Magnificent Judicial Snark

A footnote from Judge Reggie Walton's order granting the application of several law professors to file a friend of the court (amicus curiae) brief on Scooter Libby's motion to stay out of prison pending appeal:

It is an impressive show of public service when twelve prominent and distinguished current and former law professors of well-respected schools are able to amass their collective wisdom in the course of only several days to provide their legal expertise to the Court on behalf of a criminal defendant. The Court trusts that this is a reflection of these eminent academics' willingness in the future to step to the plate and provide like assistance in cases involving any of the numerous litigants, both in this Court and throughout the courts of our nation, who lack the financial means to fully and properly articulate the merits of their legal positions even in instances where failure to do so could result in monetary penalties, incarceration, or worse. The Court will certainly not hesitate to call for such assistance from these luminaries, as necessary in the interests of justice and equity, whenever similar questions arise in the cases that come before it.

HT: Daniel Larison

Lewis "Scooter" Libby, of course, is the aide to Vice-President Cheney who was convicted of lying to the grand jury investigating the leaking of the identity of Valerie Plame, wife of a critic of the intelligence used to justify the Iraq War. It's pretty clear that there was no underlying crime, and Libby, although he may have not told the truth (and if so, committed a crime), is the chosen victim in a political-legal drama.

The issue is whether there is enough chance for Libby to prevail on appeal to justify postponing his starting his 30-month prison term. The professors argue that there is enough of a legal question as to whether the appointment of the Special Prosecutor, Patrick Fitzgerald, was constitutional, to create a real possibility of reversal.

What's really going on is that there's a likelihood that President Bush will pardon Libby, but he's more likely to do so in the closing days of his administration than now. Thus Libby's supporters want a delay in the start of his prison term.

The judge's snark, in any case, is both unusual and powerful.

Facial Cruelty vs. Facial Constitutionality

The Supreme Court recently upheld Congress's passage of a ban on "partial birth abortion."

The heart of the opinion is description of the surgical procedure called "dilation and extraction" or ("D & E") by doctors. What the pro-life movement has succeeded in calling "partial birth abortion" is a procedure by which the intact fetus is extracted from the womb and then intentionally killed. The alternate, and still lawful procedure, is to dismember the fetus in the womb and extract the pieces--or to perform a mini-Cesarean.

After the Supreme Court overturned state laws banning the procedure, Congress passed a law prohibiting it. (As the opinion points out, no one has litigated the question of whether Congress even has the power to regulate the practice of medicine). The present opinion (Gonzalez v. Carhart) rejects lower court decisions that upheld a challenge to the federal law. The challengers claimed that the statute was "unconstitutional on its face," in other words, the text of the law itself violates the constitution. For example, a law that required all Texans to attend Baptist churches or pay a fine would be facially unconstitutional; a court would not need to examine how the law was enforced to find it was unconstitutional. In "unconstitutional as applied" cases, the court has to look at actual instances of enforcement to determine whether constitutional rights have been affected.

In this case, the Court concluded that because existing opinions hold that the government has an interest in protecting fetal life stronger later in the pregnancy, and there are still abortion procedures available at this stage of pregnancy, the law was not unconstitutional.

A read of the opinion, however, suggests to me that like the congressmen and senators who adopted it, the justices in the majority were stricken by the cruelty of the procedure.

There was a recent episode of the TV program "House" in which a problem pregnancy results in a very premature delivery. The tiny hand and arm of the baby are depicted. It is, of course, very moving, at least to anyone who has been close to a pregnancy or learned to love babies. So long as the tiny hand is not an abstraction, late-term abortion will have a constituency only among the most zealous advocates of abortion rights.

From Tragedy, To Farce, To Peewee Herman?

The Duke lacrosse case continues to unravel.

The latest defense motion reveals yet more DNA samples found in the accuser's body, that are not identifiable to any suspect. Prosecutor Mike Nifong did not disclose any of these to the defense, as both North Carolina and U.S. Constitutional law require him to do.

