May It Please The Court: Weblog of legal news and observations, including a quote of the day and daily updates
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Quote of the Day - By the time a man realizes that maybe his father was right, he usually has a son who thinks he's wrong.
Past, Present and Future Imperfect DadsHappy Father's Day. My three kids are grown and gone, and I'm lucky if they even remember. Here's one son, who did remember, and who's becoming a lawyer, too.One of mine is on his way to the practice of law, and attending my alma mater, too. Pretty cool, I think. My Dad, however, was the farthest thing from a lawyer, who started at the Middleboro, Massachusetts Congregational Church. I guess, though, that the apple does not fall from the tree. We both like to preach, and I think my kids got some of that, too - but don't tell them I told you. It's nice to remember, and it's nice to look forward. Things are looking good from my seat. Hope your memories and dreams are bright, too. Enjoy your day, Dad. Enron, The Trevor Law Firm, Bill Lockyer and 17200Remember Enron? Well, it turns out that the Federal Energy Regulatory Commission has ordered the State of California to repay nearly $270 million in refunds to various energy companies, including Enron.Seems like we haven't outlived Gray Davis' legacy yet. The FERC is heaping insult to injury, claims California Attorney General Bill Lockyer. As if we didn't already pay through the nose for all that energy already. Plus another $15 billion to boot. Ouch. So, what are we doing about it? Well, for one, Lockyer challenged the FERC's order. So far, so good. How about one better? Like suing Enron for price manipulation. One day after FERC's order. If FERC denies us, at least we can get the money back from Enron. Here's the Complaint. But before you get too carried away, go to the end of the Complaint. He's seeking a whopping $2,500 per day against the defendants. Sure, he's also asking for disgorgement (I'm presuming here something in the range of $270 million or so) and $25,000 per day in other fines, but the twist is that he's seeking it under Business and Professions Code 17200. The twist is that he sought to debar an entire law firm for overusing 17200. Claims the use of the statute is an unfair business practice. Not that I don't disagree with him in certain circumstances, such as the Trevor Law Firm. But really. What's not fair for someone else is fair for you, Bill? And all of us Californians? Seems to me that you ought to be careful where you throw stones. From Founder to Flim-flam ArtistThe South Coast Air Quality Management District started a program called REgional CLean Air Incentives Market (RECLAIM). In fact, one of our own, Anne Stoltz helped design and start the somewhat successful program.Now, however, she's been arrested for allegedly developing a Ponzi scheme of trading the RECLAIM credits. This isn't the first time she's fallen from grace. Back in '02 the SCAQMD cited her, foreshadowing this week's action. But back in 1990, she was riding the crest of the wave. But what does hindsight tell you about her article in 2000? Give a Dog A Bone, Not an Arm or an AnkleWe out here on the Left Coast have a unique approach to many things, and oddly enough, to dog bite laws, too. OK, time for disclosure. I'm a defense lawyer, not a plaintiff's lawyer. That said, let's get to the issue at hand.Seems as though dog owner Nelson needed surgery, and wanted to kennel Mugsey at a vet's during his time under the knife. Mugsey is a Staffordshire Terrier. That's doublespeak for pit bull. Perhaps not surprising, Mugsey was "dog aggressive." In fact, Mugsey actually had earlier bit Nelson and severed an artery, putting Nelson in the hospital (presumably an unrelated surgery), along with another dog owner Mugsey attacked. Although the recent case from the 1st Appellate District didn't go so far to characterize it this way, I'm guessing Mugsey was "human aggressive," too. After all, it was an artery. But here's the rub. It appears that Nelson might not have been completely up front with the vet who operated the kennel regarding Mugsey's biting tendencies, however characterized. Then, as you probably know by now, Mugsey bit his handler on her ankle during a walk. Next, as you also have already guessed, our walker, Priebe, sued Nelson. This is where it gets interesting. The Left Coast has Civil Code section 3342 (second one down), commonly known as the strict liability dog bite statute. You own a dog, it bites someone, you are liable. Period. End of story. Or so you would think. What would the law be without exceptions to the rule? And yes, we have two, or at least one, with a variant. It's called the Firefighter's Rule, and from that, the veterinary variant, announced first in our case. Basically, it means no recovery for people employed to handle the very risk where they may be injured. It's an odd rule that results in odd outcomes. Someone negligently starts a fire, the firefighter gets injured, but the firefighter can't recover from the person who negligently starts the fire. But, if it's an arsonist (removing the negligence element), then recovery would be proper. So too here. Our dog walker was employed to walk dogs, and