Howard v. Howard

Howard v. Howard

336 S.W.3d 433 (Ky. 2011)

Roy Shane Howard and Sondra Howard. Trial Court divided parties marital property and debts assigning Shane liability for a National City loan on the parties’ Dodge Durango. Shane successfully filed in fed court a bankruptcy petition for Chapter 7 discharge.

Sought to reduced child support obligation, claiming health problems, inability to find work and the bankruptcy he received. Sondra found he was in contempt of court for failure to pay the debt on the repossessed Durango. Appeal as with bankruptcy. Appeals court found that under the Bankruptcy Abuse Prevention and Consumer Protection Act (BAPCPA), which does not discharge the debtor from any debt “to a spouse, former spouse or child” for something other than a domestic support obligation.” Shane appealed.

As the Court of Appeals states, Shane had the obligation under the divorce decree but the issue whether this debt would not be subject to discharge under the requirements of 11 U.S.C. section 523(a)(15) as a debt to Sondra under the divorce decree. They found that the obligation did indeed meet the rquirements and that Sondra was not required to file anything in bankruptcy court regarding the Chapter 7 filing in order to preserve her right to enforce in state court of Shane’s obligation to her under the divorce decree.

The Court ended up finding that while the debtor’s obligation on an underlying debt to a third-party creditor may be discharged because that underlying debt was not to a spouse or former spouse or child, the weight of authority holds that a separate, otherwise enforceable, obligation under a divorce decree to make payments on a third-party debt is not dischargeable in Chapter 7 bankruptcy following the BAPCPA amendments.

Newton v. Diamond

Newton v. Diamond

388 F. 3d 1189

Facts. Owner of copyright in musical composition brought infringement action against band that had included short segment of composition in its own musical recording. James W. Newton is an accomplished avant-gard jazz flutist and composer. In 1978, he composed the song “Choir,” a piece for the flute and voice intended to incorporate elements of gospel, japanese ceremonial court music, and traditional African music. “Choir” was licensed in the sound recording to ECM Records for all rights. The defendants were members of the Beastie Boys and their business associates. In 1992, Beastie Boys obtained a license from ECM Records to use portions of the sound recording of “Choir” in various renditions of their song “Pass the Mic” in exchange for a one-time fee of $1,000.

That particular portion consisted of 3 notes, C-D flat-C, sung over a background C note played on the flute. Pursuant to their license from ECM Records, Beastie Boys digitally sampled the opening six seconds of Newton’s sound recording of “Choir.” Beastie Boys repeated or “looped” this six-second sample as a background element.

Newton filed the instant action in federal court in 2000, alleging violtions of his copyright in the underlying composition, as well as Lanham Act violations for misappropriation and reverse passing off. The district court held that the three-note segment of “Chior” composition could not be copyrighted because it lacked originality. The court also concluded that even if the segment were copyrightable, the Beastie Boys’ use of the work was de minimis and therefore not actionable.

Analysis. The Circuit Court affirmed the grant of summary judgment on the ground that the Beastie Boys’ use was de minimis and therefore not actionable. Assuming that the sampled segment of the composition was sufficiently original to merit copyright protection, we nevertheless affirm on the ground that Beastie Boys’ use was de minimis and therefore not actionable.

Held. Affirmed. The Court of Appeals held that band’s sampling of three-note sequence from composition was d minimis.

 

 

Northeast Harbor Golf Club, Inc. v. Harris

Northeast Harbor Golf Club, Inc. v. Harris

61 A.2d 11146 (1995) 

Facts. Nancy Harris was president of the plaintiff corporation, Northeast Harbor Golf Club, Inc. from 1971 to 1990 when she was forced to resign. Over time, Nancy purchased parcels of land surrounding the golf course in her name and informed the directors and other officers at the annual meetings. In 1988, Harris began the process of obtaining a five-lot subdivision and NE brought a suit for breach of fiduciary duty to act in the best interest of the corporation. Main Issue: Corporate Opportunity. NE sought an injunction to prevent development and also to impose a constructive trust on the property for the benefit of the Club. The DC found Harris had not usurped the corporate opportunity b/c her good faith acquisition of real estate was not in the Club’s line of business and that the club lacked financial ability to purchase that real estate. 

Issue. Did the DC err in finding that Harris did not breach her fiduciary duty as president of the Club by purchasing and developing the property around the golf course?

Held. Yes, the trial court’s “line of business test” was erroneous and should’ve followed ALI §5.05 standards, so it was vacated and remanded. Harris should’ve fully disclosed to the board and the club must have rejected it properly. Because Harris failed to offer the opportunity at all, she couldn’t’ defend her case.

