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Edwards’ Trial a Buffet of Legal Issues

June 22, 2012 Leave a comment

It is the rare person indeed who has not heard at least something about Johnny Reid Edwards‘ marital affair and  brush with the law.  Although not convicted of misusing campaign donations, Edwards will never regain his golden boy status.  Edward’s entrepreneurial mistress, Rielle Hunter, released a book telling her side of the story on June 26th.   While this latest literary effort on a tawdry topic is likely to cover Edwards’ affair and the resulting child from these assignations, I feel confident in predicting that the publicity-savvy paramour will not have given the legal issues from the debacle the same degree of attention.  Despite her omission, the array of legal topics throughout the Edwards saga reads like an exam question in issue spotting and may well be of interest to those with an interest in the law.

The legal issue that received the most press, and was of greatest concern to Edwards (as a possible sentence of 30 years does tend to get one’s attention), was the alleged violation of campaign finance laws.  After a hearing before the Federal Election Commission, Edwards was required to return over 2 million in federal election funds.  However, the FEC also found that donations Edwards used to pay expenses of his mistress and to hide his affair were not campaign contributions and therefore, did not need to be reported.  Despite the determine of the FEC, the Justice Department was not convinced and chose to move forward with charges of conspiracy and false statements in addition to receiving illegal campaign contributions.  After much sturm and drang, including a two month trial delay for Edwards to undergo heart surgery, a jury eventually found Edwards not guilty on one count and were deadlocked on the remaining five.  The Justice Department has announced that it will not refile the case.

Family law issues also abounded. Along with the commonplace matters of separation and divorce, the Edwards legal extravaganza included issues of paternity and the use of an archaic law. When Edward’s initially admitted to his affair, he still denied that he was the father of his mistress’s child.  In fact, he claimed that his former aide, Andrew Young, was the actual father and asked the aide to support this story. In a disclosure worthy of Maury Povitch, it was later determined that, JOHN EDWARDS, YOU ARE THE FATHER OF THE CHILD!  In addition to the matter of paternity, Elizabeth Edwards added another legal twist when she threatened to sue Young  under the concept of “alienation of affection,” based on his role in covering up his former boss’s affair.  Not only did she threaten to use this archaic cause of action, she chose not to use it against “the other woman,” but  instead she chose the more unusual, yet legally permissible, option of suing a third party who facilitated the marital breakdown.   Allegedly, Elizabeth Edwards was using this threat to force Young to stop speaking publicly about the Edwards’ marriage, and to either give her or destroy voice mails that she had left him during the 2008 presidential campaign.

Voice mails were not the only recordings to play a part in the saga.  When Andrew Young released his tell-all book about the events, it was discovered that he and his wife were in possession of an alleged sex tape featuring  Hunter and Edwards.  The Youngs claimed to have found the tape in the trash at a house they shared with Hunter, and claimed that they could not be sure that the tape belonged to Hunter.  Hunter alleged that she had stored the tape containing “matters of a very private and personal nature”  at the house along with other personal items.  Hunter sued the Youngs to recover the  videotape and  was initially granted a temporary restraining order to prevent the Youngs,  from selling or otherwise distributing the tape.  Eventually Superior Court Judge Abraham Penn Jones held Young and his wife  in contempt  and ordered that the “items … be produced and turned over to the court [or the couple would be put] under lock and key — and under seal — until the lawsuit is resolved.”  The couple claimed difficulty in complying due to the fact that the  tape was “in a safety deposit box in Atlanta that required two keys to open, and one of the keys was in possession of a lawyer undergoing medical treatment in New York.”  Despite these concerns, the promise of jail time proved an effective motivator.  The contempt charge was issued on a Friday and  Andrew Young , with an escort from a court appointed private security guard , managed to retrieve the original  tape from the safe deposit box in Atlanta on the following Tuesday and turn it over to the court the next day.

These are only the most notorious of the legal issues.  Consider yourself invited to join in this legal “Where’s Waldo” game and share any legal issues that this post overlooked or that you think should have been brought.

Where’s Johnny?

 

Amendment One: last minute update

Hopefully it comes as no surprise to people that the North Carolina primary election will be this Tuesday, May 8th.  One of, if not the most debated measures on the ballot is Amendment 1.   This hotly contested issue was discussed generally on an NPR’s segment Friends And Foes Of Gay Marriage Woo Voters In N.C.  and in a detailed look at the amendment’s languageFamily law professors from North Carolina law schools (including our own Professor Reynolds) have uniformly expressed their opposition to passage of the amendment, while North Carolina business owners are divided on whether passage of Amendment 1 would harm business or have no effect.

