What Version of Free Speech Do You Prefer?

I read an editorial column recently about what it called the "phenomenon" of "libel tourism" - where plaintiffs bring their defamation of character cases in the courts of England rather than in the United States, because the UK is so plaintiff-friendly in defamation cases. Defamation claims in the US are somewhat difficult to win because the 1st Amendment reflects a core value of speech and open dialogue that is willing to permit some rather horrendous falsehoods rather than to compensate every wrong. In the UK, reputation and privacy are valued above speech and openess to an extent that permits compensation where the US would not.

The question of which is more valuable (free speech or privacy) contains a bit of irony in America since there appears to be a "right of privacy" guaranteed by our Constitution, but is a less-valued Constitutional (but "fundamental") right than the right to freedom of speech. So, our right to privacy includes a lot of things (raising families, contraception, and sex partners), but does not include what would seem to be the most basic part of privacy - the right to be left alone.

Of course, one's perception on which is more valuable (free speech or privacy) would depend greatly on what side of the blog you are on. Authors/speakers want speech. Subjects of speech want privacy. But, whatever side you are on, I wonder whether the British feel less informed on important matters than we do in America. I'll bet they don't.

Another Post about Night-Time Activites

The Minnesota Supreme Court made an interesting ruling recently. It overturned a narcotics conviction because the search that uncovered the drugs was unreasonable under the 4th Amendment. Why was this search unreasonable? Because it was conducted at night.

Susan Ranae Jackson's home was raided at night, with a search warrant. But, in this case, the warrant contained no information that provided an adequate basis to conclude that the search needed to occur at night. I'm guessing that if there were some danger that evidence might disappear or that danger to the warrant-serving officers were in the affidavit supporting the warrant, things might have been different.

But, what is interesting is that the "night-time" search issue provided a basis for reversal of a conviction. The 4th Amendment says nothing about the time of day for searches, nor has the United States Supreme Court said that searches should normally be in daylight hours. All that you can read in the Constitution is that searches should not be "unreasonable". Even the "original intent" readers of the Constitution would have to concede that the use of the term "unreasonable" leaves room for courts to put a gloss of some kind on the strict language of the Constitution. But, the U.S. Supreme Court has said that searches are unreasonable when there is a objective reason to know that people would expect privacy in certain areas. I guess that applies not only to geography, but to time of day.

Night-time searches could be arguably unreasonable because of the occupant's vulnerability at night. The mid-night phone call is alarming enough -- compare that to having your door blasted open by cops while your are in your bed-time attire and maybe asleep. The Minnesota court noted that 12 of the original states, plus the First Congress prohibited night-time searches by statute (as the State of Minnesota apparently has). While I never really considered whether the cops ought to be out busting down doors at night (since they do it so often on TV), I find myself in agreement with the Minnesota court. If there is a good reason to go into a home at night, then the cops ought to be able to articulate it. If not, everyone ought to get some sleep and take care of business in the morning.

The Texas Pole Tax

You've got to hand it to the Texas Legislature. Beginning in January, Texas will collect a tax on patrons at strip clubs - $5.00 per head for each visitor. According to estimates, the tax will bring in $40 million per year.

What makes this a brilliant move is that the Legislature claims that the tax will go to help rape victims. Now, who would vote against that? But, more importantly, who is going to insure that the money actually goes to help anyone in particular. One of the sponsors of the measure actually works for an organization that stands to get a piece of the tax pie (if indeed it is doled out as adverstised). More likely, I think most would agree, the tax money collected will simply disappear in a maze of collection expenses, administrative expenses, and small payouts. I figure its just another example of method of getting legislation passed -- earmark the money for an indisputable need; make the tax small; tax people who are not likely to protest too much.

Don't expect a big bump in funding for women's issues. It's just another way to make money for your government. Of course, don't be surprised when your own vice gets taxed one day.

And You Thought Colorado was Laid-Back

Like quite a few folks, Edward Casey got a traffic ticket. He contested the ticket in Federal Heights, Colorado. He lost the case. The judge told him to take the "file" (which the judge then handed to him), and go to the Clerk's office and pay his fine. Casey had left his money in the truck, so he carried the file out to his truck, got his wallet and started back in. Apparently, it is a crime to remove a "file" from the Courthouse, so as Casey was walking back to the Courthouse, he was confronted by a Federal Heights policeman.

Casey admitted to the cop that he had the file, and as he was showing it to the cop, he was put into an arm-lock. Casey kept struggling to get in the courthouse and return the file. While the two were struggling (and the cop never said, "you're under arrest" or "stop resisting") a second cop arrives and fired her TASER at Casey. He got hit, but pulled the barbs out, and started for the Courthouse again. At this point, even more officers arrived. They tackled Casey, hand-cuffed him and repeatedly banged his head against the concrete. Finally, Casey was arrested, and charged with obstructing governmental operations - a crime that carries a $50 fine.

He sued for excessive force. A district judge dismissed the case - holding that the force used was not excessive. The 10th Circuit reversed and reinstated Casey's claim. The opinion is Casey v. City of Federal Heights, et al, No. 06-1426 (December 10, 2007).

There's something to be said for the the single-bullet practice in Mayberry.

Merry Government Approved Christmas

Christmas in Washington is about what you would expect if you thought about it. If you want to put up Christmas decorations at your office in the Pentagon, you have to fill out Government Form DD-2798 (Click on the link to read the 12-page form).

John Doe Wins a Case

The Texarkana Court of Appeals recently considered a case of first impression in Texas relating to the identity of bloggers.  The Essent PRMC Hospital filed suit against 10 "John Doe" bloggers who were apparently saying not so nice things about the hospital on a blog.  Claiming the comments to be libelous, the Hospital sought a court order requiring the blogger's ISP to disclose the identity of the bloggers so that they could be formally sued and could appear in the lawsuit.

The trial court essentially refused to enter the order requiring disclosure until the bloggers had an opportunity to appear and be heard.  Clever fellows hired a lawyer to show up in court, but they didn't come.  The lawyer did his best to defend the blogger's rights to freedom of speech, but the trial judge eventually ordered disclosure.

The Court of Appeals made a few important rulings.

First, the federal statute 47 U.S.C, Section 551 does not provide an independent discovery mechanism for disclosure of identity.  It merely provides a substantive basis for disclosure and provides the ISP a "safe-haven" if it discloses in response to a court order.  (Interestingly, the Court took the position that when the government requests disclosure, it must prove, by clear and convincing evidence that a crime has likely been committed).  Private parties need not meet this burden.

Second, the Court held that getting a disclosure order requires compliance with the Texas Rules of Civil Procedure.  It is effectively a discovery request to a third party (the ISP that is asked to disclose names is not part of the litigation), and it must meet the requirements of Texas Rule 202 or some other discovery device in order for the trial court to act.

Third, there are constitutional protections for all "speakers" on the internet.  In order to prove their right to get the identities of bloggers, a litigant must show enough evidence to survive a Motion for Summary Judgment.  In other words, merely claiming that the words are libelous is not enough.  The trial judge would have to be satisfied that if the words were indeed published, then the plaintiff would have a valid claim.

The opinion, No. 06-07-123-CV, styled In Re Does 1-10 (December 12, 2007) is the first effort I have seen by a Texas appellate court to determine the rights and obligations of bloggers, and it is worth a read.  Click on the Title of this post to read the opinion.

Got Milk?

A lawsuit has been filed in Seattle, Washington claiming that some of the nation's biggest grocers have been selling milk as "organic" when the milk does not meet the government standards for organiosity. If you go to Target, and buy "Archer Farms" milk, the suit says that you are not buying organic milk - despite the pretty package. The pictures on the carton should be more like the one on the right according to the plaintiffs in the case.

The beef (pardon the pun) is that large corporate players in the milk market say that thier farms are organic when they are really not. That makes it difficult for mom & pop dairies to compete.

In answer to the complaint, Target says that the lawsuit is an attempt to override the USDA definition of organic with the consumer's view of what is organic -- which is a pretty surprising statement. I guess Target thinks that we have to take the Government's word for everything, and that consumers are just too stupid to figure out if the Government's definition is anything approaching the common useage of the word "organic". If the lawsuit is right, and the big milk players are using 325 acres of land to maintain and milke 4,000 cows, most of us would have a hard time accepting a government definition of that production as "organic" because those 4,000 cows are not out in the pasture getting food.

