U.S. Third Circuit - FindLaw

U.S. Third Circuit - The FindLaw 3rd Circuit Court of Appeals Opinion Summaries Blog


When "Porngate" first erupted, it seemed like a minor blip, especially the involvement of Justice Seamus McCaffery of the Pennsylvania Supreme Court. He sent porn, from a personal email address, to a handful of colleagues in other state offices.

It's porn. From a personal account. None of which seemed to be illegal. What's the big deal?

It's apparently a much bigger deal than we thought, as the Pennsylvania Supreme Court has just suspended Justice McCaffery with pay pending an investigation by the state Judicial Conduct Board. The opinions publicly air a number of grievances, including alleged unethical financial dealings and alleged ticket-fixing for his wife, an alleged attempt to pull a fellow justice into the fray by threatening to leak more emails, and of course, the original emails themselves (which are pretty damn racy).

Oh, and Chief Justice Ron Castille just called Justice McCaffery a "sociopath" in his published concurrence.

From the "that's a terrible idea" department comes a proposed law from Pennsylvania, Senate Bill No. 508, that would allow a crime victim to obtain an injunction preventing the criminal "offender" from engaging in "conduct which perpetuates the continuing effect of the crime on the victim." This is further defined as "conduct which causes a temporary or permanent state of mental anguish."

According to Techdirt, the bill was authored following a pre-taped commencement speech given by Mumia Abu-Jamal to the graduate of his correspondence college. Abu-Jamal was convicted of murdering a Philadelphia police officer in 1981, and his name evokes strong feelings in both the police and prisoners' rights communities. Some state legislators in Pennsylvania were apparently so outraged that criminals have First Amendment rights that they passed Senate Bill No. 508 in a few days.

You know the old trope of the two friends who couldn't be more different? "The Odd Couple"? "Bosom Buddies"? "The Patty Duke Show"? Well, Estate of Lagano v. Bergen County Prosecutor's Office is like that, except one was Chief of Detectives for the East Brunswick, New Jersey, police department and the other one might be a mobster. (I smell a "Sopranos" spin-off!)

Frank Lagano was under investigation; his friend Michael Mordaga was the detective. Mordaga told his friend to hire a particular attorney to make all of it go away. Instead, Lagano became a confidential informant for the New Jersey Attorney General's office.

If you've ever wondered how seriously Congress and the courts take debt collection regulation, this case, involving a combination of a misaligned clear plastic window on an envelope and poorly formatted letter, that merely let a QR Code (barcode) and a bare account number show, is quite telling.

Convergent Outsourcing is a debt collector. The company sent a letter to Courtney Douglass which, due to the misaligned window, also displayed her account number and the barcode (which could be scanned to show how much she owed). But nowhere on the envelope did it say what the letter, or the account number, pertained to.

Still, the Third Circuit held that the company could face a Fair Debt Collection Practices Act (FDCPA) lawsuit over the "invasion of privacy."

On December 1, in one of the most anticipated cases so far this year, the Supreme Court will hear Elonis v. United States, also known as the "Facebook threats" or "rap lyrics" case. Here's our prior coverage:

Rap lyrics, however, have very little to do with the case. Anthony Elonis made a series of increasingly threatening statements on Facebook, aimed variously at a co-worker, his ex-wife, the amusement park he was fired from, an unspecified school, the local sheriff's department, and the FBI. The questions presented amount to whether a criminal threat can be solely subjective, or whether it must be both objective and subjective. (The Third Circuit said that subjective intent was irrelevant.)

There's just something about Pennsylvania, porn, and the race for governor.

Last month, a guy who starred in a "torture porn" flick showed up in a campaign ad for Tom Wolf, the Democrat running for governor. It was worth a laugh or two -- not the least bit because the star's day job is as an attorney, and in the movie he played a cannibalistic attorney -- but really, it was much ado about nothing (especially for Wolf, who leads by double digits).

Then last week, word leaked that subordinates of incumbent (and behind-in-the-polls) Gov. Tom Corbett were forwarding porn to each other on their work accounts for years -- something that was discovered during the Jerry Sandusky investigation, but was only just now released because ... election season?

But the most ridiculous non-issue of the bunch was the news, from earlier this week, that a Pennsylvania Supreme Court Justice may have sent and received some of the emails, from a private Comcast email account, way back in 2008 to 2009. Guy looked at porn six years ago! The only thing worse would be getting a lap dance when you were in your 20s!

The majority said that this was a "straightforward" case: Columbia Gas Transmission has the "right of eminent domain to obtain easements over the land of objecting landowners, outside of the existing right of way, in order to replace deteriorating pipeline."

And yet, the dissent (and the district court) felt that this was far more complicated, because it depends on how you define "replace" -- replace in place, or replace and reroute, up to a mile from the original location of the gas line. (H/T to The Legal Intelligencer.)

Who said law can't be interesting?

As a general rule, one shouldn't send porn through a work email account during work hours. As a more specific rule, one shouldn't do that if one is a state official, and as an even more specific rule, the head of the state police really shouldn't be doing that at all.

And yet, here we are. The Pennsylvania state attorney general's office last week named eight current and former high-ranking state officials who were part of an investigation into state officials' sending and receiving pornographic emails on state email accounts on state computers.

"Civil regulatory scheme" or "criminal punishment"? How would you classify a newly instated requirement that all sex offenders wear an ankle monitor at all times, check in with officers at the parole board when needed, and if they violate the rules, be subject to criminal penalties?

If that sounds a lot like parole to you, you're not alone. The New Jersey Supreme Court has held that the state's 2007 Sex Offender Monitoring Act (SOMA) amounts to ex post facto punishment when applied to those who had committed their crimes before the law was enacted.

"SOMA looks like parole, monitors like parole, restricts like parole, serves the general purpose of parole, and is run by the Parole Board," the court explained. "Calling this scheme by another name does not alter its essential nature."

Prosecutor? No need. How about defense counsel? Nah, they can represent themselves.

Meet Judge Louis DiLeo. Back in 2010, in the Linden, New Jersey, municipal court, DiLeo held a "trial" consisting of himself as the judge and prosecutor, the two defendants representing themselves (after denying their request for a public defender), and the police witness, who cross-examined them.

Unsurprisingly, the two convictions were later reversed, Judge DiLeo was reprimanded, and last week, the Third Circuit upheld the district court's holding that he had lost his judicial immunity by going all Judge Dredd on the parties.