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Wrongful Death Suit: Texting While Driving Fatality

The family of a Utah boy who was killed in an alleged texting-while-driving accident is suing the driver who hit him for wrongful death. The accused driver, Jeffery Lloyd Bascom, is also facing criminal charges under the state’s distracted driving law.

Thomas LaVelle Clark, 15, was walking along a semi-rural road on the outskirts of the town of Vernal when he was hit from behind by a pickup driven by Bascom, 28. Clark was thrown 40 feet over a ditch and landed near a cow pasture, according to local news reports.

Bascom admitted to police on the scene that he was texting at the time of the accident. Utah makes homicide involving the use of a hand-held wireless communication device while driving a second degree felony, which carries a prison term of up to 15 years.

The Clark accident is far from an isolated incident, unfortunately. According to the National Safety Council, there have already been nearly 100,000 vehicle crashes in the country this year involving cell phone use, or one every 24 seconds. And the National Highway Traffic Safety Association reports that around 3,000 people were killed in distracted driving accidents in 2010. The Association further notes that cell phone users are 23 times more likely to be involved in a crash.

States are legislating to catch up with technology, but laws on phone use while driving vary across the country. Ten states plus Washington, D.C., ban handheld phone use by drivers across the board. An additional 29 ban text messaging only.

A Strong Stance

Utah’s distracted driving law was updated last year to ban any cell phone use while driving, with the exception of making a call or using GPS. Violators can be charged with a misdemeanor, with heightened penalties if there is an injury involved. A felony, like in Bascom’s situation, comes into play when there is loss of life.

“Utah has taken a strong stance on this growing problem,” says Anthony C. McMullin of the McMullin Legal Group in St. George, Utah. “Utah’s 2012 amended texting law makes it much easier for prosecutors to successfully charge and convict violators.”

Plaintiffs could potentially bring a wrongful death or personal injury lawsuit regardless of the criminal laws surrounding an accident, but the existence of specific language for distracted driving can make it easier for attorneys to show a driver was at fault. “Utah’s newly amended texting law also has civil implications,” McMullin says. “The new law heightens the responsibility and duty of all drivers when they get behind the wheel. A driver’s duties include keeping one’s vehicle under control, maintaining a proper lookout and obeying the motor vehicle laws of the State of Utah.”

Texting drivers leave a trail of evidence behind them. Police can check a phone at the scene or, barring that, investigators or attorneys can subpoena phone records from the carrier to find out if a driver was sending any messages at the time of an accident, making it likely that they will be held accountable for their actions.

“If a person is texting or otherwise operating a cell phone while driving and that usage results in a motor vehicle accident, it is typically very easy to establish a breach of the driver’s duties,” says the attorney. “Bottom line is if a driver causes an accident while texting, they may not only be charged criminally but will almost certainly be civilly responsible for any injured parties damages.”

By: Aaron Kase, Laywers.com

At Maya Murphy, P.C., our experienced team of personal injury attorneys is dedicated to achieving the best results for individuals and their families and loved ones whose daily lives have been disrupted by injury.  Our personal injury attorneys assist clients in New York, Bridgeport, Darien, Fairfield, Greenwich, New Canaan, Norwalk, Stamford, Westport, and throughout Fairfield County. If you have any questions relating to a personal injury claim or wrongful death suit or would like to schedule a free consultation, please contact our Westport office by phone at (203) 221-3100 or via e-mail at JMaya@Mayalaw.com to get in touch with our Managing Partner, Joseph Maya.

Court Denies Mother’s Request to Relocate with Minor Child

In a recent post judgment divorce action originating in the Superior Court for the Judicial District of Hartford, Judge Prestley denied a mother’s request to relocate to France with the parties’ children.  The parties were married in 1981 and after twenty-six years, sought and obtained a divorce in 2008.  During their marriage, the parties had three children, born in 1988, 1992 and 1998.  The youngest child was the only minor at the time of the post judgment action.

In August, 2009, after reconnecting with a high school friend who was living in France, the mother informed the father that she was going to make two-month-trips overseas, returning home for two weeks in between.  Sometime later, she informed the father that she was engaged to the high school friend, and planned to move to France with the children permanently.  The father initially agreed to the plan, but then changed his mind.  In June, 2010, the mother filed a Motion to Modify Visitation requesting permission to relocate with the children.  In October, 2010, the father agreed to the move, but only for the 2010-2011 school year.  As the parties were unable to reach an agreement, a full hearing was held in January, 2011.