Where did that old "customer is always right" thing go?

Toilet Troubles -- the Legal Kind

Dawn Herb's toilet backed up a while back, and she got understandably upset...well, she got a little more upset than some and ended up swearing "like a longshoreman" at the offending appliance.

Nearby, a cop - who was one of Dawn's neighbors - heard her outburst, and instead of "protecting and serving" came to her house and arrested her for using obscene language that causes "public inconvenience, annoyance or harm" - a violation of the law of Scranton, PA.

Dawn is being defended in the case by the ACLU. The ACLU lawyer very eloquently argued that "The laws cannot require us to speak eloquently, in good taste or an inoffensive fashion. We are allowed to speack colorfully..."

Apparently unable to avoid the "potty mouth" puns, the lawyer also argued that "We're allowed to swear at each other. It doesn't mean we should, but we are allowed to, and the government and the law cannot stick its nose into these private matters".

Surely, he didn't mean that.

I should note, this post does not contain a picture of Dawn - to my knowledge

Pledge of Allegiance and In God We Trust

The 9th Court of Appeals heard arguments last week in the new Newdow cases. Michael Newdow, who shamed America with his Supreme Court arguments seeking to delete "under God" from the Pledge of Allegiance, has revised his case so that his own standing to contest the phrase cannot be doubted. He has upped the ante by adding a claim that our money should not contain the phrase "In God We Trust". The District Court has already handed Newdow a win, holding the Pledge unconstitutional. A different District judge rejected the "In God We Trust" claim.

Obviously, the 9th Circuit will posture these cases for the Supreme Court to hear again. And, while I'm tempted to say that this is a petty fight that generates more work than its resolution warrants, I'm going to come down on the side of saying this is worth debating in the courts. The decision will tell us something about what kind of country we are -- regardless of the result.

Christmas Carols - A Timely Topic

I was reading one well-respected blog, and read with interest, a post on Christmas carols. Click here to be inspired. So, I thought I would add my own favorite carol. Written during the Civil War, the carol always seems to come to mind when the world is in a mess, and Christmas rolls around.

Christmas Bells
(The original poem, complete with all seven stanzas)

"I heard the bells on Christmas Day
Their old familiar carols play,
And wild and sweet
The words repeat
Of peace on earth, good-will to men!

And thought how, as the day had come,
The belfries of all Christendom
Had rolled along
The unbroken song
Of peace on earth, good-will to men!

Till, ringing, singing on its way,
The world revolved from night to day,
A voice, a chime
A chant sublime
Of peace on earth, good-will to men!

Then from each black accursed mouth
The cannon thundered in the South,
And with the sound
The carols drowned
Of peace on earth, good-will to men!

It was as if an earthquake rent
The hearth-stones of a continent,
And made forlorn
The households born
Of peace on earth, good-will to men!

And in despair I bowed my head;
"There is no peace on earth," I said;
"For hate is strong,
And mocks the song
Of peace on earth, good-will to men!"

Then pealed the bells more loud and deep:
"God is not dead; nor doth he sleep!
The Wrong shall fail,
The Right prevail,
With peace on earth, good-will to men!"

Buffaloes down $2.85 Million (or approx. 57 Million Nickels)

The University of Colorado settled the case that I mentioned here. The settlement not only includes the payment of money, but also includes voluntary Title IX monitoring of the University in the future.

The comments of the University spokesperson contained all the right things, but did not comment on one interesting tidbit. When the case was in the trial court, the Federal District Judge not only found the claims to be meritless, but ordered the plaintiffs to pay the university's legal fees. That was reversed by the appeals court. So, if the University is now making a substantial payment, and saying conciliatory things, one should not get the idea that the University played nice in court during the litigation.

Honestly, you get (allegedly) raped by a recruit, you ask for compensation, and the University seeks to tag you with fees for such a preposterous request?

Investigating the Church

The chairman of the Senate Finance Committee recently began an investigation of at least 6 "Mega-Church" operations asserting that he was simply making sure that these tax-exempt organizations were complying with the law. (Click on the title to read the NPR news report) And, while it may seem that these churches have expended funds on things that are not intuitively connected to ministry, I wonder why the politicians have chosen only to investigate churches.

Churches are not the only institutions that enjoy tax-exempt status. Nor are they the only tax-exempt organizations that spend money on things that would not be intuitively related to their tax-exempt missions. Is the Senate asking how much tax-exempt hosptials are paying their executives? Or how much true "charity" health-care they are providing? Is anyone wondering how tax-exempt universities are paying salaries for football coaches? Or why a college education at a tax-exempt organization is far beyond the means of many Americans?

What I see is that the larger organizations in society have lost some sense of responsibility to the people that they are supposed to serve. I am supporting a great number of institutions that are not contributing to the tax roll because they supposedly perform functions that society greatly needs and wants to encourage. But, if I attempt to use those services, I pay not just a market rate, but often a rate that is terribly expensive. If I go to the charity hospital, for example, and choose to pay cash -- my bill will be at least double what Blue Cross would have to pay to have that service performed on ME.

So, go ahead, Sen. Grassely, and look at how the churches spend their money. But, would you mind checking on some of the other organizations that don't pay taxes? At least at church, I give my money voluntarily. I don't have as much choice at some of the other "charity" organizations.

Hip Hop Rights

I was surprised to learn that quite a few communities have ordinances that ban low-slung pants. One of them -- Pine Lawn, Missouri (which is close to Washington Park, Illinois) has penalties ranging from a $100 fine, with a higher fine and penalties for the parents of the kid with the low-ridin' jeans.

It's one thing to wonder why any governmental body would spend its time on this issue, but it's even harder to verbalize why the ordinance might be wrong. Although some lawyer will eventually write the petition to challenge the ordinance, it will have to assert that low-ridin' jeans are an expression of identity, or that the ordinance is an arbitrary regulation infringing on a life, liberty or property interest.


Of course, the response will be equally interesting. The government will claim that this is some reasonable regulation relating to health, safety and welfare. And, the cops will likely chime in to say that baggy pants allow people to hide weapons. What a waste of time.

Rules, We Don't Need No Stinkin' Rules

I'm not just being cynical by saying that the government makes rules that it does not bother to honor. In a recent 8th Circuit case, the Court held that a state court need not either follow federal law, nor follow its own handbook for employees.

Larry McKlintic sued his employer - the 36th District Court - because it did not honor its own Family and Medical Leave Act policy. The policy was set out in the employee handbook, but the 8th Circuit said that the state was immune from suit under the 11th Amendment, and was not obligated to follow its handbook as a contractual matter.

How does a court decide that courts do not need to follow rules that every other person in the country must follow? Were I a small business owner in the 8th Circuit area, I would have a hard time showing respect for the court system.

Sleep Tight...and at Night

Next Month, the Cancer research arm of the World Health Organization is going to declare that working at night is a "probable" cause of cancer. The theoretical link between night work and cancer was once described as "wacky", but it is doubtful that the "wacky" label would have deterred the WHO anyway. And, if the WHO says the link is probable, then the American Cancer Association is going to adopt that stance.

The science says that one of two things is going on. It could be that sleep deprivation weakens the immune system so that it can't fight off the growth of cancer cells (or any other deadly disease). Not exactly earth-shattering and sounds more like a correlation than a cause & effect. Second, though, the cancer folks say that night work upsets the body's production of melatonin - which both induces sleepy feelings, and suppresses tumor growth.

For lawyers, none of us will probably live long enough to see the wave of litigation by wait staff, bar tenders, shift workers and health care folks who got cancer because they worked at night. With the science just now being published, and little alternative that is safer for the necessary work, the template for liability is simply not present. But, when the worker's comp agencies start making awards for night-shift cancer, you might as well start running commercials (which ironically are more prevalent at night).

On the good news side, Texans were apparently prescient when they agreed to allow the issuance of bonds to look for a cure for cancer. Add night-shift cancer to the list...although I would expect the cure to be "Go to Bed, Dang it".

The Legislature is "at Work"

Your House Speaker has put "top men" to work on issues that he thinks will come up in the next legislative session. Here is what they are working on:

1. The House Business and Industry Committee and the Insurance Committee have been given a joint charge to study the impact of the Entergy v. Summers decision on the worker's compensation systems as a whole. This broad charge should give the committees leeway to consider issues such as the level of worker's comp benefits,contractual issues between owners, general contractors, and subcontractors and the scope of the comp bar.

