Oklahoma bid for Guard exception to vaccine mandate denied

WASHINGTON (AP) — Defense Secretary Lloyd Austin on Monday rejected a request by Oklahoma Gov. Kevin Stitt that his state’s National Guard be exempt from a Pentagon requirement that all military members be vaccinated against Covid-19.

Stitt, a Republican, had asked Austin in early November to suspend the mandate for members of the Oklahoma Guard.

A spokesman for Stitt, Charlie Hannema, said in response to Austin’s rejection letter that the governor “maintains his position” that he is commander in chief of the Oklahoma Guard while they are on Title 32 status, meaning while they are on active duty under state control but with pay and benefits provided by the federal government.

The dispute is the first critical test of the military’s authority to require National Guard troops to get the shot, and it could lay the groundwork for legal battles with states that oppose the vaccine requirement.

So far, Stitt is the only governor to publicly challenge the military mandate.

In his letter to Stitt, a copy of which was obtained by The Associated Press, Austin left open the question of how the vaccine requirement will be enforced and how far the Pentagon will go to force the issue. He did suggest that Guard troops who refuse the shots could lose their federal status, which could impact their pay and future benefits.

Austin wrote that all members of the Oklahoma Army and Air National Guard, “regardless of duty status,” must follow the directions of Army and Air Force service secretaries for Covid-19 vaccine compliance deadlines. “Failure to do so may lead to a prohibition on the member’s participation in drills and training” conducted under Title 32 of the U.S. Code, “and jeopardize the member’s status in the National Guard.”

Pentagon press secretary John Kirby said any Oklahoma Guard member who refused to take the vaccine could be denied the opportunity to perform federally financed training.

“One could elect not to take the vaccine, of course, but then you would be putting at jeopardy your ability to stay in the National Guard,” Kirby said.

In his Nov. 2 letter to Austin, Stitt wrote that the mandate “violates the personal freedoms of many Oklahomans, as it asks them to potentially sacrifice their personal beliefs in order to not lose their jobs.” He said the state needs its Guard members for storms and other weather emergencies, and he asserted that it would be “irresponsible for the federal government to place mandatory vaccine obligations on Oklahoma national guardsmen which could potentially limit the number of individuals that I can call upon to assist the state during an emergency.”

In his response, Austin wrote, “The concerns raised in your letter do not negate the need for this important military readiness requirement.”

Under orders from Stitt, the state’s adjutant general, Brig. Gen. Thomas Mancino, put out a memo telling his troops that they aren’t required to get the shot and “no negative administrative or legal action” would be taken against them if they refuse.

First to be impacted could be members of Oklahoma’s Air Guard, who have until Dec. 2 to get vaccinated under a deadline set by the Air Force. Lingering questions include whether unvaccinated Air Guard members reporting for their monthly drill in December or January will be required to get a shot, or be sent home or reassigned if they refuse.

Stitt spokeswoman Carly Atchison has said that about 89% of the state’s Air Guard — estimated at more than 2,000 troops — has been vaccinated. A military official said that the Air Guard rate is expected to reach about 95% by the December deadline. The official spoke on condition of anonymity to discuss statistics not yet public.

Austin’s decision was widely expected, since the Pentagon has argued for months that the vaccine is critical to maintaining a ready force that can deploy on a moment’s notice to protect the nation. Defense leaders say that as defense chief, Austin can set medical requirements for the military, including the Guard and Reserve, and that governors don’t have the authority to relieve troops of those requirements.

Vaccines against a variety of diseases have long been required for troops, with some getting as many as 17 for deployments around the world. And defense officials warn that service members who refuse to comply will risk losing their National Guard jobs.

Still, the National Guard presents a unique case. When Guard troops are on state active duty, such as responding to local events, they report to the governor and are paid by the state. But during their monthly or annual training or when they are responding to larger disasters in the state, they are in what is called Title 32 status, and are controlled by the governor but funded by the federal government.

The Guard can also be activated for federal duty, including for overseas deployments, under a different status, called Title 10, that treats them like active-duty troops, under federal control and funding.

Retired Brig. Gen. J. Roy Robinson, president of the National Guard Association of the U.S., said in an interview that is it common for Guard soldiers to have gaps or delays in their annual or routine medical requirements. And he said they often will arrive for monthly drill or their annual two-week training needing various vaccines or medical and dental check-ups.

Robinson, however, said he believes that until a service member is activated in Title 10 status, and is under the control of the federal government, the state retains any authority for enforcing requirements, such as the vaccine.

According to Stitt’s office, more than 1,000 Army and Air Force Guard members, or about 13% of the state’s 8,200 troops, have indicated they won’t get the vaccine, according to an internal survey. Atchison added that about 40% of Oklahoma’s Army Guard members are vaccinated, but they have until next June to get their shots, under a deadline set by the Army.

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By LOLITA C. BALDOR and ROBERT BURNS Associated Press

from Courthouse News

Jury holds pharmacies responsible for role in opioid crisis

CLEVELAND (AP) — CVS, Walgreens and Walmart pharmacies recklessly distributed massive amounts of pain pills in two Ohio counties, a federal jury said Tuesday in a verdict that could set the tone for U.S. city and county governments that want to hold pharmacies accountable for their roles in the opioid crisis.

Lake and Trumbull counties blamed the three chain pharmacies for not stopping the flood of pills that caused hundreds of overdose deaths and cost each of the two counties about $1 billion, their attorney said.

How much the pharmacies must pay in damages will be decided in the spring by a federal judge.

It was the first time pharmacy companies had completed a trial to defend themselves in a drug crisis that has killed a half-million Americans over the past two decades.

The counties were able to convince the jury that the pharmacies played an outsized role in creating a public nuisance in the way they dispensed pain medication into their communities.

“The law requires pharmacies to be diligent in dealing drugs. This case should be a wake-up call that failure will not be accepted,” said Mark Lanier, an attorney for the counties.

“The jury sounded a bell that should be heard through all pharmacies in America,” Lanier said.

Attorneys for the three pharmacy chains maintained they had policies to stem the flow of pills when their pharmacists had any concerns and would notify authorities about suspicious orders from doctors. They also said it was the doctors who controlled how many pills were being prescribed for legitimate medical needs.

Spokespeople for CVSHealth and Walgreen Co. said the companies disagree with the verdict and will appeal.

“As plaintiffs’ own experts testified, many factors have contributed to the opioid abuse issue, and solving this problem will require involvement from all stakeholders in our health care system and all members of our community,” CVS spokesperson Mike DeAngelis said in a statement.

Walgreen spokesperson Fraser Engerman said the company believes the court erred “in allowing the case to go before a jury on a flawed legal theory that is inconsistent with Ohio law.”

