Overlawyered: Chronicling The High Cost Of Our Legal System

Posts Tagged ‘governors’

Retailers Settle Katrina Gas-Price Suits

Over at Coyote Blog today, I observe that while most of us have shifted our attention away from Katrina, gas price “gouging” lawsuits against gasoline retailers still continue. Sunoco became the latest retailer to settle, paying New Jersey over $300,000 to be left alone. Many other states have also gotten into the act, including Aspiring Governor Eliot Spitzer, who would never miss an opportunity to score some populist points.

So, having spent months trying to explain markets and supply & demand and refute the silliness of the “price-gouging” concept, what are gasoline retailers doing today? Why, they are hauling credit card companies in front of Congress to accuse them of … price gouging (Coyote Blog, Feb 17). Also see Sept 2, Sept 1.

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“It’s not spam when I send it”

“Attorney general Charlie Crist was an integral player in getting an anti-spam law passed last year in the state of Florida. Under the law, offenders are subject to fines of up to $500 for every e-mail sent. Now running for governor, someone on the Crist campaign is responsible for sending e-mails to promote the candidacy and solicit campaign donations. Recipients have reportedly attempted to unsubscribe without success.” A Crist spokeswoman says the emails don’t count as spam because they’re not deceptive. (Clickz blog, Jan. 9; Adam C. Smith, “Crist e-mail draws ire”, St. Petersburg Times, Dec. 21; “From anti-spam stand to e-mail campaign”, AP/Miami Herald, Dec. 23; Brian McWilliams, Dec. 24; Geek.com). For more on anti-spam laws and related issues, see, e.g., Jul. 25, 2005 and Dec. 3, 2003.

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Federal mail fraud and RICO statutes

Prompted by the (ongoing) corruption trial of former Illinois governor George Ryan and co-defendant Larry Warner, University of Chicago lawprof Albert Alschuler has written a series of posts at the Chicago Law Faculty Blog using the trial “to illustrate the unfairness of the mail fraud and RICO statutes”. He notes that “prosecutors call the federal mail fraud statute ‘our Stradivarius, our Colt 45, our Louisville Slugger, our Cuisinart’, with the closely related Racketeer Influenced and Corrupt Organizations Act (RICO) law second on the list of favorites.

In the Ryan case, the alleged misconduct to be brought out at trial “will cover a twelve-year period and range from failing to register as a lobbyist, to accepting secret consulting fees from a presidential campaign, to giving low-number license plates to campaign contributors.” Are all those things illegal? Well, they might be, ever since Congress added a vaguely worded new section to the mail fraud statute declaring that a scheme or artifice to defraud includes a scheme ‘to deprive another of the intangible right to honest services.’” The interpretations of this language have been so broad that even an elected official’s violation of his announced personal policy on a matter, not otherwise illegal, may be construed to deprive constituents of honest services.

In the Ryan case and others, prosecutors have used the intangible rights doctrine to stand federalism on its head. In effect, federal prosecutors prosecute state officials and private individuals for state crimes in the federal courts. Worse, they use the mail fraud statute to bootstrap minor state crimes and violations of non-criminal regulations into 20-year federal felonies. … Does every broken promise by a politician (“read my lips”) now constitute mail fraud?

The mail fraud statute, Alschuler argues in a third post, encourages “kitchen-sink” proceedings in which a vast assortment of dubious actions, not in fact closely related to each other, get treated as a single vast “scheme” for purposes of prosecution. Finally, a fourth post discusses RICO charges, which prosecutors can build up on a foundation of “predicate acts” that:

may extend over two or three decades. They may include crimes on which the statute of limitations has run, crimes that could not themselves be prosecuted in a federal court, crimes that could not be joined with one another in separate prosecutions, crimes of which the defendant already has been convicted and for which he has been punished, and even crimes of which he has been acquitted in a state court. The courts, if faithful to the statute, have no way to prevent this sprawl.

For our comments on the abuse of the RICO statute by the Clinton and Bush administrations in litigation against tobacco companies, see Sept. 23, 1999 and many other posts.

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Nannyism watch: Canada mulls speed governors

“Canadian auto regulators are testing a system that would enforce speed limits by making it harder to push down the car’s gas pedal once the speed limit is passed, according to a newspaper report. The system being tested by Transport Canada, the Canadian equivalent of the U.S. Department of Transportation, uses a global positioning satellite device installed in the car to monitor the car’s speed and position. If the car begins to significantly exceed the speed limit for the road on which it’s travelling the system responds by making it harder to depress the gas pedal, according to a story posted on the Toronto Globe and Mail’s website.” (“Device stops speeders from inside car”, CNNMoney, Dec. 4). Kaimipono Wenger at Concurring Opinions (Dec. 4) says the idea “seems wrong on so many levels it’s hard to list them all” and should not necessarily be viewed as pro-safety, since speeding in some circumstances — say, on rural roads in an emergency on the way to a hospital — can be vital to life and limb.

