May It Please The Court
Quote of the Day - Our government teaches the whole people by its example. If the government becomes the lawbreaker, it breeds contempt for law; it invites every man to become a law unto himself; it invites anarchy.
Are You Listening, Orange County Sanitation District?
MIPTC has always failed to understand why the government regulates private industry so heavily while at the same time ignoring the plank in its own eye. Take, for example, studies showing that Orange County beaches were closed 225 times nearly ten years ago due to storm water runoff, which hasn't gotten much better in the ensuing decade. Nearly 1.5 million swimmers each year are sickened by bacteria in near-shore ocean water across the country. How hard is it to take some of those tax dollars we pay and develop a system to treat runoff and non-point source pollution?
It may have just gotten a bit easier, thanks to private industry.
Abtech Industries will start in 2007 selling a filtration technology that fits like a sponge into sewer drains. It's made from recycled plastics, to boot, and according to the company, absorbs oil, PCBs and other toxins, but allows water to flow through. The latest version is also coated with an antimicrobial coating that destroys bacteria. The sponge has actually been tested here in Southern California.
The USEPA has sanctioned the company's Smart Sponge® technology as a Best Management Practice for state and local government management of storm water runoff.
Take that and stick it in your storm water drain, Orange County Sanitation District.
Sure We Can Give Your Money Away; We're The Government
Here's today's quiz: Can a City Council donate public monies to a non-profit corporation, such as a Chamber of Commerce, where a City Council member is also on the Board of the Chamber and his wife is an executive of the Chamber?
If you guessed no, then you guessed wrong.
Yes, I said "No" was wrong, believe it or not, despite the number of double negatives and double entendres in that sentence.
That's right, according to lame duck California Attorney General Bill Lockyer, a City Council can donate to the Chamber, even though a City Council member and his wife are involved with the Chamber. According to Mr. Lockyer, Esquire, the City can donate money to the Chamber under California Government Code section 1090.
Just in case you're wondering, here's what the statute says (so you can ensure Mr. Lockyer, Esquire has it right): "Members of the Legislature, state, county, district, judicial district, and city officers or employees shall not be financially interested in any contract made by them in their official capacity, or by any body or board of which they are members."
See if you can figure it out. If you're like me and you can't, his opinion is here.
Squeeze In A Bit Of American History At The Dinner Table
In between snippets of the Macy's Thanksgiving Day Parade, football, turkey, cranberry sauce, pumpkin pies, more turkey and a second helping of pumpkin pie - this time without the whipped cream (I'm watching my girlish figure, thank you very much), you may give a moment or two of thought to the Pilgrims.
Together with Massasoit and Wampanog American Indians, they are after all the reason for the season. At least this season, that is.
When your mind wanders to the feast they had in Plymouth, you may not have given much thought to America's first set of imported laws. That's right. We have our own Magna Carta, sort of.
It's called the Mayflower Compact. MIPTC reproduces it's text here so you can give the kids a quiz on it at the dinner table and make sure they've earned their American History Points For The Day.
"In the name of God, Amen. We, whose names are underwritten, the Loyal Subjects of our dread Sovereign Lord, King James, by the Grace of God, of England, France and Ireland, King, Defender of the Faith, e&. Having undertaken for the Glory of God, and Advancement of the Christian Faith, and the Honour of our King and Country, a voyage to plant the first colony in the northern parts of Virginia; do by these presents, solemnly and mutually in the Presence of God and one of another, covenant and combine ourselves together into a civil Body Politick, for our better Ordering and Preservation, and Furtherance of the Ends aforesaid; And by Virtue hereof to enact, constitute, and frame, such just and equal Laws, Ordinances, Acts, Constitutions and Offices, from time to time, as shall be thought most meet and convenient for the General good of the Colony; unto which we promise all due submission and obedience. In Witness whereof we have hereunto subscribed our names at Cape Cod the eleventh of November, in the Reign of our Sovereign Lord, King James of England, France and Ireland, the eighteenth, and of Scotland the fifty-fourth. Anno Domini, 1620."
The document was signed by 41 of the 102 passengers, 37 of whom were Separatists fleeing religious persecution in Europe. This compact established the first basis in the new world for written laws. Half of the colony failed to survive the first winter, but the remainder lived on and prospered. Although the Mayflower is commonly known as America's first constitution, it's more of a covenant among the settlors to obey the people that will govern the colony.