“As we have said throughout this process, we never manufactured or marketed opioids nor did we distribute them to the ‘pill mills’ and internet pharmacies that fueled this crisis,” Engerman said in a statement. “The plaintiffs’ attempt to resolve the opioid crisis with an unprecedented expansion of public nuisance law is misguided and unsustainable.”

Two other chains — Rite Aid and Giant Eagle — already had settled lawsuits with the two Ohio counties.

Lanier said during the trial that the pharmacies were attempting to blame everyone but themselves.

The opioid crisis has overwhelmed courts, social services agencies and law enforcement in Ohio’s blue-collar corner east of Cleveland, leaving behind heartbroken families and babies born to addicted mothers, Lanier told jurors.

Roughly 80 million prescription painkillers were dispensed in Trumbull County alone between 2012 and 2016 — equivalent to 400 for every resident.

In Lake County, some 61 million pills were distributed during that period.

The rise in physicians prescribing pain medications such as oxycodone and hydrocodone came at a time when medical groups began recognizing that patients have the right to be treated for pain, Kaspar Stoffelmayr, an attorney for Walgreens, said at the opening of the trial.

The problem, he said, was that “pharmaceutical manufacturers tricked doctors into writing way too many pills.”

The counties said pharmacies should be the last line of defense to prevent the pills from getting into the wrong hands.

They didn’t hire enough pharmacists and technicians or train them to stop that from happening and failed to implement systems that could flag suspicious orders, Lanier said.

The trial before U.S. District Judge Dan Polster in Cleveland was part of a broader constellation of federal opioid lawsuits — about 3,000 in all — that have been consolidated under the judge’s supervision. Other cases are moving ahead in state courts.

Kevin Roy, chief public policy officer at Shatterproof, an organization that advocates for solutions to addiction, said the verdict could lead pharmacies to follow the path of major distribution companies and some drugmakers that have reached nationwide settlements of opioid cases worth billions.

So far, no pharmacy has reached a nationwide settlement.

“It’s a signal that the public, at least in select places, feels that there’s been exposure and needs to be remedied,” Roy said.

The committee of lawyers for the local governments suing the drug industry in federal courts called Tuesday’s verdict “a milestone victory.”

“For decades, pharmacy chains have watched as the pills flowing out of their doors cause harm and failed to take action as required by law,” the plaintiffs’ executive committee said in a statement. “Instead, these companies responded by opening up more locations, flooding communities with pills, and facilitating the flow of opioids into an illegal, secondary market. The judgment today against Walmart, Walgreens and CVS represents the overdue reckoning for their complicity in creating a public nuisance.”

The government claims against drugmakers, distributors and pharmacies hinge on state and local public nuisance laws.

Roy noted that courts have not been consistent on whether those laws apply to such cases. “There’s been a variety of different decisions lately that should give us reason to be cautious about what this really means in the grand scheme,” he said.

Two recent rulings have gone against the theory. And more cases are heading toward rulings.

Trials against drugmakers in New York and distribution companies in Washington state are underway now. A trial of claims against distribution companies in West Virginia has wrapped up, but the judge has not yet given a verdict.

Earlier in November, a California judge ruled in favor of top drug manufacturers in a lawsuit with three counties and the city of Oakland. The judge said the governments hadn’t proven that the pharmaceutical companies used deceptive marketing to increase unnecessary opioid prescriptions and create a public nuisance.

Also in November, Oklahoma’s supreme court overturned a 2019 judgment for $465 million in a suit brought by the state against drugmaker Johnson & Johnson.

Other lawsuits have resulted in big settlements or proposed settlements before trials were completed.

The jury’s decision in Cleveland had little effect on the stock of CVS, Walgreens and Walmart. Shares of all three companies rose Tuesday. Shares of CVS and Walgreens are up by 36% and 19% this year, respectively.

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By JOHN SEEWER Associated Press

Associated Press writer Geoff Mulvihill in Cherry Hill, New Jersey, contributed to this report.

from Courthouse News

Oklahoma governor spares life of death-row inmate hours before lethal injection

OKLAHOMA CITY (CN) — Oklahoma Governor Kevin Stitt granted clemency Thursday to convicted murderer Julius Jones mere hours before he was to die, commuting his sentence to life without the possibility of parole.

Stitt said he reached the decision “after prayerful consideration and reviewing the materials presented by all sides” of the case. He has met with Jones’ attorneys and the family of Oklahoma City-area businessman Paul Howell, who was shot and killed during a carjacking in 1999. Stitt had refused to meet with Jones’ family in the days leading up to execution due to being in “deep” prayer.

Jones, 41, was a student at the University of Oklahoma on academic scholarship at the time of the killing. His defense has steadfastly claimed he was framed by a co-defendant, who allegedly planted the murder weapon and bandana with Jones’ DNA in a space above Jones’ bedroom.

Jones’ team has argued he had ineffective defense counsel and was subjected to racial bias. His family, meanwhile, has repeatedly stated Jones was at home eating dinner with them on the night of the murder. A juror also signed an affidavit after Jones’ conviction stating another juror used a racial slur before deliberations when saying they should shoot Jones behind the county jail.

The case remained relatively unknown until it was featured in the ABC documentary series “The Last Defense” in 2018, resulting in several high-profile celebrities and professional athletes asking Stitt to commute Jones’ death sentence.

This Feb. 5, 2018, file photo shows Julius Jones. (Oklahoma Department of Corrections via AP, File)

Stitt’s decision effectively accepts a September recommendation by Oklahoma’s Pardon and Parole Board to commute Jones’ death sentence. The five-member board voted 3-1 in Jones’ favor, with board member Scott Williams recusing himself due to a professional relationship he had with one of Jones’ attorneys. Clemency recommendations by the board are not binding on the governor. Stitt’s predecessor – fellow Republican Mary Fallon – ignored three clemency recommendations by the board.

“Personally, I believe in death penalty cases there should be no doubts,” said board chairman Adam Luck at the time. “And put simply, I have doubts about this case.”

Luck and board member Kelly Doyle were appointed by Stitt. Both voted in favor of commuting Jones’ sentence.

Jones’ execution would have been the second death sentence carried out since a six-year moratorium ended in Oklahoma. Lethal injections were halted in 2015 after several allegedly “botched” executions were carried out involving replacement execution drugs.

The most notable involved convicted rapist and murderer Clayton Lockett, whose execution in April 2014 was halted after 20 minutes after he writhed in apparent agony, clenched his teeth and strained to lift his head off of a pillow. Blinds separating the gallery from the death chamber were later lowered and he died from a heart attack afterwards. Reports inside the death chamber state it was a “bloody mess” as prison officials tried to tap an artery in Lockett’s groin.

