Quote of the Day - Whether we knew many who died on September 11 or personally knew none, we all lost something on that day. Innocence. Security. A trust that our homeland would always be safe.
Pause And Remember
Here's a moment of digital silence.
Gnome Rats Out Burgular In England
People do stupid things. In fact, they do so many stupid things that Court TV has an entire site dedicated to Stupid Crimes and Misdemeanors. Some of the shenanigans are so funny that the site is occasionally the inspiration for a post on this site.
In fact, Court TV has 52 nominations each year, including some that might qualify for the Darwin Awards: the site features a "Stupid Story of the Week," which also includes and award for the "All-around Dumbest." As an example, this week's "dumbest" award goes to the bank robber whose underwear exploded. You'll just have to read that one for yourself. But let's get back to the crime at hand.
This week's "Stupid Story" is especially . . . well, stupid.
Court TV reporter Tracy Majka found a story in the Lancashire Evening Telegraph that highlights the plight of Clifford Taylor, a Darwen, England homeowner whose house was burgled. A thief had broken a kitchen window to gain entrance and ransacked Taylor's house to steal a number of valuables, including a gnome Mr. Taylor bought while on holiday in Australia. The homeowner dutifully provided a list of the stolen items to the local constabulary. One of those items, the gnome, caught an officer's eye. He remembered seeing the gnome at the house of someone he had visited the day before on an unrelated issue.
The officer went back to that home, the residence of 22-year old Sean Thompson, found the distinctive gnome and promptly arrested Mr. Thompson. At his preliminary hearing in Preston Crown Court, Mr. Thompson's solicitor told the court that properties around the victim's home in Hannah Street were being demolished. According to the newspaper account, Thompson's solicitor, Richard Hunt, defending, then tried this excuse with the court: "The defendant never realised the property was still, in effect, being occupied."
Nice try. Still stupid.
Is There A Remedy For Every Wrong?
If you're Wes and Shirley Tilton, then right about now you're pretty sure there's not. Here's the setup for their sad tale of woe. They own two parcels of residential real estate in Contra Costa County. A local Reclamation District decided to build a levee across their properties. In turn, Mr. and Mrs. Tilton built two homes on top of the levee.
Then the problems started.
Apparently, the levee wasn't constructed properly and didn't provide appropriate subjacent support for the homes. The foundations cracked and part of the house pulled away from the rest of the house and started to sink into the bay. The Tiltons submitted an administrative claim for damages, which the Reclamation District denied. Then they sued in Court, alleging damages for inverse condemnation, negligence, trespass, nuisance, failure to provide lateral and “subjacent” support, maintaining public property in a dangerous condition, and a violation of 42 United States Code section 1983 (civil rights violations).
The trial court dismissed all the counts, and the appellate court upheld the dismissal. Ouch.
The courts based their decision on prior cases that essentially immunized the government from damages for its negligence. Quite surprisingly, none of these cases were cited by the parties in their briefs to the court of appeals - the court found those cases on their own. Here's the language from the 1959 case of Hayashi v. Alameda County Flood Control District that turned out to be the pivotal turning point against the Tiltons: "In [Hayashi] the district did not cause the original break in the levee, nor is it charged that such occurred by reason of negligence. Negligent design or construction is not charged, nor did the district deliberately divert the water onto the plaintiffs’ lands. It is charged with negligent failure to act thereafter, that is, with negligence in the operation and maintenance of its property. In our opinion that does not charge a taking of property for public use under the Constitution.”
The appellate court next went on to address the other tort causes of action, and dispatched those as well with equal ease. The court reasoned that since the Reclamation District had no mandatory duty to maintain the levee (that's for me hard to believe), then it could not be sued because it breached no duty. It just doesn't make sense that any government agency could build a levee designed to keep floodwaters out and then claim that it had no mandatory duty to maintain it. If that was the case, then why build it in the first place?
The reasoning in the case is difficult to stomach, especially when the Tiltons are looking at losses exceeding $1,000,000. Yes, I understand it's not the damages that determine whether a party has a remedy or not, but it's the government's failure to do its job that should have provided the compensation. Beyond the court's result, the opinion has a number of grammatical defects that further call its reasoning into question. As just one example, the opinion uses "as to" at least ten times. Ugh.
Oh yes, did I forget to mention one of the sections of the California Civil Code? Here's one the court didn't cite: California Civil Code section 3523.
Contested Water District Elections Stir Controversy
Elections are heady events, especially for those who run for office and their staffers who help them get elected or in some instances, lose the election.
Or so I'm told.
Beyond the November vote and the primaries sometime earlier in the year, the rest of us barely pay attention unless we're forced to look at those obligatory "Vote for Me" signs that sprout every September and never quite really tell us anything other than the candidate's name. Oh, and I forget the amount of newspaper, television, radio and now internet bandwidth devoted to pre-election polls and outcome predictions based on exit polls.
I'm not cynical, really I'm not.
But why the vote mattered to Thelma Jean Robson, I really don't know. A Google search mainly reveals this case. She's a voter in the Upper San Gabriel Valley Municipal Water District, and after one of the winners of the 2004 election resigned, she must have been very upset with the appointee. Here's the deal.
There are five members of the board of directors who serve four-year terms. Elections are held every two years, however, so three seats are up at a time. Kenneth Manning won in 2004, and then four months later, resigned. The board appointed Leon Garcia to take his place.
That's where the trouble began. A dispute arose whether Mr. Garcia was appointed for the remaining 18 months of Mr. Manning's term or until the next November's election. Perhaps it's more accurate to say that the dispute arose after the board (and Mr. Garcia) voted to have Mr. Garcia fill the remaining portion of Mr. Manning's term.