The government of Great Britain looked at the idea a few years ago (“Go slow — like it or not”, BBC, Oct. 23, 1998; “‘Spy in the sky’ targets speeders”, BBC, Jan. 4, 2000). A 2002 research paper (PDF) funded by the U.S. Department of Transportation on New England traffic recommended speed governors as the “most effective way of achieving speed compliance” (p. 4). Last year a Gallup poll for NHTSA (PDF) found that the idea was generally not popular with the public, commanding only 35 percent support (pp. 11, 64); Eastern, female, Hispanic and black respondents were relatively favorably disposed. Back on Oct. 26, 1999 we took note of a report that trial lawyers were taking a look at trying to get courts to hold automakers liable for not installing speed governors on vehicles.

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“Cox: Fieger tried to blackmail me about affair”

Further fireworks from the frequently fascinating Fieger files:

Michigan Attorney General Mike Cox accused a potential 2006 political opponent, high profile Oakland County lawyer Geoffrey Fieger, of blackmail Wednesday, claiming that Fieger threatened to reveal his extramarital affair if Cox did not drop an investigation into the lawyer’s alleged campaign finance violations.

(Dawson Bell and L.L. Brasier, Detroit Free Press, Nov. 9). For more on Fieger, whose activities have long been a mainstay of this site, see Mar. 13, Oct. 24, and many others.

More on the story: David Shepardson and Mike Martindale, “Sex scandal”, Detroit News, Nov. 10 (check sidebar for over-the-top statement by Fieger); L.L. Brasier and Patricia Montemurri, “Figure in Fieger-Cox sex scandal has criminal past”, Detroit Free Press, Nov. 10); Dawson Bell and L.L. Brasier, “Cox: Fieger made threat over affair”, Detroit Free Press, Nov. 10 (“one of the most bizarre events in recent Michigan political history”):

Fieger has a long history of stirring up trouble, both for himself and others, and sometimes on a personal level.

In 1998, when he was the Democratic nominee for governor, he suggested that his opponent — then-Gov. John Engler — was not the father of triplet daughters born to his wife, Michelle, in 1994.

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Balloting results

In Washington state, voters defeated I-330, a doctor-backed plan to limit medical malpractice awards and lawyers’ fees, by about a 54-46 margin, while also drubbing I-336. a lawyer-backed alternative (Seattle P-I, Seattle Times). California voters trounced, by a 61-39 margin, Proposition 79, which would have regulated drug prices via freelance lawsuits among other means; they defeated Proposition 78, a drug-industry-backed alternative, by nearly as wide a margin. (L.A. Times, Sacramento Bee). In Virginia, former Richmond mayor and Democrat Tim Kaine, who had been criticized by the American Justice Partnership (Nov. 2), won the governorship anyway (Wash. Post). Texas voters easily passed an anti-gay-marriage constitutional amendment that Houston attorney Warren Cole, chairman of the State Bar of Texas’ family law section, called “horribly drafted” and which would prohibit the recognition of any “legal status” that is “similar to marriage” (more from Cathy Young)(see yesterday’s post) (Dallas Morning News) (cross-posted at Point of Law).

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Geoffrey Fieger update

You will recall that Geoffrey Fieger’s modus operandi is to engage in outrageous behavior to get judges thrown off of cases and otherwise accuse judges who rule against him or his clients of misconduct (Nov. 20; Mar. 24). Now, in the aftermath of Hollins v. Jordan (Nov. 20 and links therein), Fieger is attacking an Ohio probate court judge who is daring to try to protect the settlement of the brain-damaged and legally incompetent plaintiff from Fieger’s machinations.

“This is all about intimidation,” [Judge] Corrigan said. He accused the plaintiffs’ out-of-town lawyers of “forum-shopping” to take the case away from him and give it to a Michigan judge more acquiescent to their wishes.

(James F. McCarty, “$30 million verdict spawns new legal battle”, Cleveland Plain-Dealer, Oct. 9). This dispute is over a $1.5 million pretrial settlement with another defendant; the $30 million verdict is also on appeal.

