Misc. Ramblings

As is the case with many judicial decisions, there is some good news and some bad news. The good news is the the U.S. Supreme Court reaffirmed yesterday that fraud is not protected speech under the First Amendment to the U.S. Constitution.

In ILLINOIS EX REL. MADIGAN, ATTORNEY GENERAL OF ILLINOIS v.TELEMARKETING ASSOCIATES, INC., ET AL. CERTIORARI TO THE SUPREME COURT OF ILLINOIS, No.01-1806, 538 U.S.____(2003) (see it here in a 346k pdf file)

The Illinois Attorney General filed a complaint in state court, alleging, inter alia, that Telemarketers represented to donors that a significant amount of each dollar donated would be paid over to VietNow for specifically identified charitable endeavors, and that such representations were knowingly deceptive and materially false, constituted a fraud, and were made for Telemarketers' private pecuniary benefit.

In this case, VietNow, a charitable nonprofit corporation contracted with a telemarketer to solicit donations. The contract provided, among other things, that 85 percent of the money received would go to the for profit telemarketer, leaving 15 cents, on every dollar, to VietNow. The fraud occurred when the Telemarketers intentionally misled prospective donors into believing the majority of the donation would be going to VietNow.

The bad news (other than 85 percent of the donations going to the telemarketer and not to help Vietnam veterans - ed)? That the court reaffirmed that charitable solicitations are protected speech. That is, commercial speech, in the form of a charitable solicitation, even if, theoretically, 99.99999999 percent of the donation went to the telemarketer, is protected under the First Amendment as long as the Telemarketers does not mislead anyone regarding the amount going to them. Of course, the potential donor must ask the telemarketer what the split is because the telemarketer is under no obligation to volunteer that information. And even if you ask, that doesn't mean the telemarketer has to divulge that information. But if they refuse to tell you, and you decide to give them money anyway, then shame on you.

I guess you can file this under "let the buyer (or in this case, donor) beware."

Aloha!

When you pass a law that is illogical it becomes difficult to enforce because there is very little, if any, legal infrastructure to do so. By that I mean well thought out case law or at least logical arguments to backup the intent of the law.

So, when such a law is passed, and judges and juries are required to interpret disputes between parties, what results is usually tortured logic, law, and frequently: injustice, or as one person put it, a legally correct conclusion but at the same time patently absurd and lacking in any common sense.

This should not be a surprise. It has happened in the past and it will happen in the future. It is the logical result of an illogical law.

Conversely, you can have judges who will come to illogical conclusions, having realized the law itself is illogical, and therefore try to create a new law, rather than interpret it, or better yet, invalidate it.

But it is instructive to dissect such instances so that we can learn from them and reduce their occurrences.

One of the most egregious examples of such illogical laws is the so called "Digital Millennium Copyright Act" (DMCA). It has resulted in rulings showing both of the above problems.

In Lexmark v. Static Control Components, Inc., laser printer manufacturer Lexmark sought injunctive relief from Static Control Components (SCC) alleging irreparable damage and loss of revenue due to copyright infringement under, inter alia, 17 U.S.C. § 101 et seq. and yes, the DMCA, 17 U.S.C. § 1201 et seq.

As an interesting side light, it is instructive to note that in the Lexmark complaint they reveal their business model is based on selling relatively low priced lasers (but not as low as their competition) but high priced toner cartridges and other supplies for their printers.

One line of Lexmark toner cartridges includes an embedded micro-chip with copyrighted code. The complaint notes the code is used by the printer to determine toner level and is read by the printer's copyrighted programming.

And here is the where the DMCA comes in, the code includes an "authentication sequence, to prevent unauthorized access to its Toner Loading Program and Printer Engine Programs." If the authentication does not occur, access to the cartridge is denied and the printer will not print. It should be noted that Lexmark produces another line of cartridges that does not require this authentication (at a higher price) and, in fact, third-party manufacturers are free to legally produce their own replacements for this non-authentication line as no micro-chips are included nor required.

Now comes SCC, a manufacturer of third-party toner cartridges, including a line designed to circumvent the authentication sequence of Lexmark's chip by including their own chip that mimics the other.

The judge, following the relevant laws, ruled in favor of Lexmark. The case is currently under appeal. See the relevant documents here.

I'm out of time for today. Hopefully, on Monday I will have the time to go through a case in which a judge sought to ignore the law.

Have a Great Weekend Everyone - Aloha!

The second of two legal cases I started talking about last week is The Chamberlain Group, Inc., v. Skylink Technologies, Inc.

Chamberlain manufactures and sells remote controlled garage door openers (GDOs), including a line that uses what they term "rolling codes." Rolling code technology is described as a computer program that constantly changes the signal sequence that is needed to remotely open the garage door.

This changing of the sequence is marketed as a security feature since third-parties who record the sequence and try to replay it, at a later time, to gain unauthorized access to the garage, would be thwarted by the system using a different code every time it is used.

Comes now Skylink Technologies and what they call a universal remote control that bypasses the rolling code feature and opens the door without using such a code.

Chamberlain filed suit against Skylink under, inter alia, the DCMA contending that such bypassing violated the prohibition

because it illegally circumvents a protective measure (the rolling code) that controls access to its copyrighted computer program in Chamberlain's Security+ GDOs. Specifically, Chamberlain claims that Skylink has violated 17 U.S.C. § 1201(a)(2) of the DMCA, which states:

(2) No person shall manufacture, import, offer to the public, provide, or otherwise traffic in any technology, product, service, device, component, or part thereof, that--
(A) is primarily designed or produced for the purpose of circumventing a technological measure that effectively controls access to a work protected under this title;
(B) has only limited commercially significant purpose or use other than to circumvent a technological measure that effectively controls access to a work protected under this title; or
(C) is marketed by that person or another acting in concert with that person with that person's knowledge for use in circumventing a technological measure that effectively controls access to a work protected under this title.