The first inmate to die since the moratorium was John Marion Grant last month. Witnesses claim he yelled and cursed as the death chamber curtain was raised and that he vomited and convulsed after the drugs were injected. Grant stabbed and killed prison employee Gay Carter in 1998.

from Courthouse News

New laws steer some teachers away from race-related topics

NASHVILLE, Tenn. (AP) — New measures that restrict how race is addressed in classrooms have spread confusion and anxiety among many educators, who in some cases have begun pulling books and canceling lessons for fear of being penalized.

Education officials have nixed a contemporary issues class in a Tennessee district, removed Frederick Douglass’ autobiography from reading lists in an Oklahoma school system and, in one Texas case, advised teachers to present “opposing” views of the Holocaust.

At least a dozen states have passed measures this year restricting how schools teach about racism, sexism and other topics. While educators are still waiting to see how they will be enforced, the vagueness of some of the measures, coupled with stiff penalties including potential loss of teaching licenses, already are chilling conversations on race in schools and, in some cases, having consequences that likely go well beyond the intent of those approving the measures.

Matt Hawn, a high school social studies teacher in Tennessee, said he has heard from teachers concerned about how they will teach controversial topics since he was fired himself this spring as state lawmakers were finalizing new teaching restrictions.

“It’s certainly giving them caution, like, ‘What’s going to happen if I teach this?’ — because the penalty is so steep,’” Hawn said.

Hawn was dismissed after school officials said he used materials with offensive language and failed to provide a conservative viewpoint during discussions of white privilege in his contemporary issues class, which has since been eliminated.

Teaching around race and diversity has been on the rise alongside a broader acknowledgment that racial injustice didn’t end in America with the passage of the 1964 Civil Rights Act. Those efforts have spurred a backlash, particularly among Republican voters.

In Virginia, Republican Glenn Youngkin won the governor’s race this month promising to ban critical race theory, a term has become a stand-in for concepts like systemic racism and implicit bias. His Democratic opponent faced criticism for saying parents shouldn’t tell schools what to teach.

Some sections of the new laws would seem unobjectionable. Tennessee’s law bars the teaching that one race or sex is inherently superior to another race or sex. But other sections are more murky, barring teaching that promotes division or causes children to feel psychological distress because of their race or sex.

Those vague prohibitions have left teachers worried that any instruction on difficult topics like slavery or contemporary racism could be construed by parents as violating the law, said Alice O’Brien, general counsel for the National Education Association.

“These measures are problematic because it is unclear what they mean and very much in the eye of the beholder,” O’Brien said. “I think it is worth understanding that every state already has pretty comprehensive rules in place for K-12 about what teachers have to teach. And they’re required to teach the whole history of the United States … not just the parts that we can feel celebratory about.”

Some have cited the new laws in pushing to eliminate instructional material.

In Tennessee, a conservative group of mothers in the Nashville suburb of Williamson County, Moms for Liberty, has challenged how schools teach the civil rights movement to second graders.

In a letter to the Department of Education, Robin Steenman complained that the texts and accompanying teachers manual imply that “people of color continue to be oppressed by an oppressive ‘angry, vicious, scary, mean, loud, violent, (rude), and (hateful)’ white population.” The books Steenman cited include “Ruby Bridges Goes to School” and “Martin Luther King Jr. and the March on Washington.”

In Oklahoma, teachers in the Edmond Public Schools said books by authors of color were struck from a list of anchor texts, around which English teachers build their curriculum. A lawsuit filed by teachers, students and parents said the district also removed commonly taught texts by Black authors from the curriculum, including the autobiography of Frederick Douglass.

A spokesperson for the school system, Susan Parks-Schlepp, said some reading assignments were made optional as part of an annual review to ensure they align with state guidelines.

In Texas, one Republican lawmaker directed a committee he chairs to seek information on the use of at least 850 books on topics ranging from racism to abortion.

State Rep. Matt Krause, who is running for state attorney general, said five Texas school districts had removed books “after receiving objections from students, parents, and taxpayers.” Two of the districts confirmed that they had received copies of the letter and were looking into the matter, but they did not comment further.

Clay Robinson, a spokesperson for the Texas State Teachers Association, said the letter only adds to the confusion teachers have dealt with since the state passed a bill requiring educators to teach “both sides” of topics.

“Teachers are already feeling like Big Brother is looking over their shoulders,” Robinson said.

The racial divide in support for these measures was obvious at an Alabama School Board meeting in August where the two Black members voted against a resolution denouncing “instruction intended to indoctrinate students” in ideologies promoting a particular race or sex, while the seven white members voted in favor.

Speaking against the measure, school board member Tonya Chestnut said all children deserve to be in an environment where they feel safe and can appreciate their heritage, but the resolution could “put teachers in a position where they feel uncomfortable, even fearful, to teach the truth.”

James Copland, director of legal policy at the conservative Manhattan Institute, said that chilling effects are real, but that appropriately tailored new laws are needed to show schools what is and isn’t appropriate.

He pointed to some episodes including a Cupertino, California, teacher who directed elementary school students to “deconstruct” their racial identities and a Philadelphia elementary school that had students appear on an auditorium stage with signs that read “Jail Trump” and “Black Power Matters.”

“We don’t want to chill genuine discussion and clear-minded study of history,” Copland said. But he said students should not be forced to subscribe to a set of beliefs around racism and sexism.

Derek W. Black, a professor of law at the University of South Carolina and the author of “Schoolhouse Burning: Public Education and the Assault on American Democracy,” said these measures are unnecessary. Federal civil rights law already makes it illegal to discriminate in the classroom, he said.

He does not doubt that some teachers do a poor job of teaching about racism and sexism or that some parents have legitimate grievances, but said they should “get in line with the 1,001 other legitimate grievances.”

“Why is this the No. 1? Politics. That’s right. Politics.”

___

By TRAVIS LOLLER and ACACIA CORONADO Associated Press

Coronado reported from Austin, Texas.

from Courthouse News

Panel recommends repealing death penalty in California

(CN) — As nearly 700 condemned California prisoners wait in limbo under a death penalty process halted by the governor, a key criminal justice panel on Wednesday recommended making the state’s temporary freeze on executions permanent.

The Committee on Revision of the Penal Code, a seven-member board formed by the state Legislature last year to propose criminal justice reforms, released a 39-page report recommending that capital punishment be repealed in the Golden State.

“More than forty years of experience have shown that the death penalty is the opposite of a simple and rational scheme,” the report states. “It has become so complicated and costly that it takes decades for cases to be fully resolved and it is imposed so arbitrarily — and in such a discriminatory fashion — that it cannot be called rational, fair, or constitutional.”

Poring through data on death sentences imposed and carried out since capital punishment was reinstated in California in 1978, the panel concluded the post-conviction litigation process has become “almost unfathomably long and costly.”

The report cites staggering racial disparities in who gets sentenced to death, with people of color making up 68% of those on death row in California. It further notes that about a third of condemned prisoners suffer from mental illness, according to figures cited in a federal class action over mental health care in California prisons.  