In its decision the Court noted that, pursuant to Connecticut General Statutes §46b-56d(a), the party wishing to relocate must demonstrate that the relocation is for a legitimate purpose, and that the proposed relocation is reasonable in light of such purpose. In this particular case the Court found the plaintiff had no legitimate reason to justify the proposed move. The mother testified that although she could not work legally in France, she would continue to work with her clients and structure workshops in her field. The plaintiff testified she was going to teach one seminar in March 2011 in the state of Florida (while temporarily living in France), and that she taught another workshop for which she earned $500.00.  The Court found that although the plaintiff expressed her opinion that there were more opportunities for her in France, she provided no details to support that claim, and, thus, could not demonstrate that furthering her career opportunities was a legitimate reason for the move.

The plaintiff also contended that relocating to France would provide a cultural opportunity to the parties’ minor child. She testified that the child was a speed-skater, that he had a new coach in France and that skating was more important for him than spending time with the father, from whom he needed to heal.  She further suggested that the child had been unhappy and stressed since the divorce, and that contact between the son and his father was not healthy for the child.

With respect to the child’s needs, the Court found that although there was credible evidence that verbal altercations occurred between the mother and the father in the presence of the children, and that the child was upset about his father’s objections to his moving to France, the evidence also established that the defendant participated in his children’s lives to the extent that he was able given his work schedule.  The Court further found that the father’s relationship with his son was good until the pending issues arose, that the child was involved in speed-skating in Connecticut prior to the move to France, and that skating opportunities were still available to him here.

The Court ultimately held that it could not find any legitimate purpose, financial or otherwise, to justify the proposed relocation.  It noted that although time spent in a foreign country may provide some cultural advantages, those potential advantages were overshadowed by the irreparable harm the child would likely suffer as his relationship with his father was continuing to deteriorate with distance.  The Court essentially held that repairing and fostering the child’s relationship with his father was more important that any cultural advantages he may have gained by moving.

Should you have any questions about divorce in Connecticut or minor relocation cases within Divorce Court, contact our Managing Partner Joseph Maya directly via email at JMaya@Mayalaw.com or by telephone at (203) 221-3100 for a free consultation.

Court Denies Foster Parent’s Right to Intervene in DCF Proceeding

In a recent decision involving the Department of Children and Families (DCF), the Superior Court (Simon, J.) precluded a foster parent from intervening in proceedings designed to reunify a child with her biological father. DCF originally filed a request for an order of temporary custody, which the Court sustained by agreement, as well as a neglect petition, which the Court granted. Shortly thereafter, the child was committed to the Department, and placed in foster care. Although DCF later filed a request for termination of parental rights, the Court denied it, affording the child’s mother and father an opportunity to rehabilitate themselves.

In a parallel case, the child’s biological father was also committed to the Department, and ultimately placed in foster care himself. The Court found that the father was fully compliant with all DCF requirements, including attendance at school, and was also showing appropriate parenting skills. When the Department indicated it intended to reunify the child with her father in his new home, the child’s foster mother filed a motion seeking intervenor status to oppose the removal.

In denying the foster mother’s request, the Court explained, “A person or entity does not have a sufficient interest to qualify for the right to intervene merely because an impending judgment will have some effect on him, her, or it. The judgment to be rendered must affect the proposed intervenor’s direct or personal rights, not those of another.” The Court further explained, “These proceedings affect the rights of [the child] and her parents, not the rights of the foster mother. Foster parents are entrusted with foster children on a temporary basis only. Clearly the foster mother will be emotionally affected by the court’s decision; however the court’s judgment affects the rights of [the child] and her parents, particularly the father. It does not affect any direct or personal right that the foster mother may hold by law.”

With respect to the fact that the foster mother was allegedly told she would be the adoptive option for the child, the Court appeared to be sympathetic explaining it could “only imagine her frustration if in fact she was told she would be the adoptive resource…” Nevertheless, it ultimately held there was no controversy before it that require[d] the foster mother’s involvement.” Ultimately, “It is [the father] that has a right to be reunited with his daughter.”

Should you have any questions related to DCF proceedings, please feel free to contact our Managing Partner Joseph Maya directly via email at JMaya@Mayalaw.com or by telephone at (203) 221-3100 for a free consultation.

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Our family law firm in Westport Connecticut serves clients with divorce, matrimonial, and family law issues from all over the state including the towns of: Bethel, Bridgeport, Brookfield, Danbury, Darien, Easton, Fairfield, Greenwich, Monroe, New Canaan, New Fairfield, Newton, Norwalk, Redding, Ridgefield, Shelton, Sherman, Stamford, Stratford, Trumbull, Weston, Westport, and Wilton. We have the best divorce attorneys and family attorneys in CT on staff that can help with your Connecticut divorce or New York divorce today.

