Quote of the Day - When I met Del, I was doing these theater-sports type things, ... But I was very bored, and I said to Del, 'There's got to be something more than just games.' And he said, 'Well, you're not such a twit after all.'
Lawyer 2 Lawyer Internet Radio is Twitterpated, Again
The stand-out, free social networking and micro-blogging service, Twitter, has been both praised and shunned by legal professionals. What do YOU think?
Please join me and my fellow Law.com blogger and co-host, Robert Ambrogi, as we welcome Kevin O'Keefe, CEO of LexBlog and Owner of LexMonitor and Attorney Scott Greenfield who writes the blog, Simple Justice, to discuss the pros and cons of Twitter and discuss whether it is a phenomenon or a necessity for lawyers and law firms.
A Legal Challenge To God At President Obama's Inauguration
Reverend Michael Newdow, an atheist and inexplicably a minister (isn't that an oxymoron?) of the church of First Atheist Church of True Science (FACTS), wants church and state separated. He's the one who sued over the Pledge of Allegiance but lost.
So, to stop Supreme Court Chief Justice John Roberts from prompting President-elect Barack Obama with the words, "So help me God" at the end of his Oath of Office, Rev. Newdow sued.
Here's a few paragraphs from his Complaint [footnotes omitted] so you can have the full context:
64. Yet despite all of the foregoing [a treatise on the separation of church and state and Supreme Court pronouncements], Defendant Roberts - who, as Chief Justice of the United States, embodies the rule of law and the devotion of our government to the United States Constitution more than any other individual - will (with no authority whatsoever) alter the text of that document to infuse the inaugural ceremony with purely religious dogma.
64. Furthermore, the remaining Defendants will bring to the inauguration of the President - the grandest ceremony in our national existence - two chaplains to extol the glory of God. This is the case even though the Supreme Court has specifically pronounced that 'the religious liberty protected by the Constitution is abridged when the State affirmatively sponsors the particular religious practice of prayer.' "
The Complaint continues:
"83. Under the Establishment Clause, Plaintiffs have a right to view their government in action without being forced to confront official endorsements of religious dogma with which they disagree. This is especially the case when that dogma stigmatizes them in the process.
84. Being forced to confront such religious dogma as the price to pay for observing a governmental ceremony is a substantial burden upon Plaintiffs' rights of Free Exercise as well. One cannot freely live as an adherent to a religious ideology when the government uses its 'power, prestige and financial support' to impose a contrary religious doctrine while such individuals are observing its ceremonies."
So, Rev. Newdow wants Chief Justice Roberts to follow the Constitution:
"101. The oath of office for the President of the United States is specified in the Constitution's Article II, Section 1. In its entirety, it reads: 'I do solemnly swear (or affirm) that I will faithfully execute the Office of President of the United States, and will to the best of my Ability, preserve, protect and defend the Constitution of the United States.'
102. It is to be noted that the words, 'so help me God' are not included in this oath.
103. That 'so help me God' was added to the presidential oath by George Washington is a myth. There is no contemporaneous account supporting this claim, which was first made in 1854, apparently on the basis of a recollection of Washington Irving. Irving was six years old in 1789, when the first inaugural was held. A historical claim based upon nothing but the alleged recollection of a six year old, first made more than six decades later, is of highly questionable validity. Combined with the fact that Irving's report of where he was standing during the inauguration would have made it impossible for him to have heard the oath at all, that validity falls to zero."
Well, there you have it. As a remedy, Rev. Newdow wants an injunction and a declaration preventing the use of these four offensive words:
"Prayer for Relief [No, I am not kidding. That's what his Complaint says] III. To enjoin Defendant Roberts, in his official capacity and in his individual capacity, from altering the constitutionally-prescribed text of the presidential oath of office while administering that oath to the President-elect at the January 20, 2009 inauguration, as well as at any future presidential inauguration;"
The case was filed in the District of Columbia late last year, and is progressing along. Justice Roberts has been served with a copy of the Complaint (since he is a party) and he was "quite the gentleman" when the process server arrived to serve the Summons and Complaint at his home. While the case is percolating along, the script is up in the air. If you want to see more on this topic, plus the appendices to Newdow's Complaint, click here.
The President's Inaugural Committee filed Answers (along with others) and filed this Opposition to the Motion for an Injunction. Essentially, the Opposition and the Answers challenge the Motion on the basis that Newdow doesn't have standing.
The matter is pending before the DC federal court. Newdow has lost these arguments before, and likely will again. The D.C. federal district court has not yet issued a ruling, but when they do, it will be posted here on their website.
How do you vote?
