Monthly Archives: February 2008

Scalia: “So-Called Torture” A-OK

Supreme Court Justice Antonin Scalia’s act has been so successful here in the U.S. that he’s taking it on the road. As Reuters reports, Scalia appeared on the BBC Radio 4 program Law in Action to say that slapping a suspect upside the head is a perfectly legitimate interrogation technique where t’rr’rism is involved. And once we acknowledge that basic truth, it’s Katy bar the goddamn door:

Is it really so easy to determine that smacking someone in the face to determine where he has hidden the bomb that is about to blow up Los Angeles is prohibited in the Constitution?” he asked. “It would be absurd to say you couldn’t do that. And once you acknowledge that, we’re into a different game” Scalia said. “How close does the threat have to be? And how severe can the infliction of pain be?”

Shades of last year’s Jack Bauer comments.

But he wasn’t done there. Oh, no.

Lobbying for the role of unofficial U.S. Ambassador of Goodwill, Scalia also chastised those priggish, candy-assed Europeans for their undemocratic stance on the righteous practice of state-conducted killin’:

“If you took a public opinion poll, if all of Europe had representative democracies that really worked, most of Europe would probably have the death penalty today,” he said.

“There are arguments for it and against it. But to get self-righteous about the thing as Europeans tend to do about the American death penalty is really quite ridiculous,” he said.

Take that, ya unwashed sanctimonious fops.

Antonin Scalia: International Man of Knobbery

LOLnuts on the Federal Judiciary

The [Occasionally] Federalist Society brings us this online debate featuring Republican presidential candidates waxing hyperbolic and idiotic on the federal judiciary and the sort of people a president should appoint thereto. Although the debate features some delightful commentary from Willard “Mitt” Romney, Mike “6000-year-old universe” Huckabee and Ron “I give daily thanks to the Free Market that I was born white” Paul, I’d like to focus on the statement of John “Walnuts!” McCain. After all, beyond entertainment value, he’s the one who’s actually relevant on the Republican side nowadays.

McCain says all the right things. Really. His statement has it all: “legislat[ing] from the bench”, “usurp[ing] the role of the people and their representatives”, “faithfully apply the law as written”, “judicial fiat”, “liberal judicial activists”, “abortion and the definition of marriage”, “stance of active hostility toward religion”, “respect[ing] the proper role of local and state governments”, “respect[ing] the lawmaking powers of Congress, and the powers of the President”, etc., etc.

He even throws in some non-standard verbiage about how judges should be “humbled” by their role in the system. Why that’s the case I’m not sure. Seems to me that an abundance of riches with regard to humility is neither necessary nor desirable when your “role in the system” consists solely of acting as a rubber stamp for whatever a state or federal executive official or legislative body chooses to do. Better that such abundances be possessed by the legislators and executive branch officials operating sans any meaningful judicial oversight. But hey, whatever.

McCain closes with:

That is why I strongly supported John Roberts and Samuel Alito for the Supreme Court and that is why I would seek men and women like them as my judicial appointees. (Emphasis added.)

Really? Not always, at least according to Republican hack and pretend journalist Robert Novak. During an informal discussion involving McCain and a couple of Republican lawyers in April 2007, the following exchange took place:

“Wouldn’t it be great if you get a chance to name somebody like Roberts and Alito?” one lawyer commented. McCain replied, “Well, certainly Roberts.” Jaws were described as dropping. My sources cannot remember exactly what McCain said next, but their recollection is that he described Alito as too conservative.

Oh, dear. Alito too conservative!? You can’t say that shit even in private if you’re running for the presidency as a Republican.

And so LOLnuts has become a born again “strong[] support[er]” of Justice Alito. McCain isn’t the first candidate to sacrifice courage of conviction on the altar of political expediency, and certainly won’t be the last. Even so, it’s been disheartening to watch a man for whom I once had considerable respect reduced from relative independence to being a $5 whore for the wingers.

The funny part: the wingers still hate his guts.

CO Senate Republicans apoplectic over H.B. 1020

The Colorado General Assembly enacted C.R.S. § 13-17-202 in 1990. It was a tort “reform” measure directed at the recovery of “costs” in civil actions.

