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.