Monthly Archives: January 2008

The Bulked-Up Celebrity Dipshit Factor

We’ve long known that Chuck Norris *hearts* Mike Huckabee, perhaps even disconcerting so.

Last week Sylvester Stallone, star of the recently released Rambo CXI: VA Hospital Gibbering Incontinence Ward, revealed on Faux News that he *hearts* John McCain.

Yesterday we found out that Governator Arnold Schwarzeneggar also *hearts* McCain.

And now we learn that Hulk Hogan *hearts* Barack Obama.

It remains to be seen what effect, if any, this latest round of celebrity moron endorsements will have on the battle for the presidency. If Huckabee’s experience is any indication, Obama and McCain need to commence defecating masonry forthwith. With Norris’ support, Huck managed to finish behind even Rudy 9iu11iani in the recent Florida primary.

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Oregon Supreme Court to SCOTUS: Go piss up a rope.

The U.S. Supreme Court, in its self-appointed role as national tort “reformer,” has been using the Due Process Clause of the Fourteenth Amendment to impose both procedural and substantive limits on state court punitive damages awards since the late 1980s. In recent times the Court has become more aggressive in reversing punitive damages awards on the ground that they’re unconstitutionally “excessive,” and lower courts are following suit.

Williams v. Philip Morris, Inc. was a wrongful death action filed in an Oregon state court. The widow of a man who died of cigarette-related lung cancer brought the suit, alleging that the negligence and fraud of Philip Morris caused her husband’s death. The decedent, a long-time, three-pack-a-day Marlboro smoker, allegedly resisted all attempts at getting him to quit because he believed Philip Morris’ bullshit that the connection between smoking and lung cancer rested somewhere between “exaggerated” and “nonexistent” on the continuum of causation.

An Oregon jury found for the widow, awarding $821,485.50 in compensatory damages and a whopping $79.5 million in punitive damages. The trial judge reduced the punitive damages award to $32 million and entered judgment for the reduced amount.

Both sides appealed. The Oregon Court of Appeals ruled that the trial judge erred in reducing the punitive damages award and ordered the original amount reinstated.

After the Oregon Supreme Court declined to hear its appeal, Philip Morris requested review from SCOTUS. The high court vacated the Oregon Court of Appeals’ judgment and remanded the case for further consideration in light of State Farm Mut. Auto. Ins. Co. v. Campbell, 538 U.S. 408 (2003), a case in which SCOTUS ruled that an award of punitive damages can’t constitutionally be based on out-of-state conduct that’s lawful in the state where it occurred.

On remand, the Oregon Court of Appeals affirmed its prior decision upholding the $79.5 million punitive damages award. The Oregon Supreme Court likewise affirmed, and the case headed back to SCOTUS.

Philip Morris made two arguments: (1) the award violated substantive due process because it was “grossly excessive”; and (2) the award violated procedural due process because it punished Philip Morris for cigarette-related harm sustained by “strangers to the litigation,” i.e., persons other than the plaintiff’s husband. The procedural due process argument centered on the trial judge’s refusal to give Philip Morris’ rambling three-page proposed jury instruction on the law of punitive damages. The instruction read in pertinent part:

The size of any punishment should bear a reasonable relationship to the harm caused to Jesse Williams by the defendant’s punishable misconduct. Although you may consider the extent of harm suffered by others in determining what that reasonable relationship is, you are not to punish the defendant for the impact of its alleged misconduct on other persons, who may bring lawsuits of their own in which other juries can resolve their claims and award punitive damages for those harms, as such other juries see fit.

By a 5-4 vote, SCOTUS sided with Philip Morris. Philip Morris USA v. Williams, 549 U.S. ___, 127 S. Ct. 1057 (2007). The Court ruled that “the Constitution’s Due Process Clause forbids a State to use a punitive damages award to punish a defendant for injury that it inflicts upon nonparties or those whom they directly represent, i.e., injury that it inflicts upon those who are, essentially, strangers to the litigation.” Due process permits consideration of harm to nonparties as a measure of the reprehensibility of the defendant’s misconduct, but juries cannot take the next step and actually punish the defendant for such harm:

[T]he Due Process Clause prohibits a State’s inflicting punishment for harm caused strangers to the litigation. At the same time we recognize that conduct that risks harm to many is likely more reprehensible than conduct that risks harm to only a few. And a jury consequently may take this fact into account in determining reprehensibility.

