This November, voters in California, Arizona and Florida will decide on proposals to amend their state constitutions to include permanent bans on same-sex marriage. A new Field poll indicates that California voters are leaning heavily against that state’s Proposition 8 by a 38 to 55 percent margin, almost double the margin by which the measure was failing in July, despite an intensive “pro” campaign by conservative religious forces. A recent Quinnipiac poll in Florida shows the amendment there still in the lead, but not by the 60 percent majority needed to pass a constitutional change under that state’s law. Arizona voters rejected a ballot measure of this sort two years ago, and opponents have high hopes of defeating it again.

I’ve editorialized repeatedly against these measures in this space and will repeat some of what I wrote four years ago Continue Reading »

• Two topics of recent interest on the site — cremation and service monkeys — together in one post [The Urn Garden]
• Please don’t tell us an aggressive stance by music copyright holders is going to kill Pandora radio, one of the bright stars of the Internet [WaPo, more]
• “Citizens in Chains: The High Cost of Prisoner Lawsuits to California Taxpayers” [CALA, PDF]
• Navajo plaintiffs: spraying artificial snow on our sacred mountain is spiritually injurious [Volokh]
• Remember those anti-poverty non-profit groups that were going to represent the culmination of John Edwards’ life work, aside from running for you-know-what? Him neither [Silverstein, Harper's via Folo]
• Toxic tort class action in Saudi Arabia proves unsuccessful [Arab News]
• Fending off patent trolls has been expensive for high-tech Massachusetts firm Cognex [NLJ]
• Arizona law professor’s creative denials in paternity suit have furnished faculty-lounge chuckles for years [Caron/TaxProf, Jack J. Rappeport]
• New at Point of Law: big ruckus over proposal to compel accounting projections of lawsuit exposure; guestblogger Peggy Little on Connecticut vs. Countrywide, the ABA in judicial selection and more; cy pres litigation slush funds assailed as constitutionally dubious; Trial Lawyers Inc. series tackles the state of Ohio; MBIA mulls suing hedge fund that’s sniped at its stock; more on med-mal “loss of a chance”; and much more.

Three years ago we noted (following reporting by Ed Lowe and J.E. Espino of the Appleton, Wis. Post-Crescent) (more) that

Representatives of the Hollywood, Fla.-based law firm of Schwartz Zweben & Associates have played a substantial role behind the scenes in helping organize, promote and support the Ms. Wheelchair America pageant and some of its state affiliates. And lawyers with the firm have filed more than 200 lawsuits in at least seven states and the District of Columbia on behalf of at least 13 pageant participants, “including state and national titleholders, state coordinators and pageant judges”.

Now the Birmingham, Ala. News follows up on the case of Colleen Macort, Ms. Wheelchair Florida 2002, who has filed more than 73 disabled-accessibility actions in Alabama “but has never spent a day in court because of settlements”. Local law provides that Macort cannot be compensated for filing the lawsuits, but the Wisconsin paper reported that the firm of Schwartz Zweben had engaged her as a consultant on other cases. The reporter is kind enough to quote me and mention this site (Liz Ellaby, “Bessemer woman crusades to address disability act violations, provoking critics”, Birmingham News, Jul. 3).

In the state of Washington, Ms. Wheelchair Washington 2005, Michelle Beardshear, has teamed up with the Florida firm to file 15 lawsuits, of which twelve have been settled, against enterprises in Clark County (Kathie Durbin, “Advocate for disabled not hesitant to sue for access”, The Columbian, May 27 courtesy Chamber ILR). And in March, Schwartz Zweben & Slingbaum (as it is now called) swooped down to sue twelve defendants in the Tucson area, including a number of well-known restaurants, alleging ADA violations. (Josh Brodesky, “12 Tucson businesses facing suits alleging Disabilities Act problems”, Arizona Daily Star, Mar. 28).

