley, which ended in 1976, were not to benefit from his estate or any resulting trust.

(Campbell had five other children from other relationships who apparently will benefit from the Last Will and Trusts.) He only announced his Alzheimer’s condition in 2011 but could have been diagnosed with the disease at the time of the signing of the Last Will.

So how does a diagnosis of dementia or Alzheimer’s affect the execution of a Last Will in Alabama.

The law presumes that every person of legal age has sufficient mental capacity to make a valid will. A person may be feeble, weakminded or capricious and still have capacity to make a will if he is able to have a decided and communicate a desire as to the disposition of his property. However, the person signing the Last Will must have at the time of the signing memory of mind sufficient to recall and understand: his property, the persons he is leaving the property to, where he desires the property to go, and the nature and consequences of the business to be performed. “Simply stated, if the testator knows his estate and to whom he wishes to give his property and understands that he is executing a will, he has testamentary capacity. A person may execute a valid will, even if he or she is not competent to transact ordinary, everyday affairs.”Still v. BankTrust, 88 So. 3d 845, 852 (Ala. Civ. App. 2011)

Accordingly, a dementia diagnosis does not automatically invalidate a Last Will; however, the weakened condition may bolster undue influence claims. “To establish a prima facie case of undue influence, the contestant must show that a confidential relationship existed between a favored beneficiary and the testator; that the beneficiary’s influence was dominant and controlling in the relationship; and that there was undue activity on the part of the dominant party in procuring the execution of the will.” Ex Parte Helms, 873 So. 2d 1139, 1148 (Ala. June 13, 2003). That these three elements must be met in order to create a presumption of undue influence, and shift the burden to the proponents of a will to show a lack thereof, has been consistently held by Alabama courts for over a century. Wilson v. Wehunt, 631 So. 2d 991 (Ala. 1994)

In 2006, the Court addressed a case where the proponent of a will tried to argue that the contestants did not have “equal claim” to the testator’s bounty because the contestants had minimal contacts with their grandfather, the decedent, and had not been involved in his daily life, but had left him to the proponent’s care. Pirtle v. Tucker, 960 So. 2d 620 (Ala. 2006). The court, however, rejected this argument, holding that the contestants were blood relatives who would have inherited the estate under intestacy laws. Id. at 630. The decedent’s will devised the entire estate, not just one part, to the defendant, therefore the will favored the Defendant over the plaintiffs. Id. Moreover, the plaintiffs had presented testimony that the decedent wanted them to have his entire estate. Id. “Finally, although it is clear that Tucker helped Miler in the latter stages of Miller’s life, the evidence does not show that he helped Miller so much that ‘the testamentary disposition [of Miller’s entire estate to Tucker] is proper as a matter of law.” Id. citing Armstrong at 1314.

The next element to examine is that of domination by the favored beneficiary over the testator. Alabama courts have held, in fact, that domination in the relationship is key to undue influence. Furrow v. Helton, 13 So. 2d 350, 357 (Ala. 2008). In Helms, the proponents placed their names on CD’s and bank accounts held by the decedent, were her sole means of transportation, visited the home of the testator every day from the time she started taking
Lortab until the disputed will was written, and denied others access to the decedent. Helms, at 1145-1146. The Court wrote that this evidence “constitutes substantial evidence of dominance and control.” Id. at 1148.

The final element of undue influence is “undue activity in the procurement of the will”. In Helms, undue activity was found where the proponent suggested the lawyer who drafted the will, one of the proponents drove the decedent to the office to execute the will and the proponents lied about having any knowledge of the will was enough to establish undue activity, when coupled with the evidence for other elements. Helms, at 1148. Merely driving the decedent to the attorney’s office to execute the will was not, however, sufficient when not coupled with additional evidence. Furrow, at 358.

Look for Campbell’s disinherited heirs claim the new wife exercised undue influence over a man in a weakened condition.

Discovery lessons from Pitino’s Suit Against Louisville

SI reports:

Pitino filed a breach of contract lawsuit against the University of Louisville Athletic Association in the U.S. District Court for the Western District of Kentucky. The complaint charges that Louisville lacked a valid “just cause” rationale to fire him.

The article highlights several important matters in this situation.

First, under normal circumstances, an employer can fire an employee for any reason, or no reason. This is the danger of living in an at-will employment state like Kentucky, or Alabama. There are a few exception in at-will employment states. For instance, an employer cannot fire someone because of their race or sex. Whistleblowers are protected too in many situations.  Rick Pitino had a distinct contract which became the law of this case of their relationship.

Second, the article rightly highlights the dangers to which civil litigation Pitino exposes himself by opening the litigation door.

Pitino is gambling that his lawsuits do not cause damaging evidence and incriminating witness testimony to surface about him. Pitino is surely aware that while he has not been charged with a crime, he is in the orbit of persons who have been charged—which is never a good place to be, especially when the government could indict others in the weeks and months ahead.