If you have any questions or would like to speak to a divorce law attorney about a divorce or familial matter, please don’t hesitate to call our office at (203) 221-3100. We offer free divorce consultation as well as free consultation on all other familial matters. Divorce in CT and divorce in NYC is difficult, but education is power. Call our family law office in CT today.

Connecticut Appellate Court finds that Misappropriated Funds should not be part of Probate Estate

Connecticut Appellate Court finds that Misappropriated Funds should not be part of Probate Estate
Przekopski v. Przekop, 124 Conn. App. 238, 4 A. 3d 844 (2010)

The defendants, a sister, individually and as the executrix of her father’s estate, appealed from the judgment of the Superior Court, which upon a de novo appeal of a Probate Court order, denied a motion for rectification or for a corrected judgment, and ordered that the bank accounts misappropriated by the plaintiff brother be returned to the father’s estate for distribution.

The Appellate Court concluded that the Probate Court ordered the proper remedy and that it was improper for the Superior Court to order the transfer of the misappropriated funds from the plaintiff to the estate, instead of directly to the defendant, individually. The decedent used the survivorship accounts as a method of estate planning and he intended for the accounts to pass immediately to the defendant, individually, upon his death and not to be the subject of probate.

The Appellate Court recognized the decedent’s intent and wanted to ensure that the plaintiff did not profit from his abuse of the power of attorney that he utilized to substitute his name for the defendant’s individual name on certain bank accounts containing the funds.  The plaintiff did not engage in fair dealing in transferring certain bank accounts to himself under the power of attorney and abused his position of trust. The power of attorney did not authorize the plaintiff to change the name of the survivor on the accounts.

Because the plaintiff was a beneficiary under his father’s will and stood to inherit some of the funds if they were distributed pursuant to the will, it was error for the Superior Court to order the return of the funds to the estate.  The Appellate Court reversed the judgment only as to the order that the plaintiff transfer to the decedent’s estate all of the misappropriated funds.  The case was remanded with direction to order those funds, with the exception of the sum of $ 11,000, returned to the defendant, individually.

Should you have any questions relating to wills, trusts, estates or probate issues generally, please feel free to contact Joseph Maya at Maya Murphy, P.C. today at (203) 221-3100 or by email at JMaya@Mayalaw.com, to schedule a free initial consultation.

Toxicology Report Suppressed in DUI Case Because Warrantless Search Exceptions Did Not Apply

In this criminal law matter, a Superior Court of Connecticut granted a defendant’s motion to suppress evidence, because the State did not show exigent circumstances allowing the warrantless seizure.

This case arose from an incident that occurred on August 15, 2003. The defendant was involved in an automobile accident, resulting in the death of the other driver. He was transported to a nearby hospital where, without a warrant, police requested that his blood be drawn. One of the officers unaware of this order was informed of that the blood had been drawn, so he elected to not perform the field sobriety and chemical alcohol tests. Five days later, police applied for and was granted a warrant for the blood toxicology report. The defendant was charged with operating a motor vehicle while under the influence (OMVUI), in violation of Connecticut General Statutes (CGS) § 14-227a(a), and second-degree manslaughter with a motor vehicle, among several other counts. On March 8, 2004, the defendant submitted a motion to suppress the toxicology report, arguing that they were obtained in violation of the search and seizure protections of the state and federal constitutions.

Under state and federal law, individuals are protected against unreasonable searches and seizures of their persons, houses, papers, and effects. The “[c]ompulsory administration of a blood test” clearly constitutes a search and seizure of one’s person. If a search is conducted without a warrant evidencing probable cause, it is per se unreasonable, and evidence derived from this illegal search will be excluded unless one of a “few specifically established and well-delineated exceptions” applies. Two such exceptions to the exclusionary rule are inevitable discovery and exigent circumstances.

The inevitable discovery exception will thwart suppression of evidence if the State can show, by the preponderance of the evidence (more likely than not), that through lawful means the evidence would have been discovered anyway. Officers must have been actively pursuing such means before the constitutional violation in question occurred. In this case, the State argued that this exception applied because had the officer not been told the blood was drawn, he would have proceeded with the various OMVUI-related tests. Therefore, the State would have inevitably discovered the defendant’s blood alcohol content (BAC). However, the Superior Court was not persuaded, because the State assumed that the defendant would have consented to the alcohol chemical tests. Under CGS § 14-227b, a person is free to refuse the test, though he will face license suspension for doing so. As such, the police could not presume that this procedure would inevitably lead them to discovery of the defendant’s BAC level.