Newspapers across the state acknowledge that the advocacy is strong on both sides and positions tend to vary with the state’s geography.  For a sampling of letters advocating both  sides, click the links below the respective images.   If you have questions about voting, such as where you should go to vote, visit the Forsyth County Board of Elections page (the polling place locator link will allow you to search all counties in North Carolina).  You can also use the Board of Elections page to view a sample of YOUR specific ballot based on party affiliation.  You might also wish to visit  Ballotpedia for a general explanation of voting and to see potential measures.

Amendment One … in the Limelight

Do you know what Amendment One is all about?  Let’s start with what North Carolina Session Law 2011-409 says: “AN ACT TO AMEND THE CONSTITUTION TO PROVIDE THAT MARRIAGE BETWEEN ONE MAN AND ONE WOMAN IS THE ONLY DOMESTIC LEGAL UNION THAT SHALL BE VALID OR RECOGNIZED IN THIS STATE.”

Wait a second, I thought a Session Law is already an effective law passed by the General Assembly. Well this law is a bit different.  It is what is called a “legislatively-referred constitutional amendment.”  According to Ballotpedia, this means that this bill is “a proposed constitutional amendment that appears on a state’s ballot as a ballot measure because the state legislative in that state voted to put it before the voters.”  State constitutions can only be amended through a specific procedure.  With a legislatively-referred constitutional amendment the citizens of a state are allowed a limited form of direct democracy compared to the initiated constitutional amendment. Converse to the  legislatively-referred constitutional amendment, with an initiated constitutional amendment, voters can initiate the amendment and approve it.  However, under the the legislatively-referred amendment, voters may merely approve or reject amendments presented by their state’s legislature.

There are various methods for amending state constitutions, from the number of legislative sessions that the amendment must pass to the size of the vote within the legislative body. One of the major differences among states in presenting a legislative-referred constitional amendment to the voters is how many different sessions of the state legislature must vote on the amendment.  For North Carolina, Section 4 of Article 13 of the North Carolina Constitution, states the following:

Sec. 4. Revision or amendment by legislative initiation.

A proposal of a new or revised Constitution or an amendment or amendments to this Constitution may be initiated by the General Assembly, but only if three-fifths of all the members of each house shall adopt an act submitting the proposal to the qualified voters of the State for their ratification or rejection. The proposal shall be submitted at the time and in the manner prescribed by the General Assembly. If a majority of the votes cast thereon are in favor of the proposed new or revised Constitution or constitutional amendment or amendments, it or they shall become effective January first next after ratification by the voters unless a different effective date is prescribed in the act submitting the proposal or proposals to the qualified voters.

Under Section 1 of this Session Law a new section (Section 6) will be added under Article 14 of the North Carolina Constitution providing the following: “Marriage between one man and one woman is the only domestic legal union that shall be valid or recognized in this state.  This section does not prohibit a private party from entering into contracts with another private party; nor does this section prohibit courts from adjudicating the rights of private parties pursuant to such contracts.”

Under this session law, the above amendment must be submitted to registered voters of North Carolina on the date of the first primary in 2012 (May 8, 2012), and “if a majority of votes cast on the question are in favor of the amendment set out [above], the State Board of Elections shall certify the amendment to the Secretary of the State, [where] the Secretary of State shall enroll the amendment so certified among the the permanent records of the office.”  Once certified the above amendment will become effective, and when it is effective, it becomes law.

No matter your views on the proposed amendment to the North Carolina Constitution, the fate of this amendment is in your hands.  To find out whether or not you are registered and eligible to vote, visit “My Election Information” at the North Carolina State Board of Elections.  They also provide information about campaign finance, candidates, absentee voting, as well as how to register to vote online.

P.S. The last day to register  in order to be eligible to vote in the primary is coming up quick — It is this Friday, April 13th!

New Year’s Lists

January 6, 2012 Leave a comment

With the start of a new year the media is featuring lists.  Lists of resolutions, lists of the best and worst (fill in the blank) of 2011, lists of what to expect in 2012.  So why should we fight the trend?   While lists such as the 2011 Weird Science Awards, Weirdest Fatwas of 2011Top 10 Barack Obama conspiracy theories of 2011, and Ten Weirdest Life-forms of 2011 may have a rather targeted audience or at least are not relevant to our lives (my apologies to anyone whose life does involve cricket testicles, raw yak meat, or cyclops sharks).  However, there are also some lists out there that that lawyers and law students might want to read.