In a complex case, mistakes are sometimes made. Prosecutors are sometimes over-zealous. That's improper and can be unethical.

Nifong's conduct, if the defense motion proves correct, goes way beyond mistakes or excess of zeal. This was a conscious attempt to keep a frame-up going, at least past election time.

Where is the outrage from Duke officials? If these defendants were not middle-class white athletes there would be yowls of protest and mass demonstrations.

I'm not going to let any child of mine apply to Duke. The only person who should go to jail is Nifong; it's that bad. Dismiss this outrageous case now!

SCOTUS Restricts Punitive Damages Again

When a jury awards punitive damages, in setting the amount, can it consider harm to people not part of the lawsuit?

Answer: only through the back door.

Punitive damages, although they get a lot of press, are rarely awarded. Clients tend to think the defendant's behavior in their case was outrageous, and they should get such damages. Some states don't allow punitive damages at all. Others restrict them.

Now the U.S. Supreme Court (SCOTUS) has found in the U.S.Constitution reason to impose new restrictions on these damages. Philip Morris USA v. Williams (2007) 2007 DJDAR 2233.

Jesse Williams died, and the jury found smoking killed him, and Philip Morris, manufacturer of his favorite Marlboros, defrauded him into believing smoking was safe. (I know, I know, what planet was he living on? But this post is not about this jury finding.) The jury awarded him $ 821,000 in actual damages, and nearly $ 80 million in punitive damages, which the trial judge reduced to a skimpy $ 32 million. The Oregon Supreme Court restored the original amount.

The case found its way to the U.S. Supreme Court, because of a challenge to the verdict under the U.S. Constitution. Without a federal question, the Oregon Supreme Court would have been the last stop.

SCOTUS has already suggested that punitive damages must bear a reasonable relationship to actual damages, although they haven't said for certain what the maximum multiple is, but has suggested that 9 times might be about right. This case doesn't speak to that issue.

What it says is that in considering the amount of punitive damages, the jury can only consider harm to the plaintiff or plaintiffs in the case itself, not harm to others. In deciding how reprehensible the conduct was, however, the jury can consider harm to others. So, for instance, if Philip Morris hid the dangers of smoking from many people, resulting in more deaths, that fact would make its conduct more worthy of blame (reprehensible), which might increase the amount of punitive damages, but in actually fixing the amount to be awarded, the jury can take into account only the dollar amount it awarded for harm to the plaintiffs in the case itself.

Otherwise, SCOTUS held, all kinds of terrible things might happen, including multiple awards against a defendant for the same harm.

Fair enough, perhaps, but how can the effect on many of the defendants bad acts be considered for blameworthiness, but not for determining whether the multiplier from the actual damages to the punitive damages is constitutionally proper, that is, affords the defendant due process of law?

Only in the fun house world of the law, it seems. We ask juries to do strange things all the time, such as receive evidence for one purpose but not for another. Lawyers know that juries do all kinds of things when they are alone, and don't always follow the instructions, but everyone goes along with the fiction that they can understand subtle distinctions that only a lawyer can love.

Say the plaintiffs slips on a broken sidewalk. Normally, the fact that the defendant fixed the sidewalk after the accident would not be admitted into evidence, because that would discourage people from fixing things after an accident. However, the fact that a private party and not the city fixed the sidewalk might be admitted to show the private party had actual control of the sidewalk, and so was responsible for its condition. Then we ask the jury to consider the evidence for purposes of deciding who had control of the sidewalk, but not to consider the repair as evidence the private party was negligent in not fixing the sidewalk earlier.

So with punitive damages. The jury can look at all the people made ill and killed by smoking Marlboros, to decide that Philip Morris really deserves harsh punishment. It's not supposed to consider harm to other people in fixing the dollar amount of the punitive damages, if in fact it awards any.