But it was a start, and a start on the long road to 1776. We thank the Pilgrims for showing us road to democracy. They celebrated that auspicious beginning with a feast, welcoming the original Americans and everyone's family members. We can do the same again.
MIPTC wishes you a prosperous year and a Happy Thanksgiving to you, too.
Don't Call Your Legislator; They're Busy Correcting Typos
Typos. They're the bane of lawyers, and now the bane of several state legislatures.
For example, New Yorkers need to beware of one new law passed by that state's legislature. If you've got just the tiniest amount of alcohol in your body, say the weight of a liter of helium (about 0.18 grams), then you're legally drunk. New Yorkers, in fact, are all automatically in violation of the law because more than 0.18 grams of alcohol occurs naturally in most everyone's bloodstream.
That result is thanks to a typo in a new law.
That's right. Legislators passed a get-tough, drunk-driving law intending to establish a new limit of 0.18 percent of your blood alcohol content to create an "aggravated driving while intoxicated" standard. But somehow in the rush to get the law on the books, someone stuck the word "gram" after the limit instead of "blood alcohol content." The law was intended to prevent prosecutors from allowing a plea bargain to a lesser charge if the offender's BAC was above 0.18% of blood alcohol content, but the mistake makes the law essentially unenforceable.
New Yorkers aren't the only ones in trouble, though.
In Arizona, a ballot measure approved by voters meant to tax each pack of cigarettes by 80 cents. Unfortunately, the ballot measure added a period in front of the 80 cents - .80 - actually making it only 8 cents per pack. Legislators are going to collect the tax anyway, it will just be 90% less than they expected.
Perhaps the worst typo, however, is the one that converted $8 million into 1.5 cents. Legislators in Hawaii passed a cigarette tax increase designed to generate the $8 million for cancer research. They intended to tax each cigarette 1.5 cents, but forgot to specify in the statute that the tax was per cigarette, instead enacting a tax that plopped a whopping 1.5 cents on the tobacco industry,
Imagine if a court made that mistake in one of those billion-dollar tobacco verdicts.
California Cities Step To Forefront To Slow Global Warming
What's Your City Doing?
It's not often that politicians take a stand.
That's why MIPTC read with some slight degree of shock that officials in Los Angeles, Burbank, Glendale, Riverside, Pasadena and Anaheim elected not to renew contracts with a coal-fired power plant in lieu of buying power based on solar and wind power. Wow.
Now's the time to ask your City Council and County Board of Supervisors to get on the bandwagon started by Governor Schwarzenegger, who signed legislation back in September, which is the first-in-the-nation emissions cap on utilities, refineries and manufacturing plants. The goal is to cut greenhouse gases to 1990 levels by 2020.
Just call him Governor Terminator.
Everyday Users, er, Distributors, Of The Internet Immune From Libel Law For Now
Say what you will, if you're in California surfing the Internet, that is. What do I mean?
The California Supreme Court decided to insulate Internet "distributors" of statements defaming others, as long as that distributor did not originate the defamatory statement.
Hold your horses, here.
Let's get to the facts. In the case of Barrett v. Rosenthal, Dr. Stephen Barrett and Dr. Timothy Polevoy operated Internet sites, one named Quackwatch, aiming to expose health frauds. The two Doctors claimed Ilena Rosenthal committed libel against them by maliciously distributing defamatory statements in e-mails and Internet postings, discrediting their efforts to eliminate this type of fraud. Ms. Rosenthal operates a site she's dubbed Quackwatchwatch.
There's a long history of disputes involving both parties, and this post won't touch the merits of either. MIPTC wants to address the legal significance of the decision.
Think about this one for a moment: typical tort law punishes both the originator and the person who republishes the defamatory statement. As the California Supreme Court notes in its opinion, "At common law, 'primary publishers,' such as book, newspaper, or magazine publishers, are liable for defamation on the same basis as authors. Book sellers, news vendors, or other 'distributors,' however, may only be held liable if they knew or had reason to know of a publication's defamatory content."
The Communications Decency Act of 1996 says, "No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider." 47 U.S.C. § 230(c)(1). The California Supreme Court took its lead in our case from the Fourth Circuit Court of Appeals in Zeran v. America Online, Inc.