Pitino currently enjoys the privilege against self-incrimination of the Fifth Amendment to the United States Constitution. By entering into this civil litigation, he is exposing himself to answering questions, under oath, within responses to interrogatories, depositions, and court-room testimony. All such testimony could be used against him in some later criminal prosecution. As Forbes notes:

In civil lawsuits, like this one, discovery through the use of depositions is wide and far-ranging. Lawyers are allowed to ask questions in discovery that they never could in a trial. The rule is that any question whose answer might lead to relevant evidence is admissible. Questions are asked under oath; anyone who lies is subject to a charge of perjury.

Pitino will likely be asked about his relationship with the staffer who allegedly hired the escorts, how often they spoke about recruits and what conversations and meetings he had with recruits.

All of the recruits who went on to play for Louisville will likely be deposed and asked about what they received from assistant coaches and whether they thought Pitino knew what was going on. Answers in depositions always lead to other questions, questions that could be embarrassing to Pitino as well as Louisville.

The article concludes:

Can Pitino win? The odds probably weigh against him. This is mainly because Pitino’s contract contains expansive and vague language for the university to construct a valid rationale for firing with just cause. For instance, he would have violated his contract by failing to: diligently supervise compliance of his assistant coaches; promote an atmosphere of compliance; or avoid disparaging media publicity. In order to conclude that Pitino did not violate his contract, one would likely have to believe that Pitino was unaware and uninvolved in any of the corruption that was both around him and that appeared to benefit him.

Another article highlights some of that language:

“Presumed to be responsible” for the actions of all of his staff members (according to contract section 4.3), and subject to termination for just cause in the event of “disparaging media publicity of a material nature that damages the good name and reputation” of U of L (Section 6.1.2), Pitino enters these proceedings like a team trailing Duke by double digits with less than a minute left.

Wow. Even if Pitino is wholly innocent, considering the action of his staff, this is some powerfully tough language to overcome.

 

Wisconsin Whistleblower protects community from hazardous waste.

It has been reported:

The U.S. Environmental Protection Agency has found a chain of industrial refurbishing plants in the Milwaukee area violated federal law, the agency announced Wednesday. The EPA determined the plants in St. Francis, Oak Creek and Milwaukee were breaking the law by transporting, storing and treating hazardous waste without required licenses, among other violations. Once inside, investigators found a host of problems: barrels labeled as “non-hazardous” that contained flammable chemicals; drums leaking unknown chemicals onto the ground; milky white plumes of smoke puffing out of the St. Francis facility, creating a “standing haze;” and a barrel that workers said was for water, but actually contained ignitable hazardous waste. The inspections . . . uncovered a host of problems that endangered workers and residents living near the company’s plants in the Milwaukee area and three other states — Tennessee, Indiana and Arkansas.

These violations will most certainly lead to fines imposed by the EPA but these may lead to civil damages from local residents.

Workers at the plants told the Journal Sentinel that chemicals were routinely mixed together, triggering dangerous reactions that resulted in chemical and heat-related burns, injuries from exploding barrels, breathing difficulties and other health problems. Residents near the St. Francis plant say it is often miserable living there. Fumes result in burning eyes, sore throats and headaches, forcing them to stay in their homes at times. Three of the residents have filed a class-action lawsuit.

The EPA is the not the only agency investigating these practices:

The state Department of Natural Resources and U.S. Department of Transportation together have uncovered three dozen violations. DOT has expanded its investigation to 13 plants all tied to Greif in nine states. The U.S. Occupational Safety and Health Administration found 15 violations at the Milwaukee facility and issued a $108,000 fine. OSHA continues to investigate the plants in Oak Creek and St. Francis but has not reported findings.

Hopefully, the workers and community members will receive compensation for the damages they have incurred as a result of these illegal practices.

Hidden at the conclusion of the article:

The Journal Sentinel findings were based on 16 hours of audio recordings by a whistle-blower; hundreds of pages of documents, including internal injury reports and safety audits; as well as public records and interviews with workers, regulators, and experts.

This whistleblower may be entitled to a portion of any fines. Some financial incentives do exist for select environmental whistleblowers under the current legal enforcement framework. In some instances, whistleblowers can claim significant rewards.

The False Claims Act, 31 U.S.C. §3730(b) (2012) defines a whistleblower as “a person [to] bring a civil action for violation of [the False Claims Act]”). Its lists the types of persons who may be whistleblowers including employees, non-employees, competitors, corporations, and public interest groups, among others. Basically, claims of this type must involve federal funds. Typically, these provisions allow a person to commence a civil action against any person alleged to have committed a violation of the statute. In such instances, the whistleblower is entitled to between 15% and 25% of any settlement.

