Wednesday, May 27, 2015

Nebraska Abolishes Death Penalty in Veto Override

The death penalty is not fundamentally opposed by most people. But it is losing practical support. Confidence in the accuracy of the justice system has suffered with the drumbeat of exonerations, and the death penalty is now imposed with such rarity that it feels arbitrary. 
Today the nominally non-partisan but conservative single-chamber state Legislature in Nebraska overrode the veto of Gov. Pete Ricketts (R) and abolished capital punishment in the state which carried out its last execution in 1997.
 Seven years ago I predicted that New Jersey's legislative repeal of capital punishment would be a herald of change. At a one day symposium I organized (proceedings here, key resources here) we heard from prosecutors, defenders, legislators, the Governor, and the citizen group which mobilized to bring about the change. Today Nebraska followed in that track. -gwcNebraska Abolishes Death Penalty - NYTimes.com

by Julie Bosman


LINCOLN, Neb. — Nebraska on Wednesday became the first conservative state in more than 40 years to abolish the death penalty, with lawmakers defying their Republican governor, Pete Ricketts, a staunch supporter of capital punishment who had lobbied vigorously against banning it.

By a 30 to 19 vote that cut across party lines, the Legislature overrode the governor’s veto on Tuesday of a bill repealing the state’s death penalty law. The measure garnered just enough votes to overcome the veto.

The vote at the State Capitol here capped a months long battle that pitted most lawmakers in the unicameral Legislature against the governor, many law enforcement officials and some family members of murder victims whose killers are on death row. The Legislature approved the repeal bill three times this year, each time by a veto-proof majority, before sending it to Mr. Ricketts’s desk.


Same Sex Marriage in Alabama - Yes, But...

Same-sex marriage for Alabama -- but not yet
by Lyle Denniston

A federal judge in Mobile ruled on Thursday that same-sex marriage must be available throughout Alabama, for any gay or lesbian couple wishing to apply for a license — but not yet.

U.S. District Judge Callie V.S. Granade simultaneously acted on a statewide basis — to make Alabama the thirty-seventh state where such marriages would be legal — but then put her decision on hold until after the Supreme Court rules on the constitutional issue, probably late next month.

In the meantime, no gay or lesbian couple would be able to get a marriage license in Alabama — first, because the judge’s order is not now binding on the 68 state probate judges who issue such licenses, and, second, because the Alabama Supreme Court has barred all of them from doing so.

For weeks, the potential conflict between Judge Granade in federal court and the Alabama’s highest state court has been deepening, and the actions that Granade took on Thursday could have produced a direct confrontation had she not put the new rulings on hold. She did find in her ruling that the state court’s order to the judges not to issue any licenses did not prevent her from ordering them — in an independent legal proceeding — to do so.

In fact, the judge remarked that her order would have bound all 68 judges immediately, but then her own delay order postponed any such command.

In late January, in a pair of cases, Judge Granade had struck down Alabama’s ban on same-sex marriage. But those rulings each involved only a single couple, so the decisions’ binding effect was very limited. Even so, some probate judges began issuing licenses to gay and lesbian couples based on those rulings, and hundreds of those couples were actually married before the state supreme court stepped in and issued a statewide order against any such licensing, at the request of private groups opposed to such marriages. (No same-sex couples were parties in the state supreme court proceeding.)

In the meantime, lawyers for same-sex couples made a new maneuver in Judge Granade’s court. They sought, under federal court Rule 23, the creation of a statewide class that would include any same-sex couple wishing to marry, with the order to be made binding on all 68 probate judges.

They also asked the judge to issue a statewide order requiring that any member of the class who sought a license be given one by any probate judge in any county.

On Thursday, after weeks of legal maneuvering by both sides, the Mobile judge acted: She did create the class, likely to include 7,000 or more same-sex couples, at least some number of whom — perhaps many — would want to take advantage of the opportunity to wed. She did so in an eighteen-page opinion, finding that the statewide class would satisfy all of the requirements of Rule 23, and so would a class on the other side of all 68 probate judges.