Later in the opinion, the court states:

During oral arguments on this motion, Plaintiff acknowledged that under its interpretation of DMCA, a garage owner violates the Act if he or she loses the transmitter that came with its Chamberlain rolling code GDO, but manages to operate the opener by somehow circumventing the rolling code. This court agrees with Defendant that the DMCA does not require such a conclusion.

Here, the court appears to be trying to make a reasonable conclusion from an unreasonable law. That is, the law could not be construed to keep an owner from accessing his or her own garage. Even though, that is exactly what the plain language of the DCMA would require if it were to be enforced. While this certainly gives comfort to the defendant, it leaves intact the law itself. See the ruling, in PDF format here.

Living Large. Warren Zevon is not what one would describe as a role model. Unless you were looking for a rock and roll singer/composer from the Me Generation of the 1970s and 80s.

In a time of excess, Zevon and fellow traveler/author Hunter S. Thompson crossed the boundary of the known and struck out on their own brand of horror - one based on doing all the things your parents told you not to do.

In the end, such living caught up with Zevon, as it will for all of us. Warren Zevon, dead at the age of 56.

I saw a werewolf drinking a pina colada at Trader Vic's
His hair was perfect
Werewolves of London
Draw blood.

Fading Memories. Photographs document the times of our lives. But nothing lasts forever, as the images and our memories fade. And one day recently, SWMBO noticed that we had pictures of her late dad on the bookcase but none of mine.

Part of that is because my father passed away over 30 years ago and part of that is I didn't take any pictures with me when I moved out of my mother's house. So I went to see what I could find. What I found were a few images in faded color and few more in black and white.

Not wanting to display pictures in such bad shape, I decided to check out what was available as far as programs designed to restore and retouch images. For anyone on a budget, the choices narrowed down to Adobe Photoshop Elements and Jasc Photo Paint Shop 8. Both list for about $100 USD and both are designed for the non-artist who needs to do simple, and not so simple image manipulation.

Either will probably do what most people need to do but I chose Jasc because of political reasons more than anything else. Don't get me wrong, Adobe makes useful software, but I don't like some of their business tactics and so went with Jasc.

As it so happened, Doc Searl's mother passed away recently and Doc created a memorial in photographs (see it here). Some of the images, however, had faded or were scanned in such a way as to reduce the contrast and color saturation. So I decided to use Paint Shop Pro 8 on what looked like the most worn out images as a test. Before you click on the following link, be aware that you need a broadband connection because some of the images are large and will take a long time to download. The results can be seen here.

Most of the improvements you see are a credit to Paint Shop Pro and not any skill I may have. All I did on most of the images was tweak things a little here and there. However, two of the four did require a fair amount of manual work (see "1980" and "mom_flapper").

I think Paint Shop Pro does a great job of restoring the original contrast and color tones and is well worth the cost if you need to restore old photographs.

Aloha!

The fight is not yet over, but I am proud to be an American when a U.S. court stands up to the President and Secretary of Defense and says, in effect, No, you are wrong. You are not above the rule of law, even if there are enemies out there, the ends do not justify the means:

As this court sits only a short distance from where the World Trade Center stood, we are as keenly aware as anyone of the threat al-Qaida poses to our country and of the responsibilities the president and law enforcement officials bear for protecting the nation..."

But presidential authority does not exist in a vacuum, and this case involves not whether those responsibilities should be aggressively pursued, but whether the president is obligated, in the circumstances presented here, to share them with Congress..."

See one article on the ruling here and the entire ruling (186K pdf) here.

Have a Great Weekend Everyone - Aloha!

There is a useless tension between customers and the movie/recording industry. As customers, we purchase CDs and DVDs and expect that we may use them how we wish as long as we don't make copies and sell them. Broadly speaking, this is called fair use and is a long settled concept. But recently, certain Hollywood groups have been trying to change the equation by making fair use a thing of the past.

So I am heartened by a Norwegian court that recently upheld fair use by ruling that a customer may do with a DVD as he or she sees fit. Up to and including writing a program that removes a copy protection scheme so that he could watch the DVD on his Linux-based computer.

As long as the courts are free, there is hope. But I wonder how long it will remain so before the DarkForces corrupt the courts and turn them into lap dogs to do their every bidding.

On the work front, the Salary Commission continues on its break neck pace of meeting every two weeks so there is very little time for me to do the work they need me to do in the time available. So, I gotta go.

Aloha!

Are you required to show your ID to a Deputy? In some jurisdictions, the answer is probably yes. But the question to be heard before the U.S. Supreme Court on March 22nd is whether there a Constitutional right, under the Fourth Amendment, against having to do so? See the story here

A New Jersey woman, sued by the Recording Industry Association of America (RIAA) for allegedly swapping music files online, has in turn counter sued the organization under the Racketeer Influenced and Corrupt Organizations Act. The act, heretofore mostly used against organized crime syndicates is appropriate, according to her attorney, because the RIAA is using scare tactics to extort money from the individuals it sues.

See the story here.

Have a Great Weekend Everyone - Aloha!

ABC News is reporting an American Bar Association survey that found, among other things:

1. Three in four people would prefer that their cases be decided by juries instead of judges.

2. About half believe jurors are treated well by courts.

3. Nearly 60 percent look forward to jury service.

While this is great, if true, I wonder why it's so hard to get people to show up for jury selection? The article goes on to name a few of the problems like the cost and shabby conditions but I think they leave out the most important problems: 1. Waiting for hours at a time before getting chosen and more importantly; 2. Waiting for hours at a time only to be told to go home.

I say the second problem is more important because no one want to waste hours waiting around only to be told they're not needed. I have seen studies that indicate people who actually serve have a much higher opinion of the process. From that I draw the conclusion that once you see what the process is and what it's for, you come away with a deep appreciation of how important it is to serve as a juror.

