Toldjah so: The Virginia Supreme Court has unanimously ruled against Lisa Miller of Winchester, who has been ignoring a duly issued Vermont court order providing her former lesbian partner Janet Jenkins with rights of visitation to the child they had been raising together. Miller’s defiance of the law had been backed by Liberty Counsel, the ironically named pro bono group headed by the dean of Jerry Falwell’s Liberty University School of Law, as well as other conservative religious figures such as Chuck Colson. Despite misreporting to the contrary in some quarters of the conservative press, the case had nothing to do with recognition of the former couple’s Vermont civil union, nor did it eventuate in an award of custody (as distinct from visitation) to Jenkins. (AP/Newport News Daily Press; Ed Brayton and more; our earlier coverage).

“Nutraloaf” is full of wholesome ingredients, but a class action on behalf of Vermont prison inmates claims it is punishment to eat and should be assigned only after disciplinary proceedings. (Wilson Ring, AP/Examiner, Mar. 22)(via Mike Cernovich at the happily revived Crime and Federalism).

There are more than 1,000 documented nationwide, including 113 in Vermont alone. The “1970s were hard times for operators of ski areas. There was an energy crisis, which not only cut down leisure driving by potential customers but saddled areas with higher energy prices. At the same time, liability insurance costs spiked. The histories of dozens of small ski areas end with the conclusion that it could not reopen one winter because the owners could not afford their insurance premiums.” (Bill Pennington, “Vermont’s Forgotten Trails and Frozen Lifts of Winters Past”, New York Times, Jan. 25).

• “Of all the body parts to Xerox!” Another round of stories on efforts to reduce liabilities from office holiday parties [ABA Journal, Above the Law, and relatedly Megan McArdle]
• New edition of Tillinghast/Towers Perrin study on insurance costs of liability system finds they went down last year, which doesn’t happen often [2007 update, PDF]
• Vermont student sues Burger King over indelicate object found in his sandwich; one wonders whether he’s ruled out it being a latex finger cot, sometimes used by bakery workers [AP/FoxNews.com]
• Good discussions of “human rights commission” complaints against columnist Mark Steyn in Canada [Volokh, David Warren and again @ RCP, Dan Gardner; for a contrasting view, see Wise Law Blog]
• Having trousered $60-odd million in fees suing Microsoft in Minnesota and Iowa antitrust cases, Zelle Hofmann now upset after judge says $4 million in fees should suffice for Wisconsin me-too action [Star-Tribune, PheistyBlog]
• Australian rail operator will appeal order to pay $A600,000 to man who illegally jumped tracks, spat at ticket inspectors, hurt himself fleeing when detained [Herald Sun]
• Lawyers’ fees in Kia brake class action (Oct. 29, Oct. 30) defended by judge who assails honesty of chief defense witness [Legal Intelligencer]
• Who deserves credit for founding Facebook? Question is headed for court [02138 mag]
• Yes, jury verdicts do sometimes bankrupt defendants, as did this $8 million class action award against a Kansas City car dealer [KC Star, KC Business Journal]
• Dispute over Burt Neuborne’s Holocaust fees is finally over, he’ll get $3.1 million [NY Sun]
• So long as we’re only fifty votes behind in the race for this “best general legal blog” honor, we’re going to keep nagging you to vote for Overlawyered [if you haven't already]

In June 2004, 21-year old Vermont resident Samantha Perreault went out drinking with a couple of friends, Norman Poulin and Justin Lawrence. After three rum and cokes each, they left; Lawrence hopped on one motorcycle, and Poulin and Perreault got on another and followed him. Although they may not have been legally drunk, they had had several drinks, it was night, and they were driving 70 mph. Lawrence lost control of his motorcycle and crashed. Poulin, attempting to avoid Lawrence, also lost control and crashed. Perreault, unfortunately, was killed.

Both Poulin and Lawrence were prosecuted for criminal negligence, but Lawrence, apparently, was not also charged with driving without a motorcycle license. Feeling that Lawrence’s punishment was insufficient, Perreault’s father has now filed a $21 million lawsuit. Did he sue Poulin? No; apparently he forgave Poulin. Did he sue Lawrence? Of course not; Lawrence doesn’t have deep pockets. No; he sued the state of Vermont.

The Plainfield resident says officials in the Department of Public Safety and Office of the Attorney General showed disregard for his daughter and for the law by failing to fully prosecute a man involved with her death.

“I don’t want anybody else to go through this,” Perrault said Friday. “I think she deserved more than this.”

[...]

“By the state not doing anything, they’re saying it’s okay for you to drive without a license,” Perreault says. “I’ve gone through all the right channels, called the state police, called (the Office of the Attorney General). All I’m getting is blown off.”

In addition to seeking monetary damages, Perreault is also demanding that Lawrence be charged and prosecuted for driving without a license.