Can your letter carrier make this distinction? (Letter carriers often end up on juries in long trials, because the government pays them their full pay while they sit, and they won't be in the rain or in range of a bulldog's teeth for the duration).

Perhaps not. But if the average juror can figure this one out, it might be a little harder, in the future, to get huge punitive damages awards.

One case likely to to be affected is the endless litigation over the Exxon Valdez oil spill case. The punitive damage award keeps getting appealed, then sent back to the trial court, and then appealed again, as SCOTUS continues to clarify the law that applies. SCOTUS loves to reverse the 9th Circuit, the Court of Appeals that decided the Philip Morris v. Williams case.

We haven't heard the last of this issue. When huge punitive damages awards are at stake, and the law is in flux, there's every incentive to appeal, appeal, appeal.

Beware Contractor Who Speaks With Forked Tongue

If you rely on a licensed general contractor to get your building permits, and he doesn't bother, are you out of luck?

Beware. In California, you've got trouble. Ciraulo v. City of Newport Beach (2007) 2007 DJDAR 2172 (4th Dist., Div. 3, No. No. G034963).

Joseph and Carole Ciraulo owned a duplex, and decided to build a two-story single-family home. They got a permit, which included a 25-square-foot rooftop structure to house the top of an elevator shaft, even though the structure exceeded the usual height limit.

The Ciraulos decided they wanted to include a fireplace, a bathroom, and other improvements on the roof, which would require a 125-square-foot structure. They asked their contractor to build it, but only if he obtained a permit from the city. The contractor took the easy way out in a California beach city--he went ahead and built the enlarged structure without a revised permit.

After the fact, the Ciraulos applied for variances, which the City refused. After the obligatory appeal to the City Council, the Ciraulos went to court, seeking a writ of mandate. "Tough luck," said the Court of Appeal.

Justice Bedsworth, writing for a unanimous court, said:

While it is clear the Ciraulos view themselves as innocent victims in this case -- and indeed, for all we know, they are -- it would appear the one who victimized them was their contractor, not the City. Apparently, the Ciraulos delegated the responsibility for ensuring the rooftop expansion was properly approved to the contractor. He gave them the impression he would take care of it, and they relied upon him to do it. This entire mess was created not because the Ciraulos relied upon the City's inspections as indicating approval for the expansion, but because they relied upon their contractor to actually obtain that approval.

Significantly, no one contends the contractor was unaware the expansion was not properly approved, or that he was otherwise "mistaken" about what was going on. And, no one contends the contractor himself was misled by anything the City's inspectors did, or that he reasonably believed the various inspectors were authorized to, in effect grant a "permit" for structural changes which violated the city codes. Because the contractor was the Ciraulos' agent, his knowledge (and misconduct) is legally attributable to them. (Civ. Code, � 2338; Powell v. Goldsmith (1984) 152 Cal.App.3d 746, 750.) The fact the Ciraulos themselves were, in effect, victimized by his misconduct {Slip Opn. Page 14} is of no moment. "Appellants state they relied completely on 'the honesty and integrity' of [their agent]. Their reliance and trust was misplaced. A principal cannot benefit from the fraud of its agent who is acting in the course and scope of his agency." (Id. at p. 751, italics added.)

Although this result is harsh, and puts a burden on homeowners who may be quite unsophisticated, the court could hardly have ruled otherwise without inviting collusion between homeowners and contractors, seeking to obtain advantages that they wouldn't be allowed under the normal planning process.

Whether planning and zoning restrictions in California beach cities are oppressive and excessive is a separate question. If a city is going to have any restrictions, as has been permitted by the U.S. Supreme Court for nearly a century under the local "police power," then owners have to be responsible for the acts of their agents who break the rules.

The rule of Ciraulo puts a burden on homeowners who may be naïve and inexperienced. If you build or remodel a custom house in California, you had better pile up reserves of both cash and patience, and make sure your contractor has plenty of insurance. You may need all three.