Exigent circumstances doctrine applies where police officers, who have requisite probable cause, do not have time to get a warrant. They must act swiftly to effectuate an arrest, search, or seizure, to avoid, for example, the destruction of evidence. The State bears the burden to point to specific and articulable facts that gave rise to the exigent circumstances. In this case, the State argued that if they did not order that the defendant’s blood be taken, they would have lost evidence of his BAC level. However, the Superior Court noted that the record was devoid of any facts to support this proposition. Therefore, because neither exception applied to the facts of this case, the Superior Court granted the defendant’s motion to suppress.

Written by Lindsay E. Raber, Esq.

When faced with a charge of operating a motor vehicle while intoxicated (a.k.a. driving under the influence) or license suspension, an individual is best served by consulting with an experienced criminal law practitioner. Should you have any questions regarding criminal defense, please do not hesitate to contact Attorney Joseph C. Maya in the firm’s Westport office in Fairfield County at 203-221-3100 or at JMaya@Mayalaw.com.

Joseph Maya selected to 2022 Edition of Best Lawyers in America

FOR IMMEDIATE RELEASE

 

Westport, CT

 

Maya Murphy, P.C. is pleased to announce that Joseph Maya has been included in the 2022 edition of The Best Lawyers in America®. Since it was first published in 1983, Best Lawyers has become universally regarded as the definitive guide to legal excellence.

Joseph Maya, a Connecticut and New York-based litigation attorney, was recognized in The Best Lawyers in America© 2022 edition. He has been rated Best Lawyers in America and ranks among the top private practice attorneys nationwide. Attorneys listed in this edition of The Best Lawyers in America were selected after an exhaustive peer-review survey that confidentially investigates the professional abilities and experience of each lawyer. Recognition in Best Lawyers® is widely regarded by both clients and legal professionals as a significant honor.

Mr. Maya has been practicing law in Connecticut for more than 25 years. He has been a licensed attorney in New York for more than 30 years.

“Best Lawyers was founded in 1981 with the purpose of highlighting the extraordinary accomplishments of those in the legal profession,” said Best Lawyers CEO Phillip Greer. “We are proud to continue to serve as the most reliable, unbiased source of legal referrals worldwide.”

Lawyers on The Best Lawyers in America list are divided by geographic region and practice areas. They are reviewed by their peers based on professional expertise, and undergo an authentication process to make sure they are in current practice and in good standing.

 

Maya Murphy, P.C. has offices in Westport, CT and New York City. For additional information on Joseph Maya or Maya Murphy, P.C., please visit its website at https://mayalaw.com, or call 203-221-3100.

 

Court May Terminate Parental Rights Even Though Adoption Arrangement is not Secured

In the case of In Re Davonta V., 285 Conn. 483 (2007), the Connecticut Supreme Court addressed whether it is ever in  a child’s best interest to terminate parental rights when an adoptive family has not yet been secured.  In that case, the child was the subject of a neglect petition filed by the Department of Children and Families alleging educational neglect, medical neglect and physical neglect.  After the petition was granted, the child was placed under protective supervision.  The mother subsequently moved out of state with the child; however, when she returned approximately a year later, the Department secured an Order of Temporary Custody based on additional reports of neglect.  After the OTC was granted, the child was committed to DCF’s care and placed in a foster home.

The Department of Children and Families subsequently filed a petition for termination of parental rights alleging that the child was being denied proper care and attention, and that the mother failed to rehabilitate herself.  After a trial, the court granted the Department’s petition, concluding that the child’s best interests would be served by severing the relationship with his mother.  The mother appealed on the basis that, among other things, the child’s foster parents had not guaranteed they would adopt him.

In its ruling, the Supreme Court explained that the law does not preclude the termination of a biological parent’s rights simply because adoption of the child by new parents is not imminent. Indeed, “Although subsequent adoption is the preferred outcome for a child whose biological parents have had their parental rights terminated… it is not a necessary prerequisite for the termination of parental rights.” (internal citations omitted). Id. at 492.  The Court further explained, “While long-term stability is critical to a child’s future health and development… adoption provides only one option for obtaining such stability.” (internal citations omitted). Id. at 492.  According to the Court, the reluctance of the child’s foster parents to proceed with adoption at the time of the termination proceedings was not a sufficient reason to disturb the trial court’s judgment. Id.

Citing various sources, the Court emphasized the importance of permanency, explaining “Children need secure and uninterrupted emotional relationships with the adults who are responsible for their care.” (internal citations omitted). Id. at 494-495.  “No child can grow emotionally while in limbo, never really belonging to anyone except on a temporary and ill-defined or partial basis.” (internal citations omitted). Id. at 495.

