In California, a bee is a fish. (At least for purposes of California’s endangered species act.)

By: Peter J. Gallagher (LinkedIn)

In a recent decision, Almond Alliance of California v. Fish and Game Commission, a California court was asked to determine whether bumble bees fall within the definition of a “fish” in the California endangered species act. The issue arose when California attempted to classify four types of bumble bees as endangered species. Under California law, “fish” can be classified in this manner, so if the bees qualified as “fish” then they could be protected. Seems like an easy question to answer, right? But remember, this is California.

The court held that a bee is a “terrestrial invertebrate” and all invertebrates – not just ones that spend at least some of their time in the water – are included under the definition of “fish” in California’s endangered species act. Good news for bees; bad news for the English language.

In Almond Alliance, the court acknowledged that “[a] fish, as the term is commonly understood in everyday parlance, of course, lives in aquatic environments.” But the California legislature defined “fish,” for purposes of its endangered species act, as a “wild fish, mollusk, crustacean, invertebrate, [or] amphibian.” According to the legislative history, this expanded definition would “permit closer control and monitoring of the harvest of species such as starfish, sea urchins, sponges, and worms,” and would allow the state to protect “amphibians (frogs) and invertebrates, such as starfish, sea urchins, anemones, jellyfish and sponges.” No mention of bees  or insects anywhere in the definition or legislative history, but the court nonetheless held that a bee is “terrestrial invertebrate” and the definition of fish includes “invertebrate,” so a bee is a fish.

Of course, the court did not hold that a bee is a fish for all purposes. It just held that a bee satisfies the definition of “fish” in the California endangered species statute, so it can be protected. But still, it seems odd to acknowledge that a fish is, “of course,” “commonly understood” to mean an aquatic creature, then review legislative history that references full-time aquatic creatures like mollusks (snails, clams, squids) and crustaceans (crabs lobsters, shrimp) and part-time aquatic creatures (amphibians), only to then conclude that an insect that, as far as I know, avoids the water entirely, is a fish. I am all for reading the terms of a statute literally, but this seems a bit much for me.

 

“Once Upon a Time . . . in Legal Ethics and Social Media.”

By: Peter J. Gallagher (LinkedIn)

In a recent decision, the New Jersey Supreme Court looked back to a time before social media was ubiquitous, a time when Facebook was cutting edge and perhaps even – pause for collective gasp from anyone under 40 – cool.

The case – In the Matter of John Robertelli – involved an attorney who represented defendants in a personal injury case. He asked his paralegal to search the Internet for information about plaintiff. The paralegal did, first by searching plaintiff’s Facebook page — which was allegedly public for a time but later made private — and then by “friending” plaintiff. The paralegal obtained information from plaintiff’s Facebook page that could have been used to impeach plaintiff. In 2021, the question of whether this conduct violates RPC 4.2 – which prohibits attorneys from communicating with individuals represented by counsel – seems pretty straightforward. But the conduct in Robertelli took place in 2008, which made all the difference to the Supreme Court:

Our Rules of Professional Conduct (RPCs) generally prohibit a lawyer from communicating with another lawyer’s client about the subject of the representation without the other lawyer’s consent. RPC 4.2. That ethical prohibition applies to any form of communication with a represented party by the adversary lawyer or that lawyer’s surrogate, whether in person, by telephone or email, or through social media. Although it is fair game for the adversary lawyer to gather information from the public realm, such as information that a party exposes to the public online, it is not ethical for the lawyer — through a communication — to coax, cajole, or charm an adverse represented party into revealing what that person has chosen to keep private.

The issue in this attorney disciplinary case is the application of that seemingly clear ethical rule to a time, more than a decade ago, when the workings of a newly established social media platform — Facebook.com — were not widely known. In 2008, Facebook — then in its infancy — had recently expanded its online constituency from university and high school students to the general public. A Facebook user could post information on a profile page open to the general public or, by adjusting the privacy settings, post information in a private domain accessible only to the universe of the user’s “friends.”

The novelty of Facebook in 2008 – to both the bar at large and Robertelli – saved the attorney from potential ethical consequences. But the Supreme Court cautioned, attorneys can no longer “take refuge in the defense of ignorance” when it comes to social media.

Continue reading ““Once Upon a Time . . . in Legal Ethics and Social Media.””

Drinking + Dancing + Pools = Obvious Hazard?

By: Peter J. Gallagher (LinkedIn)

As summer is about to (unofficially) begin, a timely post about mixing drinking, dancing, and pools. (Spoiler alert: It usually doesn’t turn out great.) As a side note, in the 1990’s I occasionally went to shows at Tradewinds in Sea Bright. It was a pool/beach club that held concerts on weekend nights (I was there when Bruce Springsteen showed up to play with Steve Earle.) There were pools not far from where the shows were held and I was always amazed that nobody fell in, at least not while I was there. But I digress . . .