Of course, it’s hard not to feel sympathy for someone whose daughter is killed. And the lawsuit isn’t likely to succeed, as the article notes; the state is probably immune, and “failure to prosecute” isn’t a cause of action anyway. But that doesn’t alter the fact that the lawsuit reflects an all-too common mindset that picking a random big number out of a hat and filing a lawsuit against someone with deep pockets is the right approach whenever one is annoyed. (No, the case probably won’t last as long, and cost taxpayers as much, as the Roy Pearson pants lawsuit, but it certainly won’t be free, and will contribute to congestion in the courts which slows down — and thus raises the cost of — legitimate lawsuits.)

• Jack Thompson, call your office: FBI search turns up no evidence Virginia Tech killer owned or played videogames [Monsters and Critics]


• How many zeroes was that? Bank of America threatens ABN Amro with $220 billion suit if it reneges on deal to sell Chicago’s LaSalle Bank [Times (U.K.), Consumerist]


• Chuck Colson will be disappointed, but the rule of law wins: Supreme Court declines to intervene in Miller-Jenkins (Vermont-Virginia lesbian custody) dispute [AP; see Mar. 2 and many earlier posts]


• Oklahoma legislature passes, but governor vetoes, comprehensive liability-reform bill [Point of Law first, second, third posts]


• Good primer on California’s much-abused Prop 65 right-to-know toxics law [CalBizLit via Ted @ PoL]


• “Defensive psychiatry” and the pressure to hospitalize persons who talk of suicide [Intueri]


• Among the many other reasons not to admire RFK Jr., there’s his wind-farm hypocrisy [Mac Johnson, Energy Tribune]


• “Screed-O-Matic” simulates nastygrams dashed off by busy Hollywood lawyer Martin Singer [Portfolio]


• “Liability, health issues” cited as Carmel, Ind. officials plan to eject companion dogs from special-needs program, though no parents have complained [Indpls. Star; similar 1999 story from Ohio]


• First glimmerings of Sen. John Edwards’s national ambitions [five years ago on Overlawyered]

Such a grand idea from an anti-smoking campaigner up North: “Children should be able to sue their parents for exposing them to harmful second-hand cigarette smoke, an Alberta doctor says.” Dr. Larry Bryan, who worked on a provincial commission that planned out anti-tobacco measures, “says banning puffing in cars or homes would be very difficult to enforce. But he believes the message would come across loud and clear if smokers were held legally responsible for their actions through exposure-related lawsuits. “(Michelle Mark, “Let kids sue parents”, Edmonton Sun, Feb. 4).

Meanwhile, regulation creeps forward on other fronts: “Texas will join a handful of states that prohibit foster parents from smoking in front of children in their homes and cars when a new state rule takes effect January first. Under rules passed this year, foster parents can’t smoke in their homes if they have foster children living there. They also can’t smoke while driving if children are in the car. Other states with similar smoking laws include Vermont, Washington and Maine.” Roy Block, president of the Texas Foster Family Association, says rules of this sort discourage Texas families from stepping forward to offer themselves as foster parents; most states do not exactly enjoy a surfeit of applicants well-qualified on other grounds (”Texas To Prohibit Foster Parent Smoking”, AP/WOAI, Dec. 4).

The Vermont Supreme Court is considering the issue, which we’ve repeatedly covered (Dec. 29 and links therein); in a Fox News report, person after person argues that such damages should be available to deter animal cruelty, each of whom disregards the availability of punitive damages for intentional torts. The main effect of such “rights” would be to make pet care largely unaffordable for the poor so that a handful of wealthy pet owners would be able to collect larger damages awards from veterinarians.

Stephanie Mencimer is predictably in favor of more litigation (singling out “Ted Frank and his Overlawyered buddies” for some reason, though there is only one Walter Olson), but her reasoning is unusual. Mencimer tells the tale of her battle with a next-door neighbor pet spa, and complains that there is a shortage of kennels, which, she says, causes sub-par care of dogs. Lawsuits, she concludes, would fix this problem. That she thinks raising the cost of providing a service will solve the problem of a shortage of service providers bespeaks a certain economic illiteracy that perhaps explains her reflexive opposition to liability reform.

Reversing a lower court, the Virginia Court of Appeals “ruled Tuesday that Virginia state courts had a constitutional obligation to defer to the rulings of Vermont courts in a child custody dispute involving two lesbian partners who had entered into a Vermont civil union.” (Jurist, Nov. 28; opinion in PDF format). The ruling will come as no real surprise to those who’ve read previous posts in this space (Aug. 26, 2006; Dec. 16 and Aug. 15, 2004). Some social-conservative commentators had unwisely applauded the efforts of Liberty Counsel, a misnamed Religious Right litigation strike force, to help client Lisa Miller evade the jurisdiction of a Vermont court order ordering visitation rights to former partner Janet Jenkins.