Additionally, the report highlights that innocent people are sometimes executed. It describes how 185 prisoners sentenced to death across the U.S. were later exonerated, including five formerly condemned prisoners in California.

Despite those criticisms, voters have opted to keep the death penalty legal in California twice in the last decade. In 2012, a proposal to abolish the death penalty was defeated by 52% of the vote. In 2016, voters narrowly rejected another proposal to end capital punishment and passed a measure to speed up executions with 51% approval. The accelerated execution law was largely upheld by the California Supreme Court in 2017.

In March 2019, California Governor Gavin Newsom enacted a moratorium on executions, citing his belief that capital punishment is morally wrong.

San Mateo County District Attorney Steve Wagstaffe is one of three county prosecutors who sought to intervene in a federal lawsuit over California’s lethal injection protocols to uphold Proposition 66, the 2016 ballot measure that sped up executions.

In a phone interview Wednesday, Wagstaffe said he takes no position on whether the death penalty should be repealed in California, but as long as it’s on the books, he said the law should be defended and that his office will enforce it.

“If it is the law, then my duty is to uphold the law,” Wagstaffe said. “But if they change the law, that’s what democracy is all about.”

Wagstaffe, who has served as DA in San Mateo County since 2011, said he hopes his county never experiences an atrocity like the Oklahoma City bombing, but if someone were to carry out such an act, he would consider seeking the death penalty under those circumstances.

“I still think there are certain cases where I would want to bring it to a jury and let the jury decide if that’s an appropriate punishment,” Wagstaffe said.

Last year, four progressive prosecutors from San Francisco, Los Angeles, Contra Costa County and San Joaquin County formed a group called the Prosecutors Alliance of California to advocate for criminal justice reform efforts, such as ending capital punishment.

The group’s executive director, Cristine Soto DeBerry, said in a phone interview Wednesday that she supports the panel’s recommendation to repeal the death penalty.

DeBerry pointed to studies showing that capital punishment doesn’t provide effective deterrence against murder and that the process is extremely expensive and prolonged in California.

“We’d be wiser to use the resources that support the death penalty to support victims and prevent violent crime from happening in the first place,” DeBerry said.

Across the nation, 23 states and the District of Columbia have abolished the death penalty. Three states, including California, have moratoriums that have temporarily halted executions. In July, the Biden administration also imposed a temporary stay on federal executions, reversing the prior Trump administration policy.

In its report, the panel acknowledged that ending capital punishment in California “is a difficult goal” so it laid out several recommended steps that can be taken in the interim. Those steps include having the governor grant clemency to commute death sentences, having the attorney general settle pending legal challenges against death sentences and having county district attorneys recall death penalty cases for resentencing.

The report also recommends legislative reforms, including changing a law that allows accomplices who did not personally kill someone but took part in a felony that involves murder to be sentenced to death. It also suggests state lawmakers make retroactive a 2020 state law that bans convictions based on race, give judges more discretion to dismiss enhancements in death penalty cases and create a process to remove prisoners deemed permanently mentally incompetent from death row.

Governor Newsom’s office did not respond to a request for comment Wednesday.

A spokesperson for California Attorney General Rob Bonta, who has publicly declared his opposition to capital punishment, said, “We look forward to reviewing the report and continuing to engage with the committee in its important work on behalf of the State of California.”

Members of the Committee on Revision of the Penal Code include chairman Michael Romano of Stanford Law School, Assembly member Alex Lee of San Jose, state Senator Nancy Skinner of Berkeley, retired Los Angeles Superior Court Judge Peter Espinoza, retired U.S. District Judge Thelton Henderson, retired California Supreme Court Justice Carlos Moreno and professor Priscilla Ocen of Loyola Law School in Los Angeles.

The state currently has 697 inmates on death row. California has carried out 13 executions since the death penalty was reinstated in 1978. The most recent execution of Clarence Ray Allen took place in 2006.

from Courthouse News

Virginia’s online blackout for court records challenged in federal court

(CN) — Virginia has put in place a statewide system of access to court records. But it is blacked out to the public and the press.

The online records room is controlled by the chief court administrator in Virginia. The courts that keep their records in that room span the state from north to south, east to west, and cover an area of 33,000 square miles where six million people live.

But the public and press are not allowed into that room.

It is reserved for “officers of the court.” So lawyers and court officials can peruse the court records from their office computer, from their phone, from wherever they might be. But a reporter must travel to each courthouse and go into the clerk’s office to see only the records of that one court.

For example, the court records for Virginia Beach at the eastern end of the state are online through OCRA — Officer of the Court Remote Access — and so are the court records for Lee County at the far western end of the state.

A reporter would need to travel 485 miles to see the records of the two courts, a distance that takes about eight hours to drive. A lawyer would do no driving at all and would instead simply tap on a keyboard.

“Providing a system of remote access to court records to just one segment of the public not only results in a discriminatory system of access, but it is contrary to basic principles of government transparency protected by the First Amendment,” said a memorandum filed by Courthouse News lawyers in U.S. District Court.

The memo filed on Tuesday is part of an ongoing First Amendment case brought by this news service against Virginia’s executive secretary who is the top court administrator. The secretary, Karl Hade, has asked U.S. Judge Henry Hudson to dismiss the case on the grounds that the secretary is immune, in essence untouchable.

Most of the cases brought by Courthouse News are based on blackouts for a day or more involving new civil complaints. But the case against the secretary is much broader. It involves a permanent online blackout of all court records for most of Virginia.

“It is simply not possible for a news service to send reporters on a daily basis, if at all, to the 120 courts throughout the Virginia circuit court system,” said a declaration accompanying Tuesday’s memo.

“This means that the ability of the general public to learn about and comment on events in an important institution is impeded or eliminated altogether,” the declaration continued, “all while one subclass of the public can view new filings remotely on a daily basis, wreaking havoc on the traditional press corps.”

Courthouse News was recently paid $2.4 million by the Commonwealth of Virginia, which lost an earlier case against clerks in Norfolk and Prince William. They had been holding back access to new civil complaints for a day or days while they indexed and scanned them.

U.S. Judge Henry Coke Morgan Jr. ruled against the clerks on First Amendment grounds and awarded attorney fees in favor of the news service. On the fourth day of trial in that case, the judge compared fresh news to fresh bread, agreeing with Courthouse News that the delays in access harmed the news, made it stale.

But if the new complaints represent what’s in the court’s bakery, then Virginia’s OCRA system represents what’s in the legal supermarket — the entire court record for most of the state courts.

But, said the secretary, the internet is a different animal, a dangerous animal.

“Although it does treat attorneys, their agents, and certain employees of government agencies differently than members of the general public, that difference in treatment is to further a legitimate state interest in protecting court records from the ease of exploitation that a limitless internet database would provide,” argued Robert McEntee with the state attorney general’s office.

