Browning Law News Blog

In the aftermath of the January 6, 2021 protests, Rudy Giuliani has been ordered to pay over $148 million in damages to two Georgia election workers named by the former New York mayor.  What has not been explained to the general public is that there was never any trial concerning whether Mr. Giuliani had actually slandered or libeled these two persons.   In the case of Giuliani, the two Georgia election workers listed as plaintiffs in the suit against Giuliani sued him for saying they engaged in what amounted to election fraud.  They are allowed to ask the defendant ex-mayor for documents relevant to their suit and to his defense. These women brought their case against Giuliani in a jurisdiction that is heavily populated with Democrats.  They could have sued in their home state, Georgia, but did not. They wanted a jury pool of anti-Trump democrats, so they sued in Washington, D.C. They managed to get an incredibly biased Barack Obama-appointed, anti-Trump judge....

    Tuesday, December 5, 2023, the U.S. Supreme Court threw out a lawsuit filed by a woman who calls herself a "lawsuit tester."     Deborah Laufer is visually-impaired and uses a wheelchair.  She has used her disabilities to search online for businesses that are not technically compliant with the Americans With Disabilities Act requirement that hotels provide information in their reservation systems stating whether they were handicap-accessible, and then uses her status as a disabled person to claim status as one harmed by the conduct of that business.        In fact, she has sued 600 small businesses she has accused of discriminating against disabled people.     Ms. Laufer's latest foray into lawsuit testing was an action against a hotel in Maine, claiming the hotel omitted information on its website about accessibility features for disabled people, and that such omission violated a 2010 Justice Department regulation requirement t...

      It has recently come to my attention that some men are being defrauded by their girlfriends presenting them with an ultrasound showing the presence of a bun in the oven. Or two buns in the oven, as depicted in the picture above.     The men are unsuspecting.  Wanting to provide a home for their offspring, they marry their girlfriends.  Sometime during the pregnancy, the new wife disappears for a few days and then returns to her husband with a sad tale of visiting a friend when suffering a miscarriage.     In fact, the only miscarriage was a miscarriage of justice.  There are three cases similar to this of which I have recently become aware.       In two of those cases, the fraud was assisted by an online site that sells and customizes ultrasound images of one or more children in utero.  For a mere $40, a devious female can purchase a real ultrasound and have her name and a date and hospital of the buyer's c...

  In two recent separate lawsuits, patrons of Panera Bread have accused the company of killing their loved ones with lemonade.       Panera's "charged lemonade" packs a very large quantity of caffeine.  One cup contains 395 mg of caffeine, which compares to the FDA's maximum allowable intake as being 400 mg.     This is the equivalent of about four cups of coffee (95 mg caffeine), or three 16 oz. Red Bull energy drinks (135 mg per drink) or two large Monster energy drinks (160 mg of caffeine).     In each case, the plaintiff's decedent died of a heart attack after consuming one charged lemonade per day for 2-3 weeks.     Heart-attack-drink cases are hard to prove because people who die from them are usually in poor health before they have had a sip of the suspected beverage.  However, there have been a number of cases brought this century concerning plaintiffs who have been injured after taking a diet pill containing caffe...

 I don't make a habit of writing about myself in my blogs, but this week I was welcomed into the brotherhood of martial artists who have attained the rank of black belt.  It means a lot to me, and I shall certainly strive to uphold the virtues expected of me.  And I guess it goes with the nickname one of my fellow trial lawyers gave me:"Pitbull Browning."

OPEN CONTAINER and INVISIBLE DRUG POSSESSION Everyone is familiar with the prohibition against drunk driving.  In Idaho, if you are in your vehicle with the motor running, or the key in the ignition, and you are found to have a blood alcohol level of .08 for adults or .02 for minors, you can be found guilty of driving while intoxicated. A companion crime of a DUI is an "open container" violation.  In Idaho, the law states that you cannot be driving a vehicle with an unsealed container of alcohol in the passenger section of the car.   Having been driven home from high school by a friend who resumed chugging a half-empty bottle of vodka during the drive home, I can understand why it is not a good idea to have an open container of alcohol Sounds easy enough to understand, right?   The problem arises when an officer stops a vehicle and then notices an empty beer can in the passenger section.  Is that a violation of the prohibition against having an open co...