Believe it or not, this issue has never come up in California before. It took the court only 18 pages, however, to uphold Ms. Robson's position that Mr. Garcia's appointment would last until the next general election, this November. Perhaps Ms. Robson will run for the seat, now that she succeeded in opening it up.
Best of luck to the candidates.
Coast to Coast Internet Radio Takes on Vioxx
In an interesting development in Vioxx news, a New Orleans judge ruled that the $50M in compensatory damages were “grossly excessive.” The judge upheld the verdict, finding Merck liable in the case, but ordered a new trial to decide how much the manufacturer must pay a retired FBI agent who suffered a 2002 heart attack after taking the painkiller for 2½ years.
Join me and my co-hosts and fellow Law.com blogger Bob Ambrogi as we turn to two expert attorneys representing Vioxx clients for the lowdown. Coast to Coast welcomes Attorney Tom Girardi of the well-known firm of Girardi Keese in Los Angeles and Attorney Paul Sizemore from the national firm of Beasley Allen located in Montgomery, Alabama. Don’t miss this latest interview.
Supreme Court Denies Newspaper Access To Names Of Disciplined Police Officers
Newspapers have no right to review records of disciplined police officers, according to a recent court ruling in the case of Copley Press v. County of San Diego. The San Diego Union-Tribune newspaper wanted to attend a termination appeal hearing involving a deputy, but the San Diego Civil Service Commission denied access to the newspaper. The newspaper then sought access to the deputy's file, but the Commission redacted large portions of the file, and later produced most of the rest of the file, but with the deputy's name redacted.
According to the documents, the officer was terminated due to "the deputy’s failure to arrest a suspect in a domestic violence incident despite having probable cause to do so, failure to prepare a written report documenting the incident, and dishonesty in falsely indicating in the patrol log that the victim bore no signs of injury and the suspect was 'gone on arrival.' "
As a consequence of the Deputy's appeal, the Commission and the now former Deputy agreed to a mutual stand-down. The Deputy agreed to withdraw the appeal and the Commission agreed that the Deputy's records would show resignation by mutual agreement and remove the untruthfulness charges.
The newspaper wanted the name of the Deputy and full disclosure, so it sued. The trial court denied the request, and the court of appeal reversed, opening the files to the newspaper. The Supreme Court upheld the trial court's decision allowing the Commission to keep the Deputy's name private.
In fact, the Supreme Court ruled that the California Public Records Act precludes the release to a newspaper the name of an officer involved in a disciplinary proceeding. The Court was careful to exclude civil or criminal discovery proceedings from its ruling, limiting it's application to requests by newspapers. The Court noted that the Commission could have elected to release the disciplinary records in response to public statements made by the Deputy, but here the Deputy kept quiet.
The Court also ruled on the newspaper's First Amendment arguments, dismissing them with the determination that the Supreme Court of the United States would not have allowed access to the officer's name. The California Supreme Court cited several U.S. Supreme Court cases, including Houchins v. KQED, which ruled, "There is no constitutional right to have access to particular government information, or to require openness from the bureaucracy. The public’s interest in knowing about its government is protected by the guarantee of a Free Press, but the protection is indirect. The Constitution itself is neither a Freedom of Information Act nor an Official Secrets Act."
The case was a veritable Who's Who from the newspaper industry, with many filing amicus briefs, including the Los Angeles Times, the Orange County Register, the Hearst Corporation, the Associated Press, the Bakersfield Californian, the New York Times, the San Jose Mercury News, Inc., Bloomberg, the California Newspaper Publishers Association, the Society of Professional Journalists, the Reporters Committee for Freedom of the Press, California First Amendment Coalition, Californians Aware and Professor Erwin Chemerinsky.
The Workplace Professor Takes Stock Of Last Week's Blawgs
Assistant Professor of Law Paul M. Secunda of the University of Mississippi School of Law takes a look at last week's law blogs. Give a look-see and tip your hat!
What Causes The Color In The Salmon You're Eating?
If it's farmed salmon, then you're not going to know in the near future. The California Court of Appeals blocked an attempt by several non-profit corporations to challenge the alleged practice of adding artificial food coloring to fish feed, if it's true. Two years ago, they sued a group of supermarket chains alleging that the grocers didn't disclose whether the salmon they sold was wild or farm-raised, and if farm-raised, then whether artificial food coloring was added to make the salmon appear salmon pink instead of gray.
According to the Court's decision, the plaintiffs "allege that fish farmers feed farmed salmon the chemicals canthaxanthin and astaxanthin to obtain a color of flesh resembling that of wild salmon. They allege that the flesh of farmed salmon would appear grayish without the chemical additives and that consumers believe that the color of salmon is an indication of its origin, quality, freshness, flavor, and other characteristics." At the end of the opinion, the Court observes that if that allegation is true, then it would violate the Federal Food Drug and Cosmetic Act.
But the Court didn't decide that. The Court instead ruled that private citizens can't bring these claims. When a private citizen can take over the job of the government, that person is called a "private attorney general." In order to become a "private attorney general," however, the statute that the private citizen wants to enforce has to include a section that allows private citizens to take over for the government.
The Court ruled that the FFDCA does not contain such a section, and it barred these non-profit plaintiffs from pursuing the lawsuit any further. If there's going to be any enforcement of this statute regarding the allegations cited above, then it's going to be done by either California Attorney General Bill Lockyer or United States Attorney General Albert Gonzales.