In Antonio v. Harrah’s Atlantic City Propco, LLC, plaintiff attended a “Pool After Dark” party at Harrah’s in Atlantic City. At these events, which were held three-days a week, year round, from 10 pm to 4 am, “[a]ttendees drank, listened to music, and danced around a pool in the center of the venue.” Harrahs employed between 25 and 35 security guards during the events. A lifeguard was also on duty and two Atlantic City police officers were stationed outside the venue. “[I]ncidents of disorderly conduct” were “frequent” at the events, with police issuing about two summonses per night and ejecting patrons every week for fighting. And, in the ten weeks leading up to the night plaintiff was injured, there were eight instances of attendees being pushed into the pool, intentionally or otherwise.

Unfortunately, the night plaintiff attended, she was bumped or pushed into the pool – allegedly by third-party defendant whose boyfriend plaintiff had “chatted” with during the event – and severely injured her hand. She sued Harrah’s, alleging negligent maintenance of premises.

Continue reading “Drinking + Dancing + Pools = Obvious Hazard?”

In life, obey the “golden rule;” at trial, avoid it.

By: Peter J. Gallagher (LinkedIn)

It is not often that my fondness for both hip hop and interesting legal decisions collide, but the Appellate Division’s recent decision in Morgan v. Maxwell is one such occasion. The lead defendant in Morgan was Willie Maxwell II, known to his fans as Fetty Wap. And the issue in the case was the so-called golden rule. Not the “do-unto-others” golden rule we teach our children, but the golden rule that prevents attorneys from asking jurors, during closing arguments, to put themselves in the shoes of an injured person and deliver the verdict they would want if they were in that person’s position.

(To be honest, I am not much of a Fetty Wap fan and he settled with plaintiff before the case went to trial so he did not factor much in the appeal. So hip hop and the interesting legal issue are not really colliding here, but please continue reading nonetheless.)

In Morgan, plaintiff worked for defendants – Fetty Wap, his management company, and his record label. There was some disagreement between the parties over plaintiff’s responsibilities, which changed over time, but part of her job eventually involved booking tours and shows for Fetty Wap. A dispute arose between plaintiff and defendants over her compensation in connection with the tours and shows she booked, and plaintiff was eventually fired. A few months later, a story appeared on “Thirty Mile Zone (TMZ), a popular entertainment gossip website,” reporting that “sources close” to defendants told TMZ that plaintiff was fired for misrepresenting herself as Fetty Wap’s booking manager and misappropriating booking fees. A few days later, Fetty Wap’s management company released a statement similar to the reports in the TMZ story.

Continue reading “In life, obey the “golden rule;” at trial, avoid it.”

The “D” in DWI may not mean what you think it means.

by: Peter J. Gallagher (LinkedIn)

The Appellate Division recently invoked the great Inigo Montoya in a decision on New Jersey’s law against “operating a vehicle while under the influence.” (For those who don’t know Inigo Montoya from The Princess Bride or are unfamiliar with his famous observation – “You keep using that word. I do not think it means what you think it means” – shame on you, but also click here.) In State v. Thompson, defendant argued that he could not be convicted for operating a vehicle while under the influence because he was only sleeping in his car when police found him, not driving the car. The court rejected this interpretation of the key word, “operating,” and published its decision because defendants continue to make this same argument even though the Supreme Court and Appellate Division have consistently rejected it.

In Thompson, police were called to a 7-11 after a man was observed sleeping in his car in the parking lot. The engine was running. When the officers approached, they noticed a half-eaten sandwich and several prescription bottles on the front seat. They also smelled “a strong odor of alcoholic beverage.” Defendant said he had been sleeping for 30-40 minutes and admitted having had a “couple of drinks.” After he failed several field sobriety tests and was taken to the police station, he acknowledged that he was under the care of a physician and had been prescribed Methadone, Hydrocodone, Xanax, and Cymbalta. He also confirmed that he had two drinks in a three-hour period.

Based on all of this, the Appellate Division was convinced that a reasonable juror could conclude that defendant was intoxicated when he was sleeping behind the wheel of his parked car. The only question was whether sleeping in a parked car with the engine running qualifies as “operating” a vehicle while under the influence. As the Appellate Division observed: “Although a violation of N.J.S.A. 39:4-50(a) is commonly referred to as a DWI violation (‘driving while intoxicated’), the statute actually makes no mention of ‘driving’ as a fact that must be proven in order to convict an individual for this offense.”

Continue reading “The “D” in DWI may not mean what you think it means.”