Written by: Michael D. DeMeola

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Our family law firm in Westport Connecticut serves clients with divorce, matrimonial, and family law issues from all over the state including the towns of: Bethel, Bridgeport, Brookfield, Danbury, Darien, Easton, Fairfield, Greenwich, Monroe, New Canaan, New Fairfield, Newton, Norwalk, Redding, Ridgefield, Shelton, Sherman, Stamford, Stratford, Trumbull, Weston, Westport, and Wilton. We have the best divorce attorneys and family attorneys in CT on staff that can help with your Connecticut divorce or New York divorce today.

If you have any questions or would like to speak to a divorce law attorney about a divorce or familial matter, please don’t hesitate to call our office at (203) 221-3100. We offer free divorce consultation as well as free consultation on all other familial matters. Divorce in CT and divorce in NYC is difficult, but education is power. Call our family law office in CT today.

 

Your Child’s Attendance Requirements

The following will provide you with the pertinent laws and procedures regarding your child’s attendance at school. The first part of this section will describe the mandatory attendance requirements that the State of Connecticut requires students to adhere to and potential penalties if your child fails to meet these requirements. The second part of this section will provide you with basic information regarding how your child’s residency plays a role in where they may attend school. This section will further describe available hearing procedures if your child is determined to be an ineligible resident.

If there are any issues that may arise between yourself and the school district regarding your child’s school attendance or a dispute pertaining to the residency status of your child, please contact one of our attorneys at Maya Murphy, P.C.

Attendance

As a parent, you are responsible for ensuring that your child is regularly attending school. Attendance is basic to your child’s ability to obtain a proper education. Much of what your child learns is presented to them in the classroom setting. Your child’s daily attendance will expose them to other learning processes that will help them in continuing to grow and learn. Connecticut law states, “parents and those who have the care of children shall bring them up in some lawful and honest employment and instruct them or cause them to be instructed in reading, writing, spelling, English grammar, geography, arithmetic and United States history and in citizenship, including the study of the town, state and federal governments.”

If your child is over the age of five (5) and under the age of eighteen (18) you must ensure that he or she attends public school regularly during the normal operating hours of the school district in which your child resides. If your child is a high school graduate or as a parent you are able to demonstrate that your child is receiving instruction in the appropriate studies equivalent to that taught in public school (e.g. homeschooling, private school) then your child will be excused from this mandatory attendance requirement. Please note, that if your child attends private school there are certain attendance requirements that will be discussed in further detail below.


Is my child permitted to withdraw from attending school?

As of July 1, 2011, and each school year thereafter, a parent or other person having control of a child who is at least seventeen (17) years of age, may consent to their child’s withdrawal from attending school. As a parent you must personally appear at your child’s school district’s office and sign a withdrawal form. The withdrawal form must also be signed by a guidance counselor or school administrator who is employed by your child’s school district indicating that you, the parent, were provided with information regarding educational options available in your child’s school system and the community.

If your child has voluntarily terminated his or her enrollment in school with your consent and subsequently seeks readmission, the board of education of your child’s school district may deny school accommodations to your child for up to ninety (90) school days following your child’s withdrawal, unless, your child seeks to be readmitted within ten (10) school days after his or her withdrawal. In this case, the school board must readmit your child within three (3) school days.

What is the maximum age at which I must enroll my child in school?

A parent has the option to exempt a child from attending school until the age of seven (7) provided the parent appears at the child’s school district’s office and sign an option to exempt form. The school district must provide you with information regarding the educational opportunities that would be available to your child if you were to enroll him or her in public school as early as the age of five (5). An option form must be signed for each year you decide not to enroll a child below the age of seven (7) in public school.

Is there a penalty for failing to comply with the mandatory attendance requirements?

Failure as a parent to comply with the requirement that your child attend public school (absent alternative means of instruction) is a violation of law. If your child fails to attend school as required you are subject to a fine not to exceed twenty-five (25) dollars per day. A penalty will not be imposed if it appears that your child is destitute of clothing suitable for attending school and as a parent you are unable to provide proper clothing for your child to attend school.


Am I responsible for the mandatory attendance requirements if my child attends private school?

As a parent you are still required to comply with the mandatory attendance laws set forth above if your child attends private school. Private schools must submit school attendance reports to the Commissioner of Education. The Commissioner of Education provides teachers and other school personnel at your child’s private school with the forms needed to establish compliance with the mandatory attendance provisions. If your child’s attendance reports are not satisfactory, a complaint may be filed in the Connecticut Superior Court by the superintendent of the school district in which you and your child reside.

