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Cypen & Cypen
MAY 20, 2010

Stephen H. Cypen, Esq., Editor

1.            STATUTE CRIMINALIZING PUBLICATION OF LAW ENFORCEMENT OFFICER PERSONAL INFORMATION IS UNCONSTITUTIONAL:  A United States District Judge in Tallahassee, Florida has struck down, as unconstitutional, Section 843.17, Florida Statutes.  That section provides that any person who shall maliciously, with intent to obstruct due execution of law or with intent to intimidate, hinder or interrupt any law enforcement officer in legal performance of his duties, publish or disseminate the residence address or telephone number of any law enforcement officer while designating the officer as such, without authorization of the agency that employs the officer, shall be guilty of a first degree misdemeanor.   Brayshaw posted a series of comments about a Tallahassee police officer on the website (a new one on us).  In particular, Brayshaw posted the officer’s name, age, number of kids, marital status, name and age of ex-husband, home address, square footage and estimated value of home, cell phone number and e-mail address.  (Frankly, we do not know what purpose it served for the judge’s ruling to publicize the foregoing information.)  The information published about the officer was truthful and “publicly available.”  (We are not aware of how to obtain public access to one’s cell phone or e-mail address.)  In any event, after Brayshaw was arrested for violating Section 843.17, Florida Statutes, he brought suit in federal court challenging constitutionality of the statute.  On cross-motions for summary judgment, the judge held Section 843.17, Florida Statutes, unconstitutional.  The First Amendment to the United States Constitution, as applied to the States by the Fourteenth Amendment, prohibits Congress and the States from "abridging the freedom of speech."  There are few categories of speech not protected by the First Amendment.  For example, the First Amendment does not protect certain modes of speech or expression, including true threats, fighting words, incitements to imminent lawless action and classes of lewd/obscene speech.  Merely publishing an officer's address and phone number, even with intent to intimidate, is not a “true threat” as defined in constitutional law jurisprudence.  Similarly, oral communications prohibited by Section 843.17, Florida Statutes, are not "fighting words" or incitements to imminent lawless action.  State action to punish publication of truthful information seldom can satisfy constitutional standards.  While the state interest in protecting police officers from harm or death may be compelling, Section 843.17, Florida Statutes, is not narrowly tailored to serve this interest.  Section 843.17, Florida Statutes, fails to require that there be a credible threat of danger to the officer, and thus fails to proscribe "true threats."   Additionally, Section 843.17, Florida Statutes, is clearly content-based, as it restricts speech based on its subject.  Content-based regulations are presumptively invalid and subject to a strict-scrutiny analysis, which  the statute does not pass.  In invalidating the statute for the foregoing reasons, the judge did not have to determine whether the statute is also void for vagueness and is unconstitutional as applied to Brayshaw.  Brayshaw v. City of Tallahassee, Florida, Case No. 4:09-cv-373 (U.S. ND Fla., April 30, 2010). 

 2.            HEALTH CARE REFORM IMPLICATIONS FOR PUBLIC EMPLOYERS:  We recently did a general piece on the new federal health care legislation (see C&C Special Supplement for March 30, 2010).  Now, GRS has released a comprehensive research memorandum dealing with the Patient Protection and Affordable Care Act of 2010 and the Health Care and Education Reconciliation Act of 2010, enacted, respectively, March 23, 2010 and March 30, 2010.  While many of the new provisions address access and insurance practices in the small employer and individual markets, the research memorandum deals with the impact on larger public employer and public retirement system health plans.  Readers can access this well-written piece at 

 3.            324 FALLEN LAW ENFORCEMENT OFFICERS HONORED:  Attorney General Eric Holder led the lighting of candles and the reading of the officers’ names; 116 officers were killed in line of duty in 2009, lowest total in 50 years.  The names of 324 law enforcement officers who have died in the line of duty were formally dedicated on May 13, National Law Enforcement Officers Memorial Day, in Washington, DC.  U.S. Attorney General Eric Holder led the lighting of candles and reading of the fallen officers’ names during the 22nd annual Candlelight Vigil at the Memorial grounds.  The 116 officers who died in 2009 was the lowest law enforcement fatality total since 1959, when 109 officers were killed.  In addition, 208 officers who died in previous years but whose deaths had been lost to history were added to the Memorial this year.  The monument in Judiciary Square now contains the names of 18,983 law enforcement officers who have died in law enforcement service throughout U.S. history from all 50 states, the District of Columbia, U.S. territories and federal law enforcement/military police agencies.  Between 2008 and 2009, law enforcement fatalities declined by 16 percent, an encouraging development driven by a 28 percent reduction in the number of officers killed in traffic-related incidents. Still, for the 12th year in a row, more officers died in traffic-related incidents in 2009 than were killed by gunfire or any other single cause of death.  The number of officers shot and killed rose last year, from 40 in 2008 to 49 in 2009.  Thirty-five states and Puerto Rico experienced officer fatalities during 2009.  Texas had the most officer deaths, with 10, followed by Florida, 8. 