Then, borrowing the reasoning of her January rulings that the Alabama ban was unconstitutional, she issued a fourteen-page opinon extending the order to issue marriage licenses to all counties in the state, for all couples seeking such permission.

That opinion laid out all of her reasoning for the new decision, then concluded with specific orders: once again, striking down the state ban, then barring all 68 judges from enforcing the state ban, and also requiring lawyers for the couples to formally notify the judges of that duty.

If her ruling had stopped at that point, Alabama would have been the latest state where marriage of gays and lesbians had become legal everywhere within its borders. But there was a fourth order, on the last page: “Because the issues raised by this case are subject to an imminent decision by the United States Supreme Court,” her order barring enforcement of the state ban is “stayed until the Supreme Court issues its ruling.”

What would happen to the judge’s new order if the Supreme Court were to find that states have the constitutional authority to refuse to allow same-sex marriages was not mentioned, but the state would almost certainly move immediately in Judge Granade’s court to apply the Supreme Court decision and vacate her rulings.

If the Justices do rule that the right to marry must be open to same-sex couples all across the nation, then Judge Granade’s rulings on Thursday would presumably go into effect very quickly, if not immediately.

Monday, May 25, 2015

An Abridged Treatise on Attorneys' Fees Awards | Law.com

An Abridged Treatise on Attorneys' Fees Awards | Law.com

by David M. Gersten



22nd Century Properties, LLC, et. al. v. FPH Properties, LLC,
No. 4D13-3537 (Fla. 4th DCA 2015)
Judge Robert Gross gives the reader a most informative and entertaining read on the issue of attorneys’ fees awards based on an offer of judgment pursuant to Section 768.79, Florida Statutes (2006). I am stepping out on a writer’s limb to state that the opinion is so well written that it transforms judicial prose into judicial poetry—indeed a hard feat given the subject matter of the opinion.
The case “arises from a real estate venture gone awry.” Apparently, the parties entered into a venture to develop properties for resale. Ultimately, the deal blew up when one partner falsified documents concerning finances and then mined the litigation landscape with stumbling blocks to prevent discovery by the other partner.
During discovery, the “appellants’ scheme unfolded like a peeled onion—each discovery request uncovered a new layer of the ploy.” The appellee had to file twenty-seven discovery motions, moved multiple times for contempt, and had to amend the complaint twice to encompass newly discovered evidence. Although the appellee moved to strike appellants’ pleadings based on fraudulent or deceptive discovery tactics, Trial Judge John J. Murphy, III, stood on the judicial decision making cliff but did not throw the pleading out. Instead, Judge Murphy entered an order excoriating the appellant:
[T]his court will not stand idly by and permit a party to file forged and fraudulent documents, to delay proceedings and to provide falsified responses to discovery requests . . . As such, this Court finds that [FPH] is entitled to recover reasonable attorneys’ fees for the extra work [it] had to undertake.
After the trial, the trial judge awarded over $1.5 million in damages. The damages were based on several causes of action. On appeal, the underlying judgment was affirmed without an opinion.
Meanwhile, two years before the bench trial, the plaintiff served the defendant with a demand for judgment pursuant to 768.79, Florida Statutes (2006), offering to settle the case for a cool $1 million. This set up a post-trial evidentiary hearing on attorneys’ fees where judge Murphy awarded appellee fees. This appeal followed.
The Law of Attorneys’ Fees
Judge Gross’ opinion takes the reader through a concise tour of the law of attorneys’ fees. The opinion touches upon a panoply of important issues like: burden of proof, evidence, expert testimony, interrelated causes of action, trial strategy, Florida Statute Section 768.79, “Lodestar,” proper and improper billing, results attained, and even the appellate court’s standard of review. Because the opinion is comprehensive and this article is limited in length, below is a highlight reel:
Read more 


