Wednesday, October 31, 2007

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!

Tuesday, October 30, 2007

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.

Monday, October 29, 2007

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

Saturday, October 27, 2007

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."

Wednesday, October 24, 2007

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.

Tuesday, October 23, 2007

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.

Monday, October 22, 2007

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.

Wednesday, October 17, 2007

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)

Tuesday, October 16, 2007

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.

Monday, October 15, 2007

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.

Thursday, October 11, 2007

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.

Tuesday, October 9, 2007

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.

Wednesday, October 3, 2007

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.

Monday, October 1, 2007

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.