• High school graduation got rained out in Gilbert, Ariz., and a dad wants $400 from the school district for that [Arizona Republic]
• Happens all the time in one-way fee shift awards, but still worth noting: lawyer in police-misconduct case “billed 22 hours at $480 an hour — a total of $10,560 — just to figure out how much his fees are going to be” [Seattle Times]
• We get to decide and that’s that: New York judge orders that salaries of New York judges including his own be raised [PoL, Bader] Also at Point of Law: white-shoe Clifford Chance throws a party for New York lefties, should anyone be surprised? outsourcing of interrogation to profit-minded private contractors is bad when it’s Blackwater, good when it’s Motley Rice; tax break for trial lawyers said to be blocked for now.
• One firefighter killed in Boston restaurant blaze had sky-high .27 blood alcohol level, the other traces of cocaine, which probably won’t impede the inevitable lawsuit against the restaurant and other defendants [Globe, background]
• Writing again on U.S. exceptionalism, Adam Liptak contrasts our First Amendment with Canadian speech trials; James Taranto thinks he’s siding with the Canadians, but the piece looks pretty balanced to me [NYTimes, WSJ Best of the Web]
• Milberg said to be on verge of deferred prosecution agreement deal with feds involving $75 million payment and admissions of wrongdoing [NLJ]
• Courts in Australian state of Victoria, emulating a model tried in Canada, will resort more to mediation of intractable disputes [Victoria AG Rob Hulls/Melbourne Age]
• Great moments in international human rights: KGB spy on the lam sues British government for confiscating royalties he was hoping to make from his autobiography [five years ago on Overlawyered]

Jacob Sullum (of the often excellent Reason Magazine) makes note of a prosecutor in Arizona who places DUI offenders’ names, mug shots and BAC levels online. Sullum concludes that the prosecutor is “imposing extrajudicial punishment, based on his unilateral conclusion that the penalties prescribed by law for DUI offenses provide an inadequate deterrent.”

Publicizing records that are, by nature, public is normally fine by me. But the prosecutor seems to have created, in a sense, a DUI offender registry. Appearance on sex offender registries is a matter determined by law, not the whim of prosecutors. Also, Mothers Against Drunk Driving won’t endorse the idea:

“Some parts of the Web site are good because they are informational and trying to provide the victim’s perspective,” said Misty Moyse, the spokeswoman for the group. However, she said, “M.A.D.D. would not want to be involved in calling out offenders. We are interested in research- and science-based activities proven to stop drunk driving.”

(crossposted at catallaxy.net)

All-medical edition:

• Shocker for New York docs: possible assessment of $50K apiece to make up losses at nonprofit med-mal insurer [White Plains Journal-News Chamber reprint]
• Dr. Ray Harron, a central figure in furor over mass asbestos and silicosis screenings, seems rather hard to locate at the moment, though he does have a lawyer speaking on his behalf [NY Times, WV Record]
• Another push to raise the threshold of liability for emergency room care in Arizona [AZ Business Gazette]
• End run around Roe? Some state legislatures attaching sweeping new tort liabilities to the provision of abortions [Childs]
• Three nominees for worst-founded medical lawsuit, lamentably unsourced [Medical Justice]
• Spokane psychiatrist shouldn’t have engaged in romantic (though not sexually consummated) dalliance with forty-ish patient; that much is clear. But should she now get cash? [AP/Seattle Times]
• “Baby falls to floor during home delivery, mom sues hospital for too-early discharge” [SE Texas Record]
• A sensitive subject: malpractice and doctors’ suicides [KevinMD, a while back]
• “If the ‘loser pays’ system is so bad, why do most other countries keep it around instead of switching over to an ‘Americanized’ system of tort law?” [WhiteCoat Rants]
• Hospital, ambulance service among those sued after fatal crash of NFL’s Derrick Thomas [seven years ago on Overlawyered]

A federal judge has declined to dismiss the controversial lawsuit. “The imams have argued that they were removed because of religious and ethnic bias. The airline says they were ejected solely because of security concerns raised by passengers and crew members.” In August, the imams dropped the most widely criticized portion of the suit, which had named as defendants fellow passengers who had expressed fears for the flight’s security. (Dan Browning, “Flying imams score points in suit vs. US Airways”, Arizona Republic/Minneapolis Star Tribune, Nov. 21; Audrey Hudson, “Judge grants imams day in court”, Washington Times, Nov. 22). See Dec. 6, 2006, Mar. 15, 2007, etc.