On the other, waiting around and then going home is just a waste of time. Hence, the problem, as I see it, is to call only as many jurors as needed for a trial and to keep lawyers from sending people home without reason.

I'm calling this a win for the good guys because, I think, it points out the fact that commercial "speech" can be regulated. As a sidebar, it's amazing to me how people can spin unwanted commercials into something called "speech". Corporations don't speak, buildings don't speak, people do.

In any case, I am extremely happy that the US Supreme Court has let stand a lower court ruling that the "Do Not Call" list does not run afoul of the US Constitution.

Aloha!

A state of Virginia jury convicted two people of spamming. The recommended sentence? Nine YEARS in jail. I don't know if the recommendation will be used and if so, will it stand up during appeals. But still, it sends a message...

Read the story here.

[Insert Disclaimer Here. I am not a lawyer. This is not legal advice nor an offer of such. The door is a jar.]

One of the core values of the US Constitution is the right of citizens "to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures," It is enumerated in Article IV of the Bill of Rights.

But, as with most if not all rights, it is limited by other rights. In this case, the next Article of the Bill of Rights says "No person shall be...deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation." [Emphasis added.]

The last part of Article V balances Article IV in that seizures, by the government, of private property can be legal if done for a public use and with just compensation. The exercise of such power is called eminent domain.

The key question in disputes between parties is usually what is a public use. Think about this hypothetical. A municipal government wants to buy several private properties so that a hotel, shopping mall, and office complex can be developed on them. This is part of a planned redevelopment effort with the intent of making the town more attractive to businesses and therefore generating more tax income. The city then condemns the land and pays the going rate for both the property and any homes on said properties. All of your neighbors agree to the offered prices and soon move away. For your part, you have lived in your home all your life and don't want to sell or move. The city goes to court to force you off your land and out of your home. Is this taking for a public purpose?

Expand, if you will, that hypothetical a little farther down the road. You are the owner of a hotel. You want to expand and create a much larger complex that would include not only a hotel, but an office building and shopping mall. But your neighbors are other hotel and small business owners and they do not wish to help you run them out of their businesses. So you go the the city government and get them to condemn the land and force the others to sell their businesses to you. Government has thus created a monopoly and the hotel owner can now raise rents to levels not possible when there was competition. Is this taking for a public purpose?

According to a ruling from the US Supreme Court today, the answer to both hypotheticals appears to be yes, they are. Previously, eminent domain was traditionally used to build public schools, public roads, or public parks. The key word being public. Now, eminent domain can be used for private purposes such as privately owned hotels, privately owned shopping malls, or privately owned office complexes.

I can't comment on these cases but it now appears government has an expansive right to seize your property for uses that lay, in my opinion, far from what what appears to be a public one.

Aloha!

[Insert disclaimer here] If something between 40 to 60 percent of death penalty cases are reversed on appeal because, perhaps, the person is actually innocent, does that mean we should get rid of the appeal process? If you are Republican Congressmen Dan Lungren and Jon Kyl the answer appears to be yes.

It seems these two men want to "streamline" the legal process by eliminating or sharply reducing the ability to appeal death penalty verdicts. Surely it must concern them that innocent people would be killed. But based on their bill, it seems the focus is that the sentence will be carried out more expeditiously.

According to a source in the article, most reversals are based on: "egregiously incompetent lawyering, prosecutorial misconduct or suppression of evidence, misinstruction of jurors or biased judges or jurors," said the study published in the Journal of Empirical Legal Studies."

The solution, in my opinion, is to get rid of the death penalty. Once someone is executed, you cannot correct an error. Hence, judges and juries are very circumspect when sentencing someone to death. If there wasn't such a need to be so cautious, cases could move much more efficiently through the system (if that's what the two men are actually concerned about).

Insert disclaimer here. Sometimes, it seems, lawsuits are filed as a way of retribution rather than a path to justice. Although, which it is (retribution or justice), is probably defined by which party you are and whether you win.

But sometimes, such suits are recognized for what they are and the court is able to order remedies that, perhaps, will decrease the likelihood of other such suits.

For example, a US District Judge recently fined a "law firm and two of its attorneys...$267,000 for helping the developer of a controversial condominium project file a frivolous lawsuit against its opponents..." (read the story from FindLaw here).

It seems a developer wanted to build, among other things, 132 luxury lake-side condominiums. But the residents of a small nearby town protested the move saying "the development would threaten the bald eagle, which is protected under the Endangered Species Act."

The developer retained the attorneys to file a racketeering lawsuit against several of those opposed to the development. However, the judge found no basis for the suit, dismissed it, and took the extraordinary step of fining the the law firm and two attorneys.

Although the fine will be appealed, the judge does seem to have sent a message that is being heard, loud and clear.

Programing Note: Tomorrow is a state holiday (Statehood Day) so no post until Monday.

Aloha!

The state of New Mexico passed a 2004 law that provides for the permitting of citizens to carry a concealed weapon if "they complete firearms training and pass national and local criminal background check."

Since then, approximately 3,100 New Mexico citizens have received the permits. Although I'm sure many people thought the world would end with so many gun toting people running around, it hasn't happened.

In fact, until last week, none of the permitees had discharged their weapons (other than, perhaps, at the shooting range). It seems a 72 year-old volunteer named Due Moore, with the police department's cold case unit, observed a man stabbing a woman. Apprarently, Moore ordered the man to stop, but the man continued to stab the woman, so Moore fired his weapon and killed the assailant. [See the article here]

The article says, under New Mexico law, it is up to the District Attorney's office to decide whether to prosecute Moore. However, the preliminary investigation appears to support a justificable action.

I know, a lot of people think, since I'm a Democrat, that I'm against all guns. That is incorrect. I have no problems with guns. In high school, I was a member of a National Rifle Association affliated rifle shooting club. Later, I became an adult member of the NRA (I am no longer a member, but the reasons for that have no bearing on this subject).