Rule 54(d) of the Colorado Rules of Civil Procedure says that the “prevailing party” in a civil action is entitled to an award of “costs” unless the court otherwise directs. By statute, “costs” doesn’t include attorney fees but does include pretty much all other litigation expenses, such as filing fees, deposition expenses, subpoena service charges, expenses associated with preparing demonstrative exhibits, and — perhaps most notably — reasonable expert witness fees.

Rule 54(d) and the statutes defining “costs” provided a pretty effective hammer for compelling settlements. The prospect of losing and having to pay the other side’s costs, including expert witness fees that can easily run tens of thousands of dollars, is enough to get most anyone to the negotiating table.

Section 13-17-202 was all about making the hammer bigger, at least when wielded by insurance companies. The statute provides in relevant part:

If the defendant serves an offer of settlement in writing at any time more than fourteen days before the commencement of the trial that is rejected by the plaintiff, and the plaintiff does not recover a final judgment in excess of the amount offered, then the defendant shall be awarded actual costs accruing after the offer of settlement to be paid by the plaintiff.

So, then, a plaintiff is on the hook for all of the defense’s “actual costs” from the offer date forward if the judgment amount is less than the offer, even if the plaintiff wins the case. Suppose an auto accident plaintiff receives a $20,000 written offer from the tortfeasor’s insurance company twenty days before trial. The plaintiff rejects the offer and the case goes to trial. The jury finds in the plaintiff’s favor on the issues of negligence, causation and damages but only awards $19,000. Despite winning, the plaintiff is stuck paying the defense’s costs from the date of the offer forward. If the defense costs total $50,000, that’s just tough shit for the plaintiff. And $50,000 isn’t all that uncommon when you consider that insurance companies regularly hire both a medical whore and an engineering/biomechanics whore to defend such cases.

The statute doesn’t directly address costs accruing before the offer of settlement. If the plaintiff wins but recovers less than the defense’s offer, may the plaintiff still recover the costs he incurred before the offer date?

According to my boss, Colorado trial courts have answered that question with a resounding no.

And that’s where House Bill 1020 comes in. That bill, which passed the General Assembly last week, introduces some equity by adding the following language to the statutory provision quoted above:


Who could possibly object to that? In the above hypothetical, the defense still gets its post-offer costs and the plaintiff still gets none of his post-offer costs. However, the plaintiff did win the case, and thus recovers his pre-offer costs. Typically, those are significantly less than the costs incurred during the immediate run-up to trial and during the trial itself, but hey, it beats the shit out of nothing.

Who could object, you ask? Why, Republicans, that’s who., the online voice of Colorado State Senate Republicans, threw veritable fit. Their little exercise in overheated, apoplectic rhetorical excess is available here.

One of the perils of passion is the very real possibility of making statements that range from questionable to out-and-out fraud. So it is with H.B. 1021 and our Republican friends in the Colorado Senate.

The screed gets off to a flying start with:

A measure that has been dubbed the “Leave No Trial Lawyer Behind” bill passed the Senate this morning with majority Democrat support–over objections it would stoke litigation at the expense of business.

Dubbed by whom? Why, the Colorado Senate Republicans, of course!

And then we have:

While some legal observers say the bill upends a level playing field, the Colorado Trial Lawyers Association lobbied for the bill and testified in support of it in committee.

Ever since watching Outfoxed, a documentary on the worldwide shit machine known as Fox News, I’ve been especially attuned to these “some say” claims. Note that, as here, the “some” are never identified. As far as I’ve been able to ascertain, no “legal observers” are saying that H.B. 1020 “upends a level playing field” other than the Colorado Senate Republicans.

But mere hyperbole isn’t enough for our Republican buddies. They soon turn to outright dissembling. For instance:

Under the current system, plaintiffs who reject a reasonable settlement offer must pay the costs defendants accrued after an offer was made.

Bullshit. There is nothing in the pre- or post-H.B. 1020 version of the statute that imposes a reasonableness requirement on statutory settlement offers. And H.B. 1020 leaves intact the requirement that plaintiffs pay the post-offer defense costs.

But this here is my favorite:

The pending legislation would allow plaintiffs to recover their costs when they win even if the injury was negligible and judgment was for $1.

Double bullshit. H.B. 1020 does NOT allow plaintiffs to recover “their costs.” To the contrary, it expressly allows recovery of only those costs accruing before the defense’s offer. Thus, it disallows recovery of post-offer costs.