More from Ann Althouse (Nov. 21): “Yes, let’s get to the factfinding. No need to throw this out on a motion to dismiss when the plaintiff’s version of the facts must be taken as true.”

No doubt the search for policy lessons from the catastrophic Southern California wildfires (N.Z. Bear, CBS8) is in its early stages, and no doubt multiple contributing factors will wind up being implicated. Many, though, recall the controversy that hit the front pages after disastrous 2002 wildfires in Arizona, when it was revealed that Forest Service attempts to reduce fire risk by clearing underbrush, installing firebreaks and permitting logging of excessive growth had been heavily litigated and delayed in court by environmental groups (Jul. 1-2 and Jul. 12-14, 2002). Just last month scientists testified that efforts to “step up tree removal efforts and prescribed fire programs” were needed to counter growing fire risk (Ben Goad, “Speed forest thinning to ease fire threat, experts say”, Riverside, Calif., Press-Enterprise, Sept. 24). Michelle Malkin and readers have a big discussion (Oct. 23; & welcome readers from there). More from CEI’s Hans Bader and Robert Nelson and again from Michelle Malkin (per L.A. Times report, brush clearance and forest thinning credited with saving homes around Lake Arrowhead).

We’ve covered many of Michigan trial lawyer Geoffrey Fieger’s antics and legal troubles here on Overlawyered over the years; his most recent problems include being censured in Arizona and being criminally indicted for illegal campaign contributions.

But he may have managed to wriggle out of punishment for at least one of his shenanigans: his 1999 radio tirade in which he labelled as Nazis the judges who ruled against his client. He was sanctioned by the Michigan courts for this conduct, with the Michigan Supreme Court upholding the discipline against his first amendment challenge in Aug. 2006 (Yes, that’s seven years after the incident.)

But this week, a federal court bought Fieger’s first amendment argument, holding that the rules under which he was sanctioned were unconstitutional.

The rules say lawyers must treat everyone involved in the legal process with “courtesy and respect” and should “not engage in undignified or discourteous conduct” toward the bench.

In the decision released late Tuesday, U.S. District Judge Arthur J. Tarnow said “the rules are unconstitutional on their face because they are both overly broad and vague.”

If we were snide, we might note that it could say something about Fieger that he couldn’t figure out that calling someone a Nazi is not dignified or respectful. We were amused at the Court’s reasoning for why Fieger had standing to challenge these rules:

The likelihood that Plaintiff Fieger may again say something negative about a Michigan court that could subject him to further punishment under the courtesy provisions is not the attenuated situation presented in Grendell. Plaintiff Fieger is a vocal, often harsh, and at times vulgar critic of Michigan’s judiciary.

You don’t say.

Yet another ethical run-in for bad boy Michigan lawyer Geoffrey Fieger, aside from all the ones we’ve told you about already including his recent campaign finance indictment: the Arizona Supreme Court has censured Fieger for holding himself out on letterhead as a member of the Arizona bar, and undertaking a matter to be tried in an Arizona court, even though he was under suspension at the time. The September issue of Arizona Attorney carries the following in its “Lawyer Regulation: Sanctioned Attorneys” column:

Continue Reading »

Arizona’s East Valley Tribune looks at the question (considered here Jul. 28 first and second post) of whether the fugitive being chased by Phoenix police could be held legally responsible for the crash of two news copters observing the scene. An unrelated local case puts a twist on an otherwise familiar “felony murder” fact pattern:

In an ongoing case, a Phoenix woman faces murder charges in a 2004 robbery attempt at a Mesa check-cashing store following the death of her accomplice. The accomplice was shot and killed by the store’s clerk, who also shot Rhonda Wright multiple times.

Prosecutors reasoned that the clerk would not have pulled his weapon if the assailants had not entered his store.

(Dennis Welch, “Homicide charges in helicopter crash a tough call”, East Valley Tribune, Jul. 29). More on felony murder and the Phoenix crash: Michelle Tsai, “News chopper down”, Slate, Jul. 30.

More: Mike Cernovich identifies another culprit in the chopper crash (Jul. 30).