The Oregon Supreme Court’s decision, SCOTUS said, “permitted direct punishment for harm to others, without limiting the use of such harm to determine reprehensibility.”

SCOTUS vacated the Oregon Supreme Court’s judgment and remanded “so that the Oregon Supreme Court can apply the standard we have set forth.” SCOTUS did not consider Philip Morris’ substantive due process argument that the punitive damages award was “grossly excessive,” ominously noting that “the application of [the proper procedural due process] standard may lead to the need for a new trial . . . .”

“May” lead to a new trial? The pundits — together with a substantial number of garden variety dumbass law geeks such as myself — read Williams and almost universally concluded there was no way the Oregon Supreme Court could avoid vacating the punitive damages award and ordering a new trial.

Today, the Oregon Supreme Court proved us all wrong. See Williams v. Philip Morris Inc.

SCOTUS instructed the Oregon Supreme Court to reconsider its earlier decision and apply the “correct” constitutional standard. The Oregon court concluded that it didn’t really need to do that shit after all. Why not? Well, because there was an entirely separate and independent state law basis for rejecting Philip Morris’ proposed jury instruction on punitive damages, that’s why not!

A trial judge can fuck up in two ways regarding jury instructions: (1) by failing to give an instruction; and (2) by giving an incorrect instruction. The only alleged error that Philip Morris preserved for appeal was the judge’s refusal to give the proposed punitive damages instruction.

Under Oregon law, “[a]n appellate court will not reverse a trial court’s refusal to give a proposed jury instruction, unless the proposed instruction was ‘clear and correct in all respects, both in form and in substance, and * * * altogether free from error.'” (Emphasis added.) The Oregon Supreme Court went through Philip Morris’ punitive damages instruction in detail and concluded that it misstated Oregon law on punitive damages in two respects wholly unrelated to the issue that SCOTUS addressed. Thus, “even assuming that proposed jury instruction . . . clearly and correctly articulated the standard required by due process, it contained other parts that did not state the law correctly. Accordingly, the trial court did not err in refusing to give it.”

“zOMG WTF,” Philip Morris exclaimed. “At no time before now did the plaintiff EVER argue that our jury instruction misstated Oregon punitive damages law! She WAIVED that issue years ago!!!1!1!”

Not so, responded the court:

[T]he plaintiff need not have made any objection at all in order for the trial court to have been legally justified in rejecting the instruction, if it did not correctly state the law. The correctness of the instruction, in light of the factual record that both parties had a full opportunity to develop, was purely a legal issue, and the burden was on defendant to offer a legally sufficient instruction. If defendant did not do so, then there was a legally correct justification for the trial court’s decision to refuse the proffered instruction. Under such circumstances, the trial court’s ruling should be sustained.

In other words, “Tough titty, Philip Morris.” That’s some pretty unusual stuff right there! In states where I’ve practiced, appellate courts will find a waiver of a jury instructions issue at the drop of a hat. Not so in Oregon, apparently.

And so the Oregon Supreme Court let the $79.5 million punitive damages award stand yet again.

Under the rule of SCOTUS review known as the adequate and independent state ground of decision doctrine, Philip Morris’ procedural due process attack on the punitive damages award is likely dead. However, Philip Morris can go back to SCOTUS and request review of the substantive due process issue SCOTUS declined to decide the last time.

Bottom line: this case still has a long way to go, but it’s nice to see the good guys win a battle for a change.

Update: Appellate practice guru Howard Bashman considers this case “an unattractive vehicle for U.S. Supreme Court review on the substantive due process question of the unconstitutional excessiveness of punitive damages” for reasons he discusses here. He also offers some sage advice to n00b attorneys “pondering how far you should twist the law in your client’s favor in proposed jury instructions[.]”

More: Eric Turkewitz did me the honor of posting a link to this here entry on his outstanding New York Personal Injury Law Blog. That surely warrants some reciprocity, so please check out Mr. Turkewitz’s analysis of Williams here.