 4.            PENSION FUNDED STATUS DIPS SLIGHTLY:  The funded status of the 100 largest corporate defined benefit pension plans deteriorated by $33 Billion during April 2010, as measured by the Milliman 100 Pension Funding Index.  The decline was primarily the result of an increase of $39 Billion in the plans’ liabilities during April from a reduction in the discount rate.  There were offsetting investment gains on plan assets of $6 Billion.  As of April 30, 2010 the funded ratio fell to 82.4%, down from 84.4% at the end of March 2010.  April's $6 Billion increase in market value raises the Milliman 100 PFI asset value to $1.121 Trillion, up from $1.115 Trillion at the end of March 2010.  The monthly asset return was approximately 1%.  By comparison, the Milliman 2010 Pension Funding Study reflects that the monthly investment return on pension assets, set by the companies in the study, will be 0.65% (8.10% annualized).  The projected benefit obligation, or pension liabilities, increased by $39 Billion during April, moving the Milliman 100 PFI value to $1.360 Trillion from $1.321 Trillion at the end of March 2010.  The change resulted from a decrease in the monthly discount rate to 5.69% for April (from 5.92% for March 2010).
For the 12 months ending April 30, 2010, the cumulative asset return has been 18.51%; however, the Milliman 100 PFI funded status has decreased by $14 Billion, due primarily to lower trending discount rates.  For these 12 months, the funded ratio of the Milliman 100 companies changed from 81% to 82.4%. If the 8.1% expected 2010 asset return in the pension plan portfolios of Milliman PFI 100 companies is achieved and the current discount rate of 5.69% is maintained for the balance of 2010, Milliman forecast that the Milliman 100 PFI funded status will increase, with a projected pension deficit of $231 Billion and a funded ratio of 83.2%.  Asset returns of 21.5% for the rest of 2010 would be needed to reach a funded ratio of 90% and a projected deficit of $136 Billion at the end of the year.

 5.            EMPLOYER’S DECLINING TO INVESTIGATE DISCRIMINATION COMPLAINT NOT ILLEGAL RETALIATION:  Fincher appealed a summary judgment dismissing her discrimination and related claims against her former employer, Depository Trust and Clearing Corporation.  She alleged that DTCC retaliated against her for bringing a complaint of discrimination by declining to investigate that complaint.  The appellate court concluded that an employer's failure to investigate a complaint of discrimination cannot be considered an adverse employment action taken in retaliation for the filing of the same discrimination complaint.  Thus, the  United States Court of Appeals affirmed the judgment.  An employee’s knowledge that her employer has declined to investigate her complaint will not ordinarily constitute a threat of further harm, recognizing, of course, that it would hardly provide a positive incentive to lodge such a further challenge.  Fincher v. Depository Trust and Clearing Corporation, Case No. 08-5013 (U.S. 2d Cir., May 14, 2010). 

 6.            TOP TEN NAMES FOR 2009:  Following our tradition (see C&C Newsletter for August 6, 2009, Item 9), here are the ten most popular baby names for 2009, according to the Social Security Administration: 

Rank                                    Male Name                                    Female Name

   1                                    Jacob                                                Isabella
   2                                    Ethan                                                Emma
   3                                    Michael                                    Olivia
   4                                    Alexander                                    Sophia
   5                                    William                                    Ava
   6                                    Joshua                                    Emily
   7                                    Daniel                                    Madison
   8                                    Jayden                                    Abigail
   9                                    Noah                                                Chloe
  10                                    Anthony                                    Mia

Incidentally, Jacob topped the list for the eleventh year in a row; Isabella dethroned Emma, who had a one year reign, after twelve-straight years of Emily at number one.  Once again, Osama and Monica were the least popular names for the United States.  And once again, we are kidding. 

 7.         TV HOST PULLS TIGER WOODS BONER:  A television host was left red-faced when she made an X-rated gaffe about Tiger Woods.  Reporter Win McMurry told viewers on the Golf Channel that Woods had pulled out of his latest tournament because of a “bulging d-ck.”  The sportscaster quickly corrected herself, saying that Woods had quit the Players Championship because of a bulging disk in his neck.  Woods had left the TPC Sawgrass course in Florida midway through his round, saying he was in too much pain to continue.  We feel for you, Tiger. 

 8.            WAITER, WINE FOR THE TABLE:  For the ultimate in liquid investments, try top-quality wine, which has outperformed one benchmark U.S. stock index for 13 years.  Researchers compared wine prices with the Russell 3OOO Index between January 1996 and January 2009, according to a Bloomberg Businessweek, report.  Researchers tracked prices from 144 wine auctions with a combined value of $237 Million, using vintages from 1981 to 2005.  Their index beat the Russell 3000 over the period, largely because wines held their value better than equities over the most recent market downturn.  Since mid-2008, the wine gauge fell 17%, while stocks declined 47%.  A sub- index of highest-quality wines did even better, delivering fivefold returns over the 13-year period vs. a 50% gain for the Russell 3000.  Waiter, whine for the table. 

 9.            HO-HUM...THANKS FOR THE COMPLIMENT:  If you knew a little something about thermoregulatory function, the maintenance of a consistent temperature, you would take a yawn in your face as a compliment.  Yawning has nothing to do with boredom, rudeness or even fatigue, according to McClatchy News Service.  Quite the contrary:  yawning helps cool down our brains so they function better.  They operate most efficiently when cool.  Research indicates that we yawn in response to increased brain or body temperature.  And, you’ll be glad to know, that one of the most common held beliefs about yawning -- that it’s contagious -- is fact.  Contagious yawning is a byproduct of primitive empathic mechanisms (huh?).  In a group situation, we evolved the yawn as a way to raise our overall mental processing and collective vigilance, say, against predators.  While all vertebrates yawn, only humans, chimps and baboons are contagious yawners.  Surprisingly, reading about or thinking about yawning or even hearing someone yawn is all it takes.  It is a very ubiquitous phenomenon, which begins in the womb, probably because it’s going to be a very important behavior later in life.  Hey, it sure is boring in here...and dark. 

10.            QUOTE OF THE WEEK:  “It’s not only the most difficult thing to know one’s self, but the most inconvenient.”  Josh Billings

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Items in this Newsletter may be excerpts or summaries of original or secondary source material, and may have been reorganized for clarity and brevity. This Newsletter is general in nature and is not intended to provide specific legal or other advice.

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