Quote of the Day - Don't vote, it only encourages them.
I Voted, But The Candidate Of My Choice Didn't Get My Vote
Why? I'm one of those who registered I.P. - Independent Party. I don't want to be labeled. Well, labeled as a Democrat or Republican. I guess I'm willing to be labeled something, especially since that's the only way to vote. My preference would have been just be N/A or something else that's non-descript.
My preference doesn't matter to the government. It should, however, because my preferences, along with yours, elect the government.
The long and short of this issue falls on my inability to cast a vote for a viable candidate, such as McCain, Romney, Huckabee, Obama or Clinton. In fact, I can't even for an independent candidate.
My I.P. ballot only allowed votes to be cast for the Propositions on Indian gaming and some local transportation issues, highly relevant to the outcome of our society, unlike the Presidency.
The problem with not being able to vote for the candidate of my choice is that the election has passed me and the other independents by. Complaints to the Registrar of Voters was met with a simple solution - register with a particular party and fill out an ungodly long form, almost as long as my forearm.
No, I'm not kidding.
Registering with one party, however, defeats the purpose of being able to vote for who you choose.
Isn't that what voting is all about anyway? What am I missing here?
2/6/08 Update: The Brennan Center for Justice at New York University School of Law is part of a nationwide election protection team to help resolve any voting issues and questions that came up on February 5th. You can call 1-866-OUR-VOTE if you had any problems at your polling site.
Not Really The News Wanted Before Mardi Gras – Court Puts Damper On Party
Everyone Shares In The Blame, But No One More So Than The Corps
New Orleans has had its fair share of troubles, and perhaps a bit more than any big city deserves. While Katrina gave it one solid punch and the city took some more hard licks from its own residents, the government may have delivered one knock-out punch too many for it to survive. Not only did Michael Brown and FEMA fail to respond to the natural disaster in a timely matter and then with too little, too late wrapped in red tape, but a recent court decision also landed a heavy hit.
Federal District Court Judge Stanley Duval, Jr. issued his decision on a series of class actions filed against Louisiana's Enemy Number One, the United States Army Corps of Engineers: they're not liable to the citizens of New Orleans for the levee breaks.
The Judge recounts the tortured history of the levees, and lays blame at practically everyone's doorstep: Congress, environmental and citizen groups such as Save Our Wetlands, the citizens of New Orleans, the New Orleans government and even the local state and federal court systems for issuing injunctions prohibiting the levees from being built pending environmental studies, which as we know in hindsight, didn't work.
The factual part of the Court's opinion in the first 18 pages is well worth a read before you complain another word about anything arising out of this series of failures leading to the collapse of the levees.
No one, however, was singled out in the Court's opinion more than the Corps.
While Judge Duval criticized the Corps' "gross incompetence" and the "catastrophic failure of the Corps to fulfill its mission," he ruled the Flood Control Act of 1928 grants immunity to the government in the event of levee failure.
Cry me a river.
New Vehicle Laws - Roundup By AAASeveral new laws affecting motorist and traffic safety will take effect beginning Jan. 1, 2007, according to the Automobile Club of Southern California.
"Many of these laws focus on safety for vehicle passengers, mature drivers, pedestrians and young drivers," said Alice Bisno, the Auto Club's vice president for legislative and regulatory affairs.
Laws taking effect Jan. 1, 2007 include:
AB 1850 makes it unlawful for a person to knowingly drive a motor vehicle while another person is riding in the trunk; riding in the trunk is also illegal. The driver receives a fine and one point on his or her driving record; the person riding in the trunk receives a fine. The law is a response to some teen drivers' attempts to evade the passenger restriction in California's graduated driver licensing law by hiding teens in the trunk. Since 2000, there have been 153 collisions involving trunking, resulting in nine deaths and 140 injuries.
Mature-driver courses, available for drivers at least 55 years of age, are designed to help older motorists drive safely longer by educating them on proper driving techniques and changes in technology and the law. AB 2407, an Auto Club- sponsored bill, permits renewal courses to be completed in four hours. (The initial course lasts for eight hours.) Drivers who successfully complete the course are eligible for a small discount on their auto insurance.
SB 1610 is intended to enhance safety for emergency vehicle and tow-truck personnel working on the side of the road. Drivers approaching a stationary authorized emergency vehicle or tow truck with its siren or emergency lights activated must proceed carefully and move into an available lane at least two lanes away from the emergency vehicle or tow truck. If such a move is not safe, practical, or legal, the driver should slow to a reasonable and prudent speed. The law expires on January 1, 2010.