And the $1 claim would actually be laughable were it not so shit-all idiotic. Our Republican friends neglect to inform us that the original version of the bill would have allowed recovery of pre-offer costs “if the plaintiff prevails in the action . . . .” An amendment made in the Senate, which is part of the final bill passed by both houses, changed “prevails” to “is the prevailing party.”

The amendment is pretty damned significant. “Prevailing party” is a term of art in the law of costs that the Colorado Supreme Court defines to mean “one who prevails on a significant issue in the litigation and derives some of the benefits sought by the litigation.” Archer v. Farmer Bros. Co., 90 P.3d 228, 230 (Colo. 2004). Any lawyer who argues that a one-dollar judgment qualifies his client as a “prevailing party” under that definition risks being ordered to stand on the courthouse steps wearing nothing but a funny paper hat while singing I’m a Little Teapot.

Update (02/21/08): The governor signed H.B. 1021 into law today. The new law applies to all statutory offers of settlement made on or after July 1, 2008.

Au revoir, Ol’ Sparky

Nebraska is the last state in the union that uses the electric chair as its sole means of executing offenders sentenced to death. Or it was the last such state until last Friday when the Nebraska Supreme Court decided State v. Mata (pdf, 86 pages).

By a 6-1 vote, the Court held that execution by electrocution violated the Nebraska Constitution’s ban on cruel and unusual punishment. The first 31 pages of the majority opinion are devoted to arguments that defendant’s conviction and death sentence were improper under applicable state law and U.S. constitutional procedural and substantive standards. The Court rejected all those arguments, upholding the conviction and death sentence in the process.

The discussion of the constitutionality of electrocution begins on Page 31. The Court based its ruling on the state constitution, which is worded identically to the U.S. Constitution as to the prohibition against cruel and unusual punishment, to avoid the effects of In re Kemmler, 136 U.S. 439 (1890), an aged case in which the U.S. Supreme Court held that electrocution is not “cruel and unusual punishment” for purposes of the Eighth Amendment.

The Nebraska Court also noted its previous decisions holding that electrocution didn’t violate the state constitution. It declined to follow those decisions because this was the first case to present “a full evidentiary record” regarding the physiological effects of electrocution on the convict.

The Court found that the “evolving standards of decency” test the U.S. Supreme Court uses in Eighth Amendment cases applies to method-of-execution challenges under the state constitution. The factors for evaluation the constitutionality of a particular execution method are whether the method at issue:

(1) presents a substantial risk that a prisoner will suffer unnecessary and wanton pain in an execution, (2) violates the evolving standards of decency that mark a mature society, and (3) minimizes physical violence and mutilation of the prisoner’s body.

Along the way the Court rejected a borderline-frivolous argument by the state that legislative intent to wantonly inflict pain should be a sine qua non for finding a constitutional violation.

Measured against the above-quoted standard, and in view of the extensive evidence presented to the trial court, electrocution never stood a chance:

We recognize the temptation to make the prisoner suffer, just as the prisoner made an innocent victim suffer. But it is the hallmark of a civilized society that we punish cruelty without practicing it. Condemned prisoners must not be tortured to death, regardless of their crimes. And the evidence clearly proves that unconsciousness and death are not instantaneous for many condemned prisoners. These prisoners will, when electrocuted, consciously suffer the torture that high voltage electric current inflicts on the human body. The evidence shows that electrocution inflicts intense pain and agonizing suffering. Therefore, electrocution as a method of execution is cruel and unusual punishment in violation of the Nebraska Constitution.

Since Nebraska allows no other means of execution, and the chosen means was unconstitutional, the Court stayed Mata’s execution.

The dissent notes — correctly, IMO — that the majority’s reliance on the Nebraska Constitution doesn’t insulate the decision from U.S. Supreme Court review. Under the adequate and independent state ground doctrine, referenced here, SCOTUS will generally refrain from reviewing a state court judgment that rests solely on a provision of that state’s constitution. In this case, the majority never came right out and said that the Nebraska Constitution imposes more stringent restrictions on punishment than the Eighth Amendment, and the decision relied pretty heavily on federal court interpretations of the U.S. Constitution. Under those circumstances, the state law ground of decision in Mata in all likelihood isn’t truly “independent” of federal law.