 

 

Lewis Galoob Toys Inc. v. Nintendo of America, Inc.

Lewis Galoob Toys Inc. v. Nintendo of America, Inc.

964 F.2d 965 (9^th Cir. 1992) 

Facts. Appellant Nintendo marked a home video game system. For using the game, the player had to insert a cartridge which contained a video game produced by them or licensed to others to produce. The Game Genie was manufactured by Appellee Lewis Galoob Toys that allowed the player to alter defendant’s games. The player was able to control the changes by entering codes that were provided by the Game Genie Programming Manual and Code Book. Appellant filed suit for copyright infringement and an injunction to enjoin the marketing of Game Genie. The DC held that there was no violation of copyright by Galoob.

Issue. Was the DC correct in holding that Game Genie did not violate the copyright of Nintendo?

Held. Yes, the DC was correct in it’s holding. This holding is used for fair use analysis because of it’s dicta, such as in Micro Star v. FormGen Inc.

Nguyen v. INS

Nguyen v INS

2001

Facts. 28 USC § 1409 governs US citizenship for a child born to citizen and non-citizen and parents are unmarried and the child is born outside of US and territories. There are different requirements for mother who is a citizen vs a father who is a citizen.

If the father is the citizen he has three options, a) legitimation; b) declaration of paternity under oath; c) or a court order of paternity. Mother does not have to do these things. The government interest is to ensure a biological parent-child relationship exists and to ensure the child and citizen parent have demonstrated opportunity or potential to develop not just a relationship that is recognized by law but also that has real, everyday ties that provide a connection between the two and between the child and the United States, since obviously a citizen will show how great America is to the kid.

 

Issue. Do the means of imposing additional requirements, by § 1049, upon an unwed citizen father that are not opposed to the same status mother substantially related to the government’s interest?

 

Held. Yes, there is no need to impose these upon the mother because she will obviously be there at birth. One can guarantee that she will be with the child and will have the chance to develop a meaningful relationship with him or her. Proof of motherhood is inherent in birth.

Petitioners argue that just because a woman gives birth to a baby doesn’t mean she’ll have a meaningful relationship with him or her.

An important note is that the level is scrutiny is lowered because immigration deals with national security and there is more deference to the other branches of government for that.

Lannan v. State

Lannan v. State

590 N.E.2d 668

Facts. Appellant was twenty-three years old at the time he was arrested; victim was fourteen. Appellant was charged w/ molestation and the jury that eventually convicted  him was allowed to hear testimony from the victim, as well as from another alleged victim who claimed Appellant had molested her in the past. Both victims testified that Appellant had molested both of them in his truck in the past. The current victim also testified that she had had sex with Appellant on at least three other instances. Under prior Indiana precedent, in prosecution for “incest, sodomy, criminal deviate conduct or child molesting,” evidence of prior sexual conduct was allowed under the “depraved sexual instinct exception.” Lanna appealed his conviction, arguing for an abandonment of the Indiana rule. 

Issue. Should the Indiana common law “depraved sexual instinct exception” be abandoned in favor of the standard set by FRE 404(b) which provides, that evidence of uncharged prior bad acts are not admissible?

Held. Yes, the rule should be abandoned and FRE 404(b) be adopted. The opinion stressed that the new rule does not mean that evidence of prior bad acts is inadmissible, but rather that it “means only that such evidence will no longer be admitted to show action in conformity with a particular character trait” (the propensity box)

Near v. State of Minnesota ex rel. Olson

Near v. State of Minnesota ex rel. Olson

283 U.S. 697 (1931)

Facts. In 1927, Minnesota passed a law prohibiting the publication of any newspaper, periodical or magazine that was “malicious, scandalous and  defamatory or obscene, lewd and lascivious.” Anyone who distributed such materials was prohibited from continuing production and was charged with creating a public nuisance. In late 1927, the Petitioner published several articles in The Saturday  Press what indicated that the law enforcement was not “energetically” pursuing the head of the mob. The Petitioner was then forced to stop production. This was serious article about the failures of law enforcement.

Prior restraint at issue: subject to prosecution for publishing malicious content. Enjoined from all publishing. There’s a chilling effect from this kind of prior restraint.

Issue. Is a court order enjoining a publisher from producing a magazine a prior restraint in violation of the Fourteenth Amendment rights of freedom of press?

Rule. The government may not censor expression in advance under 1^st Amendment.

Held. Yes. To allow the court to enjoin the activity without providing the publisher an opportunity to show that the matter is true, is a step toward total censorship of the press.