Target shooting, I believe, can build concentration and discipline (not to mention having a lot of fun). That said, I do have problems with people who shouldn't have guns using them, but I am all for law abiding citizens being able to protect themselves and others. Bottom line is as long as you responsbily use firearms, I have no problem with citizens owning and using them.

Aloha!

I am not a lawyer. These are my opinions and no one elses. Insert disclaimer here.

As I sat down last night to read the US Supreme Court's decision, I became sore afraid. It was as if I was staring into the hissing mouth of the Great Serpent. A serpent intent on squeezing the life out of every living thing. But I digress.

In a 62 page opinion (link to PDF of 546 US ___ 2006 ), the US Supreme Court struck down yesterday an attempt by the Federal government to invalidate the state of Oregon's physician assisted suicide law.

In a curious use of existing regulations, the Executive Branch sought to bypass Congress and, in effect, create laws that would ban the state of Oregon from using controlled substances to carry out the wishes of certain terminally ill patients.

Whether you agree with physician assisted suicide or don't is not the point. Rather, do you believe in checks and balances? Do you believe that no one, including the Executive Branch, is above the law? Do you believe in the Constitution? Do you believe in a form of government in which the ultimate power resides with the people, not the government?

Ultimately, this is what was at stake here.

In building it's case against the Attorney General, the Court found that "A rule must be promulgated pursuant to authority Congress has delegated to the official." That is, the Executive Branch cannot legally create or exercise powers that Congress has not specifically delegated to it. Hence, when the Executive Branch sought to create, seemingly out of thin air, the power to jail physicians who were carrying out the legal wishes of their patients, the Court correctly held, in my opinion, this taking of power illegal.

In an almost chilling foretelling of recent acts by this Executive Branch, the Court found that "The federal-law factor requires the Attorney General to decide '[c]ompliance' with the law but does not suggest that he may decide what the law is." Here the Court slapped the Attorney General for attempting to make the case that the Executive Branch, not the Judiciary, is charged with determining what laws mean.

It is amazing to me just how brazen this Administration is. As far as I can see, this President, and his appointees, see no limit to their powers. These people apparently feel they are omnipotent and perfect in their understanding of the law because only they can judge its meaning. To suggest otherwise, in the eyes of this Administration, is to be unpatriotic because, by definition, they are omnipotent and perfect.

If that wasn't bad enough, the federal government sought to expand its dominion over the states by preempting and interfering with the state of Oregon's ability to manage its own affairs and ultimately, entering into the physician's office itself and intruding with the physician - patient relationship. "The Government, in the end, maintains that the prescription requirement delegates to a single Executive officer the power to effect a radical shift of authority from the States to the Federal Government to define general standards of medical practice in every locality." How this radical attempted expansion of federal powers is squared with Republicans who say the best government is the least government is not clear to me.

What seems to be clear is the present administration will continue to attempt to get its way, regardless of what Congress has stipulated and regardless of what the Constitution grants. If Congress does not go along with proposed legislation, then the Executive Branch will simply ignore Congress and illegally do want it wants, regardless.

What seems to be clear is the present administration will continue to try to expand its powers as long as no one is willing to stop it (which Justices Scalia, Thomas, and newly appointed Chief Justice Roberts are more than willing to let the Executive Branch do what it wants without limits).

Although the Court has ruled against the Executive Branch in this case, it is just a matter of time before enough fellow traveling judges are appointed to the Court. On that sad day, the transformation to the Dark Side will be complete. Woe be unto those who are alive to see the sunset of our freedoms.

Aloha!

The Ars Technica site has a story that says the MPAA admits it creates copies of copyrighted materials and is justified in doing so. In fact, the MPAA made the copies even though the copyright holder specifically prohibited the MPAA from making such copies.

Taking a cue from the Bush Administration, the MPAA says it's justified in making the possibly illegal copies because, well, they say they can. They go on to say they are justified in making the copies because the subject matter includes some of their staff.

To the few people who have been living under a rock for the last few years, the MPAA has sued to enforce copyrighted movies. Essentially, the MPAA feels all movie customers are pirates and therefore they are justified in whatever action they may choose. Apparently, including breaking the very laws they have used to sue others.

Needless to say, such two-faced behavior by bully associations like the MPAA is not surprising. But I wouldn't be surprised if the copyright holder of the movie in question sues the MPAA.

Well, not exactly. But maybe. The RIAA is trying to remake the law, and some would say history, by promulgating a rule that would make ripping your own CDs to iPods illegal. That's right, under this rule, you would be breaking the law if you to take your own CDs and rip them to, for example, an iPod. Or to your PC. Or, for that matter, anything. In fact, you wouldn't be legally able to make any backup copies of anything. I wonder if you memorized the words or music of a song if the RIAA would say that was also illegal?

Aloha!

There are always two sides to every story. However, when the press reports on an issue, it is sometimes tempting to to shade things such that a situations appears to be one way, when it's actually something else.

I've seen this in the local headlines for our two major newspapers. One paper will say the story is one thing while the other says the opposite. For example, and these are just made up headlines but I think they portray what I am saying: "Hawaii Schools Near last in Achievement" vs. "Hawaii Schools Highest in Improvement." In this case, each may be accurate. Or not.

But in other cases, the headlines say the opposite of what the story actually is. I've seen this several times in the morning paper where the headline would lead to believe one thing, but their own story says just the opposite. This troubles me because many people don't get past the headline and even if they do, it's the headline they will remember, rather than the story that refutes the headline.

Given these caveats, a news report says a federal judge has has ruled that a teacher who allegedly filed "multiple frivolous" law suits against the school district he worked for must pay the district $270,000 in legal fees. The US District judge found that the teacher

transformed "every injustice, insult, or inconvenience, real or imagined," into a violation of his civil rights.