Although not directly law related, Lake Superior State University’s annual list of Banished Words is important for anyone who makes a living by being a skilled communicator.  If your find it amazing that there could be some blowback if you use the word “ginormous,”  you might wish to consider updating your vocabulary.  Thanks in advance for considering this.

SC Magazine, a computer security publication, provides a number of lists for the New Year.  Among them is a list of the “top 8 legal actions” (assorted criminal activities) in the area of cyber security.

Other lists that you might wish to consider are the lists of new laws that begin on January 1st.  MSNBC pulled together a brief national overview of what they consider are the most interesting changes.  If you are wondering what will be the new laws in North Carolina you have the choice of a brief article or video or, for the diligent, you can take a look at a the entire list of laws that have gone into effect since July 2011, broken out by month.  Happy New Year, happy reading, and those of you who might look under 18, don’t forget to take identification with you when buying cold medication.

Up, Up and Away… Hot Air Balloons in the Limelight

October 27, 2011 Leave a comment

Man.  Homo sapiens. Humans.  We have always had a fascination with flying. From the ancient myths of Pegasus and the story of Icarus and Daedalus, who fashioned two pairs of wings out of wax and feathers so that they could escape exile to the first attempts at flight in China around 400 BC, humans have always had a fixation with flying.

Originally, we tried to fly like a bird with Hero of Alexandria’s Aeolipile and Lenardo da Vinci’s Omithopter.  Then, we tried hot air balloons.  So in 1783, the Montgolfier brothers flew on the first hot air balloon, which was constructed out of linen and paper and heated from a fire on the ground.  Since they were a bit apprehensive about the flight, to say the least, they decided to send a couple of their furry and feathered friends instead – a pig, duck and rooster.  Though there is little historical data to support this contention, I’m sure the pig, duck, and rooster (or possibly a sheep) had quite a time on that inaugural one-mile flight.

Fast forward over 220 years to 1973.  Ironically, a little North Carolina town about 40 miles west of Winston-Salem became a hub of hot air ballooning.  Statesville has played a pretty significant part in the history of ballooning.  Tracy Barnes, founder of The Balloon Works, started manufacturing and selling hot air balloons in Statesville in 1973.  (Carolina BalloonFest 2011). As the founder and original inventor of The Balloon Works, Tracy created a unique Styrofoam basket in 1964.  He coupled the lightweight basked with the hydrogen filled gas balloon, and on May 10, 1964, he flew to an altitude of 38,650 feet.  Reaching this altitude qualified him to receive 11 world altitude records.  (The U.S. Ballooning Hall of Fame). In order to prepare himself for such a high altitude, Tracy supplied himself with a black bag filled with oxygen, and, just in case he passed out, the plywood bottom would drop out of the Styrofoam basket allowing him to drop out of the basket  From there, his parachute would open and softly land on the earth below.  Though it was a neat feature, luckily Tracy did not have to use it.  Safety and affordability became a major goal of The Balloon Works.  Because of this focus, the market for hot air balloons erupted across the United States.

Since the early 1960s, the Federal Aviation Administration (FAA), part of the U. S. Department of Transportation, has been involved in regulating Balloon Flying.  For example, under Part 31 of Title 14 of the Code of Federal Regulations (CFR), the FAA provides the airworthiness standards for manned free balloons, which has only been amended once in 1976.  [As a side note, the FAA keeps a database of all the historical versions of the CFR and Special Federal Aviation Regulations (SFARs) that dates back to 1965]. But with the spur of excitement surrounding ballooning, the FAA has published a plethora of information since then. In 2008, the FAA published the Balloon Flying Handbook, which provides introductory material on balloon flight training guidelines, hot air balloon design, systems and theory, preflight planning, weather theory and reports, an overview on the National Airspace System, skill requirements for layout to launch and in-flight maneuvers, aeromedical factors, as well as various other processes and procedures important to safe ballooning.

Not only have hot air balloons been the topic of federal administrative regulations, but they have been a source of litigation.  For example, here a couple of fun gas-o-strophic cases brought in the U.S.