2. The House Civil Practices Committee is charged with studying the impact of HB 4, with particular emphasis on job creation, judicial efficiency, medical access, and medical liability insurance rates; the effect on the tort system of "meritless" litigation and whether additional sanctions are needed to discourage such litigation; the effect of multiple plaintiff litigation other than asbestos / silica litigation; and whether liability protections for health care providers in emergency or charitable care situations are "adequate".

We should, I suppose, be encouraged by the "charge" given by the Speaker to his minions.

News from the Playground

In Hillsborough County, Florida, there was a hardy game of "Snare the Queer" going on. The game consists of passing a football off, and tackling the guy who is stuck with the ball -- and apparently mercilessly abusing him until he is able to get rid of it. During this particular episode, Danny Heidenberg got stuck with the ball, was tackled, and then suffered a Pro-Wrestler-like elbow drop from one of the playground bullies. The drop broke his arm and damaged his forearm - the result of which is that Danny will not likely ever be a surgeon like both his parents.

I know you anticipate the entry of plantiff's lawyers, the resulting trial, and the tort-reform-demanding verdit (which in this case was $4,000,000). But, before calling Bob Perry, and the Texans for Lawsuit Reform, consider this --

1. The game was one that the school knew was played, and knew that it was dangerous -- they had banned it twice.


2. The kids were on the playground without supervision...literally..."Nobody was wathcing them" according to trial testimony.


3. The school's policy manual prohibited leaving kids on the playground unattended.


4. The would-be wrestler said that he never would have beat up on the smaller kid had a teacher been around observing playground activities.


5. The school had received more than a dozen complaints about bullying and fighting on the playground, and had done nothing about it.


6. The broken arm required a year of electric shock therapy to get the injured nerves working again.

Now, I'm against outrageous verdicts as much as the next guy, but this is precisely the type of anecdotal case that tort-reformers described as "broken arm on school playground nets $4 Million for so-called future surgeon". What is often left out of the tort-reform ad is the clear fault of the defendant -- inexpensive, sensible and well-known steps that could have avoided injury at all. Are there really folks out there that believe that Danny should "take responsibility" and bear this injury without compensation?

The Price of Christmas is Going Up

Big news on the Web today is that the 12 days of Christmas is going to cost more this year. Apparently, the rise in the minimum wage is helping the maids-a-milking, and thereby pushing up total cost. Most of the other gifts have remained relatively static, or rising roughly at the same rate as inflation. Click on the title to this post to get the details.

Punitive Damages X 1,000,000,000

Just about a week ago, the 2nd Circuit affirmed a punitive damage award of $1,000,000,000 against a group of defendants from Turkey. The case, Motorola Credit v. Uzan, et al, involved a claim of fraud committed by the defendants in order to induce Motorola and Nokia to loan them about 2 BILLION dollars. According to the opinion, the defendants converted the loan proceeds to their own use, and refused to respond, or to participate meaningfully in the litigation against them. They defied court orders, refused to produce documents, would not show up for depositions, and basically became fugitives from civil justice.

The 2nd Circuit gave some interesting figures about the relationship of punitive damages to proven net worth. Courts have, apparently, approved awards of 37%, 71%, and 18% of a particular defendant's net worth. And, applying Illinois law, noted that multiples of 20 and 75 times compensatory damages had been approved (although I would not be so confident that these multiples would survive in today's courts).

In considering the facts of the case under the now-almost-famous BMW Guideposts, the 2nd Circuit made an illuminating comment --

"...to date, the defendant's financial status has occupied no place in the Supreme Court's due process review"

Thus, the idea that net worth is relevant to a punitive damages is strictly a creature of state law, not a constitutional requirement. Of course, many states do consider net worth to be relevant, but it will be interesting to see if net worth makes its way into the Constitution in the now-pending Exxon Valdez case. At this point, I'm not even sure it was an issue, but that has never really stopped the courts from writing about things. Equally important, though, are cases making their way through the courts where the financial status of the defendant is the sole issue. And, these cases turn on whether the courts will apply the principle that a punitive damage award is meant to punish, not to bankrupt. [Hazelwood v. Ill. Cent. RR., 114 Ill. App. 3d 703, 713 (App. Ct. 1983)].

But, reading BMW, one must conclude that the Court was serious when it said that "the most important indicium of the [award's] reasonableness...is the degree of reprehensibility of the defendant's conduct." 517 U.S. 559, 575. So, maybe there is room to believe that there are cases where the conduct is so reprehensible that putting a company out of business is the right thing to do.

Anybody Up for a Trip to Washington Park, Illinois?

The Seventh Circuit decided an interesting case last week. Eric Joelner (whose mother must be very proud of him) filed suit against the Village of Washington Park, Illinois after the village refused to issue him a license to operate a strip club. The City had not actually denied Eric a license, it just refused to allow him to serve alcoholic beverages at his new establishment.

The Court found that the Village of Washington Park derives almost 100% of its income from the adult entertainment industry and presently has 8 strip clubs in its 2.5 mile area. Its ordinances prohibit certain activities, but they are apparently not enforced regularly at the strip clubs where the owners are friendly with the Village leaders. The former chief of police runs one of the clubs.

In the end, the 7th Circuit said that the Village's denial of a full license to Eric violated his constitutional rights, and held that the ordinance under which Eric was denied a license was void. So, if anyone is up for a road trip, this might be an interesting one.

Not a Bad E-mail story; Feel Free to Pass Along

Sometimes these "heartwarming" stories are a bit too sappy for me but this one is truly interesting... In 1986, Mikele Mebembe was on holiday in Kenya after graduating from Northwestern University. On a hike through the bush, he came across a young bull elephant standing with one leg raised in the air. The elephant seemed distressed, so Mikele approached it very carefully. He got down on one knee and inspected the elephant's foot and found a large piece of wood deeply embedded in it. As carefully and as gently as he could, Mikele worked the wood out with his hunting knife, after which the elephant gingerly put down its foot. The elephant turned to face the man, and with a rather curious look on its face, stared at him for several tense moments. Mikele stood frozen, thinking of nothing else but being trampled. Eventually the elephant trumpeted loudly, turned, and walked away. Mikele never forgot that elephant or the events of that day. Twenty years later, Mikele was walking through the Chicago Zoo with his teenaged son. As they approached the elephant enclosure, one of the creatures turned and walked over to near where Mikele and his son Tapu were standing. The large bull elephant stared at Mikele, lifted its front foot off the ground, then put it down. The elephant did that several times then trumpeted loudly, all the while staring at the man. Remembering the encounter in 1986, Mikele couldn't help wondering if this was the same elephant. Mikele summoned up his courage, climbed over the railing and made his way into the enclosure. He walked right up to the elephant and stared back in wonder. The elephant trumpeted again, wrapped its trunk around one of Mikele's legs and slammed him against the railing, killing him instantly. Probably wasn't the same elephant.

Texas Attorney General's Office Slapped by 5th Circuit

In Charles v. Grief (No. 07-50537), a Texas State employee sued the State after he was terminated for reporting irregularities at the Texas Lottery Commission. The State answered with a plea of qualified immunity. When the District Court denied the immunity claim, the State appealed (as is typical). The interlocutory appeal is permitted, but apparently is being abused. This is what the Court said --

The cost in time and money incurred by a public employee who has sued in the belief that he has suffered an adverse employment action as the result of unconstitutional retaliation is significantly increased when, as here, the defendant takes a clearly unwarranted appeal of an interlocutory denial of qualified immunity. Taking such an appeal is now unconscionable in light of this court’s burgeoning precedent uniformly rejecting such appeals of fact-based denials of qualified immunity for lack of appellate jurisdiction, our most recent being Connelly. Considering the usual disparity in the financial conditions of the parties to such actions, cavalierly taking such an appeal smacks of economic duress. Indeed, this is at least the second such case this year in which the office of the Attorney General of Texas has improvidently brought and doggedly prosecuted such an appeal, Connelly being another.We trust that counsel for Grief, as well as all other counsel who represent public employers and state actors in such roles, will henceforth carefully heed the case law of this court on point and be chary to take appeals of interlocutory orders denying qualified immunity on grounds of the existence of genuine factual disputes, lest they incur penalties, sanctions, damages for, e.g., frivolous appeals, or worse.