[The teacher]...alleged discrimination "of virtually every type (sex, race, national origin, age, and disability)"...

I don't know if the story is accurate. It could be. There are in fact people who try to use the legal system as a way to spread injustice. Whether this is one of those occasions, I cannot say. If it is, then perhaps the teacher deserves what he got because he denied justice to others.

But I wish the newspapers would spend a little more time digging into the story to figure out why someone might take things to extreme. Was he, in fact, wronged at some point? Did the school system, in fact, play a part in his behavior? What, in fact, was the other side of the story?

Aloha!

This California case [link is to a PDF file] could make anyone squeamish so don't proceed if you are faint-of-heat. You have been warned.

It seems a woman was riding, on a lake, as a rear-seat passenger on a two-person water-jet powered craft when, while in motion, she fell off the back of said craft.

For one brief instant, the fast moving jet of water exiting the back of the craft was aimed directly at her buttocks. In that frozen in time moment, the water tore through her bathing suit, into her anus and then into her internal organs, causing extensive and permanent injury.

According to the case, she no longer has control over her bowls or bladder. In addition, she has lost feeling from her waist down to her knee, essentially ending her sex life.

Leaving aside who was at fault, and realizing that this type of injury, according to the case, appears to be rare, the thing to remember is that these can be dangerous vehicles and you should pause and reflect on what that means and what you can do to avoid similar injury.

Being a judge is many times a thankless job. Thank goodness there are those who are willing to do it anyway. But when such people are shot by those who disagree with their opinions, it gets that much tougher. I mean, what do you say to a prospective candidate? "Oh, by the way, other related duties include getting shot by those who disagree with you?"

A Reno, Nevada judge was shot yesterday. A "person of interest", who happens to have had a divorce case before the judge, is being sought.  Last I heard, the judge is in stable condition so thank God for that. But we need to remember that there are people out there who will use violence against judges. So, the next time you have to go through a magnetometer at the court house door, know that it's there for a purpose and not just to make life difficult for you.

A couple of quick judicial notes that seem to illustrate that what gets published isn't necessarily the truth, the whole truth, and nothing but the truth.

According to this Honolulu Advertiser article:

When it was announced in the courtroom last month that the jury found him not guilty of abusing his son, Junior Stowers raised his hands and exclaimed, "Thank you, Jesus."

But instead of leaving the courtroom, Stowers was cited for contempt of court by Circuit Judge Patrick Border for the "outburst."

The second story is about a New York Advisory Committee on Judicial Ethics ruling that it is permissible for New York judges to carry firearms into the courtroom. According to the AP article, via Seattlepi.com (I tried to find the ruling itself but was unsuccessful):

"From an ethical standpoint, there is no prohibition ... barring you from carrying a firearm while performing your duties on the bench," the committee said in a decision published in this week's New York Law Journal.

There has got to be more to this than what has been published so far for both stories. YMMV. Insert disclaimer and disclosures here.

Aloha!

Did you ever think the politicians who create the laws were a bunch of idiots misguided public servants and that a monkey novice could do better? Well, now comes something called wikocracy. What they do is place selected legal documents in a wiki and then invite people to modify the law, in any way you choose. You can make it better, or worse. You can delete whole sections or add new ones. You can totally change the aim of the law at a whim or propose you own new law.

Of course, as with many wikis, what you do can be undone by the next person. But, I guess, the hope is the collective work of many hands will, over time, improve the law and make it a model that politicians can use. Or it can be a complete waste of time. YMMV. Insert disclaimer here.

Aloha!

An Ohio court case (State v. Elmore, Case no. 2004-0041) has a novel basis for an appeal. Among other things, the appeal says the jurors were not allowed to take a smoke break during their three hour long deliberations. Hence, according to the argument, the jurors felt rushed and therefore predisposed them towards a quick decision.

According to the Akron Beacon Journal,

Prosecutor Robert Becker, who tried the case, said he believes the verdict and sentence will stand despite the smoking angle and other elements of the appeal.

"I don't think I've ever heard of this one. It's relatively novel," he said.

Joshua Dressler, a law professor at Ohio State University, likewise gave Elmore's appellate team credit for creativity.

+ + + = = = + + +

In other legal news, some folks in New Mexico are up in arms regarding a custody/adoption case in which the biological father of an adoptee is protesting that parental rights should return to him. The Albuquerque Tribune is reporting that:

According to the opinion, it was not sufficiently proven that Huddleston had abandoned the child after the birth and that his consent was required before the mother proceeded with the adoption.

The appellate court also ruled that Huddleston's actions, or lack of them, before the baby's birth don't prove that he caused the parent-child relationship to disintegrate.

Aloha!

It may be redundant to say that they do things differently in Florida.

But it seems that people have been illegally parking in reserved stalls at the West Pasco Judicial Center (located north west of Tampa, Florida). But rather than ticketing and/or towing the cars, the user of one of the reserved stalls decided to take more direct action. Namely, the judge assigned to the parking stall blocked the illegally parked car in with his car and did not move his car until the end of the day.

Although there is a certain amount of street justice in the judge's action, you have to wonder if it wouldn't be wiser (and more expensive/inconvenient to the owner) to just tow the car away.

Aloha!

The research committee developed two recommendations: performance management and information technology deployment. Both are worthy of consideration.

That said, it should be remembered that public institutions are categorically different from private businesses. Public offices should be more transparent in operation, open to comment, and accountable to citizens. Private businesses are just that, private. Businesses, for the most part, are not required to let you know how they operate, why they make certain decisions, nor must they respond to the general public.

Sometimes people, both inside and out of government, forget these differences and try to force the either to behave more like the other. I don't consider a blind adherence to this a GoodThing. Although public institutions should operate as efficiently as possible, this does not mean efficiency should be the paramount priority. Yes, I know, there will be some who will vehemently disagree. But here's why I think reasonable people would not.