The secretary’s lawyer did not explain how the very court he was arguing in could then post his motion on the internet almost immediately. The federal courts and a growing number of state courts post court records online.

They include Alabama, Arizona, Arkansas, California, Colorado, Connecticut, Delaware, Florida, Georgia, Hawaii, Idaho, Indiana, Iowa, Kansas, Kentucky, Louisiana, Maine, Massachusetts, Minnesota, Mississippi, Montana, Nevada, New Jersey, New Mexico, New York, North Dakota, Oklahoma, Oregon, Ohio, Pennsylvania, Rhode Island, South Carolina, South Dakota, Tennessee, Texas, Utah and Washington state.

The Courthouse News complaint raises a broader issue tied to the evolution of courts and court records from paper documents filed during work hours in stone and marble courthouses to electronic documents filed at all times and on all days from a computer anywhere in the world.

Federal courts have adapted to the changing technology by giving access online, any time, anywhere in the world to lawyers, journalists and the public at large. Virginia on the other hand got stuck halfway through the transition to the electronic age.

Its courts rely almost entirely on paper to file cases but then scan that paper into electronic images, store those electronic records online and throw away the paper. But they require that journalists and regular folks come to the physical courthouse to look at the electronic images.

Only the legal cognizenti are allowed to see the records without traveling to the courthouse.

So the question raised by the Courthouse News action is not whether there is a constitutional right to online access — as Hade has tried to pigeonhole the dispute — but rather, once the Virginia courts put their records online, can they play favorites.

“It is simply not possible for a news service, such as CNS, to send reporters on a daily basis, if at all, to the 120 courts throughout the Virginia and cover an area of over 30,000 square miles,” argued Jon Ginsberg with the New York office of Bryan Cave. “This impediment to access undermines the benefit of public scrutiny and effectively results in suppression, all while one subclass of the public can review new filings remotely on a daily basis.

“By imposing this additional burden and expense on CNS in its attempt to access nonconfidential, public court records, Defendants are infringing a fundamental constitutional right and depriving CNS of equal protection under the law,” he concluded. “This unequal and preferential treatment deprives CNS and others who are not licensed to practice law in Virginia from equal treatment and unconstitutionally infringes on the First Amendment right of access to non-confidential, public court records.”

Virginia lies within the jurisdiction of the U.S. Fourth Circuit Court of Appeals which ruled in favor of Courthouse News earlier this year on an appeal by the clerks in Norfolk and Prince William after their loss on the issue of timely access to complaints.

Courthouse News is currently challenging similar access restrictions by state court clerks within the First, Second, Fifth, Sixth, Eighth, Ninth and Tenth circuits, in addition to the Fourth. It has already won First Amendment actions against clerks within the Second, Fourth, Fifth and Ninth circuits.

from Courthouse News

Gosar censured, ejected from House committee positions over violent video

WASHINGTON (CN) — In a move with little practical effect, forcing

Republican Representative Paul Gosar to stand in the well of the House chamber for a ceremonial rebuke, the House voted largely along party lines Wednesday to censure the Arizona congressman for disseminating a threatening cartoon.

The video, posted last week and later removed, showed Gosar’s face on an anime character slicing the throat of a character digitally altered to look like Congresswoman Alexandria Ocasio-Cortez. Interspersed with images from the United States and Mexico border, the cartoon also showed the Gosar character attacking President Joe Biden.

Gosar’s official Twitter account posted the video with the caption, “Any anime fans out there?” His personal Twitter account then retweeted the video with the caption, “The creativity of my team is off the hook.”

Democrats said the censure isn’t about politics, but safety and respect.

“This is about workplace harassment and violence against women. Yet, the member has never apologized for his actions,” Speaker of the House Nancy Pelosi said as just two Republicans joined with Democrats for the 223–207 vote to formally reprimanded Gosar over the video.

Gosar said the video was a metaphor, symbolic of the political fight over immigration, not a threat of violence. “I reject the false narrative categorically. I do not espouse violence to anyone,” Gosar said.

Though the vote carries little practical effect for Gosar’s time in office, it does removes him from his positions on the Natural Resources and House Oversight and Reform committees. It came after an hour of partisan debate and threats from Republicans that the censure was setting a dangerous precedent.

“The speaker is burning down the House on her way out the door,” said House Minority Leader Kevin McCarthy, who called the move to censure Gosar an “abuse of power” and claimed that Republicans are being held to a different standard of decorum.

Democratic Representative Mary Scanlon of Pennsylvania referenced the Jan. 6 insurrection, noting that violent images and phrases are dangerous in a politically fraught environment.

“We cannot dismiss Representative Gosar’s violent fantasies as a joke because in this decade, in this America, someone is going to take him seriously,” Scanlon said. “He is a public figure and, as we vividly saw on Jan. 6, the words and actions of public figures can readily act as a spark to the tinder of radical extremism, and God help us all when that happens.”

Gosar compared himself to Alexander Hamilton, who, as noted by Democratic Representative Debbie Schultz of Florida noted, was killed in a duel with a political rival — one of multiple combat incidents involving Hamilton and a tradition that itself was a form of inciting violence.

“If I must join Alexander Hamilton, the first person attempted to be censured by this House, I will do it,” Gosar said ahead of the vote Wednesday.

Gosar said he “self-censored” and took down the video out of “compassion” for people who saw the video as a threat.

Representative Liz Cheney, a Republican from Wyoming, and Representative Adam Kinzinger, a Republican from Illinois, defied calls by their party’s leadership to vote against the censure. Republican Representative David Joyce of Ohio voted “present.”

Ocasio-Cortez criticized McCarthy for refusing to speak out against Gosar’s behavior.

“What is so hard? What is so hard about saying that this is wrong? This is not about me. This is not about Representative Gosar, but this is about what we are willing to accept,” Ocasio-Cortez said.

Republican Representative Tom Cole of Oklahoma referred to the censure as a means of “allowing the majority to have a veto over minority appointments” to committees.

Earlier this year, House Democrats and 11 Republicans stripped Republican Representative Marjorie Taylor Greene of Georgia of her committee positions for her repeated commitment to conspiracy theories and violent language.

Cole’s statements also come as some House Republicans have called for members of their party who voted for the $1.2 trillion infrastructure bill to be removed from committee positions.

Gosar’s censure marks the 24th time in its history that the House has censured one of its members. The last censure took place in 2010 when Representative Charles Rangel, a Democrat, was censured and removed from his position as the head of the House Ways and Means Committee for financial misconduct.

from Courthouse News

Hearing on wildfire bill set ablaze by clash over drafting process

WASHINGTON (CN) — The ever-present topic of bipartisanship overshadowed the markup of a bill aimed at improving the government’s response to wildfires on Tuesday, in a hearing where members mostly agreed over the issues and solutions presented in the legislation and then ultimately approved it.