The cost of interlocutory appeals is not just a financial cost. By the time that the interlocutory appeal is concluded, it is not unusual for 6 months to a year to have passed. Moreover, the Plaintiff has usually been denied any discovery during this time. So, the Plaintiff's case is often markedly weaker because he has been unable to preserve testimony and documentary evidence. But, it might be too much to wish that the Attorney General will actually heed this advice.

And, while I'm at it - on the 4th Amendment

The United States Supreme Court is going to hear a case that ought to be close to the heart of everyone who drives the highways, and in doing so, stretches the boundaries of compliance with the law. For all you non-seat-belt-wearers, speeders, and suspended license people....take heed.

In February of 2003, David Moore was stopped by the Virginia Highway Patrol. His license was suspended. Virginia does not permit arrest for this offense. Despite state law that prohibits an arrest, Mr. Moore was arrested. He was, of course, searched. Predictably, he had drugs on him. Mr. Moore claimed that the evidence procured (the drugs) should not be used as evidence against him because it was the result of an illegal search - relying on a rather traditional view of the exclusionary rule.

Now, driving with license suspended is a misdemeanor under Virginia law, so it is a crime. But, the law only authorizes a citation for the crime, with punishment to be determined later. So, the case that the Court will hear has the State of Virginia arguing that although the law does not permit a person to be deprived of liberty for the conduct proscribed, actually depriving a person of liberty (by detaining and searching them) has no consequnces for the State. Mr. Moore's argument - that an arrest requires "probable cause" and that the cops here could never have probable cause since they knew that an arrest was specifically prohibited, makes more sense to me.

Judge Keller - Part Dos

Recently, the Court of Criminal Appeals decided a rather unremarkable case about the extent to which passengers may be searched when the cops stop a vehicle for the driver's conduct.

Suzanne St. George was stopped when the cops noticed a tail light out on her car. She gave the cops proper ID, as requested, and eventually received a "warning" for the broken tail light. But, the cops were obviously more interested in her passenger. They asked him for ID, and when he didn't produce it, they began an investigation of him, and eventually took him out of the car and searched his person. They found marijuana on him, and arrested him. Although a trial judge allowed the search, the Court of Appeals and 8 members of the Court of Criminal Appeals found that the cops had no reason to detain the car after the "warning", and no reason to search the passenger. This is unremarkable, and follows standard U.S. Supreme Court rulings, one as recent as June of 2007 (Boudin).

What makes the case interesting is Judge Keller's dissent. She just dissents - no opinion, no comment. Just "I don't agree." Given the vast authority against a dissent under these facts, I would think that the Chief Judge would owe us a little more.

Finally....Good News from the Sports World

This isn't a post about an athlete overcoming tremendous odds to become successful in a sports endeavor. But, it is the best news about the ownership side of sports that I have read in a long time, and what I think will be a rare post about "Business Organizations".

An England-based soccer (football) club has announced that controlling interest in its club has been purchased by an internet collective. The website collects about $70 per year from its members, and members get to vote on all aspects of team ownership....right down to who is signed to play, who gets to play, and how much to pay the players. The internet collective owns 51% of the team, and anticipates that it will use continuing membership fees to enhance the club, both on and off the field. But, the owner is "not-for-profit" meaning that the value of the team is not for distribution to the owners / members.

Now, there is room for mischief here, but there is also a lot of room for improving sports (by which I mean the game, the contest, and the fan support and loyalty). It's a small step, but there are a lot of pro teams in America that I would buy a piece of if I could be assured some control. I guess anybody can pay up and vote as an owner of this particular team, but better yet, I'm hoping this translates from British to American like so many other things. Click on the title to this post to go to the team website. And, here's a link to the owners.

Ever Wonder What Happens to Lottery Winnings?

In 1995, an Arkansas man won the Texas Lottery to the tune of $8.9 million bucks. The winnings paid out in annual installments of $450,000 (X 20). At the time he won, Texas lottery laws prohibited the assignment of winnings (so much for the late night commercials for lump sum payments). But, in 1999, the Texas Legislature changed the law, but for a reason still unknown to the author of the legislation -- prohibited the assignment of the last two payments. During the same session that the Legislature prohibited the assignment of the last two payments from lottery winnings, it passed another law that invalidates any law restricting the assignment of an account.

One might forgive the Legislature for passing a law in one session that obviously conflicts with a law previously passed. But...during the SAME SESSION? My suspicion that legislators rarely bother to read what they are voting on is gaining ground. The conflict between the laws is now the subject of an appeal before the Austin Court of Appeals, with the Lottery Commission claiming that their restrictive assignment provision is better than the UCC provision prohibiting restrictions.

Naming Legislation

I finally got around to reading some of the cases interpreting the Patriot Act. Some of the Act's provisions are shocking to me, in terms of curtailing what I assumed were traditional rights held by the people. So, I wondered why Congresspeople would vote for this.

After some consideration, the most obvious solution came to me. It's because it is named "The Patriot Act." How could you possibly run for re-election and adequately answer your opponents' criticism that You Voted AGAINST Patriotism. This also explains "No Child Left Behind" (can't vote to leave children behind), all statutes that have "Balanced Budget" in them anywhere (everyone is for a balanced budget). Just this week, Texans were presented with a Constitutional Amendment seeking authorization to research a cure for cancer. Even citizens can't resist. For heaven's sake, who votes FOR cancer and AGAINST a cure?

Legislators have only scratched the surface of this sure-fire technique to passing legislation.

Clamping Down on Selecting a Location for a Trial

Within a month, both the 5th Circuit, and the Texas Supreme Court have issued rulings that restrict a plaintiff's right to choose the forum for his suit. In both cases, the plaintiffs sought to bring suit in a location that was technically correct, but obviously chosen for the locales perceived "friendliness" to claimants, and perceived "unfriendliness" to defendants. In public, the lawyers are saying that the choice of forum had to do with efficiency of the trial process, most people recognize that the places where the suits were filed had far more to do with the friendly jury pools than with any perceived efficiency.

If the statutes permit cases to be filed in a particular location, what business does a court have in restricting permission to file there? This is especially interesting if the defendant is claiming that the suit should have been brought just a couple of hundred miles away. Why is justice so different in one locale than another -- so much so that the parties will spend untold hours and money fighting for their preferred locale? There is no morally correct answer to the problem of "plaintiff-friendly" or "defendant-friendly" venues. There is no reason that one side or the other should have a legal standard that favors their choice. A random assignment to a particular court is common within a county, but the existence of judicial districts (on both the state and federal level) makes this artificial line-drawing a bone of contention for both sides of the docket. Maybe there will be a time to do away with this rather antiquated legal principle called "venue".

Indiana....Again

A 21-year-old man in Indiana was arrested for transporting "Snakes on a Bus". Apparently, the fellow had acquired some baby rattlesnakes by mail, picked them up at the post office, and then was going home. Indiana, in addition to requiring ID for voting, and requiring body cavity searches on every arrest, also requires a permit for dangerous animals.

I'm trying to assimilate Indiana law in my mind. Life is better there because they rely on ID for voting , care about your orifices , and want to protect snakes from people.

...still working on it.

This Judge Wouldn't Make it in Texas, either

The Virginia Supreme Court removed a judge from office, in part, because he flipped a coin to decide a dispute. While there were other reasons for his dismissal, I don't believe this is a very good one. The coin flip was to decide who got custody of a child for Christmas -- which routinely results in the other parent getting the kid for Christmas the following year. I don't think many judges can articulate sound, judicial philosophy or reasoning that is much better than a coin flip in that situation.

But, my larger point is that, in Texas, we wouldn't put up with that either. As identified in a prior post, we prefer judges who rule the same way every time.

Some People are Just ....Different

In America, we pride ourselves on tolerance for peoples and cultures that may not fit the mainstream of American thought. By way of example, the 1st Amendment may well tolerate the views of Westbrook Baptist Church, and protect its right to protest against homosexuals by appearing at the funerals of slain veterans. Yesterday, I thought that idea stretched the envelope.

Well, the "stretching the envelope" metaphor just won't work for this --

Saudi author and cleric, "Dr." Muhammad Al-'Arifi, counsels young Muslim men on how to treat their wives.