Justice is supposed to be evenly applied to everyone. For example, in a criminal case, if you are not able to afford representation, an attorney should be supplied to you. This costs money and is not the most efficient way of operating. But our society has decided that people should not be abandoned without assistance just because they don't have money.

In our system, the accused is assumed innocent until proved guilty. Obviously, the safeguards in place to ensure a fair trial cost more that if the accused is assumed guilty and must, therefore, prove his or her innocent. The cost burden in the second instance is squarely on the accused.

The point is, we love our freedom so much that we are willing to support an inefficient system so that the innocent are not deprived of their rights without due process of law. I am willing to support that system, even if some do not. YMMV. Insert disclaimer here.

Aloha!

We were first, but comes now an even stronger reaction by a North Carolina judge:

On Oct. 4, the first day of the latest trial, [Judge] Helms stopped [attorney] Marshall during the questioning of one of the witnesses.

Marshall said "Lord," reared back in his chair with outstretched arms, cast his eyes upward and turned to the audience, Helms said.

"How am I supposed to take that?" Helms said Thursday as he penalized the lawyer. "If the court does not get the respect from members of the bar, we can't have the respect from clients, and then we have anarchy."

The sentence for contempt of court? Two days in jail, 30-day suspension of his law license, a psychologist's examination, and performing 70 hours of community service.

Aloha!

Insert disclaimer here. I am not a lawyer nor am I giving legal advice. This post, as is the case for all my posts, is my personal opinion and does not necessarily reflect the official position of my employer or anyone else. YMMV.

Many believe that to own property, and to be secure on said property, is basic to our way of life. But there is a difference between private property and public property. The latter is intended for the use of all, not just one land owner. But sometimes, the dividing line between abutting properties is in dispute.

For example, Hawaii shorelines are public property. Hence, all citizens may stroll the beachs and swim in the ocean beyond. But where does the shoreline end and private property begin?

Under Hawaii Revised Statutes 205A-1(2001) Definitions, shoreline "means the upper reaches of the wash of the waves, other than storm and seismic waves, at high tide during the season of the year in which the highest wash of the waves occurs, usually evidenced by the edge of vegetation growth, or the upper limit of debris left by the wash of the waves."

Over the years, land owners began to plant and artificially irrigate vegetation along the shoreline. In some cases, it appeared the plants were cultivated with the intent of extending the private owners claim to additional property. In other words, the private owners were trying to expand their property by taking what was public property. But regardless of the intent, the plants spread and thus, according to the understanding of some, changed the shoreline property lines.

This interpretation seemed to have been adopted by some land surveyors who would choose between the edge of vegetation or upper limit of debris left by the wash of waves based on which was more "stable." In time, the vegetation line, rather than the wash of the waves, became the de facto standard for many.

As a practical matter, stability is usually a good thing. But in this case, the statute appears silent as to requiring stability. In fact, an alternative interpretation of the statute could be that stability was not the most important factor to consider. Rather, the statute seems to embody an intent to keep public lands as expansive as possible, even if it may vary from time to time due to variables such as wave action.

Secondly, and perhaps more importantly, the statute refers to the "upper reaches of the wash of the waves" as the defining criteria. Although it goes on to give guidance as to two ways to help determine the line, the plain meaning of the words and therefore the controlling factor still appears to be the upper wash of the waves.

On Tuesday, the Hawaii Supreme Court ruled on a just such a dispute over where the shoreline ends and private property begins. In general, the court finds that the legislature's intent and "public policy...favors extending to public use and ownership as much of Hawaii's shoreline as is reasonably possible." Hence, in choosing between the vegetation line or the debris line, the one that favors as much shoreline as is reasonably possible is the deciding issue, not which is more stable. In addition, the court specifically rejected "attempts by landowners to evade this policy by artificial extensions of the vegetation lines on their properties."

Aloha!

The Nebraska State Paper has an article headlined "Too Many Critics Do Not Understand The Duty of Judges". It seems a lot of very earnest and passionate people either don't seem to understand or perhaps don't care that judges are supposed to be impartial.

Let's step back for a minute and define the word impartial. My Oxford Dictionary (10th ed.) says the following: "adj. treating all rivals or disputants equally." My Black's Law Dictionary (8th ed.) defines it as "Unbiased...".

What this means is that the judge is supposed to treat everyone the same, regardless of who may have the more vocal following. Even if it means the judge's life is at risk, he or she is to issue an impartial opinion, based only on the facts of the case and the law.

There are judges that have been killed because they refused to issue a biased opinion. An opinion based on what one group, or even the majority may have wanted, but was contrary to the rule of law. But to do so would have been contrary to what John Adams once hoped: "to the end it may be a government of laws and not of men."

As the article's author put it "Too many people don't understand that a judge is never supposed to make a decision based on what is politically or socially popular with any group - or even with a popular majority, statewide or local." [emphasis in the original] So, for certain groups to loudly proclaim that a judge is not listening to them, and them alone, is not a criticism of the judge. But it may be a criticism of them.

As I've said before, if people have problems with a law, and not all laws proposed by men may be just or fair, then petition their legislators to change the law. In a democracy, this is a way to defend freedom for all.

The author closes with "The independent judiciary is supposed to be independent. The former is obvious. Sadly, it is not obvious to everyone." Let us never forget why the judiciary needs to be independent. For if we fail to do so, the solutions we arrive at may be worse than the problems.

Aloha!

