Setting spies and informers against us in our houses dept.: I’m quoted about a bad idea under consideration by the New York legislature (Benjamin Sarlin, “Child, Animal Abuse Linked Under Albany Bill”, New York Sun, Aug. 20).
And it’s the fault of Yankees management and a stadium security firm, as well as the two men who actually knocked him around, says Charles Hillios of Chicopee, Mass., of the Aug. 29, 2007 incident at Yankee Stadium. (”Red Sox fan from Chicopee takes legal swing at New York Yankees”, Springfield, Mass. Republican, Aug. 6 via TortsProf weekly roundup).
P.S. In comments, Curt Cutting calls our attention to a lawsuit arising from another fracas between fans of the two teams, this one in Carlsbad, Calif. In that one a jury awarded $25,000 to the Yankees fan “for injuring his hand when he punched” the Red Sox fan.
Brooklyn, N.Y. attorney Regina Felton held a judgment against an outfit named United Equities Corp. which she tried to enforce against an entity named United Equities Inc. Attorneys for the latter informed her repeatedly that despite the coincidence of names the two businesses had no connection to each other. Citing the New York courts’ definition of frivolous conduct, trial judge Arthur M. Schack ruled that Felton’s continued refusal to withdraw the action even after it was “crystal clear” that it was mistaken was “completely without merit in law” and “ignored UEI’s good faith attempts to resolve this matter without resort to lengthy and costly proceeding”. Nonetheless, he granted UEI only about half the $25,000 in attorneys’ fees it sought and “declined to add sanctions, calling the $13,287.50 in costs a ’sufficient penalty.’” Maybe UEI would have been better off settling her demand for $10,000 at the outset. (Mark Fass, “Lawyer Ordered to Pay Fees After Pursuing ‘Frivolous’ Suit”, New York Law Journal, Jul. 9). Felton, whom New York law blogger Andrew Bluestone describes as “well known” (Sept. 27, 2007; more at Feb. 14, 2007) won notice a couple of years ago when she unsuccessfully argued before the Tax Court that she did not “consider herself” an employee of the law offices of Regina Felton, PC. (RothCPA, Sept. 18, 2006).
A judge in Westchester County, N.Y. (hey, that’s here!) has ruled on the circumstances under which libel complainants can employ compulsory process to unveil the identity of anonymous ill-wishers on blogs and online forums. In this case the plaintiff is Richard Ottinger, a former liberal Congressman who’s now the dean of Pace University Law School (NYLJ via Greenfield).
Correspondent R.C. directs our attention to the curious claim of “harm” by the last-named plaintiff:
Animal rights activists have asked a state judge to stop foie gras production in New York, saying the ducks used are overfed to such an extent that they are diseased and unfit for sale under state law.
The lawsuit, if it succeeds, could spell the end of foie gras production in America, a goal animal rights groups have long sought. The two Sullivan county farms that are defendants in the suit are the only foie gras producers in the country, other than a Northern Californian foie gras farm that may shut down under a California state law banning the industry….
The first challenge the suit faces is to convince a judge that the animal-rights activists who filed the suit have suffered enough harm to allow them standing to sue. The plaintiffs in yesterday’s suit offered several ways that they had been harmed by the foie gras industry.
One plaintiff, Caroline Lee, claims that the state’s regulatory departments are misspending her tax dollars by inspecting birds raised for foie gras production without concluding they are diseased. Another plaintiff, an animal rescue organization, Farm Sanctuary, claims its employees have been “aesthetically and emotionally injured” by being exposed to the “suffering” of abandoned ducks that they rescue from foie gras production. Another plaintiff, a New York restaurateur, Joy Pierson, claims that her decision not to serve foie gras has caused her to lose customers at her two Manhattan restaurants, Candle 79 and Candle Café, according to the complaint.
(Joseph Goldstein, “In New Lawsuit, Activists Seek Ban On Production of Foie Gras in N.Y.”, New York Sun, Nov. 16). More: Nov. 10, Nov. 2, Aug. 18, Jun. 8, Apr. 27, etc.