Still More: Jeremy Rosen over at the California Punitive Damages blog asserts that the adequate and independent state ground doctrine might not insulate the Oregon Supreme Court’s latest ruling from SCOTUS review after all.  Personally, I doubt that the state law ground on which the Oregon Supreme Court based its ruling qualifies as “plainly untenable” or “without any fair or substantial support” for purposes of the SCOTUS case cited in Mr. Rosen’s entry, but Mr. Rosen is quite correct in saying that SCOTUS will “have the last word” on that issue.

Demjanjuk case trundles on

While perusing How Appealing this morning I came across a name that every Ohioan (and ex-Ohioan, in my case) recognizes, but I hadn’t seen in years: John Demjanjuk.

Demjanjuk came to the U.S. from the Ukraine in 1952 and settled in a suburb of Cleveland, Ohio. He became a naturalized U.S. citizen in 1958. Over the decades he worked at (and retired from) a vehicle assembly plant, raised a family, the whole nine yards. A regular American Dream scenario, it was.

That all ended in 1977 when the Justice Department instituted proceedings to revoke Demjanjuk’s citizenship. The parties agreed that Demjanjuk, then a member of the Soviet Red Army, was captured by the Germans in 1942. There the stories diverge substantially.

Demjanjuk said that he remained a prisoner of war until shortly before Germany surrendered to the Allies. Justice said that Demjanjuk got out of prison camp by volunteering to serve in the SS and went on to become an extraordinarily sadistic guard at the Treblinka death camp known to inmates as Ivan the Terrible. The basis of the Justice Department’s demand for citizenship revocation was that Demjanjuk lied about his ties to Nazi Germany on his visa application.

After four years of litigation, a federal district court judge sided with the government and revoked Demjanjuk’s citizenship in 1981. While that decision was on appeal, Israel requested in 1983 that Demjanjuk be extradited for trial on war crimes charges. Extradition took place in 1986.

In 1988, after a fourteen-month trial, an Israeli court found Demjanjuk guilty on the war crimes charges and sentenced him to death by hanging. Demjanjuk stayed locked up in solitary confinement until 1993 when Israel’s Supreme Court reversed the conviction and entered a judgment of acquittal based on insufficient evidence.

Meanwhile, back in the States, the U.S. Court of Appeals for the Sixth Circuit in 1993 vacated the 1981 trial court order revoking Demjanjuk’s citizenship. Lengthy investigations and legal proceedings revealed that the Justice Department was guilty of some pretty egregious misconduct in the original citizenship revocation proceeding.

Demjanjuk returned to the Cleveland area and instituted proceedings to get back his U.S. citizenship. A federal judge ordered his citizenship restored in 1998.

A year later the government instituted yet another revocation proceeding. The government argued that, regardless of whether Demjanjuk worked at Treblinka or was Ivan the Terrible, he clearly served as a guard at no less than three Nazi concentration camps (Sobibor, Majdanek and Flossenburg) and entered the U.S. illegally by lying on his visa application. The trial court revoked Demjanjuk’s citizenship in 2002 and the Sixth Circuit affirmed in 2004.

Later that year the Executive Office for Immigration Review instituted deportation proceedings. An immigration judge ordered deportation to the Ukraine or, alternatively, to Poland or Germany in late 2005. The Board of Immigration Appeals upheld that order in late 2006.

Today the Sixth Circuit denied Demjanjuk’s petition for review of the BIA’s order. Demjanjuk v. Mukasey (pdf, 5 pages). The petition was based solely on Demjanjuk’s allegation that the official who presided over the EOIR proceeding lacked statutory authority to decide the case. The Sixth Circuit rejected that argument.

The merits of the BIA’s order were not addressed in Demjanjuk’s Sixth Circuit petition. Demjanjuk’s primary contention was that deportation would result in his being tortured. The EOIR and BIA rejected that claim as speculative.

At this point it’s probably all academic. It’s difficult to imagine the Ukraine or any other country being willing to take Demjanjuk.

Edwards Out

John Edwards is out of the race for the Democratic presidential nomination. The Associated Press reports that he’ll make the announcement today at 1:00 p.m. EST during a speech in New Orleans. The location of the speech is listed here.