The bill — coined the National Wildland Fire Risk Reduction Program Act — received criticism from Republican members of the House Science, Space and Technology Committee who claimed their Democratic colleagues did not include them in negotiations when drafting the bill. Ranking member Representative Frank Lucas, a Republican from Oklahoma, claimed the committee is normally able to operate outside of politics but this bill was an exception to that rule. 

“The behind-the-scenes partisanship on this bill was unnecessary, unprecedented and counterproductive to a healthy legislative environment of this committee,” Lucas said. “Instead of working together, Republican staff weren’t given the bill draft text until just days before it was introduced. We were given little opportunity to provide input … The process didn’t have to be this way. Wildfires know no political boundaries. I can’t think of a more pressing issue for members in the West.” 

Representative Mike Garcia, a California Republican, made similar remarks and said the bill “broke with tradition.” 

“I believe that this is an issue where there’s a great deal of bipartisan agreement,” Garcia said. “Unfortunately, I think in this case, politics and pride have gotten in the way of a good policy.” 

Representative Zoe Lofgren, a Democrat from California who introduced the bill, disagreed with that sentiment and said she spent over a year drafting the legislation with an effort to include minority members. 

“I think the attitude displayed by the ranking member is, I’m sure heartfelt, but not as connected with the actual events as it might have been,” Lofgren said. 

While members of the committee continually exchanged snarks back and forth disagreeing over whether the bill was bipartisan in nature, the members generally agreed on the issues at hand and many of the amendments proposed on both sides of the aisle. 

“In the past three decades, the United States has sustained more than 300 weather disasters, and that includes 19 severe wildfire events that cost more than $100 billion in damages, and which caused nearly 400 deaths,” said Representative Suzanne Bonamici, an Oregon Democrat. “Climate change has increased the intensity of severe fire events. Since 2000, annual fire events burned, on average, 7 million acres — that’s double the total acres burned in the 1990s.” 

The bill would invest over $2 billion over five years and create a program to reduce losses of life and property from fires by better understanding how burns operate, adopting science-based mitigation efforts, and better understanding the impact of climate change on wildfire risk. It would also create an interagency committee with 16 members from across the government, from the Federal Emergency Management Agency to the Departments of Defense and Housing and Urban Development. 

“We cannot continue to fight extreme weather in a piecemeal fashion,” said Representative Deborah Ross, a Democrat from North Carolina. “It requires a whole of government approach that uses robust data and cutting edge technology to respond to wildfires.” 

Representative Jerry McNerney said the legislation would be similar to what is now in place for earthquakes. 

“It’s due time to improve our federal research development and response to wildfires,” the California Democrat said. “If enacted, the legislation would establish a coordinated program to reduce wildfire land risk similar to what is already exists for earthquakes … We need to increase investment in avoidance, minimization, mitigation of wildfires as well as accurate forecasting and messaging to reduce damage when fires do occur.” 

Following several votes on amendments to the bill, the committee voted in favor of sending the bill to the full House of Representatives.  

from Courthouse News

Small Missouri town designated as heart of US population

(CN) — The U.S. Census Bureau announced on Tuesday that the center of the country’s population is near Hartville, a town of about 600 people in the central southern area of Missouri.

Every 10 years, the agency reveals where the new center of the U.S. population is located based on results of the decennial census. Tuesday’s announcement marks the fifth decade the population center has been found somewhere in Missouri.

Following the 2010 census, the center was Plato, a town in The Show-Me State that just 82 residents call home.

Hartville is expected to receive a celebratory survey monument next year from the National Geodetic Survey, a division of the National Oceanic and Atmospheric Administration, or NOAA.

The center of population is the average location of where people in the U.S. currently live.

 The first published calculation of the center in 1790 was the colonial town of Chestertown, Maryland, near the Chesapeake Bay. About 3.9 million people were counted as living in the original 13 colonies during that first census. 

“It’s amazing how the population just took huge leaps, starting off with about 3 million people and then, all of a sudden, tens of millions of people,” said Sharon Tosi Lacey, the Census Bureau’s chief historian, in a statement earlier this month. 

“Immigration has played a huge part in that,” Lacey added.

During the next 230 years, the bureau says, the center has moved steadily westward. And, more recently, census data shows a population shift towards the Southwest.

“The movement of the center of population helps tell the story of this century’s migration South and West,” said Ron Jarmin, the Census Bureau’s acting director, in a statement. “It helps visualize where we live.”

Calculating America’s center every decade helps surveyors and demographers track population movements and monitor the country’s expansion throughout the years. 

“NOAA’s work to survey and map our country captures snapshots of history as it unfolds through the years,” said Nicole LeBoeuf, assistant administrator of NOAA’s National Ocean Service, in a statement.

LeBoeuf added that these measurements “also provide the foundation for services Americans rely on daily, such as driving directions and community planning.”

The Census Bureau says the largest movements of the population center by miles were between 1850 and 1890, as the Gold Rush in California and land speculation in Oklahoma pushed people farther west. 

According to the agency, Hartville Mayor Rob Tucker was thrilled to see his town recognized as the 2020 center of population. 

“It’s a great feeling to live in Hartville. It has always been a town with a big heart and is now the heart of America,” he told the bureau. 

from Courthouse News

Trial begins in Washington state’s case seeking more than $38 billion from opioid distributors

SEATTLE (CN) — Washington state is alleging public nuisance and consumer protection claims against three major opioid distributors and seeking more than $38 billion in damages in a trial that began Monday morning following critical blows to similar cases in other states this month.

The Oklahoma Supreme Court reversed a bellwether $465 million verdict against opioid manufacturer Johnson & Johnson last Tuesday, finding a lower court judge misinterpreted the state’s public nuisance law during a bench trial in 2019.

A week prior, a superior court judge in Orange County issued a tentative ruling that several California counties failed to prove the promotion of opioids by drugmakers — regardless of whether their statements were misleading — led to an increase in medically inappropriate prescriptions that created a public nuisance. The counties were seeking $50 billion in damages Johnson & Johnson, Teva Pharmaceutical Industries, Endo International and Allergan through the bench trial.

Washington Attorney General Bob Ferguson acknowledged the risk in taking the state’s claims to trial but told the Associated Press that comparing his case to those in California and Oklahoma is “apples and oranges” due to differences in state law.

The bench trial in Washington will last about three months, with breaks around the holidays, according to projections from attorneys. King County Superior Court Judge Michael Scott is overseeing the case against McKesson, Cardinal Health and AmerisourceBergen.

Ferguson, who sued the distributors in 2019, led opening arguments for the state, calling this his most significant public health lawsuit during his tenure — and perhaps in the history of the state attorney general’s office.