At least if New York Assemblyman Felix Ortiz gets his way. Although it doesn’t consider the technology ready yet, “Mothers Against Drunk Driving (MADD) gives a qualified endorsement to the idea” of making the devices mandatory in all new cars, teetotalers’ included. After all, they only run about $1,000 apiece, the cost in freedom and dignity aside (Jayne O’Donnell, “Will all autos some day have breathalyzers?”, USA Today, Apr. 28)(via Brian Doherty, Hit and Run).
New right spotted on the horizon: that of continuing to teach at a private Catholic elementary school, though unmarried and pregnant, and despite having signed a pledge to “convey the teachings of the Catholic faith by [one's] words and actions”. The New York Civil Liberties Union is suing to force St. Rose of Lima school in Rockaway Beach, N.Y. to rehire Michelle McCusker. A New York Daily News editorial says, “It’s called freedom of religion. By all rights, the NYCLU should defend the school’s position rather than assault it.” (”Bigotry - on whose part?”, Nov. 23; Josh Getlin, “Pregnancy sparks faith-based clash”, L.A. Times/Chicago Tribune, Nov. 27; John Leo, “The case of Michelle McCusker”, syndicated/TownHall, Dec. 5).
The law firm of Cellino & Barnes bills itself as the largest personal injury firm in western New York, and the “faces of [name partners Ross M.] Cellino and [Stephen E.] Barnes grace a reported 150 billboards across upstate New York. The attorneys’ names and likenesses frame their phone number and the one-word question ‘Injured?’” However, the firm has now gotten itself into hot water: an appellate panel has suspended Cellino and censured Barnes for, among other infractions, “advancing financial assistance to clients that was unrelated to the expenses of litigation”.
The unanimous five-judge panel found that Cellino and Barnes advanced financial assistance to clients beyond the expenses of litigation and, when they subsequently became aware that such actions violated the disciplinary rules, “arranged for the establishment of, funded and controlled [a] company owned by respondent Cellino’s cousin and that they did so in order to continue loaning money to clients.”
At common law, champerty (supplying clients with money in exchange for a share in the action) and maintenance (supplying them with money in order to keep their lawsuits going) were both offenses, but the prohibitions have tended to fall into disuse or to be repealed outright in recent times. On champerty, see Jun. 19, 2005, Jun. 27, 2004, Oct. 25, 2003, and this excerpt from The Litigation Explosion. (Mark Fass, “Bad Lawyer, No Billboard”, New York Law Journal, Jun. 14; Michael Ziegler, “Cellino & Barnes leaders punished”, Rochester Democrat & Chronicle, Jun. 11; Rick Pfeiffer, “Lawyers Cellino and Barnes found guilty of violating conduct code”, Tonawanda News, Jun. 11). More on the Barnes law firm: Jan. 31, 2006.
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In a fairly stunning ruling with far-reaching significance for Indian land claims in the Northeast, a panel of the Second Circuit Court of Appeals has thrown out the Cayuga tribe’s lawsuit against New York State and local landowners over possession of 64,000 upstate acres, including the $248 million that a trial court judge had earlier determined was owed to the tribe in damages (see Jun. 24-25, 2002). The majority in the 2-1 opinion, led by Judge Jose Cabranes, relied on the U.S. Supreme Court’s recent opinion in City of Sherrill v. Oneida, which disallowed a tribe’s efforts to assert reservation sovereignty over tracts of land it had added piecemeal through purchase to its previous holdings. According to the majority opinion, the Sherrill ruling revitalizes the equitable defense of laches, or undue delay, which many observers had assumed was unavailable to defendants in the Indian land claim suits. In a dissent, Judge Janet Hall agreed that ejectment of current homeowners was now barred by the Supreme Court’s evolving jurisprudence but argued that claims for cash damages should be allowed to go forward.