Don't get too excited here, though. It's pretty obvious that our Ms. Rosenthal wouldn't qualify as a Internet Service Provider. She is an everyday user, just like you and me. That's where the California Supreme Court opinion turns. As a user (read: "distributor"), the Court ruled, she's exempt from republishing defamatory statements.
That's right. Exempt.
So you don't stray too far from the analysis, in Zeran, the Fourth Circuit ruled that section 230 "creates a federal immunity to any cause of action that would make service providers liable for information originating with a third-party user of the service.' In Zeran, AOL got sued by Kenneth Zeran after it failed to quickly remove postings that told users to call Mr. Zeran's telephone regarding t-shirts for sale that bore offensive slogans about the Oklahoma City bombing. The Fourth Circuit essentially believed that AOL was exempt from liability for postings by third parties, as set out in the statute.
But that's where the similarity with our case appears to end. Here, Ms. Rosenthal was a user, not a provider. She republished what she had been told were defamatory statements, presumably by another information content provider.
The case turns standard tort law on its head, all in the name of an unclear statute. Wait for Congress to straighten this one out or see if the U.S. Supreme Court will take it up. There's one question that still needs an answer: where is the word "distributor" in section 230?
Court Allows Long-winded City Meetings To Continue Late Into The Night
For as much as City Councils and Boards of Supervisors say they represent you and me, sometimes MITPC thinks that they really don't want to hear what we have to say. On the other hand, they may just be saying that if you're that interested, then you better stay as long as we have to.
If you've ever been to a Council or Board meeting, then you know that they employ a common trick to either limit or prevent public comment: the time to comment is set at the end of the meeting, which frequently lasts past 11:00 p.m., and even then you will be limited to three minutes for your presentation, only to be gonged off with a red light or buzzer.
Two City Council members in Santa Monica, Robert Holbrook and Bernard Katz apparently got fed up with the tactic, and tried to use the Constitution and the "open meetings" requirement of the Brown Act to put an end to it. They argued that "forcing the public to wait so long and stay so late to address the City Council, they allege, 'in essence deprives the public of their fundamental right to address their local legislative representatives.' "
The lawsuit got nowhere.
But don't jump on the bandwagon here. We may need different Plaintiffs for this kind of lawsuit to win. The trial court and the court of appeals saw what they thought was the real reason for the lawsuit: "We agree that the action is certainly not brought solely in the public interest, as Holbrook and Katz complain extensively in their declarations about the burden that late-running meetings impose upon them as public officials. Moreover,although the action is ostensibly brought on behalf of the general public, in the unlikely event it were to be successful it would not “confer a significant benefit . . . on the public as a whole,” for its entire purpose is to cut off the meetings of the City Council at 11:00 p.m."
Nothing like an early bedtime as the reason to sue.
GPS May Stand For Government Positioning System (Of You)
If you're in New York, then police there can track your whereabouts using your cell phone without a showing of probable cause, according to a federal judge. The Drug Enforcement Agency applied for and received permission from Manhattan U.S. District Court Judge Lewis Kaplan to track what apparently are drug smugglers. MIPTC isn't licensed in New York, but the DEA used two federal statutes - the USA Patriot Act and the Stored Communications Act - as the basis for its application, and those statutes are equally applicable here.
It just doesn't seem right, however, that the DEA received this permission without a showing of probable cause to conduct the surveillance. Judge Kaplan required something called "reasonable grounds" to believe the contents of the subscriber's communications are "relevant and material" to an ongoing criminal investigation.
Don't get me wrong, I'm all for tracking possible terrorists or for that matter drug smugglers, but there is that one little thing called the Constitution, which requires a system of checks and balances. Without a showing of probable cause, there's neither a check or a balance. I don't remember reading the words "reasonable grounds" in the Constitution.
There is some disagreement among federal judges whether the DEA or any other governmental agency can conduct this type of surveillance. A February 2006 opinion in the same court denied the government's application. Another judge in Texas also denied a similar request.
Seems like we're going to need a Circuit Court of Appeals ruling to find out what either level of review is required before the government can trace you and me or whether they can trace us at all.
Meanwhile, if you don't want to be traced, then turn off your GPS feature.