Keeping Abreast
Monday, August 26, 2002 at 5:26PM Autumn. Back to school. Back to business. Time to set aside the frolic of summer (and the summer has been rife with frolic) and get back to the critical issues at hand. Time once again to mention the occasional legal development or fascinating new case on this weblog. Time for Serious Posts to resume.
Contrary to certain outward appearances, I do discern these changes in the air. One must bear in mind, however, that autumn descends slowly on Southern California, and that Ninth Circuit judges are not the only ones who have witnessed "an eyeful of issues" on their dockets in recent weeks. [Link via Howard] Other current cases likewise illustrate the steamier side of appellate jurisprudence, while emphasizing the contrast between the working conditions of law enforcement officers in San Diego, California, and those of reactor technicians in Montgomery, Alabama.
There is little doubt that the decision of the California Court of Appeal, Fourth District, Division One in Dept. of Alcoholic Beverage Control v. ABC Appeals Board [PDF], has done more to increase applications for employment at the San Diego Police Department than a year's worth of job fairs could have hoped to accomplish. This case considered whether an undercover detective, hard at work in this establishment ("Dream Girls;" do not click that link if you are offended by sexually explicit advertising), unfairly enticed exotic dancer Mary Diann Gast into "showing more skin" than otherwise is allowed in California adult entertainment venues that serve alcohol. Specifically, Detective Nelson "did an undercover inspection," that included commissioning two "couch dances" at $10 apiece. Apparently not content with whatever the first dance had entailed (little is said except it complied with the law), Detective Nelson asked Ms. Gast whether "more skin" would be shown on the second go-round. Ms. Gast responded with enthusiasm, in a manner more graphically (correction: quite graphically) explained in the opinion. Ms. Gast "may" have received a $5 gratuity for her trouble, while her employer eventually received a suspension of its liquor license. Dream Girls later successfully appealed the suspension to the Alcoholic Beverage Control Appeals Board of California, on the grounds of entrapment. But the Court of Appeal held otherwise in this opinion, reinstating the suspension. According to the court this was all in a good day's work for Detective Nelson, who had not acted so overbearingly as to "induce a normally law abiding person to commit [an] offense." (The court somehow refrained from commenting on the unmatched value Detective Nelson received for his second $10, or on the lackluster nature of his tip.)
Although Patrick La Day's on-the-job experiences appear to have been considerably less enviable than those of Detective Nelson, a recent decision of the United States Court of Appeals for the Fifth Circuit, La Day v. Catalyst Technologies, Inc., at least has restored his ability to seek legal recourse. In his case, Mr. La Day asserts he was employed as a reactor technician for Catalyst Technologies, under the odious supervision of one Willie Craft. Mr. Craft is said to have told Mr. La Day he was jealous of his girlfriend and the "passion marks" with which she had decorated Mr. La Day's neck. Not content to pursue Mr. La Day verbally, Mr. Craft also is alleged to have initiated physical contact somewhat similar to that between Ms. Gast and Detective Nelson -- albeit distinctly less voluntary on Mr. La Day's part. While the trial court had granted summary judgment in favor of the defendants, the Fifth Circuit's decision reversed that outcome on several fronts, and gave Mr. La Day the opportunity to continue to pursue his Title VII sexual harassment claims. (It is not that common to hear about same-sex harassment claims, though they do get filed -- regardless of the amount of any tip that may have been offered).