Should the ruling be upheld following the inevitable petitions for en banc reconsideration, Supreme Court certiorari, etc., it could spell doom for most and perhaps all efforts to revive long-defunct Indian land claims, which have for decades now inflicted injustice and disruption on innocent landowners and others. For our extensive coverage of the issue, see Jun. 27 (Shinnecocks’ Hamptons suit) and many links from there. (Diana Louise Carter, “Judges throw out Cayugas’ land claim”, Rochester Democrat & Chronicle, Jun. 29; Scott Rapp, “Judges To Indians: You’re Too Late To Reclaim Land”, Syracuse Post-Standard, Jun. 29; Jim Adams, “Second Circuit throws out New York state land claim”, Indian Country Today, Jun. 28; William Kates, “Appeals Court Tosses $248M Award to Tribe”, AP/Washington Post, Jun. 28). More: New York Law Journal (& welcome Howard Bashman readers). Update Apr. 14, 2006: U.S. Justice Department petitions for certiorari.
I’ve got an op-ed in yesterday’s New York Times (in the zoned Long Island weekly edition) on the Shinnecock Indians’ recent lawsuit asserting land claims over much of Southampton, N.Y. Readers of this space will not be surprised to learn that I take a dim view of the claim. (Walter Olson, “This Land Is My Land”, Jun. 26). For more, see my City Journal treatment of the issue, and, on this blog, most recently Jun. 13 and Jun. 19 (& welcome Michelle Malkin readers).
More: it’s reported there’s dissension among tribe members about the action (William L. Hamilton, “Casino Interest in Land Bid Divides Tribe in Hamptons”, New York Times, Jun. 26). And according to the Washington Post, while the lawsuit looms as a serious hassle for some in Southampton, the wealthiest of the wealthy are paying little heed: “The high-net-worth crowd doesn’t really worry about this sort of thing. That’s for the locals,” says Hampton Sheet publisher Joan Jedell. Insecurity of property as a hazard? That’s only for the little people. (Michael Powell, “Old Money and Old Grievances Clash in Haven of the Very Rich”, Jun. 25).
(Bumped 6/27, a.m.)
New York’s Eliot Spitzer and Connecticut’s Richard Blumenthal, both subjects of longstanding coverage in this space, go back quite a way together and share a similar approach toward the duties of the state attorney general. A new story from AP’s Hartford bureau is kind enough to quote me saying some not-very-acerbic things about them. (Jan. 23: Stephen Singer, “Friendship another tie between two like-minded attorneys general”, Newsday, and Stamford Advocate).
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“In an extraordinarily broad declaration of Indian land rights, a Northern District judge has held that the Cayuga Nation can buy up property in its former Central New York homeland, declare it ‘Indian country’ and operate a gambling hall immune from local building, zoning and tax laws.” “John Caher, “Indian Tribe Wins Broad Right to Add, Control Land”, New York Law Journal, Apr. 29). In related news, New York State “has broken off negotiations to settle the Cayuga Indian land claim and will let the courts decide the 24-year-old lawsuit, officials on both sides of the dispute said”. (Scott Rapp, “State stops settlement talks with Cayugas”, Syracuse Post-Standard, Aug. 4). For more on Indian land claim litigation in upstate New York and elsewhere, see my City Journal Autumn 2002 piece; Nov. 3-5, 2001 and links from there; Jun. 24-25, 2002; Jun. 4, Apr. 16, Feb. 9, 2004 and links from there. See also Jan Golab, “The Festering Problem of Indian ‘Sovereignty’”, The American Enterprise, Sept.. Update 2005: U.S. Supreme Court, in City of Sherrill v. Oneida, disallows “creeping expansion” of tribal sovereignty through piecemeal land purchases.
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The operation staged thousands of car accidents around the New York City area, investigators say, following the classic modus operandi of having a ring member pull in front of an unsuspecting driver and slam on the brakes to force a collision so as to generate insurance claims. (New York has a no-fault insurance law; similar scams are found in states with both fault and no-fault systems). A second car would then drive up, often discharging more claimed passengers while whisking away the original driver of the scam vehicle (so that his name would not turn up in too many claims). “Those indicted included doctors, psychiatrists, chiropractors, dentists and nearly 20 bogus health-care clinics … Lawyers whom prosecutors said were aware that the claims were false often called the insurance companies and threatened to file suits if the claims were not paid.” (Patrick Healy, “Investigators Say Fraud Ring Staged Thousands of Crashes”, New York Times, Aug. 13)(see Apr. 2, 2001, Aug. 25-27, 2000, Sept. 13, 1999).
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Point of Law Volokh