LBJ Before Selma - Wait!..No, Go! /Andrew Sprung -xpostfactoid

LBJ before Selma: wait -- no, go | xpostfactoid
by Andrew Sprung

After seeing Ava DuVernay' Selma a few weeks ago, I bought Nick Kotz's Judgment Days: Lyndon Baines Johnson, Martin Luther King, Jr. and the Laws that Changed America (2005). It's a digest of LBJ and King's interactions, beginning in fruitful if sometimes tense collaboration and ending in tragic enmity.  I can't say how central a source this book itself was for the movie, but the encounters it records indicate that those who claim that Johnson was more supportive of the voting rights campaign than their early encounter in the movie implies and those who claim that the scene is an accurate depiction of a pre-Selma encounter are both right. - 
read more

Court hearing China's landmark NGO environmental lawsuit - China - Chinadaily.com.cn

China in 2014 revised its Environmental Protection Law.  Article 58 grants registered  public interest organizations standing to sue.  Though hampered by minimal resources, and judicial inexperience, but emboldened by the strong policy support found in the law, NGO's have begun to take up the challenge. - gwc

Court hearing China's landmark NGO environmental lawsuit - China - Chinadaily.com.cn

Court hearing China's landmark NGO environmental lawsuit

(Xinhua)

BEIJING -- A Chinese court has begun hearing a lawsuit filed by green organizations against a quarry for environmental damage in a landmark case empowered by China's strengthened environmental law.
The case, filed by Friends of Nature and Fujian Green Home, opened in Nanping Municipal Intermediate People's Court in the southeastern province of Fujian on Friday.
The two NGOs accuse four people of running an unlicensed quarry that has severely damaged vegetation on a hill in Nanping City since 2008, demanding they take responsibility for restoration work, said a lawyer for the plaintiffs.
This is the first NGO-filed case over non-pollution-related environmental damage to be heard in a Chinese court since the amended Environmental Protection Law took effect on January 1.
The law allowed city-level NGOs to launch environmental lawsuits, which conservationists said encourages more social forces to join the battle against profit-obsessed companies and local governments who neglect their green liabilities.
China has only about 80,000 officials enforcing its environmental laws, which experts say is far from enough for overseeing the country's 1.5 million companies, counting the registered ones only.
But about 700 organizations can join the fight under a new law, which allows any NGO registered at city-level or higher that has specialized in environmental protection for more than five years to initiate legal cases on pollution and environmental damage, legal experts said.
"Such environmental lawsuits can deter polluting factories by raising their lawbreaking costs and by encouraging public supervision," said Ma Yong, legal expert with the All-China Environment Federation.
But Ma said the many difficulties, including high expenses, that are involved in launching such legal actions mean a remarkable increase in environmental lawsuits is unlikely. He also opposed overpraising such cases.
"Such lawsuits are important supplement to government law enforcement and the last defense line, but not replacement," Ma said. "Most of the environmental problems still need to be solved by the government."

Public-Sector Jobs Vanish, Hitting Blacks Hard - NYTimes.com

Is anti-government and anti-tax sentiment unrelated to anti-Black sentiment?  It is practically, if not logically linked.  The sentiments converge. - gwc

Public-Sector Jobs Vanish, Hitting Blacks Hard - NYTimes.com

by Patricia Cohen


For the Ingrams and millions of other black families, working for the government has long provided a dependable pathway to the middle class and a measure of security harder to find in the private sector, particularly for those without college degrees.

Roughly one in five black adults works for the government, teaching school, delivering mail, driving buses, processing criminal justice and managing large staffs. They are about 30 percent more likely to have a public sector job than non-Hispanic whites, and twice as likely as Hispanics.

“Compared to the private sector, the public sector has offered black and female workers better pay, job stability and more professional and managerial opportunities,” said Jennifer Laird, a sociologist at the University of Washington who has been researching the subject.

During the Great Recession, though, as tax revenues plunged, federal, state and local governments began shedding jobs. Even now, with the economy regaining strength, public sector employment has still not bounced back. An incomplete recovery is part of the reason, but a combination of strong anti-government and anti-tax sentiment in some places has kept down public payrolls. At the same time, attempts to curb collective bargaining, like those led by Wisconsin’s governor, Scott Walker, a likely Republican presidential candidate, have weakened public unions.