inherent in that job is the risk of a dog bite. Our illustrious 1st Appellate District Court determined therefore that the veterinary variant applied, preventing application of Civil Code section 3342, the strict liability dog bite statute. But, that's not the rest of the story. Our Court also decided that the trial court should have instructed the jury on BAJI 6.66, a jury instruction that the occupational assumption of the risk does not apply here because a domestic animal is presumed not to have vicious tendencies, the owner knew about it but failed to disclose it. Check out the last paragraph of the jury instruction, and you'll get the picture. Remember that Nelson apparently forgot to tell the vet that Mugsey severed an artery in his arm, and put another dog owner in the hospital, too? He will likely get tagged for that failure. You could say that the Appellate Court threw Priebe a bone. (I had to say that.) Environmental Pork Awards Handed OutIs $75 million practically worthless? I argue yes.Sure, the USEPA awarded $75 million to assess, clean up and train people about Brownfields (in other words, not all the money is going to clean-up). But estimates for the total cost to clean up the nation's contamination are dramatically larger. One estimate, made in 1994, put the total cost of clean up at $75 billion (now grossly undervalued, some pegging it as high as $75 trillion now, including all we know and all media - radioactivity, greenhouse gases and the like, too). So what is $75 million buying us? 1,000 new environmental jobs. Almost sounds like the WPA. We also get Nine Regions of grants, including this gem in Puerto Rico to allow the Army Corps of Engineers to prevent flooding. Did I miss the brownfields contamination issue there? A cool $200,000 that won't even begin to touch rechannelization. We also get to search in Kauai, Hawaii (they're kidding, right?) for possible contamination. And, we get to spend another $200,000 doing it. If your community didn't get its pork, you can get it here. Off-road Vehicles Can Freely Roam BLM LandsThe Supremes have spoken once again. This time, it's against environmentalists. They sued the Bureau of Land Management over the BLM's failure to prevent off-road vehicles from damaging wilderness study areas.Unfortunately, the environmentalists didn't sue when the BLM approved the wilderness study area, so they tried an end-run, and sued under the Administrative Procedures Act. As you already know, the Supremes didn't buy it. In fact, they slammed the environmentalists in a short, 17-page opinion. Now, you can feel free to drive all over creation. Subject, of course, to the rules and regs of wherever you are. Tortured Lawyers and War CrimesWar crimes are something that we've seen before, and will likely see again.But here's an unfamiliar twist - lawyers who may be potentially liable for war crimes. This article admittedly argues for liability, and is not balanced. The author thinks the government lawyers didn't do a thorough job analyzing the relevant laws. Here's the deal: when asked to prepare a memo analyzing whether prisoners taken in Afganistan were subject to various war convention agreements, the government lawyers didn't do a thorough job. Their analysis ignored duties imposed by the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (which the United States ratified with reservations in 1994) and the federal torture statute, which creates criminal liability for U.S. nationals who commit torture abroad under color of law. The government lawyers, on the other hand, argue that they were merely providing an opinion to back up decisions that had already been made. But, does that mean that the lawyers are liable for the abuses and war crimes? They're tough questions. "No Surprise HCPs?" Not AnymoreIn 1998, the Fish & Wildlife Service acted to give residential real estate developers some comfort when it came to obtaining permits to build. The developers had been hit in the past with "surprises" after they obtained permits. Commonly, new information about endangered species would come to light, and prevent development - typically after a rather substantial financial investment by the developer to get ready to build.The FWS came up with the "no surprises" rule in response. Once you got a permit, it stayed valid. Guess what? The developers just got handed a surprise. Seems that some environmentalists, the Spirit of the Sage Council and five others, didn't like that rule. They thought that the rule, designed to give finality to Habitat Conservation Plans simply allowed species to go extinct. Homebuilders are none too happy. "Now, a permit isn't worth the paper it's written on," said Duane Desiderio, a vice president of the National Association of Home Builders. He described the ruling as a serious setback for his industry, especially because most species whose survival is imperiled are found on private property and near developed areas. The NAHB pressroom doesn't have much else to say. The court has stayed further implementation of the rule until mid-December, and sent the FWS back to the drawing board to get additional public input to rewrite the rule. We've not heard the last of this one yet.
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