  • Guille v. Swan, 19 Johns. (N.Y.) 381 (1822). Where a man took off in a hot-air balloon and landed, without intending to, in a vegetable garden in New York City. A crowd that had been anxiously watching his involuntary descent trampled the vegetables in their endeavor to rescue him when he landed. The owner of the garden sued the balloonist for the resulting damage, and won. Yet the balloonist had not been careless. In the then state of ballooning it was impossible to make a pinpoint landing.  See all the ways this document has been cited (9 times throughout history).
  • American Laundry Machinery Industries v. Timothy Edward Horan, et al., 45 Md. App. 97, 412 A. 2d 407 (1980).  “This is a ‘products liability’ case; it is a most unusual one, and also a most tragic one. Timothy Horan was a balloonist – the ‘up, up and away’ kind.  He owned a large hot air balloon that, for fun and profit, he used in various promotional events.” Id. Mr. Stair, who owned the Up-to-Date Laundry, induced Mr. Horan to fly his balloon in promoting his laundry mat in exchange for a cleaning if the balloon became dirty.  Though, Mr. Stair did not own a machine large enough to wash the balloon, he was able to locate one through his professional contacts.  Mr. Horan and Mr. Jessop (VP of Up-to-Date) took the balloon to Sinai Hospital as set up through Mr. Stair.  Once there, the balloon was washed, in its deflated state, without incident.  Unfortunately, the trouble began “when the wet balloon (128 pounds dry weight)” was placed in the dryer. Id. After several attempts of trying to get the machine from jarring severely from side to side, it ran smoothly.  But only for less than a minute.  “When, without warning, it suddenly, instantaneously, came wildly apart and disintegrated, strewing shrapnel throughout the room. The parties characterized what happened as an “explosion.” One piece of flying metal virtually amputated Fred Jessop’s left arm, wiping out his wrist completely. Timothy Horan had his abdomen sliced open.” Id. The balloon was destroyed and the claim is brought against the manufacture for a defective dryer.  So what happened? Read the full-text on GoogleScholar.

And one last tradition.  Upon landing, it is common for balloonists to have a champagne toast.  Legend has it that the early Frenchmen carried champagne with them on their flights to appease angry or frightened audiences at the landing site. Perhaps, balloonist should still carry on that tradition — it might have helped the balloonist in  Guille v. Swan, 19 Johns. (N.Y.) 381 (1822). And lastly, many balloonists tip off the champagne with the Balloon’s Prayer, which is an old Irish toast for ballooning

“The winds have welcomed us with softness.

The sun has blessed us with its warm hands.

We have flown so high and so well

That God has set us gently back into

The loving arms of mother earth.”

Justice Older Than Law… In the Limelight

September 8, 2011 Leave a comment

With the beginning of each year, faculty and students get together for an evening of fun and literature.  This year, the 1L Book Discussions are centralized around the book, Justice Older than Law: The Life of Dovey Johnson Roundtree.  Behind the story: Katie McCabe & Dovey Johnson Roundtree wrote an amazing book together published in 2009.  Justice Older than Law is one of  those books you don’t forget – it’s one that details the story of a woman that tells the story of a nation.

So here’s a snippet of what to expect (I am going to apologize in advance for any injustice done to Katie McCabe’s voice and Dovey Johnson Roundtree’s story in this excerpt).  For an audio excerpt by McCabe, click here.

Dovey Mae Johnson was born and raised in Charlotte, North Carolina, and her story begins at that the lowest vantage point: her grandmother’s feet.  Johnson tells the story of how her grandmother’s feet were deformed and mangled by fighting off one of the slave masters of her childhood.  The story tells of how her grandmother fought off the white man, but left her permanently scarred by the attack.  The scarring had to be soothed daily as her grandmother’s feet were never healed.  Throughout the book, Johnson refers back to this story of injustice, the constant pain of the battles fought for justice, and the courage and ferocity she learned from her grandma Rachel.  “Like a mighty stream, her courage flowed through [Johnson’s] childhood, shaping [her] as rushing water shapes the pebbles in its path” (p. 5)
Johnson’s quest for greatness started simply: her eighth grade teacher, Miss. Edythe Wimbish.  With the love and support of her mother and grandfather, Johnson found her way through education.  Whether reading the encyclopedias bought penny by penny by her grandfather or her own mother’s vision of Johnson’s greatness, Dovey found a way into a different world: Spelman.
At Spelman, a literature professor named Mary Mae Neptune became her mentor, encouraging Johnson to think critically and question world events through scrutizing newspapers, with particular attention to the articles detailing Hitler’s rise to power in Germany.  According to Johnson, “the New York Times was our Bible, and [Miss Neptune] expected everyone who crossed the threshold of [the Campus Mirror newspaper office] to read it — not quickly, not at a glance as we typed up our stories, not on the run, but closely and carefully and analytically” (p. 28). In those years, Johnson “learned a truth [she] would carry with [her] in the years to come: what had cowed those half million folk upon whom Hitler had set his sights was the same kind of intimidation [she] had known every day of [her] life” (p. 30).
After Roundtree’s adventures with the military, she found herself at Howard Law School right at the heart of the civil rights movement.  Roundtree witnessed first hand oral arguments that forever changed America.
That’s all for now folks, because I don’t want to spoil the book for you.  We have a couple copies of the book in our collection available for our students, staff and faculty to check out. Also, Katie McCabe wrote an excellent article in the Washingtonian that parallels the book, She Had a Dream, The Washingtonian (March 2002).  Look forward to more reviews and insights after this week’s 1L discussions!