SB 1021 requires the DMV driver handbook and traffic-violator school curriculums to include information about respecting the right-of-way of others, particularly pedestrians, cyclists, and motorcyclists. It also increases the fine for right-of-way violations that result in bodily injury or great bodily injury. Violators will pay a fine of at least $245 if bodily injury is involved and at least $345 if great bodily injury is involved. For purposes of this law, great bodily injury means "any significant or substantial physical injury."
Reckless Driving and Street Racing
AB 2190 makes reckless driving and street racing that results in great bodily injury a felony offense for first-time violators. Previously, only those with a prior conviction for this offense could be charged with a felony. Great bodily injury includes loss of consciousness, concussions, bone fractures, wounds requiring extensive suturing, serious disfigurement, and paralysis.
Driving Under the Influence
AB 2752 increases the penalties for underage drinking and driving. The new law makes it a criminal offense instead of a civil penalty for a driver under 21 years of age to have a measurable blood-alcohol concentration of 0.01 percent. First-offense infractions will carry a minimum fine of $350.
Under AB 2253, a court can impound a vehicle used in the illegal dumping of waste matter for up to six months if the person driving the vehicle has a prior conviction for the offense. Waste matter does not include beverage containers or food wrappers, but it does include oil and other petroleum products, paints, garbage, furniture, dirt, gravel, and body parts.
Other motorist-related laws that were approved by the California Legislature in 2006, but which do not take effect until 2008 or later, include:
SB 1613 prohibits the use of handheld cellular telephones while driving. Starting July 1, 2008, a driver may use a cell phone only if it has a hands-free listening and speaking system. Drivers ticketed for a violation will be subject to a minimum total fine of $70 for a first offense and $175 for subsequent offenses. "Push-to-talk" systems (such as Nextel) are exempt from the hands-free requirement until July 1, 2011.
SB 1542, sponsored by the Auto Club, will make it easier for vehicle owners whose keys are lost, stolen, or broken to obtain replacement keys. This law takes effect January 1, 2008 and it requires an automaker to provide the codes necessary for a locksmith to make a replacement key for vehicles sold or leased in California. Some auto manufacturers, such as Mercedes-Benz and BMW, will have until 2013 to comply with the new law if they currently allow no one but themselves to duplicate a key.
Under AB 1870, beginning January 1, 2008, vehicles that emit visible smoke from the tailpipe or crankcase during a smog inspection will fail the test. A vehicle owner can appeal a failing result to a state-designated referee; low-income vehicle owners may be eligible for repair assistance.
Driver AssessmentAB 2542 requires the DMV to implement its evaluation system for identifying drivers with medical problems and functional limitations. A report to the legislature on the results is due by December 31, 2011; the law expires January 1, 2012. "
Lease Accounting 101: Tenants Suing Landlords For Fraud And Maintenance Expenses
Kelly McLain leased space in a small, strip mall for her A+ Teaching Supplies store in Valencia, California. Her landlord, Octagon Plaza, LLC represented the space she would lease was approximately 2,624 square feet, and that her store was 23% of the entire mall, so she also had to pay 23% of the common area maintenance charges based on 11,835 square feet in the mall. Her rent was $1.45 per square foot, making her base rent (before CAM charges) $3,804.
No, the next question is not going to be: if one train left the station at 3:12 p.m. traveling west at 54 miles an hour and another train left the station at 3:36 p.m. on the opposite side of town travelling east at 36 miles an hour, then when will they meet?
The question here is whether a tenant can sue her landlord for fraud and to what extent can she obtain an accounting of the CAM charges?
The lease allowed her to verify the square footage of the store, and when she sought to do so, her landlord became offended that she would question the integrity of the representation, so she accepted the measurement as is.
Unfortunately, the space was smaller and the shopping center was bigger. Kelly obtained a copy of Octagon's application for earthquake insurance, which listed the overall size of the mall at 12,800 square feet and her space slightly smaller at 2,438. At that size, she would have been responsible for only 19% of the CAM charges and her base rent would have been lower at $3535 per month.
The trial court ruled based on those facts that she wasn't able to establish fraud, but the court of appeal reversed, noting that over the term of her lease, the difference amount to $90,000 in rent, despite the slight monthly differences.