'Tis the season to celebrate. But not too much. The folks over at Slate, responding to an article over at Lawyers.com, have come up with the perfect boiler plate wording to accompany your company's holiday season party invitations:

WARNING: You are herein invited to attend a Holiday Party. Should you choose to attend this event, you are herein advised that you do so at your own peril. Food served may be manufactured in factories that may contain machinery that may have touched peanuts. In the absence of any coherent party-based sexual-harassment policy, you are warned that any hugging/touching/casual flirting/wine-stem fondling/hair tossing/breast gazing/butt grabbing will be deemed actionable at law. All guests must maintain a 5-foot distance from all others at all times (spouses included). Appropriate topics for conversation are: work; sports; light political banter; reality-television shows. Any unapproved conversational topics shall be cleared in advance by the Human Resources department. All dance moves shall be preapproved by the HR department. Seminars on these moves shall be conducted twice daily in the small conference room on the second floor between now and the day of the party. All closets, conference rooms, restrooms, and other possible areas of sexual misconduct are to be padlocked for the duration of the event. Small children are to be chaperoned at all times. Any child found playing or otherwise conducting himself in a childlike manner will be summarily removed from the premises. Should you or your partner feel at any point during the party that you have been sexually harassed, socially discomfited, religiously proselytized, or otherwise made to feel uneasy in any way, a team of HR lawyers will be made available to you immediately. Do not minimize your feelings or wait a few days to see if the bad feeling blows over. Prompt attention to any social discomfort is critical to eradicating it in the workplace. Once again, we wish you and yours a very happy holiday season, and hope to make this year's office party the best ever.

Even though the courts are sometimes considered to be part of something called the justice system, I've long felt that courts interpret the law but legislatures define what justice is by creating laws. I know extremist on the left and right, each for their own reasons, may disagree.

But I believe the proper role of the courts does not, except in truly extraordinary circumstances, include legislating from the bench. Hence, I feel the actions of the courts in following the law and sentencing a drug dealer to 55 years in prison was correct. It is the law and the courts followed it.

The courts could have intervened if the law was found to be unconstitutional. However, it was not. Yes, deciding what is or is not constitutional may be a gray area and could change over time. But the courts must respect the law or, as I've posted before, the rule of law is lost.

So, the proper course of action for those who wish to change this is to petition their legislature. If, the legislators fail to act, then vote in different people who will. This, I believe, is how it is supposed to work.

"This is a court of law, young man, not a court of justice."
    -OLIVER WENDELL HOLMES Jr. (1841-1935)
    Supreme Court Justice

Have a Great Weekend, Everyone - Aloha!

Things in Utah must be pretty boring. It seems an attorney wrote an anonymous complaint saying judges are sleeping on the job. Although I work in a courthouse, I don't actually go to very many sessions. In fact, I've probably only gone to a handful, and only because I happened to be a juror in the case so I'm no expert in courtroom behavior.

But I would be surprised if this happens very often. But if it does, I would think its up to the judge's staff to do something.

Aloha

Columnist Robert X. Cringely has a two-part post on what he calls Microsoft Dirty Tricks. I have no idea if the events as told in his column occurred. But, if they did, there might be legal entanglements, as it were. According to his post, someone, perhaps an Microsoft employee, removed backup tapes that may have included communications relevant to a court case and under court order to produce. Yet, somehow, the tapes, which MS never admitted existed, disappeared. You be the judge. But if you have any dealings with MS, it may serve you well to make good backups of all communications with it. YMMV. Insert disclaimer here.

As with many situations, one of the challenges is determining whether the benefits outweigh the costs. The enforcement of laws may be one of these situations.

It seems that for most laws, enforcement is predicated on the assumption that the great majority will follow the law without the need for enforcement. In many cases this turns out to be true because because rational people can see the benefit to themselves (e.g., most, but not a growing number of drivers, choose to stop at red lights because of the high probability of being hit, broadside). Leaving aside the anarchist and sociopaths, who won't follow most laws regardless of, well, anything, this system is less costly than having a police officer (or camera) on every corner.

But when it comes to addictive behaviors, things get a little more complicated.

Disclosure: I don't smoke. Never have. And Lord willing, I never will. But, according to the Centers for Disease Control, there are about 45 million US citizens who do. As far as I know, growing and consuming tobacco, under most circumstances, are not illegal.

Recently, however, a increasing number of communities have decided to ban smoking in public places because of information that suggests so called second hand smoke is lethal to the health of about 38,000 non-smokers, annually (it's pretty clear that smoking is dangerous to the health of the smoker).

The problem with addictive behaviors is that many otherwise law abiding folks may tend to break the law when it comes to smoking in public places (see also the great experiment with banning the production and consumption of alcoholic beverages).

Like the alcoholic version called speakeasys, this article from philly.com talks about what is termedsmoke-easys. That is, establishments where illegal consumption of tobacco is common. Even here in Hawaii, the law banning smoking is being challenged and certain bars are ignoring the ban because, they say, they are losing money.

Leaving aside the question of whether public policy should be set by people intent on killing other people through second hand smoke, the question remains as to whether the police should begin enforcing the ban on smoking? So far, the local police seem to be saying no and that educational efforts to get the smokers to voluntarily follow the law are more cost effective. But what happens as the number of smoke-easys begin to spread? Doesn't this require enforcement by police? At this point, it seems to me that either you have to start enforcing the law or you have to delete the law. To do otherwise would, I expect, lead to an even more costly result - the loss of the rule of law. YMMV. Insert disclaimer here.

Aloha

Maybe I should move to Texas (just kidding). At least there, you can stand your ground, whether in your home, office or vehicle and protect yourself, unlike some states where you must to run from anyone threatening imminent deadly harm to you or your loved ones.

This Reuters article says the Texas legislature passed and the Governor signed into law an expansion of an existing state law. The amendments added a person's place of work and vehicle to a his or her home as places where one could use deadly force under certain circumstances (see information on Texas Senate Bill 378 here).

It is, of course, a policy question but one I tend to agree with. Why should people have to try to run if they have the means to defend themselves from deadly attack? Doesn't running just reward and therefore reinforce violent behavior? Perhaps I'm wrong, but it seems citizens have a right to, among other things, life and liberty. So why not permit them to protect those rights and deter those who would take them away?