"Admonish them – once, twice, three times, four times, ten times," he advised. "If this doesn't help, refuse to share their beds."

And if that doesn't work?

"Beat them," one of his three young advisees responded.

"That's right," Al-'Arifi said.

He goes on to calmly explain to the young men that hitting their future wives in the face is a no-no.

"Beating in the face is forbidden, even when it comes to animals."

"Even if you want your camel or donkey to start walking, you are not allowed to beat it in the face. If this is true for animals, it is all the more true when it comes to humans. So beatings should be light and not in the face.

"If he beats her, the beatings must be light and must not make her face ugly. He must beat her where it will not leave marks. He should not beat her on the hand... He should beat her in some places where it will not cause any damage. He should not beat her like he would beat an animal or a child -- slapping them right and left.

"Unfortunately, many husbands beat their wives only when they get mad,and when they start beating, it as if they are punching a wall – they beat with their hands, right and left, and sometimes use their feet. Brother, it is a human being you are beating. This is forbidden. He must not do this."

Click on the title to the post to see a more complete report from FoxNews(from which I have quoted liberally).

Maryland Jury Awards $11 Million to Veteran's Family

A jury in Baltimore, Maryland awarded a grieving father won a nearly $11 million in a verdict against a fundamentalist church that pickets military funerals out of a belief that the war in Iraq is a punishment for America's tolerance of homosexuality. The federal jury first awarded $2.9 million in compensatory damages. It returned in the afternoon with its decision to award $6 million in punitive damages for invasion of privacy and $2 million for causing emotional distress.

Church members routinely picket funerals of military personnel killed in Iraq and Afghanistan, carrying signs such as "Thank God for dead soldiers" and "God hates fags." The plaintiff family claimed the protests intruded upon what should have been a private ceremony and sullied the memory of the event. The church members say that they are following their religious beliefs by spreading the message that soldiers are dying because America is too tolerant of homosexuality.

There are two pretty important questions here. The obvious is whether the 1st Amendment allows abhorrent messages to be published at what are essentially private events. The Defendants in this case plan to appeal, and have said, "Oh, it will take about five minutes to get that thing reversed."

The less obvious question is about punitive damages. Can an award stand if it is so far beyond the Defendant's ability to pay that it can, literally, never be collected? The Federal Judge noted that the size of the compensatory award "far exceeds the net worth of the defendants." The compensatory award is only about a third of the total award by the jury. If you think that this is a purely intellectual question, keep your eyes on the Texas Supreme Court. A case posing this question is on its way there.

Taxman ever vigilant to ruin a perfectly decent holiday

In Iowa, the taxman has decided that pumpkins are not food - which is normally exempt from sales tax. If you want to buy a pumpkin for eatin', you have to fill out a special form that the taxman devised to avoid paying the tax.

It makes perfectly good sense to 1) make paperwork for customers, retailers and tax people to review to keep people from having to pay about a dime in tax 2) to announce your changes just to spite people who might otherwise enjoy a holiday 3) encourage people to buy plastic and 4) enhance State revenues for just enough to pay the cost of collecting the tax.

Congratulations, Iowa!

What happened to the paddle?

The 11th Circuit decided a case last week that bears mention. In Peterson v. Baker, et al (No. 06-16180, October 25, 2007), the Court decided that the imposition of corporal punishment on a mis-behaving student was not so severe that it "shocked the conscience" of the court. From the holding, one might presume that this is a paddling episode. Nope.

Jonathon Peterson was an 8th grader in remedial reading class who was cutting up with one of his friends. Jonathon's friend got sent to the Principal's office, and Jonathon decided (on his own) that he would accompany his friend. The teacher...Amber Baker...blocked Jonathon's path, and when he removed her arm from the doorway, Amber grabbed Jonathon by the throat and choked him until he complied.

Following the factual recital, the Court goes through a rather typical analysis for constitutional torts, and opines that this incident does not rise to the level of a constitutional violation. That's all well and good, but the Court fails to mention that almost every state in the South provides blanket immunity for schoolteachers for their conduct -- meaning that if Jonathon does not have a constitutional case, he has no case at all.

Cases like this tell you a couple of things. Most obvious, the world has changed. School is becoming less about learning and more about protection. (Which makes me wonder why the newspapers are so intent on telling us otherwise). Less obvious is the disingenuous writings of federal courts in cases like this. Federal courts apparently would have readers believe that the reason for dismissing a case like this is the existence of a body of state law that makes the federal courts intervention into "run of the mill tort cases" unnecessary. Well, the body of state tort law says that the litigant cannot sue in state court. Belittling litigants that are forced to file in federal court as though they are trying to make a federal case out of a small meaningless dispute is equally unnecessary.

Your Next Punitive Damage Case

The Supreme Court has accepted review of the Exxon Valdez case. Some law students were not in grade school when an oil tanker was grounded in Prince William Sound spilling a lot of oil on pristine Alaskan shorelines. Clearly, the case represents one of the worst DWI situations in history. But, 18 years of litigation later, and Exxon (who makes more in one quarter's earnings that the entire punitive damage award) is howling about having to pay $2.5 billion in punitive damages.

I think $2.5 billion is a lot of money. I think $30 billion per quarter is a lot of money. Can the Court really believe that it will establish a principle of constitutional law that will be generally applicable in a case that is unique in its facts, and has a unique defendant. And, should the Court write an opinion that really applies only to Exxon's situation, it will stray farther from the mainstream of American thought than it has in my lifetime. (Honestly, other than Exxon shareholders, what American doesn't believe that Exxon deserves punishment for this?)This award will not seriously harm Exxon; it will not cause oil prices to change; it will not do anything other than to prick the finger of shareholder earnings (which have probably already accounted for the award as though it were to be paid). In other words, a win for Exxon is probably a windfall for its shareholders.

Regrettably, my advice is to load up on Exxon stock. (which, by the way, is already moving up on this announcement)

Well, Here's Your 1st View of the Lethal Injection Case

Late last week, another execution was stayed - this time by the 8th Circuit. The State sought to vacate the stay, and the Supreme Court refused to do so. Justice Scalia dissented from the refusal to vacate the stay (he would have voted to let the execution proceed). Justice Alito agreed. In Justice Scalia's words:

Justice Scalia, dissenting.

I vote to grant the State’s application to vacate the stay because in my view the decision of the Eighth Circuit was based on the mistaken premise that our grant of certiorari in Baze v. Rees, ___ S. Ct. ___ (2007), calls for the stay of every execution in which an individual raises an Eighth Amendment challenge to the lethal injection protocol. The grant of certiorari in a single case does not alter the application of normal rules of procedure, including those related to timeliness. In this case, Jones’s challenge to the lethal injection protocol, which was brought nine years after his conviction and sentence became final, was dilatory.

In my first post about this topic, I guessed that this case would tell you a lot about the people who make decisions at the Supreme Court. While it's hard to argue that it is fair to wait 9 years to make a claim, still if it turns out that the lethal injection process is "cruel and unusual", I don't think it becomes less cruel and unacceptable because of a procedural misstep.

Not surpsingly, the 5th Circuit has the same view:

[T]he mere fact that an inmate states a cognizable § 1983 claim does not warrant the entry of a stay as a matter of right . . . [a] court may consider the last minute nature of an application to stay execution in deciding whether to grant equitable relief.” We do not decide whether Harris properly states a claim under § 1983, because even if he does, he is not entitled to the equitable relief he seeks. Harris has been on death row for eighteen years, yet has chosen only this moment, with his execution imminent, to challenge a procedure for lethal injection that the state has used for an even longer period of time. . . . Harris cannot excuse his delaying until the eleventh hour on the ground that he was unaware of the state’s intention to execute him by injecting the three chemicals he now challenges. See Smith v. Johnson, 440 F.3d 262, 263 (5th Cir. 2006) and more recently, Berry v. Epps, (No. 07-70042, October 26, 2007). On October 31st, the US Supreme Court stayed Berry's execution.