A source inside the campaign says that Edwards won’t immediately endorse either Hillary Clinton or Barack Obama, the two frontrunners.

Well, there go my voting plans for next Tuesday’s caucus.

Update: The text of Edwards’ remarks is available here. And here’s the email he sent to contributors/supporters:

Dear [Genghis],

Let me start by saying, “Thank you.” You have stood with Elizabeth and me throughout this campaign. Your support has sustained us as we have traveled across this country.

Earlier today, I suspended my campaign for the Democratic nomination for the presidency. I made this announcement from where our journey began just over 12 months ago: New Orleans.

I began my presidential campaign in New Orleans to remind the country that all of us — as citizens and as a government — have a moral responsibility to each other, and what we do together matters.

Now, it’s time for me to step aside so that history can blaze its path. We do not know who will take the final steps to the White House — but what we do know is that our Democratic Party will make history.

And, along the way, all of you who have been involved in this campaign and this movement for change and this cause, I am asking you to continue speaking out for those who have no voice, just as Elizabeth and I will continue to do. We need you.

Do not turn away from the great struggles before us. Do not give up on the causes that we have fought for. Do not walk away from what’s possible, because it’s time for all of us — all of us together — to make the two Americas one. We need you.

I hope you will take a few moments to listen to the video clip of my speech in New Orleans earlier this afternoon or to read it below.

In the meantime, Elizabeth and my family join me in thanking all of you for your support and for working so hard on my behalf. We are truly blessed to have such friends.

Thank you.

John Edwards
January 30, 2008

And God said, Let there be light.

Please refrain from any “suffer the children” jokes. Thanks in advance.

Naked, pre-verbal MySpace dumbasses love the President, hate the haters

H/T to Wonkette for this lovely item.

Today the folks at Worst President Ever? updated their hate mail page, and the results are predictable hysterical. Happy Goodbye Rudy Tuesday!

Colorado CD-2 Candidates Online Debate Tonight

A Boulder, CO politics aficionado is hosting an online debate tonight involving the Democratic candidates for the Congressional District 2 seat that Mark Udall is giving up to run for the U.S. Senate. The participating candidates are Jared Polis, Joan Fitz-Gerald and Will Shafroth. The debate will take place here from 7:00 to 8:00 p.m. MST.

Update: The debate went off sans glitches, apparently. The questions and answers are available here.

Happy trails, Rudy

The monstrous 9/11 pimp and corrupt-beyond-comprehension Rudy 9iu11iani has bet the proverbial farm on winning today’s Florida Republican primary. Despite the time and money he’s spent in that state, he trails badly in the polls and is hinting that he might drop out of the race if the expected loss occurs.

Pundits, newspeople, bloggers and other assorted internet smartasses are calling today Goodbye Rudy Tuesday. Since all the cool kids are doing it, so will I.

The most fitting advance obituary I’ve seen came from last Friday’s New York Times:

Why, as a New York-based paper, are we not backing Rudolph Giuliani? Why not choose the man we endorsed for re-election in 1997 after a first term in which he showed that a dirty, dangerous, supposedly ungovernable city could become clean, safe and orderly? What about the man who stood fast on Sept. 11, when others, including President Bush, went AWOL?

That man is not running for president.

The real Mr. Giuliani, whom many New Yorkers came to know and mistrust, is a narrow, obsessively secretive, vindictive man who saw no need to limit police power. Racial polarization was as much a legacy of his tenure as the rebirth of Times Square.

Mr. Giuliani’s arrogance and bad judgment are breathtaking. When he claims fiscal prudence, we remember how he ran through surpluses without a thought to the inevitable downturn and bequeathed huge deficits to his successor. He fired Police Commissioner William Bratton, the architect of the drop in crime, because he couldn’t share the limelight. He later gave the job to Bernard Kerik, who has now been indicted on fraud and corruption charges.

The Rudolph Giuliani of 2008 first shamelessly turned the horror of 9/11 into a lucrative business, with a secret client list, then exploited his city’s and the country’s nightmare to promote his presidential campaign.