Incidentally, if there was no collusion between the Ciraulos and the contractor, the next lawsuit is likely to be one by the Ciraulos against the contractor, for breach of contract and negligence, asking for the cost of the roof structure back, as well as the cost of demolition and legal fees.

The more complicated the rules get, the better lawyers do. Sometimes "preventive law" before the fact can be a lot cheaper than litigatin after the horses have left the barn. And who knows? The barn may be illegal, too.

Somali Cabbies Again

As you may recall, the former Lutheran Mecca of Minneapolis is now a favorite destination of Somali immigrants, who now make up a majority of cab drivers in that northern burg. Some of the Somalis, with the enthusiasm characteristic of peripheral "Arabs," have rediscovered strict Islam, and are refusing to take on fares who are transporting alcohol, or even dogs, which the Somalis regard as unclean.

The Metropolitan Airport Commission is considering, and on Tuesday will hold a hearing on, proposed regulations increasing the penalties for improperly refusing a fare. Documents reproduced on Daniel Pipes's site. Warning: some regard Pipes as anti-Muslim.

My first reaction is surprise at the fact that Minneapolis, which we furriners think of as a Scandinavian icebox, has attracted enough Somali refugees for them to dominate taxi driving. Such are our times. How much exoticism, cultural, racial and religious, the heartland can stand is one question, which history will answer.

The issue of the demand for special rules for a minority religion is more interesting. I've commented on it before, and I won't belabor points already made. What's concerning is the tendency, in this country and abroad, to move toward special rules for the Muslim minority.

The Ottoman Empire developed the millet system, whereby each ethnic-religious group was governed, at least in matters such as marriage and inheritance, by its own traditional law. This system has survived in modern Israel, and is hardly conducive to national unity. It's "free exercise" taken to excess. The demands of Muslims in Europe often point in this direction. Although the U.S. has allowed free exercise of religious observance, it has only made minimal accommodations to religious differences in the secular marketplace, which is governed by uniform laws.

So, for instance, if you get a hack license, you're supposed to carry everyone, a sore point in New York City, where a combination of prejudice and the desire for self-preservation has led many cabbies to ignore black would-be passengers trying to hail them. It's also a sore point in Minneapolis, where people arriving at the airport carrying lawful substances or escorting lawful quadrupeds don't want to be subjected to a religious test.

A lawyer of a social observer can spin out complexities, exceptions and caveats here, but basically, it's simple. If you want a license to serve the public, you can't pick and choose what part of the public to serve.

Rant's [sic]

Pedant that I am, I sometimes react more strongly to apostrophe errors than to snark, stupidity, and lies.

The poor little punctuation mark is so misused that sometimes I think he should be put out to pasture.

It's easy, folks.

Rule 1. When the word is a contraction ("do not"==>"don't" "it is"==>"it's") you replace the letters that aren't pronounced with the apostrophe.

Rule 2. When there's a possessive "s" added to a noun, the apostrophe goes before the "s" when the noun is singular ("John's hat," "the cat's meow).

Rule 3. When there's a pluralizing "s" added to a noun that is also possessive, the apostrophe goes after the "s" ("the horses' tails," "the Smiths' dinner party").

Three simple rules, folks, that's all.

"It's" and "its" sometimes cause trouble, but they follow the rule.

"It's," meaning "it is" takes the apostrophe internally, because it's a contraction.

"Its" as a possessive doesn't take an apostrophe any more than "his" does--pronouns don't take a possessive apostrophe.

So: "It's a boy!" meaning "It is a boy!" but "Its eggs are green" because "its" is neither a contraction nor a possessive noun.

So endeth the rant. Amen.

(For extra credit: "apostrophe" is also one of the many devices of classical rhetoric:

A digression in the form of an address to someone not present, or to a personified object or idea, as “O Death, where is thy sting?”

Go and sin no more.

(Cross-posted from As the Top of the World Turns).