The appellate court also ruled that Kelly's lease provision entitling her to inspect and verify the basis for the CAM charges allowed her to do just that, and required Octagon to open its records to her. When you read the opinion, you'll discover the relationship between the tenant and landlord was much more acrimonious than I've described here, so you'll probably guess that Kelly wanted to do more than verify the CAM charges, she wanted to be able to disallow those she thought were unnecessary. The court granted her access to the records, but stopped short of giving her a vote based on the language in the lease.
By the way, the Octagon Mall is presently listed for sale at $6,800,000, with its square footage listed at 11,835, with seven tenants. No word whether A+ Teaching Supplies is still there.
Lawyer 2 Lawyer Internet Radio Takes A Trip For Some Serious Fun In The Sun
Having trouble getting excited about fulfilling your Continuing Legal Education requirements? Well, that's all changed as lawyers are now signing up for CLE travel programs taking them to different parts of the world where beautiful scenery and CLE seminars can both be found.
On this week's Lawyer2Lawyer, we look at these CLE Programs in-depth, highlighting the pros and cons of the trips, the physicality of taking the attorney out of the office or offline, and give you a first-hand account of the various destinations offered. Please join me and my fellow Law.com blogger and co-host Robert Ambrogi as we once again call on the experts: Attorney Jamie Duarte, from Duarte & Associates and Maryann McCool, Director of CLE Abroad, to discuss this fun alternative.
Electronic Case Filing Department of Redundancy Deparment
Under orders from the United States District Court for the Central District of California, I clicked on the URL for the eight modules of training on the Court's CM/ECF (Case Management / Electronic Case Filing system), and promptly went brain-dead. Sure, I had to complete the training in order to get the Court to issue a user name and password in order to electronically file documents even though others in the firm already have them, but after the two-and-one-half-hour mind-numbing and overly repetitive online lecture and allegedly "interactive tutorial," I'm left with one question:
According to the General Order and the Judge's Standing Order, I must still (within three days of the e-filing) physically file with the Court a "courtesy" copy of the document I just e-filed with the Court, complete with the cover page showing that I properly e-filed the document.
Just reread that last paragraph again. That's right. Now I get to file the same thing twice; three times if you count the requirement to also e-file the [Proposed] Order directly with the judge's chambers.
My head hurts, and now that I think about it, I actually have two questions.
The system has a 4.5 megabyte top-end limitation on the size of any file submitted through the CM/ECF system.
No. They're not kidding. More than that and you have to figure out how to divide the file into smaller byte-sized files to upload below the 4.5 meg limitation.
That limitation is about the size of a scanned small coloring book, which probably isn't saying much for the briefs being submitted, but come on, this is the United States government we're talking about. 4.5 megs? Our small-firm e-mail server can handle 50 meg files coming and going, and we've only got six attorneys. Certainly the government can afford a computer system that can handle big files. There are probably 30,000 attorneys in the Central District, many of whom file those ten-pound Motions for Summary Judgment.
We do too, in fact. I looked at one of the last ones we filed before the CM/ECF system went into play and just one of the Declarations was over 48 megs. That's uploading 11 separate files for just one document out of something that's probably got another 10 paper documents before it's finally said and done, not counting the dividing that will have to go on to come under the 4.5 meg limitation.
Just so you have this straight once you get done with the training, the Court hasn't produced a manual, but they do have a Help desk that's open from 10 a.m. to 4 p.m., except Court holidays; heaven help you then.
Never fear, though. One of our own has come to our rescue. Santa Ana Attorney Martin Anderson created this manual after he banged his head into the wall for hours trying to figure out how the system doesn't work. Click on the link immediately above to download it and save your sanity.
One more thing: you can't e-file complaints or other "case-initiating" documents. You still have to bring those to the court the old-fashinoned way.
On paper. So much for technology.
What Do You Mean? We Didn't Know That! How Were We Supposed To Know?
I read. Maybe I read a lot. In fact, when asked how bad my eyesight is from all my reading, I've joked that my glasses are so thick, I can't wear contacts because I wouldn't be able to blink my eyes. Yes, I wear glasses - or in most cases contacts to satisfy my vanity. I read so much in law school that in just two years, my eyesight went from 20/200 to 20/700. I'm practically blind without glasses, which means if the text is about six inches or more away from my eyes, I can't read it.
It's so bad that I now need reading glasses on top of my contacts. I can't wait until they come out with a functional pair of bifocal contacts.
I read for fun, for education and for my job. Most of all, I read because I enjoy learning. One of my favorite reference books is The Dictionary of Cultural Literacy. It's a great book because it provides context to our world when we all use shorthand to describe things.