 

What is a Truant?

Your child may, on occasion, be excused from school for good reason, such as illness, where a written notice from your child’s doctor should be provided to the child’s school. Unexcused absences may violate the mandatory attendance laws.

Connecticut law defines a “truant” as a child age five (5) to eighteen (18) who is enrolled in public or private school and has four (4) unexcused absences from school in any one month or ten (10) unexcused absences from school in any one year. A “habitual truant” is a child between the ages of five (5) and eighteen (18) who is enrolled in private or public school and has twenty (20) unexcused absences within one school year. Cities and towns may adopt their own ordinances concerning children who are found on the streets or in other public places during school hours. The police may detain your child and return the child to school if he or she is found to be a habitual truant.


What are the policies and procedures my child’s school may adopt concerning truancy?

Your local board of education must adopt and implement policies and procedures concerning truants, which must include:

• The holding of a meeting with you and your truant child and appropriate school personnel to review and evaluate the reasons for your child’s truancy, provided such meeting is held no later than ten (10) school days after your child’s fourth unexcused absence in any month or tenth unexcused absence in a school year.
• Coordinating services with referrals of children to community agencies providing child and family services.
• Notifying you annually at the beginning of the school year and upon any enrollment during the school year, as a parent having control of a child enrolled in a public school grade from kindergarten to eight, in writing of the obligations you have as a parent.
• Obtaining from you annually at the beginning of the school year and upon any enrollment during the school year, as a parent of a child in a grade from kindergarten to eight, a telephone number or other means of contact.
• A system of monitoring individual unexcused absences of children in grades kindergarten to eight, ensuring that whenever a child fails to report to school on a regularly scheduled school day and no indication has been received by school personnel that you, the parent, are aware of his or her absence, that a reasonable effort is made by school personnel or volunteers under the direction of school personnel to notify you, by telephone.

What if as a parent or guardian I fail to comply with the school policies and procedures regarding truancy?

If a parent fails to attend a truancy meeting regarding your child’s truant status or cooperate with the school to attempt to solve he truancy problem, then the superintendent of your school district must file a written complaint with the Connecticut Superior Court.

The board of education overseeing your child’s school may appoint an individual or group of individuals authorized to prosecute violations of school attendance laws. The appointee is authorized to investigate the absence or irregular attendance of your child, to cause your child to attend school regularly if they are absent or irregularly in attendance and prosecute cases for violation of the mandatory attendance laws. These appointees will report their findings to your child’s school principal or superintendent, who based on these findings, may be required to file a written complaint in Connecticut Superior Court.
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Our education law firm in Westport Connecticut serves clients with expulsion, discrimination, and general education law issues from all over the state including the towns of: Bethel, Bridgeport, Brookfield, Danbury, Darien, Easton, Fairfield, Greenwich, Monroe, New Canaan, New Fairfield, Newton, Norwalk, Redding, Ridgefield, Shelton, Sherman, Stamford, Stratford, Trumbull, Weston, Westport, and Wilton. We have the best education law attorneys in CT on staff that can help with your Connecticut or New York education issues today.

If you have any questions or would like to speak to an education law attorney about a pressing matter, please don’t hesitate to call our office at (203) 221-3100. We offer free consultations to all new clients.

 

Student Discipline for Off-Campus Speech in the New Digital Era: What Parents Should Know

“Today, students are connected to each other through email, instant messaging, blogs, social networking sites, and text messages. An email can be sent to dozens or hundreds of other students by hitting ‘send.’ A blog entry posted on a site such as livejournal.com can be instantaneously viewed by students, teachers, and administrators alike. Off-campus speech can become on-campus speech with the click of a mouse.”

What’s a parent to do?

Students today are equipped with electronic devices that keep them in immediate and continuous contact with fellow students. It is virtually impossible to control (or even monitor) the content of outgoing texts, tweets, IM’s, and emails, and absolutely impossible to censor the content of incoming messages. As a result, “the line between on-campus and off-campus speech is blurred” as are the “outer bounds of administrators’ authority to punish student speech . . . .” While there are fewer “bright lines” there are things parents should know if their child’s off-campus use of social media (as is becoming increasingly frequent) forms the subject of student discipline. There is also recent judicial guidance available as to what to tell your child about potential school discipline related cyberspace pitfalls that must be avoided. The purpose of this article is to make parents at least as well-informed as school administrators in the area of permissible student discipline for off-campus, social-networking speech.