Ferguson filed a separate lawsuit against Johnson & Johnson in King County Superior Court in 2020. His office also sued Purdue Pharma in 2017 and has appealed the drug manufacturer’s bankruptcy plan to settle claims from 48 states.

Since 2006, more than 10,800 Washingtonians have died from opioid overdoses, according to data presented by the state. A study from the U.S. Senate Health, Education, Labor and Pensions Committee showed opioid overdose deaths cost the state more than $34 billion between 2012 and 2016 alone.

Ferguson in July rejected a share of the $26 billion proposed settlement from McKesson, Cardinal Health and Amerisource Bergen and Johnson & Johnson to settle legal claims nationwide. The settlement would have sent Washington $527.5 million over 18 years, but Ferguson said this was insufficient to address Washington’s opioid crisis.

Former Chief Economist for the U.S. Office of Management and Budget Dr. Jeffrey Liebman put the cost of opioid abatement in Washington at $38 billion over 15 years, which is the amount the state is seeking in damages from distributors, according to attorneys for the state. The lion’s share — $33.5 billion — would be earmarked for treatment under the state’s abatement plan, while $3 billion would go to harm reduction, $989 million to prevention and $413 million to systems coordination.

Expert estimates show this abatement plan could cut the number of people with opioid addiction in half over the next 15 years, said Linda Singer, an attorney representing the state. The programs would largely be an extension of what has already been shown to be effective in practice in Washington.

“It is a moonshot, but it is not rocket science,” Singer said.

The state placed blame on the opioid distributors for shipping 3.8 billion pills — an amount attorney Don Migliori compared to the peak of Mt. Rainier — into the state between 1996 and 2018 without having proper controls in place for flagging and halting suspiciously large or frequent orders.

Internal documents, attorneys argued, showed that the drug distributors were aware of the harms associated with opioids yet persisted with their practices. All three companies received administrative penalties between 2007 and 2008 related to anti-diversion programs, acknowledging systemic failures and not just issues at specific distribution centers.

One Rite Aid in a city in Grays Harbor County with a population of fewer than 9,000 purchased 2.8 million doses between 2006 and 2014, according to the state. Another city in Skagit County was the state’s largest purchaser of hydrocodone, also with a community of fewer than 9,000 people, and the Drug Enforcement Administration issued repeated warnings about the outsized shipments.

Migliori said studies show the biggest risk factor for developing opioid addiction is exposure and availability to the drugs, rather than prior substance abuse or mental health issues.

“The more pills, the more opioid use disorder or addiction there is throughout the community. Excessive shipments and distribution of prescription opioids results in epidemic levels of prescription opioid use disorder,” said Migliori, outlining the state’s logic. “And it’s the epidemic level of opioid use disorder that results in persistent harm throughout the community.”

Attorneys representing the opioid distributors sought to break this chain of causation.

If they looked upstream to DEA regulators, they were in compliance with federal law, said Cardinal Health attorney Enu Maingi. And if they looked downstream doctors were prescribing more and more opioids due to an increased emphasis on pain management among medical professionals.

“No one in the state of Washington got a prescription for opioid pain medicine without a doctor,” said Bob Nicholas, an attorney for AmerisourceBergen.

Nicholas and other attorneys for the drug distributors said it wasn’t their clients’ place to scrutinize the decisions of medical professionals, who the DEA said almost always prescribed opioids legitimately. Rather, they were simply fulfilling bulk orders to pharmacies and never had insight into individual prescriptions.

Meanwhile, their control systems for flagging suspicious orders remained in compliance with DEA guidance and evolved as the agency required, according to the attorenys.

State attorneys also sought to draw a line between the decline in opioid prescriptions around 2008 due to changing medical guidance and the subsequent increase in deaths from heroin and other illicit drugs.

“To the extent that opioid pills have slowly gone away in volume, the deaths have been taken over by a market that was created for users who’ve had this persistent need to find opioids in order to handle their withdrawal and their symptoms,” Migliori said.

Paul Schmidt, an attorney for McKesson said the state’s logic was oversimplified and posits that removing prescription opioids from the market would make the worst of the drug addiction crisis go away.

“I suspect all of our life experience tells us addiction is more complicated than that and the science will show that too,” Schmidt said.

The majority of opioid diversion – about 60% – into illegitimate hands has been through medicine cabinet diversion, such as when young people get into grandparents’ pills or someone gives part of their old prescription to a friend who doesn’t want to go see a doctor for pain, according to Nicholas.

“We have no visibility to it, and it has nothing to do with us,” Nicholas said. “We can’t jump out from behind a shower curtain.”

Attorneys representing the drug distributors claimed that today’s opioid crisis lies with the illicit drug trade of heroin and fentanyl, while the epidemic as it relates to prescriptions has improved.

“In order to put together a lawsuit, they’re trying to rewrite history,” said Nicholas.

But attorneys for the state say the measures drug distributors have taken in recent years have been too little, too late.

“They displayed a callous disregard for the communities and people who bear the impact of their greed,” said Ferguson.

from Courthouse News

Top eight today

National

Infrastructure bill touted as revolutionary in fight against climate change

A monthslong saga of political maneuvering ended last week in a defining moment for Joe Biden’s presidency with the passage of the $1.2 trillion infrastructure bill. Experts say in the long term the historic legislation not only reimagines America’s fight against climate change but potentially boosts Democrats’ chances in the 2022 elections.

(Susan Walsh/AP)

White House reverses Trump-era gut of spotted owl habitat

The U.S. Fish and Wildlife Service on Tuesday reversed a Trump administration rule that would have opened more than a third of the northern spotted owl’s protected habitat in Oregon, Washington state and California to logging.

(Don Ryan/AP)

Biden pushes for marine sanctuary off Central California coast

The Biden administration proposed the conservation of more than 7,000 square miles of marine habitat off the coast of Central California as it seeks to follow through on its conservation goals. 

(William Dotinga/Courthouse News)

13 senior Trump officials violated the Hatch Act during 2020 campaign

During the lead-up to the 2020 presidential election, 13 senior Trump officials abused their roles as federal employees to further a political agenda, the U.S. Office of Special Counsel reported Tuesday.

(Menahem Kahana/AFP, Pool)

Regional

Oklahoma justices reverse $465 million opioid verdict against Johnson & Johnson

The Oklahoma Supreme Court on Tuesday reversed a bellwether $465 million verdict against opioid maker Johnson & Johnson, finding the trial judge misinterpreted the state’s public nuisance law.

(Mark Lennihan/AP)

Judge tosses claims over King’s Hawaiian rolls packaging

King’s Hawaiian sweet rolls haven’t been made in Hawaii for some time, but a federal judge found the company doesn’t mislead consumers about the fact.