Take, for example, referring to a pre-teen woman as "Lolita." Let me give the punch line away first. "Lolita" is a 1955 novel by Vladimir Nabokov. In it, the narrator, Humbert Humbert becomes sexually involved with his 12-year-old stepdaughter, Delores Haze. He was attracted by the sexually promiscuous girl, sometimes referred to as a "nymphette," and the book became a classic. It was made into a film twice, once in 1962 by Stanley Kubrick starring James Mason as Humbert Humbert, and again in 1997 by Adrian Lyne, starring Jeremy Irons.
So, when Woolworth's offered beds for small girls named the "Lolita Midsleeper Combi," you have to wonder whether there was a message or just it was because someone wasn't paying attention. The "Lolita" bed offered for sale in the UK was advertised as "a whitewashed wooden bed with pull-out desk and cupboard intended for girls aged about six," according to this Reuters report. Reuters continues, "'What seems to have happened is the staff who run the website had never heard of Lolita, and to be honest no one else here had either,' a spokesman told British newspapers."
Right. Furious parents complained and forced Woolworth's to look up "Lolita" on Wikipedia, where the company learned what the term really meant, and pull the bed from the shelves, so to speak.
I'm betting the folks at Woolworth's don't wear thick glasses.
Maryland's Do Not Deliver Pending Legislation Would Apply Junk Mail Filter To Your Driveway
Why Not Also In Our Mailboxes? Why Not Federal Legislation?
Maryland is considering legislation that would ban free newspapers from being delivered to unwanted driveways. You can probably tell from the sub-headline, I'm against the delivery of unwanted newspapers. Try as I might, a free newspaper in our area, the Irvine World News, continually gets delivered to my driveway despite my efforts to the contrary.
According to this Newsweek article by Reporter Kristen Wyatt, the legal issues might preclude the legislation. The magazine notes, "The bill could prove a legal morass, said T. Barton Carter, a media law expert at Boston University. It's uncertain how valuable a 'Do Not Call' analogy is, he said. 'Usually, when you're talking about print media and just delivering it to the outside, that's not seen as intrusive as calls. So, it's not clear it would survive a similar First Amendment analysis,' Carter said."
While this argument may not be clear, it overlooks the balancing test used in a First Amendment analysis. As part of this Constitutional analysis, Maryland must demonstrate a compelling state interest to overcome the preference for free speech, and instead impose only reasonable time, place and manner restrictions. What possible compelling state interest could we assert?
How about littering? Trespass? Waste?
And what about those reasonable time, place and manner restrictions? Well, let's see whether they even apply. By prohibiting the delivery of free newspapers, are we prohibiting speech? Not really. We're just limiting its dissemination to willing readers, and prohibiting its dissemination to unwilling listeners.
Think about it from the soapbox or pamphleteer's perspective. We can't stop the woman from standing on the soapbox in a public place and speaking her mind. We can, however, prohibit her from mounting loudspeakers on that soapbox and pushing it through a residential neighborhood. While we may not be able to limit the pamphleteer from handing out her pamphlets, which ultimately litter the countryside, we can punish the pamphleteer for littering. Yes, in case you're wondering, those fact patterns are actual Supreme Court First Amendment cases, simplified greatly, but still true.
Here's the actual, three-part test to determine whether the restrictions are reasonable: 1. Are the restrictions justified without reference to the content of the regulated speech? 2. Are the restrictions narrowly tailored to serve a significant governmental interest? 3. Do the restrictions leave open ample alternative channels for communication of the information?
Admittedly in Maryland's statute, it's probably not content neutral since it applies only to commercial newspapers. Now on the other hand, if the legislature would prohibit the delivery of any unwanted material, then it would likely pass this first prong of the test. That limitation might put the U.S. Postal Service out of business. Then again, that result may not be a bad thing.
The prohibition on the free delivery of newspapers is likely not narrowly tailored to prevent littering. There are many other sources of litter beyond free newspapers, so in order for the legislation to be effective, everything free would be banned, including door hangers and the like, together with coupons and perhaps even free samples whose wrapping might end up on the street. Not a likely eventuality.
Finally, while alternative channels of communication may be open - such as newspaper racks and heaven help us, subscriptions, there's really only one way to distribute a free newspaper, and that's to put it in yours and my driveways.
Until we pass some workable legislation such as a national "Do not deliver" list that allows us to stop delivery of paper that passes our property lines except perhaps real, non-junk mail.