Where We Came From

Prior law with respect to students’ First Amendment rights used to be relatively well-settled and fairly predictable. Students do not “shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.” The constitutional rights of public school students, however, “are not automatically coextensive with the rights of adults in other settings.” In Tinker, the United States Supreme Court said that student rights must be applied in a manner consistent with the “special characteristics of the school environment,” and that school administrators may prohibit student expression that will “materially and substantially disrupt the work and discipline of the school.” Because schools are responsible for “teaching students the boundaries of socially appropriate behavior,” otherwise constitutionally protected but offensive speech by an adult may when uttered by a student, give rise to disciplinary action by a school. Educators are also permitted to exercise editorial control over “school-sponsored expressive activities such as school publications or theatrical productions.” Most recently, the Supreme Court has allowed public school administrators to “take steps to safeguard those entrusted to their care from speech that can reasonably be regarded as encouraging illegal drug use.”

The Tinker, Fraser, Hazelwood trilogy of cases was once thought to provide parents and teachers with a viable and stable framework for reconciling student rights of free speech with educators’ rights to maintain good order and discipline. Maybe in 1988, but no more.

Where We Are Now

A recent Federal Court case from Connecticut has shone a spotlight on the difficulty of trying to extrapolate existing law onto the realities of student access to and use of social media. The case began as Doninger v. Niehoff, 514 F. Supp. 2d 199 (D. Conn. 2007) (“Doninger I”) and has a torturous procedural and checkered appellate history. Doninger I was affirmed by Doninger v. Niehoff, 527 F. 3d 41 (2d Cir. 2008) (“Doninger II”). The case was continued, seeking monetary relief, Doninger v. Niehoff, 594 F. Supp 2d 211 (D. Conn. 2009) (“Doninger III”). On appeal, Doninger III was affirmed in part and reversed in part by Doninger v. Niehoff, 2011 U.S. App. LEXIS 8441 (2d Cir. Apr. 25, 2011)(“Doninger IV”). The most important aspect of this serpentine procedural and appellate route is that Doninger arose out of the United States District Court for the District of Connecticut and has made two trips to the United States Court of Appeals for the Second Circuit. Thus, to the extent the Second Circuit has ruled on issues of law in Doninger II and IV, such precedent is binding on the Connecticut Federal Court and likely to receive highly deferential treatment from the Connecticut State Courts. It also illustrates how the availability and use of social media can cause a simmering dispute between students and educators to rapidly metastasize into an all-out war.

What the Future Holds

“[W]hen it comes to student cyber-speech, the lower courts are in complete disarray, handing down ad hoc decisions that, even when they reach an instinctively correct conclusion, lack consistent, controlling legal principles.”
The disjointed state of education law as it pertains to student discipline for off-campus speech was recently highlighted by two cases that arose in Pennsylvania. In each case, high school students were suspended after posting MySpace profiles of their respective principals, mocking them in lewd and salacious terms. Each of the student’s cases was heard by a different Federal District Judge sitting in different courthouses. In one case, the student’s suspension was upheld; in the other case, the Judge ruled in favor of the student. Each of the cases was independently appealed to the United States Court of Appeals for the Third Circuit, that hears appeals from Federal trial courts in Pennsylvania. The two separate three-judge panels (from within the same Circuit and applying the same law) issued conflicting decisions. That prompted the entire Third Circuit (consisting of 14 Federal appellate judges) to hear the cases anew, and in both cases find for the students. The focus of the Court’s decision appeared to be on the fact that one student’s speech, in particular, “did not cause a substantial disruption in the school.” This test differs from the Second Circuit test that requires only a “reasonable foreseeability of disruption in the school.” This sets the stage for the United States Supreme Court to hear a case that will allow it to resolve an apparent conflict between the Circuits. Until the Supreme Court speaks to the issue, parents and students will have to glean guidance from what the courts have said about imposing school discipline for off-campus speech.

Technology: A Two-Edged Sword

Parents and students should be aware that at least one company now exists that is capable of scouring the Internet for everything a person may have said or done online in the course of the last seven years. Despite initial concerns, the Federal Trade Commission has determined that the company’s activities are in compliance with the Federal Fair Credit Reporting Act. Less than a third of the data developed by the company comes from major social platforms such as Facebook, Twitter, and MySpace. Much of the information comes from deep web searches that find comments on blogs and posts on smaller social sites, like Tumblr and even Craigslist. Photos posted to sharing sites such as Flickr, Picasa, Yfrog, and Photobucket are also easily discoverable. The “terms of service” agreements on most sites make all comments and content publicly available.

While such company presently researches candidates for employment, rather than students, its import for the future is clear: nothing said or done on the Internet is private.