Krispy Kreme in the Limelight

August 19, 2011 Leave a comment

On July 13, 1937, Krispy Kreme was born.  To start, founder Vernon Rudolph bought a “secret yeast-raised doughnut recipe” from a Louisiana chef and began making doughnuts for local grocery stores to purchase.  He rented a building in what is now referred to as “Old Salem” here in Winston.  As people walked through Old Salem, they could smell Rudolph making these delicious treats and that’s how the hot “Original Glazed” doughnut emerged.  To appease  passersby, Rudolph cut a hole through an outside wall of his building and started selling his doughnuts directly to the people walking on the sidewalk.

Over the next 20 years, Krispy Kreme moved from making doughnuts locally at each franchised store to a more complex distribution system that has made Krispy Kreme “officially recognized as a 20th century American icon with the donation of company artifacts to the Smithsonian Institution’s  National Museum of American History.” For a full history, Krispy Kreme provides interesting facts and awards on their website.

Information about the corporation is available in various places.  For example, the Archives Center of the National Museum of American History provides access to search the Krispy Kreme Doughnut Corporation Records from 1937 until 1997.  But, if you want to search for more current business records, you can access them for free using the North Carolina Department of Secretary of State website.  The Secretary of State website allows you to search for annual reports and other UCC documents for North Carolina corporations online. Specifically, you can search for corporation information by Corporation name or by Registered Agent.  Also, you can search for Dissolutions/Withdrawals and Name Reservations on the Secretary of State website as well. If you are worried about the currentness of the system, it is kept up to date in “real time,” meaning that the information on the filings is available on the website as soon as they are uploaded by the business.  There is no delay.

So how about a refresher on administrative law?  The Secretary of State is an agency of North Carolina (executive branch), and has only the power given to them from the North Carolina General Assembly (the legislative body).  The General Assembly enacts legislation that authorizes the Secretary of State to enforce the laws of North Carolina. Specifically, N.C. Gen. Stat. 143 A-11(Principal departments), 147- A(State Officers – Classification and General Provisions), and 147-34-54.10 (Article 4 – Secretary of State) provide the primary statutory authority for the Secretary of State.

And now back to doughnuts.  Not only has Krispy Kreme expanded out beyond the borders of North Carolina to numerous, if not all of, the United States, but it has gone global.  Specifically there are Krispy Kreme doughnut stores in Canada, Asia, Mexico, the Middle East, Puerto Rico, and Turkey.  If you need to do business related research for Krispy Kreme in any of the United States, always start with that specific company’s website and I think you will be surprised at the information available to the public. For example, Krispy Kreme provides access to their latest quarterly financial results, their 10-Q and 10-K forms, their 2011 Annual Report and the latest proxy statement.  If you don’t have luck with your businesses’ website, try the incorporating state’s Secretary of State Department.

Not for lack of being verbose, I think I’ll sum up this post with the words of comedian Mitch Hedberg, “I bought a doughnut and they me a receipt for the … I don’t need a receipt for the doughnut.  I give you money and you give me the doughnut, end of transaction.  We don’t need to bring ink and paper into this.  I can’t imagine a scenario that I would have to prove that I bought a doughnut.  To some skeptical friend, ‘Don’t even act like I didn’t get that doughnut, I’ve got the documentation right here…It’s in my file at home.. Under D.”  So the only difference here is that you will keep your corporate research in your file for Krispy Kreme… under K.