  My good friend, federal Judge David Nye, had the unfortunate task recently of deciding whether to issue an injunction of an Idaho law, recently passed, that prohibits biological men from competing against women in athletic competitions. I think this was one of those occasions in which a judge felt compelled to enforce a different law that appears to mandate allowing biological men who identify as women to compete against women. A recent challenge to that decision by a three-judge panel agreed with Judge Nye: Idaho may not pass a law prohibiting biological men, who identify as transgender, from competing against biological females.   The decision will certainly be appealed to the U.S. Supreme Court, where I believe it will be overturned.  There is absolutely no reason to allow biological men to compete against biological women.  The only merit to the lawsuit that I can see is that the law apparently allows anyone to challenge whether a competitor is actually a ...

  Unknown to the general public is the right, in Idaho, to disqualify one judge without stating a reason.  This can be done in a criminal or civil case. During the pandemic, this right was suspended, as were many rights. Trials were shut down.  When trials were once again set on the calendar, somewhat bizarre rules were set in place to minimize the chance that a person sitting on a jury panel might cause or be the victim of a "super-spreader" event in which the entire panel would threaten to spread Covid-19 throughout the population.   With the COVID threat now having passed, the Supreme Court of Idaho has gone back to allowing litigants to disqualify one judge on a case without stating a reason.  However, the judges around the state have decided they like having their respective caseloads unburdened with having to either take additional cases or find them repeatedly disqualified from cases with the litigant having to identify a specific reason. In this iss...

  Two of the most brutal things that can happen to a person can be:     1.  To be sexually abused; and     2. To be falsely accused of sexual abuse. For those who suffer the first injustice, they may have lifetime repercussions that affect them in nightmares, self-image and damage to their ability to have a healthy relationship with members of the opposite sex. For those who suffer the second injustice, there is the potential of a lifetime behind bars. As a society, we treat those who commit these injustices quite differently.  The one who commits sexual abuse, particularly rape, will do time behind bars. As circumstances of the rape vary widely, I have seen sentences as light as 4 months in a "prison boot camp," (when the victim asked for the light sentence because it was a family member) to multiple life sentences. Those who falsely accuse others of sexual abuse, however, generally suffer no adverse consequences at all.  Realistically, the only ...

Lori Vallow, having been convicted of murdering her two children and her new husband's wife, was sentenced to three consecutive life sentences without chance of parole on Monday, July 31, 2023. She was also found guilty of conspiracy for working with Chad Daybell to collect  There was really no option for the sentencing judge, Hon. Steven Boyce.  She had been shopping for wedding rings while Tammy Daybell was still alive and married to Vallow's new husband, Chad Daybell.  Tammy was asphyxiated, as was Lori's autistic son JJ.   16-year-old Tylee Vallow was found having been chopped up with a pickaxe and burned; the cause of her death was unknown. Evidence introduced at trial showed a strand of Lori Vallow's hair was stuck in the duct tape that was placed around JJ's mouth to asphyxiate him.   At sentencing, Vallow was given the right to speak on her behalf.  She quite happily stated that Tammy Daybell's spirit visited her and gave her a big hug, he...

  One of the building blocks of our democracy is that there are, in theory, three branches of our government that are supposed to operate independently of each other: the executive (President), legislative (House and Senate), and the judicial (US Supreme Court and other federal courts).  Senate Democrats have just pursued legislation to set a binding ethics code for the U.S. Supreme Court, following accusations by those legislators that some conservative justices had not disclosed some trips and real estate transactions.  This would give Congress the power to hold hearings concerning justices of the Supreme Court.  As the court is known to be divided between the majority conservatives and the minority liberal justices, this would give Democrats the power to hold hearings and attempt the ouster of those conservative justices with whom they disagree.   With the conservative majority in power at this time, liberal democrats have been debating how to change tha...