Apartment And Business Owners Beware Secondhand Smoke
Country's First Ruling That Outside Tobacco Smoke May Be A Nuisance
California's penchant against secondhand smoke just took another step forward, but we don't have a definitive, final result just yet.. Our Court of Appeal in Los Angeles ruled that an apartment resident and her parents could sue the management and owners of an apartment complex for exposure to secondhand smoke.
Melinda Birke, a seven-year old asthmatic girl, and her parents (John Birke, her dad, is a civil litigator) rented an apartment in the Oakwood Apartments in Woodland Hills and claimed they were exposed to secondhand smoke when they went outside to the common area around the complex's swimming pools, barbecue areas, children's playground or outdoor dining areas. They also alleged Oakwood Worldwide, the apartment complex manager, actually made the exposure worse by providing ashtrays for tenants, permitting its own employees to smoke, and refusing the Birkes's request to restrict smoking in the outdoor common areas.
Melinda alleged a nuisance cause of action and an Americans with Disabilities Act claim, both of which the trial court dismissed. On appeal, however, the Court said that a public nuisance must injure the health, offend the senses, or be so obstructive to interfere with a "substantial number" of people's comfortable enjoyment of the property.
The property seems like it's otherwise very enjoyable. According to the website in the link above, it is "[l]ocated next to Warner Center Business Park, Topanga Mall, and world-class dining, this 20 acre resort-style property fits both business and leisure needs."
But back to the case. In Birke v. Oakwood Worldwide, The Court of Appeal rejected the trial court's questions whether Oakwood had a duty to ban smoking or whether the Birkes were affected only in a "manner of degree" compared to the other apartment complex residents. It then reframed the issue and told the trial to decide whether Oakwood failed to limit smoking in common areas that the Birkes had a right to enjoy.
In other words, the trial court has to hear the nuisance case. The appellate court ruled the ADA claim was properly dismissed. By dismissing this second claim, the court took away the ability of the Birkes to recover their attorneys fees.
This case is far from over, but California's ban on smoking in buildings is about to take a walk outside. Unlike the statutory prohibition against smoking in buildings or within a certain distance of the entrance of buildings, this case takes a different tack - it alleges a common law violation, so this one's going to be up to the courts - not the legislature - at least not yet. We'll keep you informed - surely this ruling isn't the last we're going to hear about this case.
Meanwhile, if you're an apartment or even a business owner, you'd be wise to consider restrictions on outside smoking and actively take steps to restrict smoking to particular areas.
Now where did I put that cigar? Oh, there it is, right next to the scotch.
Thanks, Denny Crane.
Dropping A Summons And Complaint Outside A Door Makes Good Service
The Server Must Know The Defendant Is Inside
First-year law students grind through the Federal Rules of Civil Procedure, but perhaps nothing is more entertaining in that class than the ways you can serve a complaint on a defendant. Which is to say that the class is otherwise extremely boring, especially if students are entertained by an equally boring subject like service of process.
For example, one process server was frustrated a woman would not answer her door, even though he knew she was home. He saw the woman sitting next to an open, first-floor window shredding lettuce and washing it in a colander. He practiced his best alley-oop, over-the-shoulder toss and landed the summons in the colander. The court noted this method of service was one of the most creative means of getting a summons in front of someone, and deemed the process server's toss as effective service.
Anthony Paul Brenneke apparently defaulted on a nearly $300,000 judgment backed by a surety bond issued by Traveler's Insurance. Travelers paid the judgment, but the insurance company was none too happy the Brenneke also defaulted on paying the indemnity to Travelers on the surety bond.
Not surprisingly, Travelers sued Brenneke.
According to the Court's opinion, Brenneke, however, attempted to dodge service. The process server attempted to serve Brenneke four times, leaving notes and asking Brenneke to contact the process server. On the process server's fifth and last trip to Brenneke's house, Brenneke hid in his house, refusing to answer the door when the process server knocked. According the process server, who had served Brenneke before, Brenneke responded to the door intercom and acknowledged he was at home, and even looked out a front window at the process server.
Still he failed to answer the door.
Frustrated, the process server held up the summons and complaint to show Brenneke, and said, "You are served." The process server promptly dropped the summons and complaint at the front doorstep and left. The process server completed a proof of service and filed it with the court.
Not surprisingly, Brenneke failed to file an appropriate answer to the complaint, but instead filed only an answer challenging jurisdiction based on lack of service. Brenneke did not challenge the other allegations in the complaint.
As a side note here, if Brenneke wanted to effectively challenge service of process, the procedurally proper way to do so requires a Motion to Quash the Service of the Summons. Brenneke did not file this motion. The court rejected Brenneke's claim that he wasn't served properly, and when Traveler's filed a motion for summary judgment against Brenneke, the court granted the motion because Brenneke failed to oppose it.