Back in Michigan, Fieger is offering to spend millions of dollars of his own money to run for Michigan Attorney General on the Democratic ticket. (Steven Harmon, “Fieger ready to pour own cash into attorney general fight”, Grand Rapids Press, Oct. 21). Fortunately for the Democratic Party, there doesn’t seem to be a lot of support for the idea. (Kathleen Gray, “Fieger considers running for state attorney general”, Detroit Free Press, Oct. 12). John Engler easily beat Fieger, 62 percent to 38 percent, when Fieger ran for governor in 1998.

The targeting of the incumbent attorney general, Mike Cox, may be related to “an ongoing criminal investigation of a complaint from Secretary of State Terri Lynn Land about alleged filing irregularities on $400,000 of Fieger-financed spending opposing the successful 2004 re-election of Republican Michigan Supreme Court Justice Stephen Markman.” (George Weeks, “Fieger isn’t faking bid for attorney general”, Detroit News, Oct. 13). Fieger has demonstrated his misunderstanding of principles of federal jurisdiction with a federal lawsuit against Cox and Land in an attempt to squelch the campaign finance investigation. (AP, Oct. 13).

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“Tokyo governor sued for insulting French”

Japan, a country known for its extremely low rate of litigation, has furnished very little fodder for this site over the years, but here’s one that was worth the wait: “A group of teachers and translators in Japan on Wednesday sued Tokyo’s outspoken nationalist governor for allegedly calling French a ‘failed international language,’ a news report said. Twenty-one people filed the lawsuit at the Tokyo District Court, demanding that Tokyo Gov. Shintaro Ishihara pay a total of 10.5 million yen ($94,600) compensation for insulting the French language in remarks last October, national broadcaster NHK said.” (AP/CentreDaily, Jul. 13). More: LanguageLog weighs in (Jul. 19).

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New York Death Penalty Controversy

Ten years ago a mildly successful Republican state senator in New York won a huge upset — defeating the three-term incumbent governor of New York and Bill Clinton ally, Mario Cuomo. Part of the reason was probably Cuomo fatigue — he had been governor since succeeding Hugh Carey in 1983 and had been Carey’s lieutenant governor before that. But the biggest part of Gov. George Pataki’s victory was his promise to sign into law a statute reinstating the death penalty in New York.

Cuomo had vetoed numerous death penalty statutes. In 1994, New York had terrible crime, especially in New York City (which later dropped precipitously under Mayor Giuliani and Police Commissioner Ray Kelly) and New Yorkers wanted to send the message that the state needed to get tough on crime and, especially, ensure that cop-killers would not walk free after 20-25 years (this was a big issue for supporters of the bills).

True to his word, Pataki signed a death penalty bill. By most measures, it was about as progressive a bill as death penalty provisions could get: requiring instructing jurors of the consequences of their sentencing decisions, setting up an administrative group of lawyers that would set fee rates for defense attorneys in capital cases (to ensure better quality representation), and mandating direct appeals of capital convictions to the New York Court of Appeals (the state’s highest court). Ultimately, the statute seemed designed to insure the rights of the accused, be used only in extreme cases and be constitutional.

Read On…

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Ballot measure results

As I documented through the night at PointOfLaw.com, voters gave doctors and the business community some major victories in yesterday’s ballot measures. Limits on malpractice lawyers’ fees passed resoundingly in Florida, in a stinging rebuke to the trial bar. Among three other states considering med-mal ballot measures, doctors won decisively in Nevada and lost in Wyoming, while Oregon’s measure was slightly trailing but too close to call. (Update Nov. 9: late returns show one of the two Wyoming measures apparently passing after all.)

In California, in a convincing victory for the business community and good sense, voters approved Proposition 64 by a wide margin, requiring lawyers to demonstrate actual injury before invoking the state’s broad unfair-practices statute in private cases. (Thank you, Arnold.) Colorado voters lopsidedly defeated a trial-lawyer-sponsored measure to expand litigation over alleged construction defects. And in the two hot judicial contests, for seats on the Illinois and West Virginia Supreme Courts, trial-lawyer-backed candidates lost in both. Details on all these races can be found on PointOfLaw.com. Also, voters ignored this site’s advice and passed all eleven state marriage amendments on the ballot.

Finally, some politicians whose ambitions this website has followed were locked in too-close-to-call races: Washington state AG Christine Gregoire (see Oct. 28) was slightly trailing a GOP opponent in her bid for governor, while former trial lawyer lobbyist and Bush HUD secretary Mel Martinez (see Sept. 3) was leading by 80,000 votes in his Florida Senate race against Democrat Betty Castor. (Update: Martinez wins). John Edwards’s vice-presidential ambitions seem at the moment to depend on an unlikely reversal of Ohio results in late vote counting, while his home state of North Carolina went Republican both in the presidential race and in filling Edwards’s old seat. (Update: Kerry and Edwards concede).

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