  On August 9, 1969, three years after being named Monrovia High School's Homecoming Princess,  Leslie Van Houten, a 19-year-old follower of Charles Manson, assisted in stabbing Rosemary LaBianca to death, as part of the notorious Tate-LaBianca murders that occurred on that night.  Evidence was that she was under the influence of LSD at the time and a cult follower of Charles Manson, who died in prison for having directed his followers to commit the murders of Sharon Tate and Mr. and Mrs. LaBianca.  For Van Houten's role in the murder, she was convicted on March 29,1971, and sentenced to death. As the only female on California's death row at the time, special quarters were built for her to await the carrying out of her sentence.   In 1972, Van Houten's death sentence was commuted to life in prison. In 1977, she was given a re-trial for the reason that her defense attorney died while her case was being tried.  This trial resulted in a hung jury, and the...

  Title IV of the Higher Education Act of 1965 governs student loans.  The Act authorizes the Secretary of Education to cancel or reduce loans in certain limited circumstances, including certain public servants, those who die or are disabled, bankrupt, or borrow from a school that closes, fails to pay lenders, or falsely certifies its borrowers. The Biden Administration sought to use a later act, a law enacted just over a year after the 9/11 Trade Center bombing, to allow it to cancel approximately $430 billion in student loan debt.  The Higher Education Relief Opportunities for Students Act of 2003 (HEROES Act) allowed the Secretary of Education to waive or modify the student loan provisions of Title IV “as the Secretary deems necessary in connection with a war or other military operation or national emergency.” However, the Secretary may issue such waivers or modifications only “as may be necessary to ensure” that such financial aid recipients are not placed in a worse ...

  The U.S. Supreme Court considered the admissions practices of two of the oldest institutions of higher education in the United States: Harvard and the University of North Carolina.   Each receives tens of thousands of applications for admission each year, but only a small fraction of that number can be admitted. The admissions process is very selective.    The schools screen applicants by grades, letters of recommendation, extracurricular activities, school support and personal characteristics.   After doing so, the applicant’s race is considered. For Harvard, one goal of the admissions process is to ensure there is no drop-off in the number of minority admissions from the prior class. That is affirmative action in a nutshell, and it is practiced throughout the United States.  Harvard has admitted that race “is a determinative tip” for a significant number of blacks and Hispanics admitted. The Plaintiff in this case is an advocacy group, “Students f...

  303 Creative LLC v. Elenis A heterosexual woman, Lorie Smith, sued the state of Colorado to enjoin it from forcing her to create websites celebrating gay marriages.  A Colorado statute prohibits all “public accommodations” from discriminating on various bases, including sexual orientation.  Colorado defines “public accommodation to encompass virtually every business dealing with the public, including  web designers. Ms. Smith stated she was happy to work with gays.  She was happy to create websites and creative graphics for them.  However, she refused to produce content that actively promoted or celebrated a gay lifestyle.  That, she said, violated her rights under our First Amendment to the Constitution. The US District Court in Colorado disagreed with her, so she appealed to the 10 th Circuit Court of Appeals.  That body also disagreed with her. The First Amendment to the U.S. Constitution provides: “Congress shall make no law respecting an e...

      Now that the world knows the OceanGate Titan has imploded, killing everyone on board, the question arises whether there will be any lawsuits following this underwater disaster.     The five who boarded the vessel on its ill-fated cruise to explore the wreck of the Titanic were all required to sign a waiver of liability, absolving the company of any liability for damages in the event of a disaster, and acknowledging the vessel was experimental, and going on this venture involved the risk of injury or death.     There have been many articles written concerning mistakes that were made, and conscious choices by the company to engage in shortcuts and to disallow safety inspections before the voyage.     There is no easy answer to this question.       Liability waivers are common on potentially hazardous ventures.  They are even common on trips that involve no apparent risk, just as a standard CYA practice by those ow...