• Judge Bartnoff declines to reconsider decision against Roy Pearson in dry cleaner pants case [AP/WUSA]
• Turnabout fair play? Louisville hospital sues trial lawyers, saying they injured its reputation and tried to extort settlement [Courier-Journal]
• Employer sued for “post-traumatic stress disorder” after pranksters post co-worker’s profile on gay section of HotOrNot.com [McCullagh, CNet]
• Former Belleville, Ill. cop sues over prosecutor’s letter suggesting his testimony not to be relied on [M.C. Record]
• British race relations agency demands removal from shelves of Tintin comic book [Telegraph]; 22-year-old in Scotland sentenced for “racially aggravated breach of the peace” after website commentaries that went “beyond the realms of bad taste” [also Telegraph]
• Farewell to that little patch of floating liberty, the South Carolina river shack [Zincavage]
• Hey docs: if a plaintiff’s law firm calls your office to talk about a former patient, don’t call back [Medical Economics via KevinMD]
• Yale Club replies to Judge Bork’s lawsuit [Turkewitz]
• Arizona businesses aghast at hiring-sanctions law that suspends their license to operate should supervisor be found to have hired an illegal [Arizona Republic]
• Grants from Bob Barker foundation (Jul. 5, 2001) help fuel animal rights boom in law schools [NLJ]
• University of Utah settles lawsuit brought by devout Mormon student actress who refused to recite dramatic lines that were blasphemous or obscene [three years ago on Overlawyered]

Getting wide exposure on YouTube, and providing fodder for Lou Dobbs:

The video shows attorneys for Cohen & Grigsby, one of the largest law firms in Pittsburgh, explaining at a conference on immigration how to obey laws that require Americans be given top priority for jobs while still ensuring foreigners are hired.

“The goal here of course is to meet the requirements, number one, but also do so as inexpensively as possible, keeping in mind our goal. And our goal is clearly not to find a qualified and interested U.S. worker,” Lawrence Lebowitz, the firm’s vice president of marketing, told the audience in May.

(”Pa. law firm’s immigration talk hits YouTube; U.S. senator demands investigation”, AP/Arizona Star, Jun. 23; Sister Toldjah; Doug Ross). More: Kim’s Play Place says the lawyers were serving their clients’ legitimate interests and that if they can arrange compliance with the letter of an irrational law there’s no reason for them to show allegiance to its claimed spirit. Further: Gina Passarella, “Immigration Law Seminar Generates Unwanted Publicity for Firm”, Legal Intelligencer, Jun. 25 (& welcome Opinionator readers).

As we noted Apr. 16, the Arizona State Board of Appraisal has sent a letter to Zillow.com demanding that it cease and desist from offering its free online estimates of property values in the state, on the grounds that Arizona law prohibits the unlicensed offering of real estate appraisals. Eugene Volokh (Apr. 30) believes that as interpreted by the regulatory board, at least, the Arizona statute is probably “constitutionally overbroad”. Notes commenter Duffy Pratt: “I don’t think Zillow is doing an ‘appraisal’ anymore than I am practicing law by saying this statute is hooey.” Legislation is moving forward in the Arizona legislature that would provide clearer authorization for services like Zillow to operate (John Cook’s Venture Blog (Seattle Post-Intelligencer), Apr. 30; “Arizona House passes bill impacting ‘Zestimates’” Inman News, May 1). More: Greg Swann, BloodhoundBlog, Apr. 29 and other posts; Jonathan Lansner, “Arizona has a Zillow problem”, Orange County Register, Apr. 18.

“Arizona regulators have ordered a Seattle-based online home price estimator to stop doing business in the state.” Zillow.com has won wide popularity by applying algorithms to publicly available data to come with rough estimates of the value of existing homes, which it makes available for free through its site. The Arizona Board of Appraisal says that Zillow should not be dispensing such information without an appraiser’s license. (”Arizona bars online home price estimator”, AP/Tucson Citizen, Apr. 15)(& Coyote Blog).

Four high school students from Arizona and Virginia are suing the anti-plagiarism service Turnitin, iParadigms LLC, under the copyright laws for archiving copies of their papers in its database. [WaPo] There are entrepreneurs who come up with good ideas for services and products, and entrepreneurs who come up with good ideas for lawsuits against the first group.