In sorta related, but largely irrelevant news: The ABA reports that executions should be halted (weeks after they already have been) (based on reports from states where executions are rare) (written by committees composed largely of death-penalty opponents). Here's a link

Georgia Teenager Released from Cruel & Unusual Sentence

In 2005, Genarlow Wilson was convicted in Georgia for receiving oral sex from a minor. Wilson was 17 at the time; his partner/victim was 15. Upon being convicted, Wilson was sentenced to 10 years in jail, and deemed a sex offender subject to lifetime registration. His case has become mildly famous -- if only because both the criminal statute and the punishment are deemed a bit silly today. One might think that the crime refers to some ancient outdated law, but it is a 1997 law that provides a maximum punishment of 30 years. And, the law is broadly written -- obviously intended to cover circumstances far different than Wilson's case.

But, at some point, a prosecutor 1) decided that a teenager should be charged with this felony, and 2) that a harsh sentence should be imposed. (even though it has been reported that the victim's family never asked for prosecution, and did not agree with the sentence). The Georgia Supreme Court's opinion (available by clicking the title of this post) is 48 pages long -- detailing a raft of objections that the State's official prosecutors have to setting Wilson free. The objections range from procedural technicality (saying that even if Wilson should not have been punished for the "crime", he still must serve his 10 years because he missed a procedural step somewhere) to substantive arguments that 10 years + lifetime registration is a just penalty.

Now, there's not much in the opinion about Wilson's partner/victim - notably whether she was for or against conviction and punishment, nor is there much information about the crime at all. (It has been reported elsewhere that the incident occurred during a party at a hotel, and that Wilson was not the only one charged or convicted). But, I've yet to read a single comment by anyone that suggests that the punishment fits the crime here. All of which makes me wonder whether the people in Georgia are pleased with the vigorous and aggressive attitude of their prosecutors, whether they disclaim the prosecutor's actions in charging and trying Wilson or opposing his appeals, or whether they will even remember this case when elections come around. Just out of curiousity, I intend to keep up with this.

Judge who released Wilson: Judge Thomas Wilson - Monroe County Superior Court

Prosecutor who charged Wilson: Douglas County DA David McDade

State AG who opposed the release: Thurbert Baker (who noted after losing the case "I hope the court's decision will also put an end to this issue as a matter of contention in the hearts and minds of concerned Georgians and others across the country who have taken such a strong interest in this case") - fairly disingenuous if you take the time to read the Supreme Court opinion. Also, pretty different from his statement after the trial judge ordered Wilson's release. Baker said, at that time: "If this court, or any court, cannot recognize the injustice of what has occurred here, then our court system has lost sight of the goal our judicial system has always strived to accomplish… justice being served in a fair and equal manner."

News from the NFL

The NFL changed its draft process today...reducing the time that teams are allotted to make their draft choice on Draft Day. They used to get 15 minutes to make their selection, supposedly madly consulting with their war rooms, desperately considering trades or deals, or puzzling over the character of the so to be millionaires. Of course, it was all theatre for the televised audience. To think that the Billionaires were making decisions over mere millionaires in as few as 15 minutes was a pretty silly assumption in the first place, but it made for good reality television. With the advent of "Biggest Loser", "The Bachelor" and the like, the NFL Draft Day suspense was exposed for the sham that it was, and the Commissioner of the NFL (who I like more and more) reduced the time between draft choices from 15 to 10 minutes.

I thought this was ironic, because lawyers are usually allotted 15 minutes to argue their case to appellate courts. Can we expect a similar reduction in time, now? Appellate cases don't often involve multiple year guarantees worth $10 million per year, so if the NFL can make do with just 10 minutes, I would expect courts will think that appellate arguments are no more important. Of course, if you've got a case involving the Houston Texans (who chose Mario Williams over Vince Young), you might make a persuasive case for additional time.

NOLA Still in Trouble

In 2005, a group of white workers in the District Attorney's Office in New Orleans, LA, sued for racial districmination. They claimed that Eddie Jordan, the DA of Orleans Parish, was systematically replacing white workers with black workers. The workers won the case, and after two years, are still waiting to get paid the $3.5 million that they won.

This week, the federal judge said that the plaintiffs...now judgment creditors... were entitled to seize the assets of the District Attorney's office, including over $1 Million worth of vehicles and $2 Million worth of furniture. The valuation of assets owned by the DA's office is a little surprising,(at $30,000 per vehicle, the DA's office owns over 30 vehicles, and if there are 50 office spaces for DA employees, that's about $40,000 per cubicle) since the whole office was flooded in the Hurricane just a couple of short years ago.

What is not surprising is that a governmental entity is refusing to pay debts that a jury has said are owed. You may read about governmental entites paying huge amounts to civil rights plaintiffs, but I would venture that more than 90% of the time that payment is made, it is a payment made by an insurance company. When it comes to paying judgments out of real money, governmental entities are notorious deadbeats. Next time you hear a politician screaming about respect for the law, the "rule of law" or like phrases, you might want to ask how many court judgments against the government remain unpaid because the politician don't find that honoring that "rule of law" to be expedient.

Character in Harry Potter Books is Gay?

I read this week that J.K. Rowling "outed" Albus Dumbledore - the Headmaster of the Hogwarts School. The guy is gay, according to the original intent of the author. Notice that I used the words "original intent"? I would guess that there would be quite a few Harry Potter fans that are going to have to revise the impressions that they formed while reading the books to adjust for Dumbledore's sexual preference.

But, is that really fair? Isn't the reader of a novel entitled to draw his own conclusions about what he reads, and choose an interpretation that is satisfying to him -- without being wedded to what the author thinks?

On the other hand, if my wife gives me a "To Do" list, I will admit that her original intent is far more important than my subjective interpretation.

So, what about laws, or our Constitution. It's a pretty difficult task to put law into the category of "novel" or "To Do" list. So, I would expect it to be equally difficult to justify a wholsale acceptance or rejection of the "intent" of the author. But, it makes me wonder whether our reaction to legislative or Constititional ambiguity with the mantra of "intent" is really a sound tool of analysis.

Coach Sees a Man about a Dog

With regrets about the colors I have chosen for my page this week, I must report that Baylor has made the front page of ESPN.com (Click on the post title to see the article). It's titled "Urine Trouble", and recounts the late night puddling of a Baylor Assistant football coach.

I would suspect that a box of Depends is on its way to the Baylor Athletic Department as I write this post, and radio talk shows are probably having a field day. I understand that there is now new slang for urination - Taking a Schnupp.

If you're going to break the law, you should, I think have a crime named after you (at a minimum). If anyone wants to break loose on the best puns they have heard relating to this incident, I'd love to hear them.

Already taken: "I bet he hoped that the news didn't leak out"
Unintentionally ironic: "Golden Wave Marching Band" (the real name of the Baylor Band)
See Excellent, top-flight, 24/7 coverage of this story at Bear Meat (link to left)

Duke Lacrosse and Civil Rights Suits

I've read the 155 page complaint that the Duke Lacrosse players filed against the City of Durham, North Carolina, and a group of law enforcement-related defendants. I would venture to guess that a great number of folks are anticipating a large recovery for these young men, but any lawyer that defends civil rights cases would immediately recognize some significang legal hurdles in the case.

First, prosecutors in America enjoy a type of immunity from suit and liability that is as broad an immunity that exists in the law. They cannot be held responsible for conduct, no matter how egregiously wrong, that is part of their prosecutorial function. Withholding evidence, lying about evidence, believing patently unbelievable evidence, and refusing to fairily consider defense evidence is not the work of a good prosecutor, but it is fairly within the job description of prosecutors. Nifong probably walks liability early in the case.

Even if policement and investigators aided and abetted Nifong's poorly conceived prosecution, it is unclear whether their conduct is in violation of clearly established law. If it's not, then all the other cops and investigators have qualified immunity - which means that they don't have to pay.

The City doesn't have to shoulder the responsibility for any of the defendants unless it can be shown that the City's official policies were to treat criminal suspects as Nifong and his crowd did.

All of these legal hurdles sound very prudent when applied to the run of the mill criminal who is arrested and mistreated by the cops. They are a little harder to swallow when the wrongful conduct is so wrong, so public, and so unnecessary. That's the nasty underbelly of immunity principles in the law.

If You Can Do a Summary of This Opinion - My Hat's Off to You

Late last week, the 5th Circuit (a divided panel) stayed the execution of Rolando Ruiz. I wouldn't want to turn this blog into a death penalty blog, but this opinion vividly shows how messed up the law is in this area. Part of the fault is your US Congress, part belongs to the 5th Circuit, and a great part belongs to your Texas Court of Criminal Appeals.