In related news, LB 1063 (pdf, 53 pages) — a bill that would abolish capital punishment in Nebraska — is currently making its way through Nebraska’s single-house state legislature.

In totally tangential news, in states where judges are chosen in head-to-head elections, a judge who sees a state constitutional provision as affording greater protections than a similar or identical provision of the federal constitution can get into big trouble with right wingers and billionaires who fund them. Teevee commercials and other advertising to the effect that “this juge *hearts* criminalz & h8s real peeplzs!!@1!!!2!” are the rule in such states.

By way of example, there’s a Wisconsin Supreme Court race under way in which the incumbent’s use of the state constitution has become a major issue for the wingnuts opposing his reelection. My buddy Illusory Tenant is brilliantly chronicling the equal parts hilarious and disgusting developments here.

The obvious-but-ne’er-acknowledged truth of such dust-ups is that the folks who purport to champion citizen safety don’t really give a flying fuck about that issue. The power behind such efforts are insurance companies and chambers of commerce, and all they care about is electing Republicans who’ll vote to restrict court access for tort and consumer protection claimants. The “public safety” issue is but smoke and mirrors designed to persuade voters to elect the “right” candidate.

Lawyers, Guns and Money IX

The pro-firearm/anti-regulation amicus curiae briefs for District of Columbia v. Heller are starting to roll in. Amicus briefs filed thus far are available here courtesy of SCOTUSblog.

The deadline for filing amicus briefs doesn’t expire until Monday, so there’s bound to be more. Among them will be a brief signed by 55 U.S. Senators and 250 members of the U.S. House of Representatives urging the Court to uphold the court of appeals decision striking down certain District of Columbia firearms regulations on Second Amendment grounds. Story here.

Update (02/11/08):

The Members of Congress amicus brief (pdf, 58 pages) is available here. The breakdown of signatories is 250 members of the House, 55 senators (228 total Republicans, 77 total Democrats) and 1 Vice President of the United States.

That’s right: Dick Cheney signed onto the brief, which asks SCOTUS to: (1) hold that the Second Amendment confers an individual right to bear arms independent of any of that militia stuff; and (2) affirm the court of appeals decision striking down the District of Columbia guns laws at issue.

You don’t often — in fact, don’t ever, AFAIK — see a sitting Vice President take a position contrary to that of the Justice Department in a pending Supreme Court case. In a brief filed last month, the Justice Department argued for the individual rights position but urged SCOTUS to find that the court of appeals applied too stringent a standard of review.

More (02/12/08): All boats are in. The many pro-Heller amicus briefs are available for download here, along with a link to pro-D.C. amicus briefs. All that’s left now is the District’s reply brief, oral argument (set for March 18) and the ruling.

The siren song of forbidden love

It seems like only yesterday that Ted Haggard, then senior pastor of the New Life megachurch and a major player in the Christian evangelical political power movement, was driven from the limelight amidst a blizzard of methamphetamine and male genitalia. In truth, it all happened well over a year ago. In November 2006, religious and business leaders in Colorado Springs, Colorado, the evangelical’s Obersalzberg, planned a massive demonstration in support of their beleaguered brother. They canceled the demonstration just three hours before it was set to commence. Turns out the stories weren’t just lies perpetrated by the liberal atheist media, as James Dobson claimed; they were quite true.

Haggard undertook a Christian “restoration” process overseen by the New Life Church. In February 2007 — a whopping three weeks into the process — Haggard pronounced himself TOTALLY NOT GAY.

Even so, Haggard was irreparably tainted. Gone were the high-paying job at New Life, the substantial revenue from sales of his fundamentalist books, and the weekly phone conferences with the Bush White House. Haggard and his family hit the road, ultimately ending up in Phoenix, Arizona. Despite his own proclamation of absolute heterosexuality, though, Ted remained in “restoration.”

Haggard, still very much a millionaire, made news last summer by begging donations to assist with living expenses while he and his wife pursued college degrees. Ted asked that the faithful make donations through Families with a Mission, a ministry owned and operated by twice-convicted sex offender Paul Huberty. Teddy Boy got himself in a heap o’ trouble with his overseers behind that shit.