Saturday, May 23, 2015

Teachers protest Washington school fubding failure

Despite a. State Supreme Court contempt citation, the Washington legislature has failed to fund K~12 schools.
http://educationvotes.nea.org/2015/05/21/thousands-of-wa-educators-stage-rolling-walkouts-over-school-funding/?utm_source=EdVotes&utm_medium=email&utm_content=WashingtonWalkouts&utm_campaign=052315EdVotesEmail

Wednesday, May 20, 2015

Unjust Liability Cap in Amtrak Case //John Culhane //Slate

Liability damages caps are mandates that the injured make an involuntary donation to the tortfeasor - that old-fashioned but expressive noun.  The Amtrak cap was justified on the ground that Amtrak was federally funded.  Still is - under-funded. - gwc
Amtrak derailment lawsuits: Federal law limits damages to $200 million. Slate
by John Culhane // Widener Law School

The news from last week’s horrific Amtrak derailment has followed a predictable course, from focus on the deaths and injuries to a search for an explanation and then for accountability. For currently inexplicable reasons, the train accelerated at precisely the wrong time: as it approached a dangerous curve. And since Amtrak hadn’t gotten around to installing a system called Positive Train Control, which could have stopped the train automatically, the engine jumped off the tracks at the curve, and passenger cars flipped over or were crushed.
As soon as the issue of blame surfaced and then, inevitably, possible lawsuits, so did this fact: Because of a damages-limiting federal law enacted in 1997, the victims and their survivors are unlikely to be fully compensated for injury or death. The law limits recovery to a total of $200 million per accident; that’s probably not enough in the case of a mass disaster like this one, in which a single victim’s claim could reach $20 million. Eight people were killed in the Philadelphia accident, and scores were seriously injured. Twenty remain hospitalized, with five in critical condition. Perhaps this tragedy will spark a reform or repeal of this ill-advised law, but I wouldn’t count on it. An even worse train accident that killed 25 people seven years ago in California didn’t lead to remedial action by Congress. All that’s come out of that legislative body since this latest disaster has been a tone-deaf committee vote in the House of Representatives the very next day to slash Amtrak’s paltry funding even more.
Why is there a $200 million limit in the first place? As usual with Amtrak, the reason can be traced to congressional reluctance to fund the program at sustainable levels. At the time the 1997 law was passed, the federally subsidized company was facing bankruptcy and needed bailout funds. The reluctant lawmakers ponied up the dough needed to keep the wheels turning, but they inserted the liability-limitation provision into the Amtrak Reform and Accountability ActThe effect was to shift fiscal responsibility from the taxpayers as a whole to the injured parties by reducing the monetary sum they’d otherwise be eligible to recover in damages through the tort system. And the amount has never been increased to reflect inflation.

Gavel Grab » Kansas Legislation Denounced As ‘Blackmail’ and ‘Power Grab’

Gavel Grab » Kansas Legislation Denounced As ‘Blackmail’ and ‘Power Grab’

by Emily Carter


Controversy over strings attached to the Kansas judicial budget is attracting coverage across the state and nation. Under new legislation, the entire state court operating budget for 2016 and 2017 would be cut if the state Supreme Court rules recent administrative changes unconstitutional.

The Wall Street Journal says that legal experts believe “the legislation may be the first to peg the Third Branch’s budget to the outcome of an individual case, and public-interest groups described it as the most pointed challenge to judicial independence in recent memory.” An editorial in the Lawrence Journal-World describes the legislation as “blackmail” and a “power grab,” whereby “lawmakers are trying to alter the roles, responsibilities and fundamental balance of power among the state’s three branches of government.”

“If legislators and the governor think the Kansas Constitution is wrong,” the editorial reads, “they should tackle that issue head-on and seek to change it — not use budget blackmail to try to force the state’s independent judiciary to change its mind.” An op-ed in the Kansas City Star agrees, arguing that the bill is about control, not about decentralizing power as proponents assert.

Watch Gavel Grab as this story develops.

- See more here