Now, for Mr. Ruiz. It seems that everyone agrees that Mr. Ruiz had horrible lawyers appointed to his case by the State of Texas. When he was on trial, his lawyer(s) failed utterly to investigate or to present a case for mitigation of punishment. One side of this argument likes to talk about this as the "bad childhood / not enough hugs" kind of defense. The other side notes that there is but one chance to convince a jury that there is a reason to let the defendant live. Both would have to agree that this is an important part of a death penalty case.

Mr. Ruiz' lawyers were called "appallingly inept" and egregiously deficient" by the federal courts. Naturally, with those characterizations, one would assume that Mr. Ruiz would get another shot at punishment. Not so fast.

When it was time for Mr. Ruiz to make this argument, the lawyer was again inept, and failed to make this claim during a State Habeas Corpus petition. That's easily fixed, right? When he gets to federal court, the federal judge will allow him to return to State Court and make the "significant, potentially meritorious claim", Right? Nope.

The Federal Judge said that, by failing to make the argument, the Texas Court of Criminal Appeals would reject the claim as procedurally barred because it was not made at the proper time. So, the Federal Judge sends Ruiz off for execution. The 5th Circuit affirmed.

Not deterred, Ruiz applies for relief from the Texas Court of Criminal Appeals, and the Court cannot even get all of the judges to participate in the consideration of the case. But, they deny relief - without saying whether they think that the ineffective assistance of counsel claim is barred, or lacks merit. They just deny.

Back to federal court goes Ruiz - now armed, he thinks, with a decision that the Texas Court has denied him relief on the claim that he had appallingly inept counsel at trial, on appeal and in his habeas petition. Problem solved? Nope.

The 5th Circuit panel is confused by the Texas Court of Criminal Appeals failure to say why they denied relief. So, they assume that relief was denied on the merits -- at least 2 of the judges do - with one judge saying that Ruiz should be executed because he hasn't followed proper procedure.

Now, somebody can explain to me who deserves the blame for capital cases to take so long to get to resolution. In this case, it wouldn't appear that its the inmate's fault. One doesn't have to be morally opposed to a death penalty to be adamantly opposed to the American system of imposing the penalty.

Well, This is Interesting News About the Death Penalty

The Texas Lawyer reported today that 20 lawyers are filing a complaint against the Presiding Judge of the Court of Criminal Appeals. Just after the US Supreme Court agreed to hear a case about the protocol for lethal injection, a Texas inmate attempted to file a Motion to Stay his execution - scheduled for later that day. The lawyers for the soon to be executed inmate called the Court of Criminal Appeals and asked them to stay open late to receive the Motion to Stay Execution. Chief Justice Keller apparently told the staff at the Court that it is the policy of the Court to close at 5:00 pm, and the Court closed.

The Inmate was not able to request a stay of execution in Texas, and thus could not request a stay at the Supreme Court. Therefore, he was executed. If all this is true, I would think that this sounds pretty bad. I wondered about this is a prior post, but would never have guessed that the reason was so mundane. My prior post wondered whether the US Supreme Court was at fault...clearly it was not. The problem, if there is one, is right here in Texas.

Here's a link to the Complaint against Chief Justice Keller.

Tort Reform is Working?

In 2003, the year of the Great Medical Malpractice Crisis, Texas led the nation by passing a cap on damages in medical malpractice cases. The New York Times reported recently that the result of this tort reform package is an influx of doctors wanting to get licensed in Texas. They perceive Texas to be "doctor-friendly", according to the Times article (click on the title to this post for the aritcle).

Well, I suppose that's good news, but I wonder who all these doctors are. Are we getting applications from the ones who are afraid that killing patients in Florida will cost them a fortune, while in Texas, it's not that expensive?

Or, maybe there wasn't really a crisis at all, but the media coverage of the crisis, and the tort reform solution has convinced doctors that Texas is a good place to be -- when in reality, nothing has changed about how many people sue their doctor, or how much they really recover?

I'm cynical enough to believe the former, but realistic enough to believe that the latter is just as likely.

What Personal Behavior Can We Demand of Supreme Court Justices

The editorial linked to this post (Click on the title of the post) is by a law professor who writes frequently on church/state issues. This time, she is complaining that 5 Supreme Court justices should not have attended an annual mass in Washington, D.C. She opines that their attendance at this particular worship service brings into question their ability to judge fairly and impartially, and that they should not have gone, and certainly should not have attended together.

This is some heavy thinking, but I think that she is not only asking too much from a judge when she requests that he refuse to attend church, but that she is asking far too much of the people of this country to insist that judges have an inviolate duty to separate their religion from their jobs. Each of the Justices had a record that was reviewed by the President and by the Senate before their confirmation. Each of them had years to expose any alleged agenda to violate the Free Exercise or Establishment Clause(s) of the Constitution. Each of them worked for many years around people that surely would have seen the grand conspiracy to infect judicial rulings with religious belief. Too much, then, is being made of the coincidence of a desire to worship and a duty to perform judicial duties with integrity and faithfulness to their oath and to the law of the land.

I have a unashamed bias for people in public service who believe in something. The worst kind of public servant is the kind who has whitewashed his mind of any beliefs, and engages in a mechanical application of a set of rules. No rule is devoid of exception. No rule should be applied without a view toward grace or mercy. People who believe in things motivate others to do better and to be better. Robotic work should be saved for machines.

Not all good news for University of Colorado

Before Colorado kicked a last second field goal to beat No. 3 ranked Oklahoma, the athletic department got kind of a shock from the 10th Court of Appeals. In a case styled Simpson v. University of Colorado, the Court held that a co-ed could continue her case against the University for violations of Title IX. The plaintiffs in Simpson were not athletes, but young ladies who volunteered to serve as ambassadors for recruits that came to visit the University with a view toward becoming athletes. The recruits were told by their male sponsors that the ambassadors (like the Simpson plaintiffs) were there to show them a "good time" and strongly implied that sex was part of the deal.

Colorado administrators either knew that the danger of sexual assault was very high in recruit/ambassador encounters, and/or failed to train the player-hosts so as to reduce the likelihood of a sexual assault. Indeed, the assaults here were allegedly the "natural, perhaps inevitable, consequence of an officially sanctioned, but unsupervised efforts" of the University, according to the Plaintiffs. The school tried to claim that the sexual assaults on the Simpson plaintiffs was aberrant and unexpected bad behavior, but the 10th Circuit placed the potential responsibility at the doorstep of the University administrators.

Important to the Court's ruling was the report of an assault by recruits that occurred in 1997. That assault was reported to the District Attorney who notified Colorado administrators that they needed more training in their program. The administrators allegedly did not too much in reply to the District Attorney's warning.

I've got to say that this is a pretty liberal view of the requirements for Title IX liability for student/student sexual assault, but it is also a pre-trial ruling, not a ruling after a jury trial. It will be interesting to see if Colorado pays to settle, tries the case, or continues to risk adverse publicity by appealing further.

Stoners Protected by the ADA

Roy Tarpley, a sometimes famous, sometime infamous, former Dallas Maverick has sued the NBA claiming that his permanent ban from basketball was a violation of the Americans with Disabilities Act. He says that his drug and alcohol addictions are disabilities - "substantially limiting at least one of his major life activities". I'm not sure which major life activity was limited. Possibilities are basketball, partying, and opposite sex relationships -- all of which were allegedly affected by what he now calls a disability. Most people back in the mid-80s just called it "stupid", but that's a vocabulary argument I will save for another day.

What makes me wonder here is whether athletes and Hollywood types are going to take over our legal system, so that the only cases that will not be referred to mediation or arbitration or dismissed are those that are titillating enough to catch the public's interest - much like the National Enquirer catches your eye at the grocery store. Before dismissing this as preposterous, ask how many civil cases that you have read about are really anything other than cases like Tarpley's. My number would fit on one hand.

Newscast about Texas Legislature

The news report in the video shows the Texas Legislature in action (Click on the title for this post to get the You-Tube video). Hardly anybody is in the room when the vote is called, and legislators make desperate efforts to push the vote button in the empty seats. I was doubtful about whether legislators actually read what they were voting on, but the video may cause me to change my opinion. Either 1) they are not at the called session because they are too busy reading or 2) not only do they fail to read legislation, they don't actually cast many votes at all. According to the new report, the rules of the house prohibit this action, but one might guess that the members are getting past their own rules by one legislator giving another "permission" to cast the vote. I believe that the "permission" excuse is probably more lax than a written proxy, or even express direction to vote. I suspect that the people voting are assuming that the missing legislator will follow party lines. And that is not much of a recommendation for our two-party system.