In other instances, Congress has also allowed citizen lawsuits to compel the government to act is required. Unfortunately, the financial incentives for whistleblowers present are not found in all environmental statutes. For example, some statutes allow the Environmental Protection Agency (EPA) to pay discretionary rewards to persons “furnish[ing] information or services leading to criminal conviction” or legal penalty, but the award is capped at $10,000. CERCLA similarly contains a provision that is limited to a $10,000 award that may be paid out at the discretion of the President.

Nevertheless, for employees of the wrongdoers, there are numerous environmental statutes providing whistleblower protection against retaliation through OSHA.

 

 

Who are the boosters and politicians potentially liable to Schiano?

I have written of the legal options that Greg Schiano has against UT, and, more importantly, other persons involved in the debacle. (See here here)

“The [contractual] relations protected against intentional interference by the rule stated in[the Tennessee statute] include any prospective contractual relations”

So who are the likely culprits?

Sports Illustrated reported early on:

SI has learned there is increasing pressure from among the program’s big-money boosters to force out athletic director John Currie.

Note they are “big-money;” therefore, its may be worth Schiano’s time pursuing.  (Seemingly, the biggest booster, and father of current TN Governor Bill Haslam,  Big Jim Haslam encouraged the Schiano hire. Schiano was the Haslam family’s hand picked choice.)

But, what kind of “pressure.” Could the pressure be described as defamation against Schiano? (This seems very likely considering the hype about the Penn State allegation.) I can expect there were treats made. Was duress or undue influence exercised over over Currie or other administration officials? Did these booster misuse of inside or confidential information? Were these boosters in some type of  fiduciary relationship with the University? If any of these are so, Schiano has a cause of action against each booster and politician. Tennessee appellate courts have specifically held that: violence, threats or intimidation, bribery, unfounded litigation, fraud, misrepresentation or deceit, defamation, duress, undue influence, misuse of inside or confidential information, or breach of a fiduciary relationship” are types actions to satisfy the element of the tort.

There were also politicians publicly involved in the action. Per Knoxville Times,

But the state’s politicians — including major candidates for governor — already were speaking out against the public university’s potential hire of the Ohio State defensive coordinator before USA TODAY and others reported a deal would not come to be after intense backlash. Four of the five top-tier Republican candidates to succeed Gov. Bill Haslam were quick to weigh in Sunday. U.S. Rep. Diane Black, House Speaker Beth Harwell, Williamson County businessman Bill Lee and former state Sen. Mae Beavers all took to Twitter to express their displeasure that the University of Tennessee was on the verge of

Did they do more that merely tweet their opinions? One state representative:

“The head football coach at the University of Tennessee is the highest-paid state employee,” said Jeremy Faison, a state representative. “They’re the face of our state. We don’t need a man who has that type of potential reproach in their life as the highest-paid state employee. It’s egregious to the people and it’s wrong to the taxpayers.”

And another:

“Thank you to our community for stepping up and standing for our traditional, commons sense TN Values! #HigherStandards” tweeted Jason Zachary, a state representative.

Earlier, Representative Zachary seemingly admits (by tweet) to interfering in this contract process:

 

 

 

 

 

Outside the Lines: “”I think Greg Schiano is going to sue Tennessee.”

According to Chris Low on ESPN’s Outside the Lines: “I think Greg Schiano is going to sue Tennessee.”

I still think he will not only sue UT but also pursue claims against those booster and politicians which influenced the decision to break the contract )or Memorandum of Understanding). Remember: in TN, tortious interference with contract claims apply to prospective contracts as well and invoke treble damages.

“Setting a very high bond is still a release decision.”

Many community non-profits are stepping-up to fill an area of injustice within the criminal justice system: money bail. This article highlights one such effort.

In setting bail at all, the judge has made a determination that the accused individual is not too dangerous to be released to the community, said Max Suchan, co-founder of the Chicago Community Bond Fund, which provides bail money for people who don’t have it and are being held in the county jail on felony charges. “Our position is [that] even a $2 million bond is a release decision by that judge,” Suchan said. “Setting a very high bond is still a release decision.”

It’s a decision that’s made quickly. In Cook County, Illinois, bond hearings that determine whether someone gets locked up or walks free take an average of 37 seconds, and while one person might walk free on their own recognizance, another person charged with the same offense might face $10,000 in bail.

This is such an important and often missed point. What correlation does an arbitrary bond schedule (as exists in Alabama) have with community safety? None really. The judge has determined they are safe to return to the public? Does a $2,000,000 bond protect the community more than $500.00 bond? The amount of the bond does not deter post-release behavior at all, either.

(On a side note: the average bail for someone charged in the US is $10,000 per felony charge, yet the typical incarcerated person would need to spend eight months’ income to pay their $10,000 bail.)