Brenneke filed an appeal, claiming the process server did not properly serve him with the summons and complaint. The Ninth Circuit Court of Appeals made short work of his argument, and upheld the district court's ruling that Brenneke had been properly served.
The moral of the story?
If a process server comes to your front door, then answer it and take the summons and complaint. Courts are not disposed to accept claims that you were never served properly.
And hire a lawyer. Had Brenneke hired an attorney, he wouldn't have made the other mistakes he did, which led to a sizeable judgment against him and in favor of Travelers. Travelers took Brenneke's house in satisfaction of one of its judgments against him, and the Ninth Circuit upheld the district court's award of another $211,000 against Brenneke.
A costly result.
Lawyer 2 Lawyer Internet Radio Looks Back at 20082008 brought a lot of legal stories into the headlines, from the dismal economy affecting law firms to the always controversial Supreme Court rulings. Please join me and my fellow Law.com blogger and co-host, Robert Ambrogi, as we welcome the editors from two of the most prominent legal publications, Edward Adams, editor and publisher of the ABA Journal and Steven Fromm, Editor-in-Chief of the National Law Journal, to discuss the top legal stories of 2008, standout lawyers from the year gone by and look ahead to what may be on the horizon for 2009.
Directors And Shareholders Can't Switch Hats During An Adversarial Shareholder Derivative Suit
It's a fact-specific nightmare to unravel, but when a director of a small, closely-held corporation files a shareholder derivative action against the company, the shareholder can't just switch back to his or her position as a director and demand unfettered access to all corporate documents. That's double true, especially documents protected by the attorney-client privilege, even where the attorney at one time represented the corporation.
Here's how the court of appeal in Tritek Telecom, Inc. v. Superior Court put it: "Mak filed this action to enforce his inspection rights as a director after he filed the shareholder action against Tritek [the corporation] and Rerolle [the other shareholder/director] in his individual capacity as a shareholder to vindicate his personal rights. Accordingly, Mak is not a disinterested director and the presumption of good faith does not apply. Additionally, enforcing Mak's "absolute" inspection rights in this case is problematic because it gives him access to documents he could not obtain via discovery in the shareholder action."
The court continued, "Although Mak is still a Tritek director, his filing of the shareholder action makes him Tritek's adversary. Mak cannot take off his 'shareholder's hat' and swap it for his 'director's hat' and claim an absolute right to access all corporate documents. In this situation, a court may properly limit a director's inspection rights because the director's loyalties are divided and documents obtained by a director in his or her capacity as a director could be used to advance the director's personal interest in obtaining damages against the corporation. (La Jolla Cove Motel and Hotel Apartments, Inc. v. Superior Court (2004) 121 Cal.App.4th 773, 787-788 [corporate counsel has no duty to disclose privileged information to dissident director with which the corporation has a dispute].)"
Finally, the court ruled, "Accordingly, we conclude that a corporate director does not have the right to access documents that are covered by the attorney-client privilege and were generated in defense of a suit for damages that the director filed against the corporation."
Just follow the bouncing ball. It all makes sense then.
Insurers Not Allowed To Avoid Covering The State For Environmental Liability
Six insurers issued insurance policies to the State of California during the sixties and seventies for a two- or three-year period. Using an argument called "anti-stacking," the insurers sought to limit their coverage for pollution claims arising from the Stringfellow Acid Pits in Riverside to just one year. The cost to clean up the Acid Pits is estimated to be as high as $700 million.
It's important to date these policies, because prior to 1973, most insurance policies defined an "occurrence" as "an accident or a continuous or repeated exposure" and provided coverage for environmental pollution or contamination. After 1976, the coverage switched to "sudden and accidental," which somewhat limited pollution coverage, but not completely. Insurers were still required to defend their customers against claims for contamination.
In this lawsuit, State of California v. Continental Insurance Company the six carriers tried to convince the court that the State should not be allowed to "stack" its policies - one on top of the other - in order to gain what they alleged amounted to more coverage than the State was entitled. In other words, the insurers tried to limit the state to recovering only under one policy instead of two or three, limiting their coverage to $48 million. As an added bonus to the insurers, since the State had already collected $120 million from other carriers, they claimed an offset, essentially reducing their liability to the State to zero.
That's zero, zip, nada, butkus, nothing, also commonly known as $0.00.
The Court didn't see it that way, and allowed the State to stack its policies, clearing up what had previously been conflicting court of appeal rulings on the issue. As a consequence of this conflict, however, we can expect that the insurers will appeal to the California Supreme Court, which may elect to take the case to eliminate the ambiguity.