The Vermont Supreme Court has rejected (opinion, Miller-Jenkins v. Miller-Jenkins, Aug. 4) a Virginia court’s attempt to invalidate a pre-existing Vermont order giving Janet Miller-Jenkins rights to visit the child that she and former partner Lisa Miller-Jenkins raised before their breakup. Eugene Volokh (Aug. 4, see also second post of that date) explains why the Virginia court is on shaky ground:

First, despite how Lisa’s lawyers (Liberty Counsel) are characterizing the case, this is not primarily a case about civil unions. Child custody cases often arise in divorces (or, where civil unions are available, in civil union dissolutions), but they can arise even if the parties aren’t married. The relevant federal statute, the Parental Kidnapping Prevention Act, 28 U.S.C. § 1738A (which the Vermont court calls, in a possibly amusing mistake, the Parental Kidnapping Protection Act), requires courts to adhere to preexisting custody awards generally, not just ones that follow the dissolution of a marriage. The Act requires each state to “enforce according to its terms” out-of-state custody orders if, among other things:

(1) [the original] court has jurisdiction under the law of [the court's] State; and
(2) … (A) such State
(i) is the home State of the child on the date of the commencement of the proceeding, or
(ii) had been the child’s home State within six months before the date of the commencement of the proceeding and the child is absent from such State because of his removal or retention by a contestant or for other reasons, and a contestant continues to live in such State;

And if this provision protects the original Vermont judgment (which I think it does), then the later Virginia judgment is invalid (see subdivision (g), “A court of a State [here, Virginia] shall not exercise jurisdiction in any proceeding for a custody or visitation determination commenced during the pendency of a proceeding in a court of another State [here, Vermont] where such court of that other State is exercising jurisdiction consistently with the provisions of this section to make a custody or visitation determination”).

Volokh rejects the position — advanced by some readers in the comments thread — that the federal Defense of Marriage Act should be construed as overriding the PKPA in this case. It is rather remarkable how many social-conservative commentators fail even to mention the PKPA in discussing the dispute. Earlier coverage of the case: Aug. 15 and Dec. 16, 2004.

Vermont: “The driver in a [one-car] fatal accident in Westmore two years ago has sued the families of the two [passenger] victims of the crash. Charles Meyer and his mother Julie Jensen, who had a summer home in the area, said they have been the subject of critical public sentiment and claim that the two other teenagers were partly responsible for their deaths.” The legal action appears to be in the nature of a counterclaim before the fact against the families, who are expected to sue Meyer over his role as driver and Jensen for having entrusted the car to the youths. “Meyer, 14, was driving without a license.” (AP/Boston Globe, May 28; Sam Hemingway, “Westmore double-fatal takes another odd turn”, Burlington Free Press, May 28).

Professor Volokh and his commenters discuss.

“Under Vermont’s limits, a candidate for state representative in a single-member district can spend no more than $2,000 in a two-year cycle. Every mile driven by a candidate—or a volunteer—must be computed as a 48.5-cent campaign expenditure. Just driving—and not much of it—can exhaust permissible spending.” (”Free Speech Under Siege”, Newsweek, Dec. 5). More: Aug. 23, etc.

To settle litigation filed by the attorneys general of 47 states, the Blockbuster video chain

has agreed to take down the “No Late Fees” signs in its video stores. Customers will continue to pay extra to rent movies for longer than a week — but Blockbuster won’t call that a late fee.

It will be a “restocking” fee or something similar.

The company also agreed to make refunds available for some customers who paid under the earlier policy, and to pay $630,000 to the state AGs for their pains. New Hampshire and Vermont declined to join the action, with the head of consumer protection in New Hampshire explaining that there hadn’t been complaints from his state’s customers; New Jersey continues to pursue its own suit (see Mar. 10). (Michael D. Sorkin, “Blockbuster settles case over signs advertising no late fees”, St. Louis Post-Dispatch, Mar. 30; Peter Lewis, “State settles Blockbuster late-fee allegations”, Seattle Times, Mar. 30; “N.H. opts out of Blockbuster late fees settlement”, Portsmouth Herald News, Mar. 31).

Bad ideas from the U.S. hit Canada ten years later dept.: two Canadian provinces are seeking to replicate the success of state attorneys general in the U.S. and scoop up large amounts of money from tobacco companies through lawsuits without the bother of raising taxes. British Columbia’s legislature followed the lead of several U.S. states (Florida, Maryland and Vermont) and enacted an explicitly retroactive “we win, you lose” statute undercutting tobacco companies’ defenses against cost recoupment. Now Manitoba has joined in, its decision announced by Theresa Oswald, who bears the scary title of Healthy Living Minister. (”Manitoba to back B.C. in tobacco case”, CBC, Feb. 25)(B.C. law).

David Frum at National Review Online, in the course of his latest piece (Dec. 9) arguing for a constitutional ban on same-sex marriage, invokes — and badly misdescribes the facts of — the Miller-Jenkins custody case, discussed in this space Aug. 15.

Writes Frum:

Continue Reading »

Readers of this space may recall that I’ve repeatedly voiced opposition to the Federal Marriage Amendment (Jul. 12, Feb. 25, Feb. 20). The mini-FMAs on eleven state ballots today deserve defeat too.

Continue Reading »

On Monday I was again a guest on Laurie Morrow’s True North Radio show reaching listeners around Vermont and nearby states. And yesterday I was a guest on QR77 in Calgary, Alberta, on the afternoons with Dave Taylor, with guest host Rob Breakenridge substituting for Taylor. To book a broadcast interview on my book The Rule of Lawyers, email me directly or contact Jamie Stockton at the St. Martin’s/Griffin publicity department: 212-674-5151, ext. 502.