I don't want to continue to harp on the number of laws that were passed during the 90 day session, but my confidence that the votes that I cast to elect legislative representative have any meaning whatsoever is starting to wane.

Texas Execution Halted by Supreme Court

The US Supreme Court stayed the execution of a Texas inmate - Carlton Turner - so that he would not be executed pending resolution of a current case involving the constitutionality of the lethal injection protocol used in Kentucky (but either identical or similar to the one used in Texas). This is worth noting because the Court did not stay the execution of a Texas inmate earlier this week who was in the same position (his execution was carried out on the same day that the Court granted review).

Hmm....Did the earlier inmate not raise the issue by some procedural faux pas -- one that cost him his life? Did the earlier inmate deserve to die - by whatever means were in use, regardless of its constitutionality? Did the Supreme Court believe that Texas would stay the executioner's hand out of respect - knowing that the Court was taking a case involving the allegedly defective protocol? (a miscalculation by the Court that cost someone their life).

I'm going to have to read a bit more before deciding whether there is a rational distinction between the treatment of these inmates, but the Court's action seems to be inconsistent. Not a good way to start the October term, IMO.

I love this kind of "news"

An AP story that is making the rounds deserves mention, and even though it would be better for Friday news, I can't control when these things happen.

A Minnesota man who was a guest at the Embassy Suites Hotel cornered a duck that swam in the hotel's lobby, grabbed the bird and ripped its head from its body while a hotel security guard and others watched.

Allegedly, the man said: "I'm hungry. I'm gonna eat it."

According to the police spokesperson: "He was allegedly drunk."

The general counsel with the Minnesota Federated Humane Societies called the incident "unconscionable," and suggested that: "I think Embassy Suites needs to take another look at this and review how they keep ducks safe, or use fish like most hotels would use."

Further comment on this post will be referred to Embassy Suites. The AP writer said that calls to Embassy Suites were not returned. Nothing I can do about that either. Reports that the man was Michael Vick are totally false.

Supreme Court will hear Voter ID case

I've been accused of being too serious on this blog, so I'll take one case that the Supreme Court has decided to hear, and consider an issue that is a bit different than the one that the Court agreed to hear. In Indiana, where body cavity searches are the rule [My Prior Post on this issue], not the exception, voters are required to present government issued ID cards to vote. I guess this is to prove that you indeed reside in Indiana (something a body cavity search would not necessarily reveal) and that you are of the legal age to vote.

Aside from all the pre-teens that would apparently be permitted to vote in Indiana (because every self-respecting 14-year-old has an ID that says they are 21), age is hardly a decent gauge of whether you should be voting. Although many races are like voting for your favorite Brady Bunch character, making an intelligent and reasoned choice remains the work of a small minority of the populace.

Supreme Court will Hear Lethal Injection Case

Today, the US Supreme Court decided to hear a case out of Kentucky that challenges the method of execution (lethal injection) as being cruel and unusual punishment. The argument of the inmates is that the mix of drugs (a sedative plus a paralytic plus a heart stopper) can result in needless pain and suffering. According to testimony of medical people on this issue, the sedative doesn't always work as predicted, the paralytic keeps the inmate from talking or moving, and the heart stopper is (by all accounts) like running acid through your viens. Prison officials are, of course, unable to get doctors to help them devise or supervise any method of execution, and have either relied on their own research or the advice of veterinarians to come up with this protocol.

Courts of Appeal have resisted addressing this question by either saying that the challenge to the procedure comes too early (before an execution is imminent) or comes too late (where the schedule for the execution does not permit a court sufficient time to consider the merits of the procedure).

Some of the Supreme Court's writings on the death penalty make me think that this will be a very interesting opinion. Will they end up comparing this procedure to the procedures used in the past? or to procedures currently in use around the world? Or maybe it will be a very nebulous standard that simply reveals that the Court feels that the inmates do or don't deserve to die this way at the hands of the government. In any event, this issue will tell us a lot about the people that make the decisions at the highest level of government.

Are Congresspersons really THAT Special?

I read a newspaper article yesterday that said that 13 members of Congress had been subpoenaed to appear and testify at a criminal trial. The Trial was a criminal case involving a defense contractor who allegedly bribed "Duke" Cunningham (then a serving representative). The Congresspersons were asked to testify for the defense.

The general counsel to the House of Representatives apparently planned to seek to quash the subpoenas on the grounds that the members had nothing to say about the case. The subpoenas apparently can be quashed because the members did not receive a clear explanation of why the the testimony is needed. Congress has made its own rule that says that members need not comply with subpoenas unless someone can prove that the testimony is needed. The newspaper reported that each of the subpoenas were directed to persons who had received campaign contributions from the guy on trial.

It is a bit of a problem when Congress gets to make rules that benefit members, but no one else gets that benefit. It is not surprising, though, as there are a host of laws that citizens must comply with, but from which Congress is exempt. What moral justification could there be for lawmakers to make rules and laws that they themselves need not obey?

Texas Supreme Court - Part Dos

The Texas Lawyer published a long article this week about the huge backlog of cases that are pending at the Texas Supreme Court, and the length of time it takes to get a decision on a case. In years past, the Texas Supreme Court worked a lot like the US Supreme Court. They took a certain number of cases for review, and decided virtually all of them before they took a summer vacation. There was some carry-over from term to term, but the number of cases carried past the summer vacation were usually cases accepted late in the year.

The Texas Lawyer article describes cases that have been argued, and not decided for over a year. There are also a number of cases where the Court has received briefing, and have not yet decided to accept the case, but the case still pends for a year or more. It is worth knowing that often the cases are pending with judgments earning interest at 10% per annum. Plaintiffs may be getting interest credit, but they still don't have a conclusion to their lawsuit. Defendants also need a resolution, but are paying through the nose to get there. Just by way of example, suppose you are a defendant who has lost a case, and suffered entry of a judgment for $1,000,000. You are tagged with 10% interest. If you put the $1,000,000 in the bank, you could not keep up with the interest tab you are running. But, you appeal anyway. You spend a year at the Court of Appeals level (where it takes time to get the record together, and to write briefs, get to argument, and get a decision). [In the Houston Courts, you cannot expect to get a submission date until a year after the briefs are filed]. You lose, and want to go the Supreme Court. There's little new briefing that needs to be done, and it ought to be about 6 months to find out if the Court will take your case. If the Court takes 2 years to decide whether to take your case, and follows their regular schedule for decision (minimum 1 year), you will have a decision between 4 & 5 years after the trial. This is $400,000 minimum out of your pocket for interest. You might have earned 5% on the money if you set it aside -- so you are down $200,000 just for the right to appeal. The math isn't perfect, but the principle is. It's not just the Plaintiffs who are suffering while the appeal is pending; the Defendants are not being well-served either.

More fodder for judicial elections that would seem to be important campaign issues. Hard to predict whether the general public will care.

Here's Your Texas Supreme Court

I got a copy of a fascinating Motion filed this week in the Texas Supreme Court. In the Motion, a Plaintiff's lawyer in a mandamus case asks 4 Justices to recuse themselves from hearing the case because they have evidenced a bias for big business and insurance companies, and a prejudice against Plaintiffs who sue for money damages. Backing up the Motion is an independent study of voting patterns that shows that these four judges have never voted to allow a Plaintiff to recover money -- reversing every single award that they have reviewed in an appellate case.

Although the lawyer here is relying solely on voting patterns, he makes a nod in the Motion to the Court's practice of reviewing the factual sufficiency of the evidence to support jury verdicts in favor of Plaintiffs under the guise of discussing the law -- a practice that is undeniably common, and just as undeniably prohibited by the Texas Constitution.

Obviously, the Motion will be denied, and the 4 judges will participate in the case. But, this makes speculating on judicial elections a bit more interesting. Will the public ever learn of this? Will opponents come forward to make this a campaign issue? Will Texas actually vote that this is the kind of Supreme Court that they want? The Dallas Morning News actually published an article about this, on the front page of its business section.

Stay tuned.