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Archive for August, 2010

In 1998, the Utah Highway Patrol Association (“UHPA”) began placing 12-foot-high crosses on state highways to honor dead Utah highway patrol troopers. Each memorial displays the name of the fallen trooper, the year in which he died, and a biographical plaque. The American Atheists and three Utah residents challenged the crosses as a violation of the First Amendment’s separation of church and state. They argued that residents were forced into “direct and unwelcome contact with the memorial crosses . . . and would have to alter their commutes in order to avoid” them. The UHPA stated that it consulted with the troopers’ families before erecting the crosses and would have used “a different symbol” by request. The state government argued that the crosses were private speech because Utah did not pay for them and added that it neither approved nor disapproved of the project.

The trial court held that the crosses did not violate the constitution, but the ruling was appealed. The Tenth Circuit Court of Appeals reversed the ruling, noting that the crosses were government speech because the crosses (1) were displayed on public land, (2)were permanent, and (3) implied a “connection between the Utah Highway Patrol and Christianity” that might “lead the reasonable observer to fear that Christians are likely to receive preferential treatment from the Utah Highway Patrol—both in their hiring practices and, more generally, in the treatment that people may expect to receive on Utah’s highways.” The court further noted that a cross “memorializes the death of a Christian” and found no evidence that “the cross has been universally embraced as a marker for the burial sites of non-Christians or as a memorial for a non-Christian’s death.”

For the full story, click here.

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Antoine Jones was convicted of drug trafficking based on information collected by the FBI through the use of global positioning surveillance (“GPS”). Jones, with the help of the American Civil Liberties Union and the Electronic Frontier Foundation, appealed his conviction, arguing that the use of GPS is not covered by the United States Supreme Court’s “beeper” ruling 25 years ago. The Court’s ruling in that case, United States v. Knotts, permitted the use of legally installed radio beepers to help police physically follow a vehicle on public roads. However, he Court made it clear that the ruling did not control “dragnet-type law enforcement practices” or technical intrusion into private places. In its decision, the D.C. Circuit Court of Appeals noted that the use of GPS tracking can replace human surveillance, enables 24-hour surveillance at nominal cost, allows police to track vehicles in private places and public roads, and enables the simultaneous surveillance of an unlimited number of people. The court stated the following:

By combining [the GPS data] with Jones’s cell-phone records the government was able to paint a picture of Jones’s movements that made credible the allegation that he was involved in drug trafficking. . . . [A] reasonable person does not expect anyone to monitor and retain a record of every time he drives his car, including his origin, route, destination, and each place he stops and how long he stays there.

Accordingly, the court overturned Jones’s conviction. For the full story, click here.

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The Owner-Operator Independent Drivers Association in Indianapolis challenged Mayflower Transit’s reduction of the drivers’ per-mile rate through "chargebacks" for public injury insurance. Federal law requires motor carriers like Mayflower Transit to have insurance on all vehicles for public injury and damage. The insurance requirement prevents carriers from taking too few precautions and then hiding behind the "corporate shield of limited investors’ liability" when accidents happen. The Seventh Circuit Court of Appeals concluded that chargebacks for the cost of insurance are legal because actual insurers—and not motor carriers—are the ones selling the insurance:

The regulation requires motor carriers to purchase insurance underwritten by real insurers, so that persons injured by a motor carrier’s operations may find a source of compensation more reliable than the motor carrier itself, which is often thinly capitalized.

The court also noted that owner-operators will pay for insurance "indirectly (through lower rates per mile) if they do not pay through a chargeback."

For the full story, click here.

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John T. Jones Construction Co. v. Hoot General Construction Co., Inc., No. 09-1493.

Facts

The Des Moines Metropolitan Wastewater Reclamation Authority (“WRA”) solicited bids for restoration of one of its wastewater treatment facilities. The project specifications required that liners be installed in the wastewater holding tanks to prevent erosion of the concrete interiors of those tanks. The project specifications named a specific liner system by Linabond, followed by the words “or equal.” WRA had authority to determine whether another liner system was equal to Linabond.

John T. Jones Construction Co. (“Jones”), a general contractor, contacted Hoot General Construction Co., Inc. (“Hoot”), a subcontractor specializing in installation of protective lining in wastewater storage tanks by Linabond’s main competitor, Ameron, to request a subcontractor bid for the project. Hoot noted the “single source” specification for Linabond and informed Jones that it would be proceeding under the “or equal” basis if it bid for the project. After receiving assurances from Hoot that Ameron was considered equal to Linabond in the industry and has never been rejected as “or equal” on a project, Jones used Hoot and submitted the main bid for the project. Jones was awarded the project.

Jones then forwarded Hoot its standard subcontract form, which incorporated the main contract as an exhibit. Hoot altered the subcontract to add language basing compensation on actual square footage installed instead of Hoot’s estimates in the bid. Hoot sent the signed contract, with alteration, to Jones. Under its company policy, Hoot also intended to incorporate its original bid into the subcontract, but did not do so before the subcontract was mailed. A few days later, the error was discovered. Hoot faxed its bid to Jones and asked that it be attached as an exhibit to the subcontract. Hoot also contacted Jones by telephone to ask that the additional exhibit be attached. Jones signed and returned the subcontract to Hoot, but the subcontract was never attached as an exhibit. Hoot did not pursue the matter further and continued to fulfill the other requirements of the subcontract.

Once WRA learned that Jones and Hoot intended to install Ameron liner system, it rejected that system as not meeting the specifications. Both Jones and Hoot attempted to convince WRA that the Ameron system was an acceptable equivalent, but WRA would not accept it.

Because of this impasse, Jones wrote to Hoot about an upcoming milestone date that would trigger liquidated damages for Jones under the general contract if the liner system was not installed by that time. Jones informed Hoot that Hoot would be responsible for those damages. Hoot argued that its bid had been incorporated into the subcontract and WRA’s wrongful rejection of the Ameron liner system prevented Hoot’s performance. Jones responded that Hoot was responsible for installing a liner in accordance with the main contract and that Hoot would be responsible for the costs Jones incurred for installation.

Soon after, Jones entered into another subcontract for installation of a Linabond system. Jones then filed suit against Hoot for breach of contract. After a bench trial, the trial court awarded compensatory damages, attorney fees, and court costs to Jones. Hoot appealed, arguing that its bid had been incorporated into the subcontract.

Appeal

The Eighth Circuit Court of Appeals noted that several offers and counteroffers were made in this case. The court found that no contract existed when Jones returned the executed subcontract to Hoot with Hoot’s modified language included but not its bid as an exhibit. Instead, Jones had rejected inclusion of the bid as an exhibit and had issued a counteroffer to Hoot to proceed without the exhibit. Hoot accepted Jones’s counteroffer by continuing to perform the other requirements of the subcontract.

Further, because Hoot had never had another Ameron liner system rejected as equal to Linabond during its twenty-five years of work, the court stated that Hoot intended to be bound to the subcontract, believing that the risk of rejection was negligible.

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