The Takeaway for Parents or Students

• Students retain their constitutional rights of freedom of speech or expression while in or out of school.
BUT:

• School administrators may prohibit student expression that will materially and substantially disrupt the work and discipline of the school.

• Educators are permitted to exercise editorial control over school-sponsored expressive activities such as school publications or theatrical productions.

• Public school administrators may take steps to safeguard students from speech that can reasonably be regarded as encouraging illegal drug use.

• A student may be disciplined for expressive conduct occurring off school grounds when such conduct would foreseeably create a risk of substantial disruption within the school environment, at least to the extent that it was similarly foreseeable that such off-campus expression might also reach campus.

• A school may regulate in the classroom “plainly offensive” speech, i.e., speech that is offensively lewd and indecent.

• Off-campus, the risk from student speech of substantial disruption within the school environment depends on a number of factors including the language used, the truth or falsity of the communication, and whether the student serves as a student government leader.

• Participation in extracurricular activities is a privilege and not a right.

SO, STUDENTS SHOULD PRESUME:

• That any electronic communication (e.g., text, tweet, email) or creation (e.g., MySpace profile) that can be forwarded beyond its initial addressee may be forwarded to parties unknown, or may be seen by teachers or school administrators. Electronic communication (i.e., one relating or referring to students, teachers, administrators, or school activities) can be expected to find its way “on-campus.” Going forward, with respect to electronic communications, students should presume no practical or legal difference between on and off-campus.

• What constitutes “substantial disruption within the school environment” depends entirely on the circumstances. Virtually any deviation from the daily routine resulting from a student communication can be described as “disruption” sufficient to support student discipline.

The Bottom Line

Any off-campus electronic communication relating or referring to students, teachers, administrators, or school activities has the potential to result in student discipline. As of now, the unsettled status of the law affords school administrators wide latitude in deciding when a student communication can be reasonably seen to create a foreseeable risk of academic disruption. Exclusion from extracurricular activities is now a judicially accepted punishment. Other types of student discipline may in the future also be countenanced by the courts. In the meantime, to be forewarned is to be forearmed.
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Our education law firm in Westport Connecticut serves clients with expulsion, discrimination, and general education law issues from all over the state including the towns of: Bethel, Bridgeport, Brookfield, Danbury, Darien, Easton, Fairfield, Greenwich, Monroe, New Canaan, New Fairfield, Newton, Norwalk, Redding, Ridgefield, Shelton, Sherman, Stamford, Stratford, Trumbull, Weston, Westport, and Wilton. We have the best education law attorneys in CT on staff that can help with your Connecticut or New York education issues today.

If you have any questions or would like to speak to an education law attorney about a pressing matter, please don’t hesitate to call our office at (203) 221-3100. We offer free consultations to all new clients.

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$130,000 Settlement for Personal Injuries From Car Accident

A Naugatuck woman secured a $130,000 settlement stemming from an accident where she was rear-ended on Interstate 91 in Windsor, Connecticut by another motorist.

The plaintiff was a twenty-five-year-old makeup artist and retail saleswoman. As a result of the accident her neck, lower back, and knee were injured, requiring medical treatment. The plaintiff received medical treatment from a chiropractic physician for her cervical spine and lower back. The chiropractic physician assigned the plaintiff a five percent impairment of the cervical spine and a five percent impairment of her lumbar spine pursuant to the 5th Edition of the AMA Guide.  An orthopedic surgeon examined her knee injury who recommended exploratory arthroscopic surgery to repair a suspected meniscus tear.

The plaintiff’s Audi had substantial rear-end crash damage from the accident. The automobile liability policy on the vehicle operated by the defendant had a minimum $20,000.00 policy. The policy was paid in full by the owner’s liability carrier. The defendant operator also carried a $20,000.00 automobile policy on his own private automobile, which was also exhausted

The plaintiff’s own under-insured motorist carrier then paid $90,000.00 of under-insured motorist benefits to the plaintiff after the full limits of automobile liability coverage were exhausted against both liability policies covering the defendant operator and owner.

At Maya Murphy, P.C., our experienced team of personal injury attorneys is dedicated to achieving the best results for individuals and their families and loved ones whose daily lives have been disrupted by injury.  Our personal injury attorneys assist clients in New York, Bridgeport, Darien, Fairfield, Greenwich, New Canaan, Norwalk, Stamford, Westport, and throughout Fairfield County. If you have any questions relating to a personal injury claim or would like to schedule a free consultation, please contact our Westport office by phone at (203) 221-3100 or via e-mail at JMaya@Mayalaw.com

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