Just when you thought the schadenfreude value of this saga was pretty much maxed out, Cara DeGette goes and posts this at Colorado Confidential. Seems that New Life Church issued the following press release earlier this week:


Ted Haggard’s leadership of New Life Church for many years was extraordinary and the depth of spiritual maturity that is found today in the church is in large part attributed to his leadership as the founding senior pastor.

In January 2007, Ted Haggard voluntarily agreed to enter a process of spiritual restoration. He has selected Phoenix First Assembly and Pastor Tommy Barnett as his local church fellowship and is maintaining an accountability relationship there. He has recently requested to end his official relationship with the New Life Church Restoration Team and this has been accepted by them.

New Life Church recognizes the process of restoring Ted Haggard is incomplete and maintains its original stance that he should not return to vocational ministry. However, we wish him and his family only success in the future.

Because spiritual restoration is a necessarily confidential process, the church does not anticipate that it, or its Overseers or Restorers, will make further comment about it.

What? Ted “should not return to vocational ministry”? The restoration “incomplete”?!

Oh! Oh, deary dear!

Maybe, just maybe, Haggard jumped the proverbial gun a year ago in announcing his absolute devotion to vagina. Perhaps his brain is still awash in thoughts of the sweet, sweet milk of meth intoxication and/or the irreplaceable bliss of abomination.

If so, good on you, Ted Haggard! The United States is asshole-deep in hateful, hypocritical, drunk-with-power Christians of the Dobson ilk. There are gay Christians out there, but not nearly enough of ’em.

So don’t hide your lovelight under a bushel basket, Ted. Fly that rainbow flag! Rock out with your cock out!

This 100% non-gay sausage fest’s for you!


Super Tuesday in Colorado!

Are you a Coloradan? Have you been registered as a Democrat or a Republican since at least December 5, 2007? If so, today’s your day, dammit!

Colorado political parties hold their caucuses tonight. This our only shot at voicing preferences in the presidential race, so don’t miss out. If you don’t know where your local caucus is being held, there’s a locator here courtesy of the Obama campaign.

I look forward to seeing all y’all Broomfield County Democrats at Legacy High School come 6:30 p.m. Driving in the greater Denver metro area blows syphilitic donkeys today thanks to the snow, so please make sure to leave yourself plenty of time.

Lawyers, Guns and Money VIII

There’s more to report on District of Columbia v. Heller, the Second Amendment case currently pending before the U.S. Supreme Court. Dick Heller, the party who won in the court of appeals, filed his merit brief yesterday. The brief (pdf, 82 pages) is available here courtesy of SCOTUSblog. Despite the annoying insistence on calling the “well-regulated Militia” language of the Second Amendment a “preamble,” it looks pretty damn good at first blush.

The District’s reply brief is due in thirty days. In the interim we’ll see quite a few amicus curiae briefs filed on Heller’s behalf. Oral argument is scheduled for March 18.

Prior SCD coverage: 1, 2, 3, 4, 5, 6, 7

Annual Choice of Law Survey now Available

This one’s for hardcore law dorks and litigators only. All y’all other folks feel free to stop reading right now.

Any lawyer who does civil litigation knows all too well the inevitability of handling cases having contacts with more than one state. In those cases, questions arise regarding which state’s substantive law applies to which issues. Welcome to the Byzantine world of choice-of-law jurisprudence.

The recently published article Choice of Law in the American Courts in 2007: Twenty-First Annual Survey might just help if you find yourself in the position described above. The article is available for download here courtesy of SSRN.

CPSC Impotence

Republicans love neutering regulatory agencies charged with looking after public safety. So it is with the federal Consumer Product Safety Commission.

I just found out about this delightful study from Public Citizen titled Hazardous Waits: CPSC Lets Crucial Time Pass Before Warning Public About Dangerous Products. Public Citizen examined 46 cases from 2002 forward in which the agency fined manufacturers for noncompliance with product danger reporting requirements. Manufacturers in those cases took an average of 993 days to report known product-related hazards to CPSC despite a statutory requirement that such hazards be reported “immediately.”

Even more delightful is the fact that the agency took an average of 209 days following receipt of a report to disclose the information publicly.

The full study and Public Citizen’s recommendations are available via the above link. One of the recommendations is to increase CPSC’s budget and staff. However, as we saw here, the Bushie currently running the agency actually opposes additional staffing and funding.

H/T — Tort Burger