Update, March 31: Lots of commenters disagree with me, so it’s encouraging to see Eugene Volokh on my side. Turnitin’s own analysis (pdf) is public.

As I’ve previously mentioned, one of my pet peeves is the claim by the trial lawyer crowd that tort reform is unnecessary because judges already have the power to punish lawyers who file frivolous lawsuits. Technically, this claim is true. But it relies upon an extremely narrow definition of “frivolous” — the vast majority of absurd cases covered here on Overlawyered are not considered frivolous by current legal standards — and those who practice know how rare it is for judges to actually issue sanctions.

Take John Aretakis. He’s a New York attorney who has carved a legal niche for himself suing the Catholic Church over sexual abuse by priests. Well, to be more precise, the legal niche he occupied, according to a federal judge’s ruling last month, was filing a series of “utterly baseless” lawsuits against the Church, in which he ignored the law, misrepresented the law to the court, filed cut-and-paste complaints without proofreading them, and filed and publicized the suits for the improper purpose of embarrassing and humiliating Church officials. (AP, North Country Gazette).

Although this was not the first such lawsuit filed by Aretakis — or the second, or the third — and even though his suits have been uniformly rejected, this is the first time a judge has sanctioned him for his behavior. The court described the suit harshly as follows:

Taking Mr. Aretakis’s behavior in this case as a whole, it is clear that his conduct is sanctionable because it is sloppy and unprofessional; the pleadings are so far removed from adequate that they cannot be said to have been filed in good faith or after a reasonable inquiry; the bulk of the allegations dealing with sexual abuse are wholly irrelevant to the RICO claim, and; the Title VII claim is admittedly without basis in law.

But despite this harsh description, the Court still declined to make the victims of this frivolous lawsuit whole; Aretakis was fined just $8,000 — far less than the defendants asked for — and told not to do it again.

And it wasn’t because Aretakis made such a good argument in his defense:

Not surprisingly, Mr. Aretakis’s response to the Motion for Sanctions does not respond in a meaningful way as to why sanctions are not appropriate here. Instead, Mr. Aretakis recounts an irrelevant action in Tucson, Arizona, and another regurgitation of thrice-told tales of sexual abuse, plus non-sequiturs concerning a drunken process server with felony convictions attempting to serve process, among other wholly irrelevant topics.

The text of the decision can be found here (PDF).

Continue Reading »

• Trucker-friendly Arizona legislature declines to ban naked lady mudflaps [NBC4.com; Houstonist]


• Crumb of approbation dept.: I’m “[not] as unreasonable as most of the tort-reform crowd” [Petit]


• Sponsors of large banquets in D.C. must pay to have a paramedic on hand even when the banquet crowd consists of doctors [ShopFloor]


• Homeowner’s insurance doesn’t cover homewrecking: umbrella policy doesn’t create duty to defend lawsuit claiming the insured broke up someone’s marriage (Pins v. State Farm (PDF), S. Dak., Mayerson via Elefant)


• New York mag on RFK Jr.: Is there some law saying all press profiles of America’s Most Irresponsible Public Figure (r) must be weirdly softball in nature and glide over his embarrassing book and rants, his Osama-pig farm lunacy, his anti-vaccine humbug, his trial-lawyer entanglements and even the wind farm flap?


• Australia court rules Muslim prison inmate suffered discrimination and deserves money for being served canned halal meat rather than fresh [The Australian]


• High medical costs and their causes: am I listening? [Coyote]


• Economists may puzzle their heads over the ultimate incidence of business taxes, but in Wisconsin it’s whatever Gov. Jim Doyle says it is [Krumm via Taranto]


• Feds may punish Red Sox pitcher Matsuzaka for doing a beer ad in Japan, where it’s perfectly legal for athletes to appear in such [To The People]


• Guns in company parking lots: still one of the rare issues where the ABA manages to be righter than the NRA [AP/CBSNews.com; see Apr. 6, 2006]


• Thanks, NYC taxpayers: Brooklyn jury awards $16 million against city in case where drugged-up motorist jumped sidewalk and ran over pedestrians, later blaming the accident on a city sanitation truck [seven years ago on Overlawyered]