National Endowment for the Arts v. Finley

National Endowment for the Arts v. Finley

524 U.S. 569

Facts. The Petitioner is a federal agency that provides funding for the arts. It requires the Chairperson to ensure that “artistic excellence and artistic merit are the criteria by which grant applications are judged, taking into consideration general standards of decency and respect for diverse beliefs and values of the American public.” NEA has the ultimate authority to grant funding for projects, but cannot approve anything the advisory council rejects. In 1989, two provocative works prompted pubic controversy leading to the reevaluation of the project selection process. Consequently, Congress adopted a law that made NEA consider the “general standards of decency and respect for the diverse values of the American public.” NEA petitioned.

Issue. Is the new law invalid on its face and therefore a violation of the First Amendment right to free speech?

Rule. A law is facially valid as long as it doesn’t suppress disfavored viewpoints.

Held. No. This law is constitutional as it doesn’t interfere with freedom of speech and it’s not overly vague. Content-based not viewpoint based restriction. Any content-based considerations that may be taken into account in the grant-making process are a consequence of the nat

Republican Party of Minnesota v. White

Republican Party of Minnesota v. White

536 U.S. 765 (2002) 

Facts. Minnesota holds non-partisan elections for its judges. Since 1974, candidates have not been allowed to announce their  current legal or political views during the election period. Incumbent judges who violate this rule “are subject to discipline, including removal, censure, civil penalties, and suspension without pay.” Non-incumbent candidates can be disbarred, put on probation or suspended. One of the petitioners, during his campaign, distributed literature critical of some Minnesota Supreme Court cases. He withdrew form that election, but decided to run again in a later election.

Content neutrality. Content based or viewpoint based. Bad to decide what speech is okay based on its content. 

Issue. Does the 1^st Amendment permit a state to prohibit judicial election candidates from announcing their views on disputed legal and political issues?

 

Held. No, reversed. The 9^th Circuits opinion is not all that it appears to be. The Court of Appeals concluded that the strict-scrutiny test applies here because the clause burdens a core category of 1^st Amendment speech and prohibits speech based on content. The respondents did not dispute this was the correct test.

The test requires that the rule:

1) narrowly tailored, to serve

2) compelling state interest.

Respondent claim the announce clause is justified by state interests of preserving the impartiality of the state judiciary and preserving the appearance that the state judiciary is impartial. However, impartiality is vague and undefined.

There could be several meanings of impartiality. First, impartiality, by its traditionally meaning, ensures the law is applied equally, such that there is no bias for or against either party. This clause does not narrowly, but instead barely, serves this purpose by restricting speech for against particular issues, not parties, When a party takes a stance on an issue opposite to judge’s stance, that party is likely to lose even though the judge feels that he is applying the law equally. Second, impartiality could perhaps be construed to mean lack of preconception in favor of a legal view, such that litigants are guaranteed equal opportunity to persuade a judge. However, avoiding judicial preconception on legal is issues is not possible nor desirable (a judge without opinions on constitutional issues would lack qualification). Third, impartiality could mean open-mindedness, such that a judge will consider views that oppose his preconceptions. However, statements in campaigns are such a miniscule proportion of legal positions they have committed to. Additionally, they may express their views on legal issues in other venues such as classes, books or speeches, which are not covered by the clause, which make this view incredible.

The idea that elections justify  inhibiting the right to speak is against the first amendment. Debates on candidate’s qualifications and the candidates ‘ ability to express relevant information to voters are of fundamental importance. The Minnesota clause violates the first amendment. 

Dissent. Unlike legislative and executive officials, judicial officers do not cater to their constituencies, but instead decide cases based on individual records, applying the law neutrally, and standing up to the majority’s will when necessary

Alderstein v. Wertheimer

Alderstein v. Wertheimer

Del. Ct. Ch.

2002 WL 205865

 

Facts. Alderstein, who was former Chairman and CEO of SpectruMedix Corp. sued the company and the current directors. Prior to the suit on July 9, 2001, a meeting was held in which a board majority issued to a Reich Partnership a number of shares of a new class of supervoting preferred stock that conveyed to the Reich Partnership a majority of the voting power of the Company’s stock. Basically Alderstein sued Wertheimer and Mencher because they did not give notice of a meeting that would result in his removal from his CEO position.

 

Rule. Company’s insolvency doesn’t justify not giving advance notice of a meeting’s agenda.

 

Issue: Did SpectruMedix’s dire financial circumstance and actual or impending insolvency justify directors’ actions in not giving advance notice of meeting to prevent controlling shareholder from exercising rights?

 

Held. No. SpecturMedix’s dire financial situation and impending insolvency does not justify Wertheimer’s and Mencher’s actions. It is such times of dire consequence when the established rules of good board conduct are the most important. Directors cannot accomplish their fiduciary duties to a corporations though trickery and deceit.