The Court ultimately ruled, "If an occurrence happens entirely within one policy period, the insured has paid one premium and can recover up to one policy limit; however, if an occurrence is continuous across two policy periods, the insured has paid two premiums, and can recover up to the combined total of two policy limits. We see nothing unfair or unexpected in this." The court said that none of the policies had an "anti-stacking" provision in them, and the court wasn't going to rewrite the policies to add one.
Therefore, the insurers are going to have to pay a lot more than the zero they got in the trial court, and a lot more than the $48 million they claimed as a maximum limit - more than likely over $80 million by MIPTC's estimate.
That's zero to 80 in just one appeal. Almost a speed record.
2009 Legal News: The Fourth Annual Legal Louie Awards
2008: The Legal Year In Review
Looking back on this past year in legal news, there's been a lot of ups and downs even though the economy has spiked that graph chart in a downward direction. MIPTC once again jumps into the fray of those with 20/20 hindsight vision with its Fourth Annual Legal Louie Awards, a tongue-in-cheek look at last year's legal news.
Why a "Legal Louie?" Louie was my grandfather's barber, who always had an opinion about legal shenanigans. Grandpa Walker called him "three-spin Louie," because once you sat in the barber chair, just three spins later you were out. Here's a round-up review of the legal news for 2008 and the resulting awards for the best and worst, in multiple categories:
Worst TV Legal Show: Last time, Boston Legal won. This year, it qualifies for this category only because ABC took it off the air. What were they thinking? Don't ask me. Write to ABC. Best line from the show? "Maybe we can find a new network that cares." No kidding.
Best TV Legal Show: Perry Mason via the beta Google video network. Sometimes, nostalgia is good, especially when there's few current worthwhile choices for this category.
Worst Legal Decision: The California Supreme Court decision(s) upholding same-sex marriage, Proposition 8 outlawing it and then the California Supreme Court's election to hear challenges to Prop 8. Who's in charge here?
Best Legal Decision: The California Legislature passed a law outlawing texting while driving, as a follow-up to the earlier law requiring hands-free cell phone devices while driving. My only question -- why didn't they think of both laws at the same time?
Runner up? We still have a Second Amendment, thanks to a 5-4 Supreme Court decision.
Worst Jail Sentence (pending): Eliot Spitzer. Here's a guy who takes on the world, starts to shut down the bad guys and then can't keep his zipper up. Best Spitzer joke? "He's the only politician who went to D.C. and left with less money than he came with."
Runners up? There are almost too many to count. "Rudyard Rod" Blagojevich (current Illinois governor who is alleged to have senate seats for sale - he's almost a tie with Spitzer just on the basis of chutzpah). Former [yes, it's capitalized because it's now become a title, not an adjective] Senator Ted Stevens (convicted of making false statements on a financial form). Senator Larry Craig (weaseling out of a guilty plea that he solicited gay sex in a public bathroom at an airport). Then there's former White House Press Secretary Scott McClellan. (his book and PR tour admits he helped his bosses lie to us about policy decisions).
Notice the consistency here? They're all politicians. Surprise!
Best Jail Sentence: Nine to 33 years. Finally, O.J. gets a sentence he deserves. Best line of the sentencing hearing? "I didn't know whether Mr. Simpson was arrogant or ignorant or both. During the trial, I got the answer, and it was both." Worst part of the hearing? Figuring out how long O.J. will be in jail. I listened to Clark County Judge Jackie Glass as she sentenced O.J., but along with the rest of the legal community, it took a call to her Court Clerk to figure out what she meant.
Worst New Legal Trend: MySpace crimes. It's hard to believe that the anonymity of the Internet has sparked crime sprees [tongue planted firmly in cheek here].
Most Hopeful Legal Event: A Nebraska State Court judge dismissed a lawsuit against God, saying he wasn't served properly. But if God is all-knowing . . .?
Worst Government Moment: Sarbanes-Oxley, the omnipresent reporting requirement where company lawyers and government overseerers worried about whether to report a janitor taking a roll of toilet paper, all while Wall Street lay waste to the world's economic system, starting with a 10.5 richter-scale earthquake otherwise known as the subprime crises. Can't wait for those aftershocks. Runners up? Madoff, Mark Dreier, any one of the Big 3 CEOs on a private jet to Washington, D.C. to ask for bailout money, AIG executives enjoying a $440,000 spa trip at the St. Regis here in Dana Point. I could go on, but you get the point. Runner up? Maybe the SEC.
Best Government Moment: The FCC's auction of the wireless band spectrum. Finally, we get some innovation. Runner up in the oxymoron department? Citified wi-fi. Whatever happened to the promise of universal wireless coverage? Guess there was no money in that service.With that, we wrap up this year's awards, with three spins of the barber's chair. To relive those old barbershop times, if you'd like to share your comments, the comment feature below is open.