Colorado Business Litigation Lawyer Blog

As I previously reported 12/14/09 and 12/16/09, the Ninth Circuit Court of Appeals, in reversing a Federal District Court decision, held that employees of the police department of the City of Ontario, California, had a right of privacy in text messages sent on their city-owned alphanumeric pagers, even though their messages did not comply with city directives and even though the numerous non-business messages sent during work hours included private messages, many of which were to another city employee and were sexual in nature.

The U.S. Supreme Court, in an opinion announced June 17, 2010 reversed the court of appeals and says that while there may be an expectation of privacy in the text messages, the city’s motive in auditing (and reading) the messages had a legitimate business purpose, and thus did not constitute an illegal search under the 4th Amendment to the U.S. Constitution. The business purpose claimed by the city for the audit was to determine whether or not the monthly number of text messages set by the city was too low, resulting in employee/users being required to pay for work-related messages.

Moral: If you are a city employee and are told that there is a specific limit on the number of text messages you can send on city-owned pagers, and are told that messages may be audited and read by the city; and if you exceed the limit and most of your messages during working hours are private messages, some of which are sex-related, maybe you should have at least a hint that your private messages may not be secure as you had hoped.

In surfing the net, I ran across an old article that intrigued me.

Back in May, 2005 the American Hiking Society announced in Aspen, Colorado that on June 4,2005, it planned a 13th annual National Trails Day celebration. Ivan Levin, Trail Programs Manager of the Society said, “American Hiking Society warmly invites members of the American Indian Nations to join in the fun and healing of Mother Earth on National Trails Day at our magnificent National and Urban Parks.”

American Olympic skier Suzy Chaffee, co-chair of Native Voices Foundation noted that "This will make Mother Earth and Father Sky smile." She also commented that "US ski areas are graciously welcoming the tribes back to their beloved ancestral mountains to ski and snowboard, which is snowballing through the snow states.”

Some may say this invitation should have been the other way around.

Gary Noble, 31, of Denver, Colorado, was indicted by a federal grand jury in a 63-count wire fraud scheme, whereby Noble, through various companies he controlled, had his relatives purchase homes with loans obtained from commercial lenders through the use of false and fraudulent documents.

Noble had his relatives buy the homes through Noble Mortgage Company. Another of his companies, Noble Title Agency, issued title insurance commitments purporting to show that the purchasers were purchasing the properties free and clear of any prior loan encumbrances. Any such prior loans were to be paid off from the loan proceeds obtained from the mortgage lenders. Noble Title agency acted as settlement agent for the lenders. Instead of paying-off the prior mortgages from the loan proceeds, portions of the loan proceeds were appropriated by Noble to his own use and benefit. In many cases, the properties were resold shortly after their purchase to Noble’s and his family’s associates.

Noble was arrested in California on June 3, 2010, and is free on bond, pending a court date in Denver Federal Court on June 18. A conviction on each count of the indictment could result in as much as a 20-year prison term and/or a fine of $250,000. The court can also order that restitution (repaying the allegedly ill-gotten money) be made by Noble.

Dbtecno.com reports on June 14, 2010 that a 41-year old Michigan woman shot herself in the shoulder in an attempt to obtain health care for that same shoulder for injuries incurred a month earlier when she tried to prevent her dogs from fighting.

Being without health care, the woman said she couldn’t afford to see a specialist for her previous shoulder injury. After the shooting, the woman’s neighbors banded together to raise funds for the treatment of her pre-existing, painful condition.

Let me see if I understand this story. She can’t afford to see a specialist for her shoulder, but apparently she can afford hospital and medical care for the gunshot wound to her shoulder.

Is this an argument for or against health care reform?

Just when I thought I had the Helen Thomas resignation (firing) all worked-out in my overburdened brain, along comes the Denver Post’s David Harsanyi and his opinion that Ms. Thomas, 89 (and not 87 as I reported), was fired too hastily.

Harsanyi feels that although Ms. Thomas’ comment that Jews should “get the hell out of Israel” and go back to Germany or Poland or the U.S. or wherever they came from was an “ugly opinion” and “provocative,” that doesn’t mean that “one voice that is probably more honest than others of similar ideological disposition—can be expelled from the conversation simply for offending.” Touché.

In my previous article, I suggested that Ms. Thomas perhaps was a worthy candidate for a mild presidential ass kicking as a proxy for the as yet unnamed BP official responsible for the massive Gulf of Mexico oil leak. I hereby withdraw this tongue-in-cheek opinion. I see the error of my ways.

It seems that the real issue is, does an opinion reporter have a First Amendment right to have an opinion published, no matter how offensive it may be to no matter how many people? Yes. Can there be business consequences to the person offering that opinion? Yes.

Respects to Mr. Harsanyi.

This has nothing to do with Colorado. According to a June 8, 2010 piece by Ed Stoddard and Paschal Fletcher on Reuters.com, President Obama is very anxious to get to the bottom of who is responsible for the BP Gulf of Mexico off-shore oil leak. His reason? He needs that information to know “whose ass to kick.”

We all know by now that BP and other unknown persons in charge have failed to plug the leak, although BP has recently slowed the leak to some unacceptable level.

Because I am not in the business of writing political pieces, however, I have figured out a way to keep BP/Obama politics out of this article.

Instead, I have zeroed in on another likely ass kickin’ candidate: Helen Thomas, 87, who formerly covered the White House for Hearst News before her recent abrupt resignation. Ms. Thomas was caught on microphone talking to a rabbi at a White House function last week, saying that “Jews should get the hell out of Palestine” and go back to Germany and Poland and the U.S. and wherever they came from. Many of the presidential ass kickin’ backers probably agree that for these comments, Ms. Thomas surely is deserving of the traditional, albeit gentle, presidential ass kicking. Maybe she should volunteer to be a proxy for the as yet unknown, but more deserving, person at BP.

I know that some 87-year olds out there will suggest that I’m discriminating against seniors. This is not true at all. In fact, seniors are my favorite people. I’m sure you will agree that many 87-year olds say profound things, but not when the microphone is on. Still, that doesn’t make them immune from being selected for a healthy ass kickin’ from their kindly president.

A Westchester County, New York Supreme Court Justice ruled on May 21, 2010 that a psychiatrist, Dr. W, who had sex with his patient, a married woman (Mrs. L) owed a common law duty to tell Mrs. L’s husband, Mr. L, that he, Dr. W, had herpes simplex, before having sex with Mrs. L. Does this make sense so far?

In a case of first impression in New York, and cutting through the red tape, the judge found that it was not unreasonable to expect that if Dr. W. knew he had herpes and probably transmitted it to Mrs. L., that Mrs. L. would probably pass it on to Mr. L, with whom she was having regular sexual relations. Thus the duty on the part of Dr. W to disclose to Mr. L that Dr. W had the herpes virus, which to date has no cure. Does this clarify things?

The bottom line is that Dr. W., before having unprotected sex with Mrs. L, should have told Mr. L what he was about to do to Mrs. L. If that had happened, isn’t it pretty unlikely that the case would wind up in court? Or maybe would find its way to court as an assault and battery case or even worse.

For some unknown reason, Mrs. L was not made a party to the litigation.

I suspect that none of my readers will be affected nor are planning to be affected by this decision. Without a thorough review of case law, it is impossible to state with accuracy whether or not Colorado courts have yet weighed in on this issue. Still, a word to the wise should be sufficient.

Is this another good enough reason to be monogamous?