  The perpetrator of the deadliest anti-semitic shooting episode in American history was convicted Friday of all of the 63 criminal counts against him.  In that crime, he murdered 11 worshippers and wounded seven others.  During the trial, Robert Bowers admitted he was responsible for the massacre. The evidence being 100% against the accused, the defense team offered no defense witnesses after the prosecution rested.  The defense will focus on defending against the death penalty.  Sentencing will occur at a later date. Traditionally, the defense of a particularly heinous crime involves focusing on the theme that anyone who would do such a thing must be insane, and look for treatment and a life sentence.  The State will brush that defense aside and tell the court not to confuse "pure evil" with "insanity." Aside from applauding the verdict in this case, my interest is in the government's bringing a "hate crime" charge against the defendant.   They ...

  There are consequences when drugs and guns and money are found in the same place. Of course, drug crimes can be misdemeanor or felony crimes.  A large amount of any illegal substance will put the one in possession at risk of being charged with "trafficking" in such drugs.  Trafficking charges carry minimum prison sentences.   In this age when the great majority of states have de-criminalized marijuana possession, in Idaho possession of a single seed of marijuana is enough to earn a jail sentence.  Possession of one pound of marijuana will earn the defendant a one-year mandatory minimum prison sentence for trafficking in marijuana, even if the weed is for personal use. The tiniest amount of a harder drug such as cocaine or methamphetamine will warrant a felony charge, but larger amounts of any felony drug will carry minimum prison sentences for trafficking in that substance.  The key is volume.  Once the volume of methamphetamine reaches 28 grams...

 The sentencing date for Lori Daybell has been set for Monday, July 31, at the Fremont County Courthouse. Certain persons will be allowed to speak on her behalf, and in cases like this, only certain persons who wish to see her burn in hell for all eternity will be able to speak in favor of harsh punishment. Before sentencing in Idaho can take place, a presentence investigation report must issue.  A probation officer will prepare a memorandum to assist the judge in making his sentencing decision, and the prosecution and defense will have about a week prior to trial to review the report and recommend changes to the report or to cite portions of it. In this case, Daybell was found guilty on May 12 of conspiracy to commit murder, first-degree murder of her children, grand theft, and conspiracy to commit the murder of Tammy Daybell, her husband's former wife.   On August 5th, 2021, the prosecutors for Fremont and Madison Counties jointly filed a notice that they intended ...

  One of the first things a student learns in law school is how to research and write a brief.  This is a difficult skill to learn, and writing a good brief can take considerable time and expense. When I entered law school, two electronic research aids had just appeared: Westlaw and Lexis.  These were electronic databases that saved lawyers considerable time and allowed all of us to write better briefs. Electronic databases have become so prevalent that many law libraries no longer house "real" books.  the only resource for legal research has been, for the last 10-15 years, the electronic database online. In the past two years, a major breakthrough has occurred in this area: the use of artificial intelligence in researching and writing legal briefs. Many lawyers have sought to cut their research and writing time significantly through the use of AI services.  One such resource is ChatGPT. This service not only researches your issue, but it also writes your brief....

For ages in this country's two-party electoral system, states have fought to give control of Congress to one party or the other.  There are voting districts in which votes are cast to determine which party will control each district's vote in the House of Representatives.  One of the ways a party might seek to gain control is by how the district boundaries are drawn.  Historically, the majority party within a state, in some cases, has gone to great lengths to weave district boundaries to include certain areas and exclude certain areas to ensure the minority party will have its ballot-box power diluted by including only a small fraction of the total vote in each district. The word "Gerrymandering" was named after Massachusetts Governor Elbridge Gerry, who signed a bill in 1812 that created a partisan district in Boston that was roughly shaped like a salamander. When states' census numbers are tallied every 10 years, the states usually have to re-draw district lines...