Aloha

It's not often that the Hawaii Attorney General (AG) gets to tell the Hawaii Supreme Court Chief Justice that he (the Chief Justice) is wrong. Usually, it's the other way around.

But such is the case in the AG Opinion No. 07-01. Under Article VI, Section 3 of the Hawaii State Constitution, the Chief Justice has 30 days to fill a District Court judge vacancy. How it works is a commission creates a list of nominees from which the Chief Justice may pick a replacement District Judge. However, if the Chief Justice does not make the selection within 30 days, the Constitution provides that the commission has the authority to make the choice itself.

In this case, the Judiciary "computed the time in accordance with statutory and rule provisions that authorize an act that comes due on a weekend or holiday to be performed on the next business day." Since, in this case, the 30th day fell on a Saturday, the nomination could, according to this line of thought, be made on the first business day following the weekend (see the Judiciary press release here).  However, the AG argued otherwise and having reviewed the opinion, the Chief Justice now agrees that the selection was not made in a timely manner. Hence, the commission will make the selection.

Aloha

No one is perfect. It follows that no system created by humans is perfect. Hence, when it comes to law enforcement, innocent people are sometimes put in jail or even put to death.

While I always try to support our local law enforcement officers, even though they think I am some kind of serial bank robber (anytime there is a bank robbery by someone that even remotely looks like me they stake out where I live. Not to mention the second in command of security at one of the local malls whose brother, a policeman, used to be a tenant of ours, but failed to pay two months rent and then skipped town to live in Las Vegas, calls my wife and I master thieves running a ring of other thieves. But, I digress).

But I think the so called "no knock" warrant, which permits police to break into a person's home without knocking and identifying themselves can be a valuable tool against people who would otherwise have the time to flush the evidence down the toilet.

That said, when the information the police act on is wrong, as it will be sometimes, the results can be tragic, not to mention illegal and entirely foreseeable.

This report says Georgia police broke into a 92-year-old woman's house without identifying themselves. The no doubt terrified woman, grabbed a handgun she kept nearby for just such a home invasion by crazed drug users, fired one shot, missing everything except the front door. The police fired back 39 times, hitting the woman five or six times (they don't' know? - ed) and killed her.

Unfortunately, the illegal drugs the police thought she was selling was not to be found. In fact, they couldn't find anything illegal. So they did what some police apparently do in such a situation, they planted their own drugs. One wonders where they got the drugs they planted. Did they keep it for just such an occasion? If so, you have to wonder about the type of people who would behave that way.

As an aside, I knew of one local police officer who kept a gun that had been reported stolen. He kept it in the trunk of his car, hidden in the spare tire. Although I don't know why he kept the gun, and he has long since passed away, it doesn't take a large leap of the imagination as to when such a gun might come in handy. Of course, I am just speculating here and maybe there is a legitimate reason for a police officer to hide a gun reported stolen. But then, maybe not.

But back to this case. The cover up by the police officers fell apart and they are going to jail after pleading guilty to state and federal charges. Still, it leaves open the question about whether the benefits of "no knock" warrants outweigh the costs.

Personally, I don't think police should succumb to the seductive "no knock" warrant. No one ever said law enforcement is an easy job. In fact, if done right, it shouldn't. This, even though some real drug dealers might, temporarily, get away. To me, it is better that a guilty person go free than an innocent one be killed. I don't need a sense of safety so much that I'm willing to let innocent people get killed in the name of the war on drugs.

Have a Great Weekend, Everyone - Aloha!

In the opinion of many jurors, an eye witnesses account is the gold standard of any case. If there is a disinterested third-party who saw what happened, that's pretty much the end of the case. The problem is, eye witness accounts may be the most unreliable way of determining what happened.

This Baltimore Sun article points out that of the 200 cases that have been overturned through the use of DNA evidence, fully 77 percent of the innocent people convicted of crimes were imprisoned, in large part, by faulty eye witness accounts and the police and prosecutors who used them. It was only through the later use of DNA testing, by an outside organization, that these wrongly accused and imprisoned individuals were released.

It is frightening to think how easy it is to be wrongly accused and found guilty of actions you did not do. How well meaning, but objectively wrong, witnesses can mis-identify people. How some police and prosecutors fail to carefully sift through all of the evidence before focusing on one person. How this person can spend decades of their life in prison for something he or she did not do.

I don't know if there is a best answer to this problem other than jurors, police, and prosecutors need to carefully consider the weight of a case that rests solely on an eye witness account. If there wasn't any objective forensic evidence, perhaps the case has not been made and no charges should be brought. YMMV. Insert disclaimer here.

Aloha!

Also in the news, the question of whether web-based bloggers/reporters enjoy the same or similar privileges as print/TV journalists may soon be tested in a Hawaiʻi court. The blogger, a former reporter for a local business weekly and now editor/reporter/blogger for a local website will be deposed as part of a trial involving the failure of an earthen dam on the island of Kauaʻi last year. The blogger is reported to have done several articles/posts on the breach and the defense attorney wishes to question the blogger regarding these.

The article indicates that the blogger fought the subpoena requiring her to be deposed on the basis on reporter's privilege, but was unsuccessful in her effort. How much she must reveal during deposition and whether she might have to testify is not known.

Although I do not generally read the site mentioned, the question is an important one. I think many will be following this one to see what are the rules of the web, as it were.

Aloha!

For you attorneys practicing in Hawaiʻi, or for members of the press or public, you may wish to review the following from "Exhibit A Hawaii Rules of Professional Conduct" Rules 7.1 through 7.3. Especially 7.3. Have a nice day.

7.1 Communications Concerning a Lawyer's Services
7.2 Advertising
7.3 Direct Contact with Prospective Clients

Aloha!