(Pixabay image via Courthouse News)

International

Poland and Czech Republic face off over border coal mine at EU high court

The Czech Republic argued Tuesday that a century-old Polish coal mine steals its drinking water and pollutes its air, while Poland countered the mine is necessary for its economy and energy grid.

(Anna Uciechowska/Wikipedia via Courthouse News)

EU court backs family-oriented reading of German asylum law

Europe’s highest court on Tuesday said Germany should grant refugee status to a girl born in Germany whose mother, a Tunisian, was not eligible for asylum but whose father, a Syrian, was afforded international protection.

(Molly Quell/Courthouse News)

from Courthouse News

Oklahoma justices reverse $465 million opioid verdict against Johnson & Johnson

OKLAHOMA CITY (CN) — The Oklahoma Supreme Court on Tuesday reversed a bellwether $465 million verdict against opioid maker Johnson & Johnson, finding the trial judge misinterpreted the state’s public nuisance law.

In a 5-1 ruling, the high court concluded Cleveland County District Judge Thad Balkman erred in extending the law to Johnson & Johnson’s manufacturing, marketing and selling of prescription opioid drugs during a bench trial in 2019.

Oklahoma officials sued the company and competitors Teva Pharmaceutical Industries and Purdue Pharma in 2017 for allegedly pushing the drugs and killing over 4,600 Oklahomans through unintentional overdoses from 2007 to 2017. Teva and Purdue settled the state’s claims before going to trial.

Writing for the majority, Justice James R. Winchester said stopping the opioid crisis in a “laudable goal” but cannot be done by “reshaping” the public nuisance law that has traditionally been used to address “discrete, localized” problems.

“The district court’s expansion of public nuisance law allows courts to manage public policy matters that should be dealt with by the legislative and executive branches; the branches that are more capable than courts to balance the competing interests at play in societal problems,” Winchester wrote. “Further, the district court stepping into the shoes of the Legislature by creating and funding government programs designed to address social and health issues goes too far.”

The majority said the high court has followed criminal and property-based limitations on the public nuisance law for 100 years.

“Without these limitations, businesses have no way to know whether they might face nuisance liability for manufacturing, marketing, or selling products, i.e., will a sugar manufacturer or the fast food industry be liable for obesity, will an alcohol manufacturer be liable for psychological harms, or will a car manufacturer be liable for health hazards from lung disease to dementia or for air pollution,” the opinion states.

Oklahoma Attorney General John O’Connor’s office and Johnson & Johnson did not immediately respond to requests for comment after the ruling.

Justice James E. Edmondson noted in his dissent that Johnson & Johnson has since stopped marketing opioids in Oklahoma with deceptive practices, but that injury to the state from past conduct remains. He writes that he would have reversed the verdict and  sent the case back to the trial court for a new award.

“I would remand to the district court to recalculate damages based upon J&J’s share of the market in the years it sold its opioids in Oklahoma with its deceptive marketing scheme,” Edmondson writes. “The attorney general’s basic theory of the case is tenable, both in law and equity.”

Oklahoma’s lawsuit against Johnson & Johnson was the first such opioid crisis lawsuit to go to trial, with over 2,000 cases filed in state and federal courts nationwide. Approximately 1,400 of the federal cases were consolidated in Ohio federal court. Judge Balkman said at the time of the verdict that his initial $572 million award was intended to fund the immediate remediation of the nuisance.

Several months later, Balkman was forced to reduce the $572 million award by $107 million to $465 million after admitting to a calculation error. It appears he incorrectly entered $107 million for the cost of neonatal abstinence syndrome treatment evaluation standards, not the $107,000 that was intended.

from Courthouse News

Tortured by kids’ song

Click here to read the complaint.  

from Courthouse News

Carole Baskin bites back on Netflix’s ‘Tiger King 2’

TAMPA, Fla. (CN) — Carole Baskin, the animal sanctuary owner profiled in “Tiger King: Murder, Mayhem and Madness,” sued Netflix and the documentary’s production company on Monday, seeking to stop the release of an upcoming sequel.

In a lawsuit filed in federal court in Tampa, Florida, Baskin and her husband Howard claim New York-based Royal Goode Productions cannot use footage of interviews with the couple made in 2016 and 2018 for the upcoming “Tiger King 2” without a separate appearance release.

“Throughout the appearance releases, there is only reference to and mention of ‘the picture,’” the 21-page complaint states. “No mention is made of granting Royal Goode Production sequel rights, rights to create derivative works from ‘the picture’ or additional seasons or episodes.”

And, as the lawsuit chronicles, the Baskins are not amiable to signing another release, deriding the original documentary as portraying Carole as “the villain.”

The producers “contacted the Baskins asking to meet to ‘clear the air’ and presumably seeking to secure their participation in the sequel,” the lawsuit states. “Carole Baskin’s response was clear and unequivocal: ‘No. And lose my number.’”

Furthermore, the Baskins allege the recently released trailer for “Tiger King 2,” which contains some of that footage, already constitutes a breach of contract.

Netflix and Royale Goode Productions could not be immediately reached for comment.

Released in March 2020, as the Covid-19 pandemic and subsequent lockdowns began, Netflix released “Tiger King,” a miniseries chronicling the downfall of Joe Exotic, also known as Joseph Maldonado-Passage, an eccentric Oklahoma zookeeper.

Much of the series focused on the feud between Maldonado-Passage and Baskin, who has worked for decades to shut down for-profit “roadside zoos” that she says mistreat tigers and other big cats. Baskin herself opened a sanctuary in Tampa, Big Cat Rescue, to take in big cats taken from those zoos.

Some episodes of the docuseries delved into a cold case involving the disappearance of Baskin’s former husband and offered up several theories, including that Baskin fed him to her tigers at the sanctuary. Maldonado-Passage even made a YouTube music video — “Here Kitty Kitty” — that shows a Baskin doppelgänger feeding a tiger scraps of meat while he sings about the alleged murder.

The quarrel between the two culminated in a murder-for-hire plot that landed Maldonado-Passage behind bars on a 22-year sentence.

The documentary garnered tens of millions of views the first month alone.

In exhibits submitted to the court, Howard Baskin signed releases for a documentary called “Stolen World” and an unnamed film. The documents state the producer can use the recordings “in connection with the picture and all ancillary and subsidiary uses thereof and all advertising and publicity therefore and to exploit the picture in any and all manner and media now known or hereafter devised, throughout the world, in perpetuity.” The releases also bar any claims from actions arising from “the picture or the recordings.”

The Netflix trailer for the sequel describes the upcoming documentary as: “We thought the mayhem was over. But we’ve only scratched the surface.” The rumors surrounding Baskin’s former husband play an important part and clips of her appear throughout.  

“Tiger King 2” is scheduled for release on Nov. 17.

Baskin is represented by Frank Jakes of the Tampa-based Johnson, Pope, Bokor, Ruppel and Burns law firm.

from Courthouse News