Update: It’s over. McCain wins with 36% of the vote and gets all of Florida’s 57 delegates.  Romney finished second with 31%. 9iu11iani got 15%, barely ahead of Mike Huckabee but well ahead of Ron Paul for a change.

CNN reports that 9iu11iani will quit the race tomorrow and endorse McCain.

9th Circuit: State’s refusal to approve “Choose Life” license plates violates organization’s free speech rights

Yesterday the U.S. Court of Appeals for the Ninth Circuit decided Arizona Life Coalition, Inc. v. Stanton (pdf, 27 pages). If nothing else, the case well and truly illustrates the perils inherent in a state giving private organizations broad access to its motor vehicle registration system.

Arizona Life Coalition (“ALC”) is an anti-abortion nonprofit corporation that claims some forty organizations and 100,000 individuals as members. Arizona law provides that any nonprofit with 200 or more members may apply for a “special organizational” license plate. By statute, the Arizona License Plate Commission must approve the application if three criteria are met:

(1) The primary activity or interest of the organization serves the community, contributes to the welfare of others and is not offensive or discriminatory in its purpose, nature, activity or name[;]

(2) The name of the organization or any part of the organization’s purpose does not promote any specific product or brand name that is provided for sale[;] and

(3) The purpose of the organization does not promote a specific religion, faith or antireligious belief.

ALC submitted an application for a specialty plate that would display the organization’s logo and its “Choose Life” motto:

For reasons not at all clear, everyone agreed that the plate met all the statutory criteria quoted above. Yet the Commission denied ALC’s application.

Surprisingly enough, the Commission did not base its decision on the design being simply too retarded to appear on a license plate. The Commission’s action was instead based on concern that the state would appear to be sanctioning ALC’s message.

ALC sued the Commissioners in federal court, alleging violations of the Speech Clause of the First Amendment and the Equal Protection Clause of the Fourteenth Amendment. The trial court dismissed the lawsuit and ALC appealed.

A three-judge panel of the Ninth Circuit ruled unanimously that the Commission’s action violated ALC’s First Amendment rights. Along the way the court of appeals held that: (1) authorizing the plates would not constitute government speech, i.e., government endorsement of the “Choose Life” message; (2) Arizona’s specialty license plate program established a “limited public forum” for First Amendment purposes, such that “any access restriction must be viewpoint neutral and reasonable in light of the purpose served by the forum”; and (3) the Commission’s decision to deny ALC’s applications for reasons other than those spelled out in the statute was unreasonable in light of the forum’s purpose, namely “to allow nonprofit organizations a means to promote their community-based cause to the public in the hopes of raising awareness and revenue . . . .”

In view of its First Amendment ruling, the court declined to address ALC’s equal protection argument.

The Alliance Defense Fund, founded in 1994 by renowned theocrats James Dobson, the late D. James Kennedy and Campus Crusade for Christ founder Bill Bright, represents ALC in this case. ADF’s website trumpets another victory in a “Choose Life” license plate case, this one brought in a Missouri federal court. ADF’s heavy involvement in these cases renders the notion that ALC’s Arizona license plate “does not promote a specific religion [or] faith” more than a little suspect, IMO, but Arizona didn’t press the issue.

Romney, Obama lead in latest Colorado poll

On February 5, 2008 we Coloradans will trundle off to our respective party caucuses and, inter alia, vote for who we think our party’s presidential nominee should be.

According to the latest Denver Post/Mason-Dixon poll, bazillionaire Willard Romney (43%) holds a massive nineteen-point lead over John McCain (24%) among likely Republican caucus attendees. Mike Huckabee sits in third place (17%), while the RON PAUL REVOLUTION!!!1!1!! (5%) enjoys a one-point lead over the monstrous Rudy 9iu11iani (4%) in the all-important race for fourth.

Things are much closer among the Democrats, with Barack Obama (34%) holding a scant two-point lead over Hillary Rodham Clinton (32%). My choice, John Edwards, lags far behind at seventeen percent. The margin of error is 3.5 percent.

It remains to be seen whether (1) Obama’s Colorado poll numbers will get a bump after his recent win in South Carolina, and (2) the Clinton Shit Machine will work Colorado in earnest or concentrate its efforts elsewhere.

H/T – Colorado Pols